Moreno and Moreno - [2009] FMCAfam 1109

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MORENO & MORENO

[2009] FMCAfam 1109

FAMILY LAW – Property proceedings – application to set aside a binding financial agreement.

Family Law Act 1975 ss.90KA, 90K(1)(e), 90C, 90G, 90G(1)(e)

Fevia & Carmel-Fevia [2009] FamCA 816
B and B (2008) 38 FamLR 503; FLC 93-357
Williams v Bayley [1861-78] All ER Rep 227

Applicant:

MS MORENO

Respondent:

MR MORENO

File Number:

CRC 178 of 2008

Judgment of:

Demack FM

Hearing date:

9 October 2009

Date of Last Submission:

9 October 2009

Delivered at:

Brisbane

Delivered on:

26 October 2009

REPRESENTATION

Solicitors for the Applicant:

Susan Green Legal Practice

Counsel for the Respondent:

Ms Howe

Solicitors for the Respondent:

Harbour Law

ORDERS

That pursuant to section 90K of the Family Law Act 1975 the financial agreement dated 28 August 2005 be set aside.
That the husband file and serve his response, form 13 financial statement and affidavit in support no later than 4.00pm on

23 November 2009.
That the husband and wife disclose documents as prescribed in Annexure A no later than 4.00pm on 23 November 2009.
That in the event the valuation of any former matrimonial property remains outstanding by 19 November 2009 the parties shall obtain a joint valuation, with the wife by 21 November 2009 to provide a panel of three proposed valuers to the husband and the husband to chose a valuer from said panel within forty eight hours of receipt of said panel. In the event the husband fails to elect a valuer the wife be at liberty to make such election.
That the husband be responsible for the costs of any valuation in the first instance but with the ultimate incidence being reserved to trial.
That the husband pay the wife’s costs of and incidental to this application fixed in the sum of EIGHT THOUSAND FIVE HUNDRED DOLLARS ($8,500.00) such sum to be paid within thirty five (35) days.
That this matter be adjourned for further mention to 9.30am on

2 December 2009 in the Federal Magistrates Court sitting at Coffs Harbour.

IT IS NOTED that publication of this judgment under the pseudonym Moreno & Moreno is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

CRC 178 of 2008

MS MORENO

Applicant

And

MR MORENO

Respondent

REASONS FOR JUDGMENT

Is it unconscionable for a husband who has sought and obtained a wife from Russia to come to Australia, where the relationship is unstable and marked by separations and where the husband is the sole sponsor and indeed, sole basis for the wife’s residence status, to require her to sign a Binding Financial Agreement which is most unfavourable to her on the understanding that if she does not sign the document, the marriage is at an end?
And if the document signed by the wife is later altered by the husband with the alterations initialled by the wife without legal advice does the document constitute a Binding Financial Agreement?
And if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moreno and Moreno

Details

AGLC: Moreno and Moreno [2009] FMCAfam 1109
Case: [2009] FMCAfam 1109
Decision Date: 26 October 2009

CaseChat Overview and Summary

The matter before the court involved Moreno and Moreno, where the wife sought to set aside a financial agreement dated 28 August 2005. The wife argued that the agreement was not binding as it had not been fairly and reasonably disclosed to her and did not adequately reflect the contributions she had made to the family. The Federal Magistrates Court was tasked with deciding whether the financial agreement should be set aside under section 90K of the Family Law Act 1975.

The primary legal issue the court had to address was whether the financial agreement between the parties was binding and whether it should be set aside on the grounds that it was not fairly and reasonably disclosed and did not adequately reflect the wife’s contributions. The court considered whether the wife had demonstrated that she was not aware of the terms of the agreement or that it did not adequately reflect her contributions. Additionally, the court had to consider the appropriate orders to make in the event that the agreement was set aside.

The court found that the wife had not been fairly and reasonably disclosed the terms of the financial agreement and that the agreement did not adequately reflect her contributions. The court was satisfied that the wife had demonstrated that she was not aware of the terms of the agreement and that it did not fairly and reasonably reflect her contributions. Accordingly, the court set aside the financial agreement dated 28 August 2005. The court also made orders regarding the husband’s response, financial statement, and affidavit, disclosure of documents, valuation of former matrimonial property, costs of valuation, and the wife’s costs of the application. The matter was adjourned for further mention.

The court ordered that the financial agreement be set aside, that the husband file and serve his response and financial statement, that the parties disclose documents, and that a joint valuation of former matrimonial property be obtained if necessary. The court also ordered that the husband pay the wife’s costs of the application and that the matter be adjourned for further mention.

Orders

Orders of the court

That pursuant to section 90K of the Family Law Act 1975 the financial agreement dated 28 August 2005 be set aside.

That the husband file and serve his response, form 13 financial statement and affidavit in support no later than 4.00pm on

23 November 2009.

That the husband and wife disclose documents as prescribed in Annexure A no later than 4.00pm on 23 November 2009.

That in the event the valuation of any former matrimonial property remains outstanding by 19 November 2009 the parties shall obtain a joint valuation, with the wife by 21 November 2009 to provide a panel of three proposed valuers to the husband and the husband to chose a valuer from said panel within forty eight hours of receipt of said panel. In the event the husband fails to elect a valuer the wife be at liberty to make such election.

That the husband be responsible for the costs of any valuation in the first instance but with the ultimate incidence being reserved to trial.

That the husband pay the wife’s costs of and incidental to this application fixed in the sum of EIGHT THOUSAND FIVE HUNDRED DOLLARS ($8,500.00) such sum to be paid within thirty five (35) days.

That this matter be adjourned for further mention to 9.30am on

2 December 2009 in the Federal Magistrates Court sitting at Coffs Harbour.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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