Pascot & Pascot

Case [2011] FamCA 945


FAMILY COURT OF AUSTRALIA

PASCOT & PASCOT [2011] FamCA 945

FAMILY LAW - PROPERTY SETTLEMENT - Financial Agreement – Whether a binding financial agreement existed – Where one party had received incorrect legal advice relating to the binding nature of the agreements – Whether the agreement was void, voidable or unenforceable due to mistake – Whether the agreement was void, voidable or unenforceable due to undue influence – Whether the agreement was void, voidable or unenforceable due to unconscionable conduct – Whether the Agreement could be set aside due to a material change in circumstance

FAMILY LAW – PROPERTY SETTLEMENT - Superannuation Agreement – Whether there was a valid superannuation splitting agreement – Where the Agreement was made prior to the commencement of the 2002 Amendments to the Family Law Act inserting superannuation splitting agreements.

Family Law Act 1975 (Cth)
Alati v Kruger (1955) 94 CLR 216
Australian Woollen Mills v Commonwealth (1954) 92 CLR 424
Black & Black (2008) FLC 93-357
Blomley v Ryan (1956) 99 CLR 362
Bridgewater & Ors v Leahy & Ors (1998) 194 CLR 457
Clifton & Stuart (1991) FLC 92-194
Commercial Bank of Australia v Amadio and Anor (1983) 151 CLR 447
Dupont & Dupont (1980) FLC 90-881
Fevia & Carmel-Fevia (2009) FLC 93-411
Gardner & Gavin (No. 2) [2010] FamCA 125
Goldsborough Mort & Co v Quinn (1910) 10 CLR 674
Green & Kwiatek (1982) FLC 91-259
Holland & Holland (1982) FLC 91-243
Kostres & Kostres (2009) FLC-420
La Rocca & La Rocca (1991) FLC 92-222
Louth v Diprose (1992) 175 CLR 621
Lowe & Harrington (1997) FLC 92-747
Newlands v Argyll General Insurance Co Ltd (1958) 59 SR(NSW) 130
O’Brien & O’Brien (1981) FLC 91-094
Public Trustee (as an executor of the estate of Gilbert) & Gilbert (1991) FLC 92-799
Rolfe & Rolfe (1979) FLC 90-629
Ruane & Backman-Ruane [2009] FamCA 1101
Senior & Anderson (2011) FLC 93-470
Simpson & Hamlin (1984) FLC 91-576
Sullivan & Sullivan [2011] FamCA 752
Taylor v Johnson (1983) 151 CLR 422
Turner v Wendover [1993] NSWSC 1147
Upper Hunter County District Council v Australian chilling & Freezing Co. (1968) 118 CLR 429
Whitford & Whitford (1979) FLC 90-612
APPLICANT: Mr Pascot
RESPONDENT: Ms Pascot
FILE NUMBER: SYC 3678 of 2007
DATE DELIVERED: 21  December 2011
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Le Poer Trench J
HEARING DATE: 30 June and 27 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: John Lloyd SC
SOLICITOR FOR THE APPLICANT: Doolan, Wagner & Callaghan
COUNSEL FOR THE RESPONDENT: R Maurice
SOLICITOR FOR THE RESPONDENT: Parry Carrol Lawyers

Orders

  1. The Agreement made between the parties on 28 March 2001 is set aside.

  2. Each of the parties is to file and serve by the end of January 2012 a minute of the orders for property settlement they seek.

  3. The matter is to be listed by the Docket Registrar for further directions and a conciliation conference as soon as practicable.

  4. When the Docket Registrar is satisfied that the matter is ready to…

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Details
AGLC
Pascot & Pascot [2011] FamCA 945
Case
[2011] FamCA 945
Decision Date

CaseChat Overview and Summary

In *Pascot & Pascot*, heard by Le Poer Trench J, the parties sought to set aside a financial agreement made on 28 March 2001, and also to determine the validity of a superannuation splitting agreement made prior to the 2002 amendments to the *Family Law Act 1975* (Cth). The dispute centred on whether these agreements were binding, with allegations of incorrect legal advice, mistake, undue influence, unconscionable conduct, and a material change in circumstances raised as grounds for setting aside the financial agreement.

The court was required to determine whether a binding financial agreement existed, and if not, whether it should be set aside on the grounds of mistake, undue influence, unconscionable conduct, or a material change in circumstances. Additionally, the court had to consider the validity of the superannuation splitting agreement, given it was made before the introduction of specific provisions for such agreements in the *Family Law Act*.

Le Poer Trench J found that the financial agreement made between the parties on 28 March 2001 was not binding and ordered that it be set aside. The court also ordered that each party file and serve their proposed property settlement orders by the end of January 2012, with the matter to be listed for further directions and a conciliation conference.

Orders

Orders of the court

1.

The Agreement made between the parties on 28 March 2001 is set aside.

2.

Each of the parties is to file and serve by the end of January 2012 a minute of the orders for property settlement they seek.

3.

The matter is to be listed by the Docket Registrar for further directions and a conciliation conference as soon as practicable.

4.

When the Docket Registrar is satisfied that the matter is ready to proceed further before me she is to arrange for a further listing.

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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