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Pascot & Pascot

Pascot & Pascot

Case [2011] FamCA 945 21 December 2011

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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

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

The Agreement made between the parties on 28 March 2001 is set aside.
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.
The matter is to be listed by the Docket Registrar for further directions and a conciliation conference as soon as practicable.
When the Docket Registrar is satisfied that the matter is ready to…

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 Pascot & Pascot

Details

AGLC: Pascot & Pascot [2011] FamCA 945
Case: [2011] FamCA 945
Decision Date: 21 December 2011

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

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

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.

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

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Pascot & Pascot [2011] FamCA 945

Most Recent Citation

Kovacs & Kovacs [2022] FedCFamC2F 188

Cases citing this decision · 19 of 19 shown

Kovacs & Kovacs
[2022] FedCFamC2F 188 Para 2

…place than if there was no agreement. The point of Fewster & Drake was to demonstrate that, contrary to what had been the position in Pascot & Pascot [2011] FamCA 945 (‘ Pascot’ ) that hardship cannot be inferred and that the approach of Pascot was in error.…
Child Support Registrar v Afs19
[2021] FCAFC 207 Para 7

…Thirdly, as described by Le Poer Trench J in Pascot v Pascot [2011] FamCA 945 at [19] (referring to Senior ), to find an agreement is a binding financial agreement under the Family Law Act is essentially a three-step process, namely: (a)Is there an agreement (contract) between the parties? (b)Is there an agreement…
Ismael & Ismael
[2021] FCCA 1581 Para 11

…mmon law”, as submitted by the Wife, and unconscionable conduct pursuant to s 90K(1)(e) will be dealt with together. [69]See also Pascot & Pascot [2011] FamCA 945 at [296]-[297].…
DAILY & DAILY
[2020] FamCA 486 Para 4

…In Fewster & Drake (2016) FLC 93-745 the Full Court examined the adoption of a three step test by La Poer Trench J in Pascot & Pascot [2011] FamCA 945. At 81,898 their Honours considered that in dissecting s 90K(1)(d) of the Act into three components his Honour did not include the: 50.… necessary link between the c…
Guild & Stasiuk
[2020] FamCA 348 Para 1

…ity[381] say ought not be done as a matter of statutory interpretation, namely apply words used in different legislation. [376] [2011] FamCA 945. [377] (1987) 163 CLR 628. [378] [1970] AC 113. [379] (2005) 221 CLR 646. [380] (2001) 205 CLR 603. [381] (2008) 233 CLR 259.…
FREDERICK & FREDERICK
[2018] FCCA 1694 Para 6

…t and relevant ” was not an inapt way of describing “ material ”, when commenting on the decision of Le Poer Trench J in Pascot & Pascot [2011] FamCA 945 at [345]. However, the Full Court also adopted the dicta of the High Court in Sola Optical Australia Proprietary Limited v Mills (1987) 163 CLR 628 at 636 – 637 w…
HIGGINS & MORUBA
[2018] FamCA 467 Para 10

…Referring to the decision of Pascot & Pascot [2011] FamCA 945 (“ Pascot & Pascot ”) at paragraphs 70-71 Aldridge and Kent JJ found in Fewster & Drake : It is convenient to repeat the findings made by the primary judge in Pascot, which were adopted by the primary judge in this matter in relation to hardship: 378.If…
Hadden and Pendle
[2017] FCCA 1610 Para 3

…Ryan J considered in Saintclaire s.90K(1)(d) of the Act and applied the test formulated by Le Poer Trench J in Pascot & Pascot [2011] FamCA 945. Ryan J said (at paragraph 119): His Honour formulated the test thus: For the purposes of section 90K(1), it would be useful to adopt the test in the following terms: a) Th…
Fewster & Drake
[2016] FamCAFC 214 Para 2

…At the outset, it is necessary to explain that the primary judge made much of the reasons in Pascot & Pascot [2011] FamCA 945 (“ Pascot ”). His Honour regarded it as being on all fours with the case before him and quoted it extensively, with his Honour going so far as to adopt its conclusions. Therefore, in explain…
Milavic and Banks (No 2)
[2016] FamCA 884 Para 5

…In Pascot & Pascot [2011] FamCA 945 (“ Pascot ”) Le Poer Trench J observed that s 79A(1)(d) of the Act (or as the parties in this case were not married s 90SN(1)(d) of the Act), being similarly worded to s 90K(2), might provide some guidance as to whether there has been a material change in circumstances, albeit th…
Raleigh & Raleigh
[2015] FamCA 625 Para 1

…His Honour Le Poer Trench J discussed in Pascot & Pascot [2011] FamCA 945 the provisions of s 90K(d) of the Act and found the provision is similar to s 79A(1)(d) of the Act, excepting the change in circumstances need only be “material” under the provision as opposed to “exceptional” as in s 79A(1)(d). His Honour ou…
FEWSTER & DRAKE
[2015] FamCA 602 Para 1

…As observed by Le Poer Trench J in Pascot & Pascot [2011] FamCA 945: 150. It is trite to say that in many property cases, heard by this court, the significance placed by the court on a parties contributions to the marriage, as a homemaker and parent, (as required by sec 79(4)(c)) is notorious. In this regard see Ro…
CALLANAN & CALLANAN
[2015] FCCA 1248 Para 8

…the birth of a third child, not contemplated at the time the agreement was entered into, constituted a “ material change of circumstances .” [74] [2011] FamCA 945…
Piper and Mueller
[2014] FCCA 2659 Para 2

…there an agreement which qualifies as a “financial agreement” under “Part VIIIAB financial agreement” under the Act.[48] [48] Pascot & Pascot [2011] FamCA 945 [19].…
Hay and Hay
[2014] FCCA 775 Para 9

…Poer Trench J followed the legislative framework set out in Senior & Anderson . His Honour quoted the following passages from Senior & Anderson : [5] [2011] FamCA 945, at para 19–24. 106. In my view, the “principles of law and equity that are applicable in determining the validity, enforceability and effect of cont…
WELDON and ASHER
[2014] FCWA 11

…rose (1992) 175 CLR 621 Parker and Parker (2012) 260 FLR 284 Parras Holdings Pty Ltd v Commonwealth Bank of Australia [1997] FCA 1107 Pascot & Pascot [2011] FamCA 945 Powell v Powell [1900] 1 Ch 243 Radmacher (formerly Granatino) v Granatino [2010] UKSC 42 Ribchenkov v Suncorp-Metway Ltd (2000) 175 ALR 650 Senior &…
PARKES & PARKES
[2014] FCCA 102 Para 20

…In Pascot and Pascot [2011] FamCA 945 Le Poer Trench J examined the authorities on duress, undue influence and unconscionable conduct in the context of s.90K. At [266] His Honour refers to a passage by Brennan J in Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621. The jurisdiction of equity to set aside gifts proc…
Saintclaire & Saintclaire
[2013] FamCA 491 Para 4

…ive, the wife relied upon s 90K(1)(d). There is no appellate authority in relation to s 90K(1)(d). Both counsel helpfully referred to Pascot & Pascot [2011] FamCA 945 where Le Poer Trench J discussed this provision.…
Barre & Barre
[2021] FamCA 101

…ted v BNP Paribas (2004) 218 CLR 451 Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 Parke & Parke [2015] FCCA 1692; Pascot & Pascot [2011] FamCA 945 Poulton v Commonwealth (1953) 89 CLR 540 PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 Project Blue Sky…

View all 19 citing cases →

Cases cited in this decision · 20 of 20 shown

Anderson v Senior
[2013] HCASL 157 Para 1

…The Full Court decision in Senior v Anderson (2011) FLC 93-470 provides guidance as to the manner in which a case such as the present is to be approached. I draw from that decision a sequence of issues to be addressed in order. Those are: (a)Is there an agreement (contract) between the parties? (b)Is there an agreement whi…
Sullivan & Sullivan
[2011] FamCA 752

…79) 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)…
Garden & Gavin (No 2)
[2010] FamCAFC 125 Para 1

…necessary to draw from case law on sec 79A(1)(d) for guidance, as sec 90K(d) is modelled on that section. In the judgment of Garden and Gavin (No. 2) [2010] FamCAFC 125, the Full Court set out the following test: [46.] It is clear that three elements must be satisfied before an order can be made setting aside propert…
James and Nolan
[2010] FamCA 125

…nk 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-4…
Ruane & Bachmann-Ruane
[2009] FamCA 1101

…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…
Ryledar Pty Ltd v Euphoric Pty Ltd
[2007] NSWCA 65 Para 6

…180 CLR 447 per Brennan J at 456; Australian Gypsum Ltd v Hume Steel Ltd (1930) 45 CLR 54 ; Ryledar Pty Ltd & Anor v Euphoric Pty Ltd [2007] 69 NSWLR 603 per Campbell JA at 660), and thus it was quite appropriate for his Honour to have regard to this, but only so far as his Honour was dealing with the mis-desc…
Bridgewater v Leahy
[1998] HCA 66

…alian 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…
Louth v Diprose
[1992] HCA 61

…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 Trust…
Sindel v Georgiou
[1984] HCA 58 Para 5

…her, D Heydon and M Leeming, Meagher, Gummow and Lehane’s Equity Doctrines & Remedies, 4 th ed. 2002 at [26-035] citing Sindel v Georgiou (1984) 154 CLR 661 and Heyward v Planet Projects Pty Ltd [2000] NSW SC 1105).…
Mallet v Mallet
[1984] HCA 21 Para 41

…79(4)(c)) is notorious. In this regard see Rolfe & Rolfe (1979) FLC ¶90-629 at pp 78,272–78,273 per Evatt CJ (approved by Wilson J Mallet v Mallet (1984) 156 CLR 605): “The purpose of s 79(4)(b) [the precursor to s 79(4)(c)] in my opinion, is to ensure just and equitable treatment of a wife who has not earned income…
Commercial Bank of Australia Ltd v Amadio
[1983] HCA 14

…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 (191…
Taylor v Johnson
[1983] HCA 5

…ne [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 (197…
Pukallus v Cameron
[1982] HCA 63 Para 6

…The relevance of this is that in applying the principles of rectification the intention of the parties is all important, ( Pukallus v Cameron (1982) 180 CLR 447 per Brennan J at 456; Australian Gypsum Ltd v Hume Steel Ltd (1930) 45 CLR 54 ; Ryledar Pty Ltd & Anor v Euphoric Pty Ltd [2007] 69 NSWLR 603 per Campbell JA…
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd
[1968] HCA 8 Para 6

…rmining what the unclear statement means. Barwick CJ in his judgment in Upper Hunter County District Council v Australian Chilling and Freezing Co. (1968) 118 CLR 429 (at 436-7) neatly encapsulated this principle: …a contract of which there can be more than one possible meaning or which when construed can produce in…
Blomley v Ryan
[1956] HCA 81

…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 &…
Alati v Kruger
[1955] HCA 64

…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 &…
Australian Woollen Mills Pty Ltd v The Commonwealth
[1954] HCA 20

…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 &…
Australian Gypsum Ltd v Hume Steel Ltd
[1930] HCA 38 Para 6

…tention of the parties is all important, ( Pukallus v Cameron (1982) 180 CLR 447 per Brennan J at 456; Australian Gypsum Ltd v Hume Steel Ltd (1930) 45 CLR 54 ; Ryledar Pty Ltd & Anor v Euphoric Pty Ltd [2007] 69 NSWLR 603 per Campbell JA at 660), and thus it was quite appropriate for his Honour to have regard to t…
Goldsbrough Mort & Co Ltd v Quinn
[1910] HCA 20

…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…
Turner v Wendover
[1993] NSWSC 1147

…n (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…

Legislation cited in this decision · 3

Evidence Act 1995 (Cth)
1 mention
Family Law Act 1975 (Cth)
1 mention (from Para 4)
Family Law Legislation Amendment (Superannuation) Act 2001 (Cth)
1 mention (from Para 11)