Phak & Xu - [2015] FamCA 939

FAMILY COURT OF AUSTRALIA

PHAK & XU

[2015] FamCA 939

FAMILY LAW – PROPERTY – Financial agreement – application to set aside an otherwise binding agreement pursuant to s 90K Family Law Act 1975 (Cth)

Family Law Act 1975 (Cth) ss 90K, 90KA

Kostres and Kostres (2009) FLC 93-420; 42 Fam LR 336
Favia & Carmel-Fevia (2009) FLC 93-411
Taylor & Johnson (1983) 151 CLR 422

Sanger & Sanger (2011) FLC 93-484; 46 Fam LR 275

N C Seddon & M P Ellinghaus (eds) Cheshire and Fifoot’s Law of Contract (LexisNexis Butterworths, Australia, 10^th Australian Edition, 2012)

APPLICANT:

Ms Phak

RESPONDENT:

Mr Xu

FILE NUMBER:

MLC

9662

2012

DATE DELIVERED:

30 October 2015

PLACE DELIVERED:

Hobart

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

24, 25, 26 & 27 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bartfeld Q.C.

SOLICITOR FOR THE APPLICANT:

Goldsmith Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Dixon S.C.

SOLICITOR FOR THE RESPONDENT:

U Lawyers

ORDERS

The financial agreement dated 13 February 2012 entered into between the parties be and is set aside.
The costs of both parties to the application to set aside the financial agreement are:-
(a)reserved pending determination of the substantive property proceedings between the parties; and
(b)any costs application/s pursuant to this reservation is/are to be made within twenty eight (28) days of final property orders and are otherwise to be dealt with in accordance with the Family Law Rules2004 (Cth).
The trial of the substantive application property proceedings, pursuant to s 79(1) of the Family Law Act 1975 (Cth) for a property settlement, be listed for mention, before the Docket Registrar, at 10.00am on 16 December 2015, at Melbourne, for allocation to a Melbourne Judge for final hearing.

DIRECTIONS

The applicant wife shall pay the hearing fee on or before 30 June 2016.
The applicant wife shall file and serve a further amended initiating application, a further financial statement and an affidavit of any lay witness upon whom she seeks to rely on or before 1 March 2016.
The respondent husband shall file and serve a further amended response to the applicant wife’s further amended initiating application, a further financial statement and an affidavit of any lay witness upon whom he seeks to rely, on or before 1 April 2016.
No later than 13 May 2016 each party exchange with each other party:-
(a)If not already exchanged, a copy of all the documents mentioned in Rule 12.02;
(b)If not already exchanged, the documents which provide proof of, information or support:-
i.the information contained in the financial statement;
ii.any inheritances, gifts or compensation payments received during cohabitation or post separation;
iii.any purchase or disposal of property in the twelve (12) months prior to and since separation;
iv.any increase or reduction of liabilities since separation;
v.the value of any superannuation interest of a party, including the basis on which the value has been calculated and any documents used to calculate the value; and
vi.documents relevant to the issues raised…

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 Phak & Xu

Details

AGLC: Phak & Xu [2015] FamCA 939
Case: [2015] FamCA 939
Decision Date: 30 October 2015

CaseChat Overview and Summary

In the matter of *Phak & Xu*, Benjamin J of the Family Court of Australia considered an application to set aside a financial agreement dated 13 February 2012, entered into between the applicant wife and the respondent husband. The dispute concerned the validity of this financial agreement in the context of substantive property settlement proceedings.

The primary legal issue before the Court was whether the financial agreement dated 13 February 2012 should be set aside. This determination was crucial for the progression of the parties' property settlement proceedings under s 79(1) of the *Family Law Act 1975* (Cth).

Benjamin J ordered that the financial agreement dated 13 February 2012 be set aside. The Court also made directions regarding the costs of the application to set aside the agreement, reserving them pending the determination of the substantive property proceedings. Further directions were issued concerning the filing and service of amended applications, financial statements, and affidavits, as well as the exchange of documents relevant to the property proceedings. The Court also dispensed with a conciliation conference, provided the parties conducted a private mediation, and made provision for the appointment of a single expert to value any unresolved property interests, with fees to be borne equally.

Orders

Orders of the court

The financial agreement dated 13 February 2012 entered into between the parties be and is set aside.

The costs of both parties to the application to set aside the financial agreement are:-

(a) reserved pending determination of the substantive property proceedings between the parties; and

(b) any costs application/s pursuant to this reservation is/are to be made within twenty eight (28) days of final property orders and are otherwise to be dealt with in accordance with the Family Law Rules 2004 (Cth).

The trial of the substantive application property proceedings, pursuant to s 79(1) of the Family Law Act 1975 (Cth) for a property settlement, be listed for mention, before the Docket Registrar, at 10.00am on 16 December 2015, at Melbourne, for allocation to a Melbourne Judge for final hearing.

DIRECTIONS

The applicant wife shall pay the hearing fee on or before 30 June 2016.

The applicant wife shall file and serve a further amended initiating application, a further financial statement and an affidavit of any lay witness upon whom she seeks to rely on or before 1 March 2016.

The respondent husband shall file and serve a further amended response to the applicant wife’s further amended initiating application, a further financial statement and an affidavit of any lay witness upon whom he seeks to rely, on or before 1 April 2016.

No later than 13 May 2016 each party exchange with each other party:-

(a) If not already exchanged, a copy of all the documents mentioned in Rule 12.02;

(b) If not already exchanged, the documents which provide proof of, information or support:-

i. the information contained in the financial statement;

ii. any inheritances, gifts or compensation payments received during cohabitation or post separation;

iii. any purchase or disposal of property in the twelve (12) months prior to and since separation;

iv. any increase or reduction of liabilities since separation;

v. the value of any superannuation interest of a party, including the basis on which the value has been calculated and any documents used to calculate the value; and

vi. documents relevant to the issues raised in either party’s material.

Upon the parties appointing a mediator and conducting a private mediation, the requirement for a conciliation conference is dispensed with.

In the event that the value of any item of property owned by either party or a company, trust or other entity in which either party has an interest remains unresolved, the parties agree on the appointment of a single expert to value such property and the single expert’s fees are to be borne equally between the parties and in default of agreement, there be liberty to apply to the Court pursuant to Rule 15.45 (1) of the Family Law Rules 2004 (Cth).

IT IS CERTIFIED

10.

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.

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.