Piper and Mueller - [2014] FCCA 2659

FEDERAL CIRCUIT COURT OF AUSTRALIA

PIPER & MUELLER

[2014] FCCA 2659

Catchwords:
FAMILY LAW – Whether financial agreement binding – de facto parties – whether strict compliance with s.90UJ – nature of legal advice; s.90UJ(1A) whether unjust and inequitable for agreement not to be binding on the spouse parties; applicant alleges he was subjected to illegitimate pressure to enter into agreement and that the respondent engaged in unconscionable conduct and agreement void and agreement should be set aside under s.90UM.

Legislation:

Family Law Act 1975, Part VIIIAB, ss.90B, 90C, 90D, 90G, 90UJ, 90UM, 90VM, 90SM, 90RD, 90SA, 90UK, 90UC, 90UD
Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009 (Cth) schedule 5, items 8 & 8A
Family Law Amendment Act 2000
Family Law Amendment Act 2003 (Cth)
Family Law Amendment (de facto financial matters and other measures) Act 2009
Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009

Cases cited:
Commercial Bank of Australia v Amadio [1983] HCA 14: (1983) 151 CLR at 461
Blackmore & Webber [2009] FMCAfam 154

Johnson v Buttress (1936) 56 CLR 113, 134
Wallace & Stelzer and Anor [2013] FamCAFC 199
Wallace & Stelzer & Attorney General of the Commonwealth [2014] HCA Trans 135
Kostres & Kostres (2009) FLC 93-420
Black & Black [2008] FamCAFC 7; (2008) FLC 93-357
Parker and Parker [2012] FamCAFC 33
Pascot & Pascot [2011] FamCA 945
J & J [2006] FamCA 442
Sullivan & Sullivan [2011] FamCA 752

Applicant:

MR PIPER

Respondent:

MS MUELLER

File Number:

BRC 3829 of 2012

Judgment of:

Judge Willis

Hearing dates:

18 & 19 November 2013, 6 February 2014

Date of Last Submission:

6 February 2014

Delivered at:

Cairns

Delivered on:

3 December 2014

REPRESENTATION

Counsel for the Applicant:

Mr Black

Solicitors for the Applicant:

PM Lee & Co

Solicitors for the Respondent:

Porter Davies Lawyers

ORDERS

It is declared that the agreement signed by the Applicant on 7 August 2009 and signed by the Respondent on 21 August 2009 (“the agreement”) is a “Part VIIIAB financial agreement” within the meaning of that term in the Family Law Act 1975.
It is declared that the agreement is a binding financial agreement under s.90UJ of the Family Law Act 1975.
The application to set aside the binding financial agreement pursuant to s.90UM (1) (e) and s.90UM (1) (h) is dismissed.
In the event that there is to be any application for costs, the Applicant is to file and serve written submissions within 28 days of the date of this Order and the Respondent is to file and serve written submissions within 28 days of being served. A date will then be allocated for the oral hearing of the costs application, unless the parties agree that it should proceed on the papers, at the discretion of the Court.
Within 28 days of the date of this Order, the parties are to indicate to the Court via a written submission their views about the proposal to now dismiss the Application filed on…

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 Piper and Mueller

Details

AGLC: Piper and Mueller [2014] FCCA 2659
Case: [2014] FCCA 2659
Decision Date: 3 December 2014

CaseChat Overview and Summary

In *Piper and Mueller*, the applicant sought to set aside a financial agreement, arguing it was not a binding financial agreement under the *Family Law Act 1975* (Cth). The respondent contended the agreement was valid and binding. The matter came before Judge Willis.

The primary legal issues before the Court were whether the agreement constituted a "Part VIIIAB financial agreement" and, consequently, whether it was a binding financial agreement under section 90UJ of the *Family Law Act 1975*. The Court was also required to determine if the grounds for setting aside the agreement, as pleaded by the applicant under sections 90UM(1)(e) and 90UM(1)(h), were made out.

Judge Willis found that the agreement met the requirements of a Part VIIIAB financial agreement and was therefore a binding financial agreement under section 90UJ. The Court dismissed the application to set aside the agreement, finding that the grounds relied upon by the applicant were not established. The Court made declarations to this effect and addressed the potential for costs applications and the dismissal of the underlying application.

Orders

Orders of the court

It is declared that the agreement signed by the Applicant on 7 August 2009 and signed by the Respondent on 21 August 2009 (“the agreement”) is a “Part VIIIAB financial agreement” within the meaning of that term in the Family Law Act 1975.

It is declared that the agreement is a binding financial agreement under s.90UJ of the Family Law Act 1975.

The application to set aside the binding financial agreement pursuant to s.90UM (1) (e) and s.90UM (1) (h) is dismissed.

In the event that there is to be any application for costs, the Applicant is to file and serve written submissions within 28 days of the date of this Order and the Respondent is to file and serve written submissions within 28 days of being served. A date will then be allocated for the oral hearing of the costs application, unless the parties agree that it should proceed on the papers, at the discretion of the Court.

Within 28 days of the date of this Order, the parties are to indicate to the Court via a written submission their views about the proposal to now dismiss the Application filed on 2 May 2012, and/or the accompanying Response filed 16 July 2012.

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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