Purdey and Millington

[2018] FCCA 213

FEDERAL CIRCUIT COURT OF AUSTRALIA

PURDEY & MILLINGTON [2018] FCCA 213

Catchwords:
FAMILY LAW – Financial Agreements – Wife seeking declaration that a financial agreement executed by the parties is not a binding financial agreement within the meaning of s.90G of the Family Law Act 1975 (Cth) – whether Wife was provided with independent legal advice – onus of proof on Wife to adduce evidence which would disprove or throw into doubt the inference or conclusion to be drawn from s.90G statement – whether unjust or inequitable if the financial agreement were not binding on the parties – financial agreement declared not binding – parties not constrained by s.71A of the Family Law Act 1975 (Cth) in relation to property proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.44, 71A, 79, 90C(1), 90G, 90K

Cases cited:

Abrum & Abrum [2013] FamCA 897

Hoult & Hoult [2013] FamCAFC 109

Logan & Logan [2013] FamCAFC 151
Parker & Parker [2012] FamCAFC 33
Raleigh & Raleigh [2015] FamCA 625

Applicant: MR PURDEY

Respondent: MS MILLINGTON

File Number: PAC 286 of 2011

Judgment of: Judge Jones

Hearing dates: 17-18 August 2017, 4 October 2017

Date of Last Submission: 4 October 2017

Delivered at: Melbourne

Delivered on: 7 February 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent: Mr Mokhtar of Marsdens Law Group

Solicitors for the Respondent: Marsdens Law Group

DECLARATIONS

1. The financial agreement entered into by Mr Purdey and Ms Millington on 16 September 2014 is not a binding financial agreement within the meaning of s.90G of the Family Law Act 1975 (Cth).

ORDERS

1. The property proceedings be listed for mention on 8 March 2018 at 9.30am in the Dandenong Registry before Judge Burchardt.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

PAC 286 of 2011

MR PURDEY

Applicant

And

MS MILLINGTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings commenced as parenting proceedings initiated by Mr PURDEY (“the Husband”) on 5 September 2016. By her Amended Response filed on 13 October 2016, Ms MILLINGTON (“the Wife”) seeks a declaration that an agreement executed on 16 September 2014 by the parties and titled “Financial Agreement Under Section 90C of The Family Law Act 1975” (Annexure C to the Wife’s affidavit filed on 11 August 2017) (“the Financial Agreement”) is void and voidable and is set aside. The Wife also seeks an alteration of the parties’ interests in property. In his Amended Initiating Application filed on 19 July 2017, the Husband seeks an order that the Wife’s application so far as it concerns property be dismissed.

2. Although in her Amended Response the Wife sought an order which, in in its terms, appeared to be relying on s.90K of the Family Law Act 1975 (Cth) (“the Act”), the case as run on behalf of the Wife by her legal representative focused almost entirely on whether the Financial…