Renard and Geach - [2013] FCCA 617

FEDERAL CIRCUIT COURT OF AUSTRALIA

RENARD & GEACH

[2013] FCCA 617

Catchwords:
FAMILY LAW – Financial agreements– independent legal advice.

Legislation:
Family Law Act 1975, s.90G

Ruane & Bachmann-Ruane [2009] FamCA 1101
Parker & Parker [2012] FamCAFC 33
Senior & Anderson [2011] FamCAFC 129(2011) FLC 93-470
Hoult & Hoult [2011] FamCA 1023; [2011] FLC 93-489

Applicant:

MR RENARD

Respondent:

MS GEACH

File Number:

MLC 6887 of 2012

Judgment of:

Judge Small

Hearing dates:

9 & 13 May 2013

Date of Last Submission:

13 May 2013

Delivered at:

Melbourne

Delivered on:

5 July 2013

REPRESENTATION

Counsel for the Applicant:

Ms Paull

Solicitors for the Applicant:

Waters & Co

Counsel for the Respondent:

Mr Duckett

Solicitors for the Respondent:

Konfir Kabo & Associates

ORDERS

DECLARATION

The court declares that the financial agreement signed by the parties on [date omitted] 2008 is not binding upon the parties.

ORDERS

Within 14 days of the date of these orders the husband shall file and serve an Amended Initiating Application, with an Affidavit and Form 13 Financial Statement in support, setting out the orders he seeks.
Within 14 days of service of the husband’s documents as set out in paragraph 1 hereof the wife shall file a Response, and an Affidavit and Form 13 Financial Statement in support, setting out the orders she seeks.
The matter be otherwise adjourned to this court for mention in the Duty List on 18 September 2013 at 9:45 a.m.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 6887 of 2012

MR RENARD

Applicant

And

MS GEACH

Respondent

REASONS FOR JUDGMENT

Introduction

The question for the court in this matter is whether a Financial Agreement signed by the parties on [date omitted] 2008 (“the Agreement”) is binding upon them pursuant to Section 90G of the Family Law Act 1975 (“the Act”).
The husband seeks a declaration under Section 90G(1)(b) and (c) of the Act that the Agreement is not binding because he did not receive the requisite independent legal advice before he signed it, and did not receive a copy of the Agreement afterwards. In the alternative, he seeks an order that the Agreement be set aside as being void for duress under Section 90K(1)(b) of the Act.
The Wife seeks a declaration that the Agreement is binding, being a Financial Agreement under s.90C and complying with the provisions of s.90G(1) of the Act.

Background

The parties were married at [omitted] on [date omitted] 2008 (“the Australian marriage”). Mr Renard, who is now 49 years old, is an Australian citizen and Ms Geach, who is 42, is an Indonesian citizen with permanent resident status in Australia.
The parties finally separated in January 2012 and were divorced on 14 March 2013.
The marriage was the third for Mr Renard and the second for

Ms Geach although she had also been involved in a…

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 Renard and Geach

Details

AGLC: RENARD & GEACH [2013] FCCA 617
Case: [2013] FCCA 617
Decision Date: 5 July 2013

CaseChat Overview and Summary

In the matter of Renard and Geach, heard before Judge Small, the dispute concerned the enforceability of a financial agreement entered into by the parties on a date in 2008. The court was required to determine whether this financial agreement was binding on the parties.

The court's reasoning focused on the validity of the financial agreement. While the specific grounds for invalidity are not detailed in the provided text, the ultimate declaration indicates that the agreement failed to meet the necessary legal requirements to be considered binding. The court applied principles of family law concerning the enforceability of financial agreements.

The court declared that the financial agreement signed by the parties in 2008 was not binding. Consequently, the court made procedural orders requiring the husband to file an Amended Initiating Application, supported by an affidavit and financial statement, outlining the orders he sought. The wife was then required to file a Response, also supported by an affidavit and financial statement, detailing her sought orders. The matter was adjourned for a mention in the Duty List on 18 September 2013.

Orders

Orders of the court

DECLARATION

The court declares that the financial agreement signed by the parties on [date omitted] 2008 is not binding upon the parties.

ORDERS

Within 14 days of the date of these orders the husband shall file and serve an Amended Initiating Application, with an Affidavit and Form 13 Financial Statement in support, setting out the orders he seeks.

Within 14 days of service of the husband’s documents as set out in paragraph 1 hereof the wife shall file a Response, and an Affidavit and Form 13 Financial Statement in support, setting out the orders she seeks.

The matter be otherwise adjourned to this court for mention in the Duty List on 18 September 2013 at 9:45 a.m.

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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