Saintclaire & Saintclaire

Case [2013] FamCA 491


FAMILY COURT OF AUSTRALIA

SAINTCLAIRE & SAINTCLAIRE [2013] FamCA 491
FAMILY LAW – PROPERTY SETTLEMENT –Financial agreement – Where technical defects to agreement and certificate of legal advice – Where financial agreement can be rectified – Where wife established undue influence and unconscionable conduct – Agreement voidable and set aside
Family Law Act 1975 (Cth) Part VIII, ss 4, 75(2), 79, 79A, 90B, 90C, 90D, 90G, 90G(1A), 90K, 90KA
Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009
Property (Relationships) Act 1984 (NSW)
Black & Black (2008) 216 FLR 422
Hoult v Hoult (No 2) [2012] FamCA 367
In the Marriage of Whitford (1979) FLC 90-612
Johnson v Buttress (1936) 56 CLR 113
Kostres & Kostres (2009) 42 Fam LR 336
Louth v Diprose (1992) 175 CLR 621
Pascot & Pascot [2011] FamCA 945
Powell v Powell [1900] 1 Ch 243
Pukallus v Cameron (1982) 180 CLR 447
Re Lloyds Bank Limited [1931] 1 CH 289
Senior & Anderson (2011) FLC 93-470
The Commonwealth Bank of Australia v Amadio (1983) 151 CLR 447
Winefield v Clark [2008] NSWSC 882
Hepburn “Principles of Equity and Trusts” Federation Press (4th ed, 2009)
APPLICANT: Ms Saintclaire
RESPONDENT: Mr Saintclaire
FILE NUMBER: SYC 7614 of 2010
DATE DELIVERED: 25 June 2013
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Ryan J
HEARING DATE: 2 – 4 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nash
SOLICITOR FOR THE APPLICANT: Kelly Hardie Solicitors
COUNSEL FOR THE RESPONDENT: Mr Gould
SOLICITOR FOR THE RESPONDENT: Norwest Family Law

Orders

  1. The agreement made between the parties on 28 September 2009 is set aside.

  2. Within twenty one (21) days each of the parties is to file and serve a minute of the orders for property settlement they seek.

  3. The parties are directed to attend a conciliation conference as soon as practicable.

  4. Costs are reserved to the s 79 hearing.

  5. That the application in a case filed by Mr Saintclaire on 3 May 2013 and the response to an application in a case filed by Ms Saintclaire on 29 May 2013 are adjourned with liberty to apply on seven (7) days notice following completion of:

    (a)       the conciliation conference; and

    (b)provision of a certificate under section 60I of the Family Law Act 1975 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saintclaire & Saintclaire has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7614 of 2010

Ms Saintclaire

Applicant

And

Mr Saintclaire

Respondent

REASONS FOR JUDGMENT

Introduction

  1. Before the Court is an application concerning the validity of a financial agreement dated 28 September 2009. The issue arises in the context of an application for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) brought by Ms Saintclaire (“the wife”). In response to her application, Mr Saintclaire (“the husband”) says notwithstanding a technical error, the financial agreement is binding…

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Details
AGLC
Saintclaire & Saintclaire [2013] FamCA 491
Case
[2013] FamCA 491
Decision Date

CaseChat Overview and Summary

In *Saintclaire & Saintclaire*, Ryan J of the Federal Circuit and Family Court of Australia considered an application to set aside an agreement made between the parties on 28 September 2009. The dispute concerned the property settlement of the parties.

The primary legal issue before the court was whether the agreement of 28 September 2009 should be set aside. This required the court to determine if the agreement was vitiated by factors such as fraud, duress, undue influence, or a material misrepresentation, or if it otherwise failed to make proper provision for the parties.

Ryan J determined that the agreement should be set aside. The court ordered that within twenty-one days, each party was to file and serve a minute of the orders they sought for property settlement. Furthermore, the parties were directed to attend a conciliation conference as soon as practicable. Costs were reserved to the subsequent section 79 hearing. The applications filed by Mr Saintclaire and Ms Saintclaire were adjourned with liberty to apply on seven days' notice following the completion of the conciliation conference and the provision of a certificate under section 60I of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

1.

The agreement made between the parties on 28 September 2009 is set aside.

2.

Within twenty one (21) days each of the parties is to file and serve a minute of the orders for property settlement they seek.

3.

The parties are directed to attend a conciliation conference as soon as practicable.

4.

Costs are reserved to the s 79 hearing.

5.

That the application in a case filed by Mr Saintclaire on 3 May 2013 and the response to an application in a case filed by Ms Saintclaire on 29 May 2013 are adjourned with liberty to apply on seven (7) days notice following completion of:

(a) the conciliation conference; and

(b) provision of a certificate under section 60I of the Family Law Act 1975 (Cth).

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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