Southern and Southern and Ors - [2019] FamCA 1002

FAMILY COURT OF AUSTRALIA

SOUTHERN & SOUTHERN AND ORS

[2019] FamCA 1002

FAMILY LAW – PROPERTY – whether the right to apply for an order pursuant to s 90K(1) of the Family Law Act1975 (Cth) vested in the trustee in bankruptcy on bankruptcy – right found to vest pursuant to s 58(1) Bankruptcy Act 1966 (Cth) – application by discharged bankrupt for order pursuant to s 90K(1) of the Family Law Act1975 (Cth) dismissed.

Bankruptcy Act 1966 (Cth)
Family Law Act 1975 (Cth)

APPLICANT:

Mr Southern

FIRST RESPONDENT:

Ms Southern

SECOND RESPONDENTS:

Mr B & Mr C (as Trustees in Bankruptcy)

THIRD RESPONDENT:

J Law Firm

FOURTH RESPONDENT:

E Pty Ltd atf E Trust

INTERVENOR:

Mr F Southern and Ms G Southern

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

LEC

629

2011

DATE DELIVERED:

6 December 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

7 February 2019 and
7 March 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Jensens Solicitors & Attorneys

COUNSEL FOR THE FIRST

RESPONDENT:

Mr Belzamo

SOLICITOR FOR THE FIRST

RESPONDENT:

Hannigans

SOLICITOR FOR THE SECOND

RESPONDENT:

No appearance

SOLICITOR FOR THE THIRD

RESPONDENT:

Ms Treston of Queen’s Counsel on 7 February 2019 and Ms Hannigan, Solicitor on 7 March 2019

COUNSEL FOR THE FOURTH

RESPONDENT:

Mr Belzamo

SOLICITOR FOR THE FOURTH

RESPONDENT:

Hannigans

COUNSEL FOR THE INTERVENOR:

Mr O’Higgins

SOLICITOR FOR THE INTERVENOR:

Bluewater Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lovell-Jones

Orders

IT IS ORDERED THAT

The Applicant’s application for an order setting aside the Financial Agreement entered into with the First Respondent on 23 August 2010 is dismissed.

AND IT IS FURTHER ORDERED THAT

In the event that any party seeks an order that the other party pay his or her costs:
(a)if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within twenty-eight (28) days of the date of this order; and
(b)any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and
(c)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and
(d)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Southern & Southern has…

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.

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Details

Case: [2019] FamCA 1002
Decision Date: 6 December 2019

CaseChat Overview and Summary

In the matter of *Southern and Southern and Ors*, Hogan J considered an application by the Applicant to set aside a Financial Agreement entered into with the First Respondent on 23 August 2010. The specific nature of the dispute, beyond the challenge to the Financial Agreement, is not detailed in the provided text.

The central legal issue before the Court was whether the Applicant had established grounds to set aside the Financial Agreement. This required the Court to assess the validity and enforceability of the agreement under the relevant family law provisions.

Hogan J dismissed the Applicant's application. While the reasoning is not elaborated upon in the provided text, the outcome indicates that the Court found the Financial Agreement to be valid and binding, and therefore not liable to be set aside. The Court also made detailed orders regarding the process for any subsequent applications for costs, allowing parties to file further affidavits and written submissions within specified timeframes.

Orders

Orders of the court

IT IS ORDERED THAT

The Applicant’s application for an order setting aside the Financial Agreement entered into with the First Respondent on 23 August 2010 is dismissed.

AND IT IS FURTHER ORDERED THAT

In the event that any party seeks an order that the other party pay his or her costs:

(a) if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within twenty-eight (28) days of the date of this order; and

(b) any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and

(c) the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and

(d) the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,

and any such application for costs shall be considered in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.