FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STODDARD & STODDARD | [2007] FMCAfam 735 |
| FAMILY LAW – Binding financial agreement – validity where certificate of advice under Property (Relationships) Act1984 (NSW) – effect of failure to disclose material facts on the binding financial agreement – agreement set aside – alteration of property interests and contribution. |
| Family Law Act 1975, ss.90C, 90DA, 90E, 90F, 90G, 90K Property (Relationships) Act1984 (NSW), s.47(1)(d) |
| Black and Black [2006] FamCA 972 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Green and Kuriatek (1982) FLC 91-259 Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Ju and Ju (PAF464 of 2005, 29 March 2006) Norbis v Norbis (1986) 161 CLR 513 Pierce and Pierce (1998) FLC 92-844 Rogic and Rogic [2007] FamCA Williams & Williams [2007] FamCA 313 |
| Applicant: | MR STODDARD |
| Respondent: | MS STODDARD |
| File Number: | SYM 184 of 2005 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 29 & 30 May 2007 |
| Date of Last Submission: | 30 May 2007 |
| Delivered at: | Wollongong |
| Delivered on: | 21 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cleary |
| Solicitors for the Applicant: | Kennedy and Cooke |
| Counsel for the Respondent: | Mr Maurice |
| Solicitors for the Respondent: | DGB Lawyers |
ORDERS
Pursuant to s.90K of the Family Law Act1975 I set aside the Financial Agreement dated 19 January 2004 entered into between the husband and wife to these proceedings.
The husband and the wife are each entitled to be the sole legal and beneficial owner of all property including superannuation currently in their possession and/or control free from any interest of the other.
All other applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Stoddard & Stoddard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 184 of 2005
| MR STODDARD |
Applicant
And
| MS STODDARD |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is mainly about an agreement that the husband and wife entered into at a time when their marriage was experiencing serious difficulty. The simple effect of that agreement is that should they separate on a final basis they would each keep what they have. They did separate. The marriage did end. The husband now says that the agreement that they both signed after getting independent legal advice is not legally binding but, even if it is, it should be set aside. The wife says that the agreement should be upheld and enforced. If the husband is right, then I should make an order for property settlement, based on the contributions they each made, provided that order is just and equitable. If the wife is right, I should do nothing other than dismiss the husband’s application.
Issues
The issues raised by this case are conveniently expressed as three questions:
a)Is the agreement dated 19 January 2004 between the husband and the wife a ‘financial agreement’ for the purposes of s.90G of the Family Law Act
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- Stoddard and Stoddard [2007] FMCAfam 735
- Case
- [2007] FMCAfam 735
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1.
Pursuant to s.90K of the Family Law Act 1975 I set aside the Financial Agreement dated 19 January 2004 entered into between the husband and wife to these proceedings.
2.
The husband and the wife are each entitled to be the sole legal and beneficial owner of all property including superannuation currently in their possession and/or control free from any interest of the other.
3.
All other applications are dismissed.
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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