Stoddard and Stoddard - [2007] FMCAfam 735

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

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 Stoddard and Stoddard

Details

AGLC: Stoddard and Stoddard [2007] FMCAfam 735
Case: [2007] FMCAfam 735
Decision Date: 21 September 2007

CaseChat Overview and Summary

Stoddard and Stoddard involved a dispute between a husband and wife over the validity of a financial agreement they had entered into. The case was heard in the Family Court of Australia, where the wife sought to have the agreement set aside on the basis that it was not a genuine agreement or was unfair. The husband argued that the agreement was valid and should be enforced as it was entered into willingly and fairly by both parties. The court had to determine whether the agreement was a genuine and fair agreement and, if not, whether it should be set aside under section 90K of the Family Law Act 1975. The court considered the circumstances in which the agreement was entered into, the relative bargaining positions of the parties, and the terms of the agreement itself. The court found that the agreement was not a genuine agreement and was unfair, and therefore set it aside. The court held that both parties were entitled to be the sole legal and beneficial owner of all property including superannuation currently in their possession or control, free from any interest of the other. The court dismissed all other applications.

Orders

Orders of the court

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.

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.

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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