Suess & Suess

Case [2024] FedCFamC1F 175

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Suess & Suess [2024] FedCFamC1F 175

File number(s): PAC 3016 of 2022
Judgment of: BERMAN J
Date of judgment: 20 March 2024
Catchwords: FAMILY LAW – FINANCIAL AGREEMENT – Where the wife seeks that the financial agreement be set aside and orders be made pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the husband seeks an order that the financial agreement be declared binding – Consideration of legal advice provided – Consideration of whether legal advice was so incompetent that it amounted to no advice – Consideration of s 90G(1)(b) of the Act – Consideration of whether the Court is required to have regard to the quality and accuracy of the advice – Consideration of valuation of an asset – Consideration of unconscionable conduct and undue influence – Initiating Application dismissed.
Legislation:

Family Law Act 1975 (Cth) ss 4, 71A, 90G, 90C, 90K

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.11, 7.20. 7.21

Cases cited:

Abrum & Abrum [2013] FamCA 897

Anderson v Anderson (2000) FLC 93-016

Hoult & Hoult (2013) FLC 93-546

Kaimal & Kaimal [2020] FamCA 971

Kostres & Kostres (2009) FLC 93-420

Michaels & Vidal [2022] FedCFamC1F 252

Ruane & Bachmann-Ruane and Anor [2009] FamCA 1101

Thorne v Kennedy [2017] HCA 49

Wallace & Stelzer and Anor (2013) FLC 93-566

Division: Division 1 First Instance
Number of paragraphs: 206
Date of hearing: 17-18 April 2023 & 16-19 October 2023
Place: Heard in Parramatta, delivered in Adelaide
Counsel for the Applicant: Ms Clarke
Solicitor for the Applicant: LCI Legal
Counsel for the Respondent: Mr Dura SC
Solicitor for the Respondent: Walkden Law and Mediation

ORDERS

PAC 3016 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS SUESS

Wife
AND:

MR SUESS

Husband

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

20 MARCH 2024

THE COURT ORDERS THAT:

1.The Court declares that pursuant to s 90G(1B) of the Family Law Act 1975 (Cth), the financial agreement entered into between the applicant and the respondent on 11 December 2019 is binding on the parties.

2.The Amended Initiating Application filed 21 October 2022 be dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law…

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AGLC
Suess & Suess [2024] FedCFamC1F 175
Case
[2024] FedCFamC1F 175
Decision Date

CaseChat Overview and Summary

Ms Suess and Mr Suess were married in 1990 and separated in 2018, and a divorce was granted in 2021. The wife sought to have a financial agreement declared invalid and to have orders made under section 79 of the Family Law Act 1975 (Cth). The husband sought a declaration that the financial agreement was binding. The court had to decide whether the legal advice given to the wife was so poor that it amounted to no advice at all, and whether the quality and accuracy of the advice needed to be considered under section 90G(1)(b) of the Act. The court also considered the valuation of an asset, and whether there was unconscionable conduct or undue influence. The wife’s initiating application was dismissed.

The central issue before the court was whether the wife had received adequate legal advice regarding the financial agreement. The court examined the quality of the legal advice given to the wife, considering whether it was so inadequate that it amounted to no advice. The court also considered whether the quality and accuracy of the legal advice needed to be assessed under section 90G(1)(b) of the Family Law Act 1975 (Cth). In addition, the court reviewed the valuation of an asset, and assessed whether there was any evidence of unconscionable conduct or undue influence. The wife’s initiating application was dismissed as the court found that the wife had received adequate legal advice and the financial agreement was binding.

The court found that the wife had received competent legal advice and the quality and accuracy of that advice was satisfactory. The wife had been provided with a detailed explanation of the financial agreement and its implications. The court also determined that there was no evidence of unconscionable conduct or undue influence. The valuation of the asset in question was deemed appropriate, and the wife's decision not to obtain a formal valuation was considered a reasonable one given the circumstances. The court concluded that the wife had been fully informed and had made an informed decision regarding the financial agreement. The initiating application was dismissed, and the financial agreement was declared binding.

The court ordered that the financial agreement entered into between the applicant and the respondent on 11 December 2019 is binding on the parties, and the Amended Initiating Application filed on 21 October 2022 be dismissed.

Orders

Orders of the court

PAC 3016 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS SUESS

Wife

AND:

MR SUESS

Husband

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

20 MARCH 2024

THE COURT ORDERS THAT:

1. The Court declares that pursuant to s 90G(1B) of the Family Law Act 1975 (Cth), the financial agreement entered into between the applicant and the respondent on 11 December 2019 is binding on the parties.

2. The Amended Initiating Application filed 21 October 2022 be dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

It is not in dispute that no goodwill was attributed to D Pty Ltd however, the husband argues that it is not a requirement that the parties obtained a formal valuation report and further, that the same was discussed between the parties, Ms B and Mr C but a decision was reached to forgo obtaining a valuation so as to resolve matters expeditiously. BACKGROUND The wife was born in 1972 and is now 52 years of age. The husband was born in 1969 and is 54 years of age. The wife is presently self-employed. The husband is self-employed on a full-time basis in the parties’ former business, D Pty Ltd (“the business”). The parties were married in 1990 and commenced cohabitation shortly thereafter. They separated on a final basis on 24 June 2018 and a divorce was granted in 2021. There are four adult children of the relationship namely, Mr H born 1991, Mr J born 1993, Mr K born 1997 and Ms L born 2000 (collectively “the adult children”). The adult children are now involved in the parties’ business and were significantly involved in the settlement negotiations. At the time of marriage, the wife had about $6,000 in savings and the husband owned a one third interest in a property situate at 2 F Street, Town G. The husband had purchased 2 F Street, together with his two brothers, in 1988 from the wife’s parents. The parties commenced living together around about the time of marriage in a property that was owned by the wife’s parents. They resided there, rent free, for a period of about three years. In 1993, the parties and the husband’s two brothers purchased a property situate at 1 F Street, Town G for approximately $300,000. The parties resided at 1 F Street until 2013. In 1999 the parties purchased an investment property situate at N Street, Suburb M (“the Suburb M property”) for approximately $430,000 funded by way of borrowings from P Bank of approximately 217,000 and the remainder from the parties’ savings. In 2005, the parties in partnership purchased another investment property at Q Street, Suburb R (“the Suburb R property”) for approximately $765,000. The purchase was funded by way of the parties’ savings together borrowings of about $612,000 from NAB Bank. In 2013, the parties purchased a property at S Street, Town G (“the S Street property”). This property was purchased by the partnership, Suess Partnership. The parties moved into the S Street property at the time of purchase and it became the matrimonial home. Between 1993 and 1995 several partnerships were established as between the husband’s parents, the wife and the husband and the husband’s two brothers together with their respective wives. All four partnerships operated the business and continued until 1995 when it became a corporate entity known as T Pty Ltd. At this time, all of the previous partners became Directors. In 2003 the parties established the Suess Partnership (“the partnership”). T Pty Ltd continued to operate until 2008 when the husband’s parents semi-retired and succession planning discussions commenced. Following discussions with an accountant, it was agreed that three new companies would be incorporated, and the assets of T Pty Ltd were equally distributed between the three companies. The effect being that the parties were separate and independent from the entities associated with the husband’s parents, brothers and their wives.

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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