Talley & Patterson

Case [2022] FedCFamC2F 1203


Federal Circuit and Family Court of Australia

(DIVISION 2)

Talley & Patterson [2022] FedCFamC2F 1203

File number(s): SYC 4240 of 2019
Judgment of: JUDGE MORLEY
Date of judgment: 5 September 2022
Catchwords:

FAMILY LAW – Part VIIIAB Division 4 Agreement – Financial Agreement binding on the parties – whether agreement binding on the parties pursuant to section 90UJ – Wife alleges she did not receive legal advice as required by section 90UJ(1)(c) – detailed exploration of the evidence on the matter including transcript – credit finding as to the Wife’s evidence – Court finds that the Wife did receive the requisite advice – agreement prima facie binding on the parties.

FAMILY LAW – Part VIIIAB Division 4 Agreement – Financial Agreement binding on the parties – whether agreement should be set aside pursuant to section 90UM(1)(e) – whether agreement void for uncertainty – agreement not uncertain.

FAMILY LAW – Part VIIIAB Division 4 Agreement – Financial Agreement binding on the parties – whether agreement should be set aside pursuant to section 90UM(1)(a) – whether agreement obtained by fraud – agreement not obtained by fraud.

FAMILY LAW – Part VIIIAB Division 4 Agreement – Financial Agreement binding on the parties – application by Husband for enforcement of agreement – where no evidence of separation declaration pursuant to section 90UF – agreement not currently enforceable.

Legislation:

Evidence Act 1995 (Cth) s 122

Family Law Act 1975 (Cth) ss 90SM, 90UC, 90UE, 90UF, 90UG, 90UJ, 90UM, 90UN.

Judiciary Act 1903 (Cth) s 31.

Cases cited:

ABC v Australian Performing Rights Association Inc (1973) 129 CLR 99

Axelsen v O’Brien (1949) 80 CLR 219

Beroni & Corelli [2021] FamCAFC 9

Bilal & Omar [2015] FamCAFC 30

BridgeWholesale Acceptance Corp (Australia) Ltd v Burnard (1992) 27 NSWLR 415

Dobbs & Dobbs [2021] FamCAFC 78

Frederick & Frederick [2019] FamCAFC 87

Grainger & Bloomfield and Anor [2015] FamCAFC 221

Hoult & Hoult [2011] FamCA 1023

Hoult & Hoult [2013] FamCAFC 109

Jones v Dunkel (1959) 101 CLR 298

Lincoln (deceased) & Moore [2016] FamCA 547

Logan & Logan [2013] FamCAFC 151

Mann v Carnell [1999] HCA 66

Meehan v Jones (1982) 149 CLR 571

Nyles v Nyles [2011] FamCA 565

TheAustralian Guarantee Corporation Ltd v Balding (1930) 43 CLR 140

Trustees Executors and Agency Company Ltd & Anor v Peters (1960) 102 CLR 537

Upper Hunter County District Council v Australian Chilling & Freezing Co (1968) 118 CLR 429

Wallace & Stelzer and Anor [2013] FamCAFC 199

Warner & Cummings [2017] FCCA 432

WN Hillas & Co Ltd v Arcos [1932] UKHL 2

Division: Division 2 Family Law
Number of paragraphs: 174
Date of hearing: 14 May 2021
Place: Sydney
Counsel for the Applicant: Mr Moutasallem
Solicitor for the Applicant: Darby Jones Lawyers
Counsel for the Respondent: Mr Flaherty
Solicitor for the Respondent: Mullick & Associates

ORDERS

SYC 4240 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS TALLEY

Applicant

AND:

MR PATTERSON

Respondent

order made by:

JUDGE MORLEY

DATE…

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Talley & Patterson [2022] FedCFamC2F 1203
Case
[2022] FedCFamC2F 1203
Decision Date

CaseChat Overview and Summary

In the matter of Talley and Patterson, the Federal Circuit and Family Court of Australia addressed whether a financial agreement between the parties was binding, and if so, enforceable. The court was required to determine if the agreement was binding under section 90UJ of the Family Law Act 1975, if it should be set aside under section 90UM, and whether it could be enforced in the absence of a separation declaration under section 90UF. The wife argued that she had not received the necessary legal advice as required by section 90UJ(1)(c), and that the agreement was void for uncertainty or obtained by fraud. The court found that the wife had indeed received the requisite legal advice, and that the agreement was not uncertain or obtained by fraud. The court also determined that while the financial agreement was binding, it was not enforceable due to the lack of a separation declaration.

The court's reasoning was grounded in a detailed analysis of the evidence presented, including the transcript of the proceedings. The court gave significant weight to the wife's testimony but ultimately found that she had received the necessary legal advice as mandated by section 90UJ(1)(c). The court found no evidence of uncertainty in the terms of the agreement, nor any indication that the agreement was obtained by fraud. However, because there was no evidence of a separation declaration, the agreement was not currently enforceable under section 90UF. Consequently, while the financial agreement was deemed binding, the court did not grant enforcement at this stage. The court also dismissed the initiating application and response, reserving the right for either party to apply for costs within specified timelines.

Orders

Orders of the court

SYC 4240 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS TALLEY

Applicant

AND:

MR PATTERSON

Respondent

order made by:

JUDGE MORLEY

DATE OF ORDER:

5 September 2022

THE COURT DECLARES THAT:

1. The Financial Agreement entered into by the parties dated 18 April 2016 is a Part VIIIAB Financial Agreement pursuant to section 90UC of the Family Law Act 1975 (Cth) and is binding on the parties.

THE COURT ORDERS THAT:

2. The Initiating Application filed on 1 July 2019 and the Response filed on 13 September 2019 (‘the moving documents’) are dismissed save for any application for costs.

Costs applications

3. Should either party seek to press the costs application contained in their moving document, that party is to file and serve:

(a) A minute of order setting out the quantum of costs sought (including the basis for that quantum);

(b) Any affidavit/s or evidence in support of the application; and

(c) Written submissions in support of the costs application,

by no later than 4:00PM on 3 October 2022.

4. Any written submissions in reply to any costs application are to be filed and served by no later than 4:00PM on 17 October 2022.

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

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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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