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
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
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
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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