Telfer & Telfer - [2022] FedCFamC1F 547

Federal Circuit and Family Court of Australia
(DIVISION 1)
Telfer & Telfer [2022] FedCFamC1F 547

File number(s): BRC 5098 of 2020

Judgment of: HOGAN J

Date of judgment: 29 July 2022

Catchwords:
FAMILY LAW – BINDING FINANCIAL AGREEMENT – Where the applicant seeks to set aside a financial agreement – Where the respondent seeks that the financial agreement be declared binding – Where the respondent was clear and unequivocal that a financial agreement which provided for both parties’ already acquired property to be kept separate was a necessary prerequisite for him and the applicant to enter into a de facto relationship – Where the parties entered into a financial agreement pursuant to s 90UB of the Family Law Act 1975 (Cth) prior to commencing cohabitation – Where the parties later entered into a financial agreement pursuant to s 90C of the Family Law Act 1975 (Cth) following their marriage – Where the applicant asserts that she was subjected to duress and undue influence by the respondent.

FAMILY LAW – PARENTING – Where the children are aged 15 years and 4 years – Where the applicant seeks more certainty in the time that the children are to spend with the respondent – Where the respondent’s work roster prevents him from being available to care for the children in a consistent regime – Where the parties have been unable to agree on the children’s schooling.

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Australia and New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Beroni & Corelli (2021) FLC 94-004; [2021] FamCAFC 9

Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66

Cox & Pedrana (2013) FLC 93-537; [2013] FamCAFC 48

Gongsun & Paling (2020) FLC 93-987; [2020] FamCAFC 244

Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Division: First Instance

Number of paragraphs: 202

Date of hearing: 10, 11, 12, 13 & 14 May 2021; 16 July 2021

Place: Brisbane

Counsel for the Applicant: Mr Shoebridge

Solicitor for the Applicant: Evans Brandon Family Lawyers

Counsel for the Respondent: Mr Alexander

Solicitor for the Respondent: Pullos Lawyers
ORDERS

BRC 5098 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS TELFER

Applicant

AND:
MR TELFER

Respondent

order made by:

HOGAN J

DATE OF ORDER:

29 JULY 2022

IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The children, Z, born in 2007, and X, born in 2018, shall live with the applicant.
3.
Other than in relation to the children’s education (both current and future), the parents shall have equal shared parental responsibility in relation to the major

long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)), relating to the children, including:
(a)the children’s religious…

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 Telfer & Telfer

Details

AGLC: Telfer & Telfer [2022] FedCFamC1F 547
Case: [2022] FedCFamC1F 547
Decision Date

CaseChat Overview and Summary

The proceedings were between Ms Telfer and Mr Telfer, parents of two children. The applicant sought to set aside a binding financial agreement and sought parenting orders. The respondent sought declarations that the financial agreement was binding and parenting orders. The Court was required to determine whether the financial agreement was binding and what parenting orders should be made. The Court found that the financial agreement was binding and dismissed the application to set it aside. The Court found that it was in the best interests of the children for the applicant to have sole parental responsibility in relation to the major long-term issues relating to the children. The Court found that it was in the best interests of the children for them to live with the applicant and to spend time with the respondent, with the details of the time to be nominated by the applicant from the respondent's roster. The Court found that it was in the best interests of the children for the applicant to have sole parental responsibility for the children's education. The Court made orders that the financial agreement was binding and that the children live with the applicant and spend time with the respondent in accordance with the detailed parenting orders.

Orders