WHITFORD and WHITFORD - [2023] FCWA 15

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: BUNBURY
CITATION: WHITFORD and WHITFORD [2023] FCWA 15
CORAM: BERRY J
HEARD: 17 - 20 OCTOBER 2022
DELIVERED : 30 JANUARY 2023
FILE NO/S: 7844 of 2020
BETWEEN: MS WHITFORD
Applicant
AND
MR WHITFORD
Respondent

Catchwords:

FINANCIAL PROCEEDINGS - Where there is a binding financial agreement - Whether the binding financial agreement should be set aside

Legislation:

Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)
Limitation Act 2005 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms Hossen
Respondent	:	Mr Rodda

Solicitors:

Applicant	:	HHG Legal Group
Respondent	:	Slee Anderson & Pidgeon

Case(s) referred to in decision(s):

Daily & Daily (2020) FLC 93-999
Daily v Daily (2020) 61 Fam LR 75
Hoult & Hoult (2013) FLC 93-546
Johanson & Johanson [2022] FedCFamC1A 74
Re Chemaisse; Federal Commissioner of Taxation (intervener) (1990) FLC 92-133
Stanford v Stanford (2012) 247 CLR 108
Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 278 ALR 291
Thorne v Kennedy (2017) 263 CLR 85
Wallace & Stelzer and Anor (2013) FLC 93-566

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whitford and Whitford has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

BERRY J:

Introduction

1 The Court is required to determine the wife's application to set aside a financial agreement made with the husband on 17 December 2014. Procedural orders made prior to trial reflected the agreement of the parties to conduct the trial on a bifurcated basis, such that this application was the sole issue for determination.

2 For the reasons which follow, the Court has decided that the financial agreement must be set aside.

Orders sought by the applicant wife

3 By her minute of proposed orders sought of 14 March 2022, the wife sought the following orders:

1. The Financial Agreement signed by the parties and dated 17 December 2014, but with the Statement of Independent Legal Advice for [MR WHITFORD] annexed thereto dated 22 December 2014, between the Applicant and the Respondent be set aside
2. That subject to paragraph 1 hereof, the financial proceedings be adjourned in respect of an alteration as to the property of the parties, including their superannuation benefits, pursuant to section 79 of the Family Law Act 1975 (Cth);
3. The Applicant have leave to further particularise the orders she seeks as to the appropriate alteration and division of the property of the parties within 28 days of the Respondent providing full and frank disclosure.

4…

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 WHITFORD and WHITFORD

Details

AGLC: WHITFORD and WHITFORD [2023] FCWA 15
Case: [2023] FCWA 15
Decision Date

CaseChat Overview and Summary

In the matter of Whitford and Whitford, the Family Court of Western Australia was tasked with determining the wife's application to set aside a financial agreement made with the husband. The wife, Ms Whitford, sought to set aside the financial agreement on several grounds, including fraud, non-disclosure of material matters, unconscionability, and inadequate legal advice. The husband, Mr Whitford, argued against the wife's application and provided counterarguments to each of her claims. The court had to decide whether the financial agreement was binding and, if so, whether there were any grounds to set it aside. After carefully considering the evidence and arguments presented by both parties, the court found that the financial agreement was indeed binding. However, the court also determined that there were sufficient grounds to set aside the financial agreement. The court found that Mr Whitford had engaged in non-disclosure of material matters, unconscionable conduct, and that the wife had not received adequate legal advice. The court concluded that the financial agreement should be set aside, allowing the wife a period of 12 months to commence property or maintenance proceedings. The court's decision was based on the established grounds to set aside the financial agreement and the matters raised against doing so.

Orders