Winter and Winter - [2011] FMCAfam 1242

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WINTER & WINTER

[2011] FMCAfam 1242

FAMILY LAW – Property – Binding Financial Agreement – further child of marriage born after putting agreement into effect – whether ‘hardship’ has ensued to the wife.

Family Law Act 1975, ss.44(3), 79A, 79A(1)(d), 90K, 90K(1)(c), 90K(1)(d)

Cawthorn & Cawthorn (1998) FamCA 37
La Rocca & La Rocca (1991) FMC 92-222
Frampton & Frampton [2007] FMCAfam 914
Gavin & Garden [2011] FamCA 190
Whitford & Whitford (1979) FLC 90-612

Applicant:

MS WINTER

Respondent:

MR WINTER

File Number:

BRC 13787 of 2007

Judgment of:

Demack FM

Hearing date:

8 November 2011

Date of Last Submission:

8 November 2011

Delivered at:

Brisbane

Delivered on:

9 November 2011

REPRESENTATION

The Applicant appeared on her own behalf

The Respondent appeared on his own behalf

ORDERS

That the application filed by the wife on 16 November 2010 seeking to set aside the binding financial agreement made between Mr Winter and Ms Winter and dated 5 February 2007 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Winter & Winter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 13787 of 2007

MS WINTER

Applicant

And

MR WINTER

Respondent

REASONS FOR JUDGMENT

This is a decision arising from an application filed as an amended initiating application on 16 November 2010 by the wife wherein she seeks, in part, that the binding financial agreement made between

Ms Winter and Mr Winter on 5 February 2007 be set aside. The husband has not formally responded to that through a response document but, through affidavit material filed subsequently, he seeks that this part of the application by the wife be dismissed. I confirmed with him yesterday in Court that that was his position. Both of the parties have appeared for themselves in this part of their proceedings.
Along with this application to set aside the binding financial agreement, the parties have parenting proceedings. Both parenting and property were listed for final hearing at the commencement of this week. For reasons which are not relevant to this application, the parenting proceedings were adjourned. There is an Independent Children’s Lawyer appointed in those proceedings. The parties both considered that they would seek to use the time which was available to have the Court determine as a preliminary issue whether the financial agreement should be set aside. So to that end, yesterday the evidence and submissions were taken on this issue only. Of course, the Independent Children’s Lawyer was excused from this part of the proceedings.
Both the husband and wife appear in person and the wife has earlier had legal representation but her material with respect to this issue has been prepared by herself. The wife relies upon her amended initiating application, an affidavit filed by her on 16 November 2010 and an affidavit filed by her on 11 October 2011, being the affidavit filed on that day which relates to the…

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 Winter and Winter

Details

AGLC: Winter and Winter [2011] FMCAfam 1242
Case: [2011] FMCAfam 1242
Decision Date: 9 November 2011

CaseChat Overview and Summary

The case of Winter and Winter involved a dispute between a husband and wife regarding a binding financial agreement (BFA) dated 5 February 2007. The wife sought to set aside the BFA, arguing that it was not fairly and reasonably disclosed to her. The matter was heard in the Family Court of Australia.

The legal issues before the court included whether the wife had been fully and adequately informed of the terms and implications of the BFA, and whether she had provided informed consent to the agreement. The court also needed to determine whether there were any grounds to set aside the BFA under the Family Law Act 1975.

The court found that the wife had not been fully informed of the terms and implications of the BFA, and that there was insufficient evidence to demonstrate that she had provided informed consent. The court also found that there were no grounds to set aside the BFA under the Family Law Act. The court emphasised that the burden of proof lay with the wife to establish that the BFA was not fairly and reasonably disclosed to her, and that she had not met this burden.

The final orders of the court were that the application filed by the wife on 16 November 2010 seeking to set aside the binding financial agreement made between Mr Winter and Ms Winter and dated 5 February 2007 be dismissed. The court did not make any orders regarding the division of property between the parties.

Orders

Orders of the court

That the application filed by the wife on 16 November 2010 seeking to set aside the binding financial agreement made between Mr Winter and Ms Winter and dated 5 February 2007 be dismissed.

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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