WOODHAM & ERICKSON (No.2)

[2019] FCCA 1201

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOODHAM & ERICKSON (No.2) [2019] FCCA 1201

Catchwords:
FAMILY LAW – Binding Financial Agreement – whether should be set aside – Construction of Agreement.

Legislation:

Family Law Act 1975 (Cth), ss.90B, 90C, 90D, 90G

Cases cited:

Graham & Squibb [2019] FamCAFC 33

Parker & Parker [2012] FamCAFC 33

Senior & Anderson (2011) FLC 93-470

Hoult v Hoult (2013) FLC 93-546

ASIC v Fortescue Metals Group Ltd  & Anor [2011] FCAFC 19

Australian Broadcasting Commission v Australian Performing Right Association

LTD (1973) 129 CLR 99

Applicant: MS WOODHAM

Respondent: MR ERICKSON

File Number: BRC 13010 of 2016

Judgment of: Judge McGuire

Hearing dates: 28, 29, 30 November 2018 & 13 December 2018

Date of Last Submission: 21 February 2019

Delivered at: Melbourne

Delivered on: 15 May 2019

REPRESENTATION

Counsel for the Applicant: Ms McCardle

Solicitors for the Applicant: Cherry Family Lawyers

Counsel for the Respondent: Mr Lawrence

Solicitors for the Respondent: P M Lee & Co

ORDERS

1. That the Court declares pursuant to Section 90G(1B) of the Family Law Act 1975 that the co-habitation & Binding Financial Agreement is a Binding Financial Agreement.

2. That the proceeds of sale of the former matrimonial home situate at Property A in Queensland be distributed as follows:

   (a)As to the payment of any outstanding costs and disbursements on the sale;

   (b)As to the sum of $240,000 to the wife; and

   (c)As to 50% of the balance to the wife and 50% of the balance to the husband.

IT IS NOTED that publication of this judgment under the pseudonym Woodham & Erickson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 13010 of 2016

MS WOODHAM

Applicant

And

MR ERICKSON

Respondent

REASONS FOR JUDGMENT

Applications

1. These parties litigated both parenting and financial issues in a trial of four days duration between 28^th November 2018 and 13 December 2018.  At the conclusion of the evidence, Ex-Tempore reasons were delivered in respect of the children's matters and the Court determined to receive written submissions in relation to the financial issues by February 2019.

2. The wife seeks the following orders:

   i)That a Binding Financial Agreement from 2006 be set aside;

   ii)That the husband receive a sum of $80,000 from monies held in trust on behalf of the parties being the net proceeds of sale of the former matrimonial home;

   iii)That the wife receive the balance funds from monies held in trust;

   iv)That otherwise each of the parties retain those assets, liabilities and financial resources currently in the possession or control of that party and indemnify the other accordingly.

3. Alternatively, and in the event of the Binding Financial Agreement not being set aside, then the wife proposes that the husband receive a payment of $170,866.94 from the net proceeds of sale from the former matrimonial home with the then balance of funds to be paid to the wife and otherwise ancillary orders set out above.

4. The husband proposes, firstly, that there be…