WOODHAM & ERICKSON (No.2)

Case [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 28th 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…

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Details
AGLC
WOODHAM & ERICKSON (No.2) [2019] FCCA 1201
Case
[2019] FCCA 1201
Decision Date

CaseChat Overview and Summary

In *Woodham & Erickson (No.2)*, Judge McGuire of the Family Court of Australia considered a dispute concerning the validity and construction of a co-habitation and Binding Financial Agreement (BFA) entered into by the parties. The primary issue before the court was whether the BFA should be set aside, and consequently, how the proceeds of sale of the former matrimonial home should be distributed.

The court was required to determine whether the agreement constituted a valid Binding Financial Agreement under section 90G of the *Family Law Act 1975* (Cth). This involved an assessment of whether the formal requirements for such an agreement had been met, and if so, how the terms of the agreement should be interpreted and applied to the distribution of the sale proceeds of the former matrimonial home.

Judge McGuire found that the co-habitation and Binding Financial Agreement was indeed a valid Binding Financial Agreement pursuant to section 90G(1B) of the *Family Law Act 1975*. The court's reasoning, though not detailed in the provided text, led to the conclusion that the agreement should be upheld. Consequently, the court ordered that the proceeds of the sale of the former matrimonial home be distributed in accordance with the terms of the BFA. This included the payment of sale costs, a specific sum of $240,000 to the wife, and an equal division of the remaining balance between the husband and wife.

Orders

Orders of the court

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.

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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