The Undesirability of Appeals in the Family Court
Recently, we have had a number of cases where parties have good prospects to appeal, but a decision has been
Call us on
Call us on
A recent Full Court decision (Fewster and Drake [2016] FAM CAFC 214) has reaffirmed the previous position of the Full Court of the Family Court that just because an agreement is unfair, doesn’t mean that it should be set aside.
Even if, a party is receiving substantially less than they would have if they had not executed the agreement (pursuant to the Terms of S79 of the Family Law Act), then that by itself is not a sufficient ground to set aside an agreement.
Also, the decision reaffirmed that it is difficult to set aside an agreement just because children are born after the agreement is executed.
In this case, the wife was pregnant at the time of signing the agreement and a second child was also born during the relationship. The Trial Judge set aside the agreement on the basis that circumstances had arisen since the time of the agreement that would cause hardship to the wife, if the agreement was not set aside.
The Trial Judge effectively based his position on the fact that the agreement, itself, did not provide recognition for the wife’s contribution as a parent and the neglect of these important contributions by the wife in the agreement meant that the agreement should be set aside.
The Full Court reiterated that there must be a material change in circumstances that has arisen since the signing of the Financial Agreement.
Importantly, the Full Court pointed out that it is the changed circumstances which themselves must give rise to any hardship and not the actual agreement itself.
They stated that people were free to enter into such Binding Financial Agreements as they see fit and there is no statutory provision which enables an agreement to be set aside merely because it is “unfair”.
The Trial Judge’s conclusion that because the agreement failed to provide any provision for the increased responsibility for the child, and that therefore this inevitably creates “hardship” for the wife, was incorrect.
Finally, if there has been a material change that itself had given rise to the hardship, then before setting aside the agreement the Court must undertake some comparison between the parties’ positions if the agreement remains in place (and that of the child) and the position, if the agreement is set aside – it is only be doing so that the Court can then place itself in the position to determine whether there would be hardship if the agreement was not set aside. The Trial Judge did not embark on such a comparison.
Hardship has to be something more than just unfairness – it must be a substantial detriment and more burdensome than any appreciable detriment.
Also, the decision reaffirmed that it is difficult to set aside an agreement just because children are born after the agreement is executed.
In this case, the wife was pregnant at the time of signing the agreement and a second child was also born during the relationship. The Trial Judge set aside the agreement on the basis that circumstances had arisen since the time of the agreement that would cause hardship to the wife, if the agreement was not set aside.
Recently, we have had a number of cases where parties have good prospects to appeal, but a decision has been
It is probably commonsense and goes without saying, but in so many matters we have clients present to us in
The Family Law Amendment Bill 2023 (Cth) which was passed on 19 October 2023 will result in significant changes to
© 2024 Hartley Family Law – All Rights Reserved | Privacy | Terms & Conditions
The Privacy Statement of the Company is incorporated into these Terms and Conditions. The Company respects the privacy of all its customers and business contacts. The Company is subject to the requirements of the National Privacy Principles which are contained in the Privacy Act.
1. How is personal information collected?
Your name, email address and phone number are collected on the contact form to allow the Company to contact you.
If you email or phone the Company directly, then the Company may record your personal details.
Your personal information may be used to:
a) Improve service to you, the customer
b) The Company may use personal information about you for marketing and research purposes. If you do not wish this to occur, please contact us and we will ensure this does not occur
c) Your personal information is not disclosed to any organisation outside of the Company.
2. Will personal information be given to anyone else?
The Company does not sell or provide your personal information to any other company.
3. Security of personal information
The Company employees are required, as a condition of their employment, to treat personal information held by the Company as confidential, and to maintain the confidentiality of that personal information.
The Company protects the personal information it collects in a secure database.
4. Access and correction
You can access your data at any time by contacting the Company directly.
You also have the right to ask us to correct information about you which is inaccurate, incomplete or out of date.
We ask you to contact the Company by email or phone using the Company contact details if you wish to access or correct any of your personal details.
5. Online privacy issues
To the extent that this Privacy Policy applies to online privacy issues, it is to be read as forming part of the terms of use for our website. When you deal with the Company whether online or otherwise, the Company takes its privacy obligations seriously.
6. Additional privacy information and how to contact the Company
The Company may change its Privacy Policy at any time.
For further information about privacy issues and the protection of privacy visit the Australian Federal Privacy Commissioner’s website at www.privacy.gov.au. If you feel that The Company is not complying with this Privacy Policy, or if you have other privacy concerns, please contact the company.
