Setting aside a Binding Financial Agreement (BFA)
In Frederick & Frederick (2019) FLC 93-900, 60 Fam LR 1,  FamCAFC 87 the Full Court of the Family Court was asked to consider an appeal in relation to a BFA under the provisions of section 490K(1)(d) Family Law Act lodged by the wife on the basis that changed circumstances had arisen since the signing of the BFA causing her hardship. This course of action is permissible under the provisions of section 90K(1)(d) provided that the party would suffer hardship if the Agreement is not set aside.
What were the changed circumstances? The wife was diagnosed as suffering from atypical autism and mild functional/adaptive impairment and as a result the wife required a high level of care. The trial judge found that this health issue constituted a material change in circumstances and as such would cause hardship to both parties by reason of the necessity of much more onerous care responsibilities with increased costs was required.
The question remained: was this sufficient for the court to set aside the BFA?
The court was required to look at the position of the child or the person with caring responsibilities (in this case the wife) if the Agreement remains in place and the position, by comparison, if the Agreement is not set aside.
Evidence is required to be available for the judge to make such a comparison and in this case the trial judge determined that no such evidence was tendered. The wife was therefore unsuccessful.
The wife appealed the decision and on appeal was successful. Hardship was established and an order made setting aside the BFA. The basis of the decision included a determination of the following issues:
- The contributions made by the wife during the relationship
- The lengthy considerations of the sections of section 75(2) Family Law Act that takes into account the financial and non financial positions of the parties for the future
- The considerations flowing from the care that is required of the children of the relationship and the care required of the wife with her health issues
- The relatively small asset pool that would be available to the wife under the provisions of the BFA