Black & Black
[2006] FamCA 972
•15 September 2006
[2006] FamCA 972
IN THE FAMILY COURT
OF AUSTRALIA
AT LAUNCESTON No. (P)HBF 1755 of 2004
BLACK Applicant
BLACK Respondent
REASONS FOR JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE BENJAMIN
DATE OF HEARING : 8 & 9 August 2006.
DATE OF ORDERS : 15 September 2006.
DATE OF JUDGMENT : 15 September 2006.
CATCHWORDS :
FAMILY LAW – PROPERTY – Financial agreements – Whether an agreement under Part VIIIA is binding if there was not strict compliance with s 90G or, if binding, whether the agreement should be set aside under s90K. In construction of both the legislation and a Part VIIIA financial agreement should an objective approach be adopted.
APPEARANCES : Mr Williams of Counsel (instructed by Mr Cann) appeared on behalf of the applicant
:Mr McViety of Counsel (instructed by McViety & Associates) appeared on behalf of the respondent
Introduction
This is an application by the husband for orders that a financial agreement[1], entered into between himself and the wife dated 3 September 2002 (“the agreement”), be declared void as it does not comply with s90G of the Family Law Act (“the Act”) or if not void, then the husband submits that the agreement ought to be set aside under s 90K of the Act.
[1] The document is expressed to be an agreement to which the provisions of Part VIIIA (Financial Agreements) of the Act applies.
The husband then seeks consequential orders for adjustment of property under Part VIII of the Act, including an order that the wife holds her interest in a property at X in trust for the husband, or further as an alternative, that the wife transfer her interest in the X property to the husband. If the agreement is void or set aside the husband seeks orders that the property be divided as to 20% to the wife and 80% to the husband. This on the basis of a greater contribution by the husband, combined with a small adjustment in his favour, having regard to the relevant matters in ss. 79(d),(e),(f) & (g) of the Act (“the other factors”) including the matters referred to in s.75(2) of the Act.
The wife responded, seeking orders that the husband’s application be dismissed and that the husband pay the wife’s costs of the proceedings. The wife further submitted, that if the agreement was declared void or set aside, then in any adjustment of property as between the parties, the wife should receive less than 50% of the asset pool as her financial contributions were less than those of the husband, and that there should not be any adjustment to that assessment having regard to the other factors.
The husband’s submissions.
The husband submitted the following:-
(a) That agreements in the context of parties to a marriage are to be treated differently to agreements at law generally, as they are well outside normal commercial law.
(b) That the financial agreement is void or should be set aside because the legislative basis of financial agreements under Part VIIIA should be construed strictly. This is because such agreements are unique in that, if binding, they exclude Courts from exercising powers under Part VIII of the Act[2]. In this regard, counsel for the husband submitted that the agreement was not binding and was therefore void, because the provisions of s90G(1) had not been complied with in two areas. The first basis was that it was not properly certified as there was a change to the terms of the agreement after a certificate was given, by the husband’s then solicitor[3], and that under the ss 90G(1)(b) there needed to be a new certificate. The second basis was that the sub-section required that the certificate needed to be annexed to the agreement and in addition a statement to the effect required by ss 90G(1)(b), needed to be included in the body of the agreement. The issues in respect of s90G arose in within a few days prior to the hearing. However, no objection was taken by the wife in respect of that circumstance, although the wife was given leave to give evidence in chief on that topic.
(c) It was also submitted, on behalf of the husband, that S90G(1)(c) was not complied with as an original agreement or copy of an agreement was not given to the husband. It was later conceded by submission that this could not be sustained as a copy of the agreement was attached to the husband’s affidavit.
(d) That the agreement was void or voidable and should be aside as the wife had engaged in unconscionable conduct within the meaning contained in S90K(1)(e) of the Act.
(e) That the wife was estopped from holding the husband to the agreement because it was so unconscionable to him.
(f) That the agreement was voidable for duress on the basis of the physical threats and violence by the wife and her son C, and or the agreement was voidable by way of undue influence on the basis that the wife was an ascendant party and on that basis the agreement was voidable, and further that the wife took an unfair advantage over the husband.
(g) That circumstances have arisen since the agreement was made that make it impracticable for the agreement or part of the agreement to be carried out, see S90K(1)(c).
(h) The agreement is void for uncertainty in that it is be-ridden by apparent errors.
(i) That the agreement is void or voidable and ought to be set aside because of misrepresentation and fraud on the part of the wife.
(j) That the agreement ought to be declared void on the basis of illusory consideration/promise based upon misrepresentation, presumably by the wife.
(k) That the agreement is void on the basis that the wife’s conduct has frustrated the implementation of the agreement.
[2] S 71A(1).
[3] Being the certificate pursuant to s90G(1)(b).
The general factual position and asset pool.
The husband is aged forty two. He undertakes some casual, paid work with a company called ‘Y’. This work involves dealing with consumers of this product, who are mainly elderly people, but they may sometimes be younger people with disabilities. The husband makes appointments, see these clients and to take a pro-forma medical history from them, installs the ‘Y’ equipment and may make other visits to correct faulty equipment. He did this work, in an area of 50 kilometres around R, when he lived in South Australia. He is now the representative for the north/west of Tasmania.
The husband made no disclosure to Y of any personality disorder or depression from which he may suffer.
The husband enrolled in TAFE courses in 2003, 2004 and 2005. He did not disclose any mental illness to this education provider, notwithstanding, that a question was asked in his applications for such enrolment.
The husband has back injuries which impact on his capacity to work full time.
The wife is aged forty one and works part time. At the date of the wife’s affidavit she worked as an office assistant. From her evidence she is able to do some part-time, paid work. She has back injuries which impact on her capacity to work full-time. She is in receipt of a disability pension.
As to the back injuries of the parties, I find that such injuries impact approximately equally on the parties in terms of their ability to work.
The husband says that the parties met in August 2001 and commenced cohabitation in November 2001. The wife agrees that cohabitation commenced in November 2001. The parties married in April 2002. The parties final separation took place in May 2003.
The relationship was of a short duration from November 2001 to May 2003, some 18 months or so. This occurred in circumstances where the parties were separated for a period of about 5 to 7 weeks between July 2002 and September 2002.
There are no children of the relationships between the husband and the wife.
The husband had been previously married and that relationship ended in 1999. There were two children of that first marriage, A and D aged 22 and 20 respectively. D apparently lived with the husband and presumably the wife until sometime in early to mid 2002 when he went to live with his girlfriend and later with his mother. From the agreement, it seems that he was not living with the parties from at least August or September 2002. A apparently now lives with the husband.
The wife has three children of her former relationship, namely C aged 22, P aged 15 and J aged 9[4]. C resides independently and P and J continue to reside with the wife. It seems from the agreement that the wife’s children were to live with the parties during their relationship.
[4] These ages were at the date of the wife’s affidavit.
In a case summary document[5] it was agreed that the assets and liabilities of the parties (subject to the amount invested with the Commonwealth Bank) are as follows:-
[5] Prepared on behalf of the applicant husband but adopted by the wife.
X $330,000.00
Husband’s Commodore sedan $3,500.00
Husband’s house contents $5,000.00
Wife’s Hyundai Getz $12,000.00
Trustee deposit [6] $43,760.00
Proceeds of sale of the wife’s BMW motor vehicle $500.00
Wife’s house contents[7] $5,000.00
Total $399,760.00
Less Liabilities
ANZ mortgage (approximately) $52,000.00
[6] Evidence was given by the wife as to the amount held in that trustee deposit of $43,760.00 was the settlement of her motor vehicle damages claim and which included some interest. Her legal costs of the agreement were deducted by her solicitor and she had yet to pay the proceeds of sale of the BMW into this account.
[7] The evidence in respect of this was set out in the wife’s financial statement, exhibit “W2”, and was not challenged.
Total pool of assets as at hearing $347,760.00
Subject to comments contained in these reasons, these amounts were not in issue.
In the case summary document, the husband’s superannuation was described as “nil” and the wife described her superannuation in her financial statement as “nil”, this was not challenged. Accordingly, I find that there is no superannuation property.
In the recitals to the agreement[8] the parties set out their financial circumstances. They agreed that at the commencement of the relationship these were as follows:-
[8] The agreement was put in evidence by both parties and whilst the validity of the agreement was in issue, the assertions of fact contained in the recitals were not challenges nor were they put in issue.
a) The husband owned real property, V which as at September 2002 had a value of $200,000.00;
b) V was subject to a mortgage to the Westpac Bank of about $23,000.00 leaving a net equity of about $177,000.00;
c) Each of the parties had furniture of value of about $5,000.00;
d) The husband had a Holden sedan with a value of about $13,500.00 as at the date of the agreement;
e) The wife had a BMW motor vehicle with a value of about $5,000.00 as at the date of the agreement;
f) The wife had a debt to Radio Rentals of approximately $900.00;
g) The wife had a debt to the Commonwealth Bank of $2,500.00 for a student loan.
h) Neither party had any significant superannuation entitlements.
i) The wife had instituted proceedings for personal injuries arising out of a motor vehicle accident[9] (“MVA claim”).
[9] Motor vehicle accident March 2001, wife’s affidavit paragraph 6.
The Evidence
Much of the evidence in relation to these proceedings is evidence of memory of facts deposed as between the husband and the wife. Parties cannot be expected to give evidence completely accurately and there is often a degree of subjectivity with regard to that evidence. The husband is convinced of the merits of his case and his attitude to evidence was self-serving, he was not an impressive witness and I found that he prevaricated from time to time. His evidence seemed to be fashioned by him to meet his case, his answers to some questions were glib. Whilst the wife’s evidence was not without errors, I prefer her version of events to that of the husband and unless his evidence is corroborated or supported by other evidence, I accept her evidence to that of the husband when there is a conflict between their evidence.
The wife received a compensation payment of about $13,000. This compensation arose out of an injury the wife suffered at work in approximately January 2000 and which was the subject of a workers compensation claim. The husband said that this compensation was received after the parties married in April 2002. The wife’s evidence was that this money was received before the time the parties married in April 2002 and was applied to the home at V, the parties’ honeymoon, clothing etc. I accept her evidence in that regard and I find that the sum was applied to the benefit of the parties, and was a direct financial contribution by the wife.
The husband said that the wife asserted to him that her back injury was worse than his. He gave evidence that she had said to him that she hoped to receive more than $200,000.00 on her claim. The evidence of the wife, in relation to the back injury, was that she did not know how much she would receive in compensation. I prefer the wife’s evidence in this regard.
The husband’s version of the facts in relation to the compensation claim are set out, inter alia, in paragraph 45 of the husband’s affidavit. He submits that he was “mislead” by the wife in relation to her assertions to him as to the state of the her injuries and the consequential damages she would receive.
The wife’s evidence was that the husband became involved in her claim very early in their relationship. He persuaded the wife to see a Dr O. The wife changed solicitors in respect of the MVA claim and I infer that the husband was involved in this change. He attended her medical appointments, at least up to late May 2002. I accept the wife’s evidence that after that date the husband avoided attending with the wife at her medical appointments because of his embarrassment over the injuries sustained by her as a consequence of the assault in May 2002.
The husband attended many of the wife’s legal appointments in respect of the MVA claim. The wife’s evidence in this regard is supported by paragraph 45 of the husband’s affidavit when he says;
“From my visits with her lawyers, I was lead to believe ….”
Further in a file note of the husband’s solicitors of 30 August 2002 annexed to the husband’s affidavit the solicitor notes:
“He understands that the equity involved in this is going to depend largely on how much his wife nets from her damages claim. She may net less than the amount he introduces from the sale of his property although he is now thinking that quite possibly she may introduce more”.
I find that the wife did not mislead the husband in relation to the compensation claim and that the husband was significantly involved in pursuing that claim until separation in May 2003.
I find that the husband was very much involved in the MVA claim and was dominant in that regard. He assisted in the provision of medical evidence and instructions to lawyers. The husband was aware of the process of compensation claims as he had suffered an injury when he fell from a truck at work in 1995, and which claim was settled in 1998 for approximately $103,000. I accept the wife’s evidence that the husband was focused on the MVA claim with the intent that the wife’s compensation monies were to be treated as joint property.
The wife’s MVA claim was subsequently settled and is the amount of money referred to as the Trustee deposit above. The wife settled the MVA claim for $78,739.85. She was required to pay out of that sum, medical expenses, Centrelink repayments and legal costs leaving her about $41,000, which sum she paid into an account and kept separate. This money was received by her in September 2004. On 14 October the husband commenced these proceedings in the Family Court seeking orders that the agreement be set aside. Since that time the wife has kept these funds separate, pending the outcome of these proceedings. The husband was critical of the wife for allowing her costs of the agreement to be deducted from the settlement. In that regard I am still close enough to my time in private legal practice to infer that if a legal bill for work done in August/September 2002 remained unpaid in September 2004 it was likely that a legal practitioner would insist that such sum be paid as funds passed through his or her trust account. That deduction can be easily identified and adjusted between the parties, if the agreement is held to be enforceable.
The husband’s evidence is that he continues to be in receipt of a disability pension and is unable to work. In his financial statement filed 27 July 2005, he deposes to receive an income of $77 per week, a disability pension of $238 per week and an education allowance of $31.00 per week.
The husband deposes[10] that he sold his house at V. It was put on the market in September 2002 and sold in December 2002. Annexure ‘B’ to the husband’s affidavit deposes that V was to be settled in December 2002. The precise date of settlement is not clear, although, it appears to have occurred about this date. The net proceeds of sale were approximately $180,000.00.
[10] Paragraph 33 of husband’s affidavit sworn 26 July 2005 & filed 27 July 2005 (“the husband’s affidavit”)
The husband and wife moved to Tasmania in December 2002 and by contract dated 28 December 2002 agreed to purchase X for $220,000.00. That purchase was completed in about March 2003. X was purchased in the joint names of the husband and the wife. I find that both parties were aware of the terms of the agreement at the time they purchased X and I infer that they were of the view that the purchase of that property was in substantial compliance with the terms of the agreement.
There was conflicting evidence of violence between the parties, with the husband saying that he was the victim of assaults, by the wife. He said that he had struck the wife on one occasion when there was a fight, in response to being pushed by the wife, he pushed her. The husband gave evidence that the wife was the aggressor and his striking of her was purely self-defence. He claims that the wife was qualified in martial arts with a ‘black belt’ and by implication this was part of the factual basis upon which he felt helpless against the wife.
I find that the wife did have some martial arts training but that the husband had no fear of her and was not cowered and/or intimidated by the wife.
The wife claimed that she was the victim of many assaults during the relationship, including the particular events in May 2002 and May 2003. The wife gave evidence of an attack on her by the husband in May 2002 from which she was injured in ways that aggravated her injuries arising from both the motor vehicle accident and her work injury. The wife gave detailed evidence of that assault and I accept her evidence in that regard in preference to that of the husband. After that May 2002 assault the wife said she would not resume cohabitation with the husband unless she was given an assurance, by him, that there would be no more violence. I find that such assurance was given by the husband prior to the negotiation and execution of the agreement. It was not an implied condition of the agreement, nor could it have been. The parties separated in July 2002, they reached an understanding about the cessation of the violence, by the husband upon the wife, and I infer that once that was in place the husband then resumed his determination to have a financial agreement put into place, so that he could share in the fruits of the compensation claim. The husband was well aware that this involved a risk that such a claim could be substantially less than what he hoped for, but with his expectation that it would be more.
The husband alleged that he was fearful after the May 2002 incident that the wife would use it against his interests, in that she would blame him for aggravating her injuries, and take legal proceedings against him. The wife said that she simply told the husband that she was obliged to be truthful to medical practitioners about her condition and as such would need to disclose the event when being medically assessed and/or treated. I prefer her version of these events.
The husband alleged episodes of violence by the wife against him, which the wife denied. She vacated V in late July 2002 and moved to a women’s shelter in Adelaide. I find that the husband was violent and abusive to the wife as alleged by her during the relationship. I find that the husband was not fearful of the wife as asserted by him. I find that such violence by the husband continued until separation in May 2003 when the wife was again assaulted on 8 May 2003 as in the manner deposed to by her.
The wife gave evidence that in or about 8 May 2003 there was an assault upon her by the husband. She said that when she woke up that particular morning the husband was agitated. She got the children away to school but then the husband became more aggressive. The wife said she backed away and eventually said to the husband, “I am leaving”. She grabbed her things and put them into a suitcase. The suitcase was apparently the husband’s property and he objected to the wife using it. He tipped her things out of the suitcase. The wife then began to put things back in the suitcase saying that she wasn’t taking the suitcase, she would return it but she needed something to pack her things in and move out of the house. The husband again tipped the things out of the suitcase. The wife then used a laundry basket to contain and remove her clothes and possessions. She took a load to a car. On her second trip, she was pushed backwards by the husband, whom I find was enraged that the wife was leaving. The wife asked the husband not to push her but he continued to do so. The husband punched her in the face three times and she fell to the floor. The wife became submissive, that did not satisfy the husband who got on top of her, with his knee on her chest, and kept punching her.
The husband agreed, that in respect of the events on 8 May 2003, he had been convicted of assaulting the wife in circumstances where he said he was not guilty but had been found guilty. In that context he admitted “hitting her”.
The husband has not taken a restraint application or sought restraint orders against the wife although he was aware of their existence. The wife had taken two restraint orders against him, one apparently by consent. This occurred after September 2002.
I find that the husband, at all relevant times prior to the making of the agreement, wanted an agreement between the wife and himself. I find that he wanted a pre-nuptial agreement before the parties married and that they had three or four discussions about a pre-nuptial agreement before being married. The husband says that the agreement was his wife’s idea, I do not accept his evidence in that regard is truthful.
The husband says that the agreement was wholly drawn by the wife’s solicitors. This is not accurate, that agreement was at least revised by the husband’s solicitors. It may well be that the agreement was retyped by the husband’s solicitor, but this is not clear.
In terms of the sequence of events with regard to the agreement the evidence of the husband was that the parties had separated for about five weeks when the wife came to V, bringing with her an agreement. He took it to his lawyer’s office on 2 September 2002. He had refused to sign an earlier version and the wife had said words to him to the effect “I will not come back to the relationship unless it is signed”. He said that the wife then went with him to his solicitor’s office, at V, but remained outside in the car. The agreement was signed, handed to her and she took it to her solicitor. The inference sought by the husband was of a dominant wife determined to have the agreement executed. I do not make that inference and I find that it was not the case.
The next day the husband says that the wife told him that he needed to initial every page and made an appointment for either 4, 5 or 6 September to initial every page and the alteration to clause 17. He did so and the wife took the agreement away. He was not given a new certificate after the one given on 2 September 2002, by his solicitor. He said he did not recall what the wife did with the agreement except that she told him that she would give it to her lawyers.
In cross-examination the husband said he had objected to the wife taking him to his solicitor’s office but that she insisted on coming. He said there were a number of threats relating to the signing of the agreement at that time. These include:
a)His desire to reconcile;
b)The need to have the caveat removed from the title of the property , V [11];
c)The alleged threat about the complaint the wife made to Dr B about the assault in May 2002;and
d)That he was afraid of the wife.
[11] It seems uncontentious that the wife placed a caveat on the title of that property and it was removed subsequently on the signing of the agreement but before the sale of [V].
I do not accept the husband’s stated reason for the agreement. The reason the husband wanted the agreement was, as set out above, so that he could share in the fruits of the wife’s compensation claim. The husband was well aware that this involved a risk that such claim could be substantially less than his hopes, but with his expectation that it would be more.
The husband’s solicitor is a lawyer with whom the husband had dealt with during his matrimonial differences with his previous wife. The husband said that he knew his solicitor did a lot of family law, this being the solicitor’s main area of practice. The husband said that it cost him about $500.00 to have the agreement explained to him and signed. From the invoice for that work there are set out a number of interviews, three or four and the husband said each took about half an hour. The husband agreed that the solicitor was one of his choice and was not suggested by his wife. The husband agreed that he read through the agreement and that he understood it. He also agreed that his solicitor had taken some time to explain the agreement to him and that he had said to his solicitor that
“he was not acting under coercion or influence and freely wanted to sign the agreement”.
He also agreed with the file note, from his solicitor, setting out the following:
“ said that I had previously, as a matter of courtesy rung [Mr J] [wife’s solicitor] to advise him that we had requested to amend the agreement that he had prepared for the wife”.
The husband said that there were some “notes” which were referred to in his solicitor’s file note in respect of a meeting between the husband and his solicitor on 30 August 2002. He said that those “notes” were probably those prepared by his wife although he had no clear recollection of it. He said that he had sought to amend the agreement with regard to purchasing a new property as tenants in common and those were his instructions to his lawyer.
He agreed that there was either another appointment or telephone call before 30 August 2002. This further contact was in addition to the time that he said he took the first agreement to his solicitor.
The husband said that his solicitor had recommended that he not sign the agreement, further, that the solicitor was unable to say the agreement was in fact in his best interests. The file note for 2 September 2002, observed from the solicitor[12]:
“Explained to him that I was unable to certify the agreement was in fact in his best interests, that it was to his advantage financially otherwise to make the agreement, that it was prudent and that it was unfair and reasonable. In fact I thought that it was not to his advantage, it wasn’t prudent the provisions were not fair and reasonable because of the uncertainty particularly in relation to the amount that would be contributed through the wife’s CTP claim. He advised me that he was not acting under coercion or undue influence and he freely wanted to sign the agreement”.
[12] Annexure “A1” to the husband’s affidavit.
The husband agreed that he knew and acknowledged that there was a possibility his wife would not receive the amount of compensation he believed she could obtain ($200,000.00). In that regard the file note from the solicitor on 30 August 2002 observes[13]:
“He understands that the equity involved in this is going to depend largely on how much his wife gets from her damages claim. She may net less than the amount he produces from the sale of his property although he is now thinking that it is quite possible she may produce more”.
[13] Ibid.
The husband was provided with a draft agreement, from the wife, which had been prepared by the wife’s solicitor. The husband was not content with this document and had a revised agreement prepared. A file note of the husband’s solicitor dated 30 August 2002, said.
“what he [husband] wants us [solicitor] to do is amend the agreement in accordance with his notes and we discussed a couple of days ago, then provide him with a revised copy of the agreement for his further consideration”.
I find that the solicitor’s file notes, referred to above, are accurate recordings of the events/observations at those times.
The husband intended to rely upon evidence of Dr O from South Australia. Arrangements were made for the Doctor to give evidence by video link. During the course of the trial I was informed, by Counsel for the husband, that Dr O was both unavailable and unwilling to give evidence and the husband no longer relied upon his affidavit and report.
I find that there had been extensive negotiations between the parties as to the agreement. Clause 17 of the agreement had been amended by the deleting of words “but will otherwise separately maintain themselves and their children” (“the amendment”).
The amendment was not in the agreement signed by the husband on 2 September 2006. Part of the chronology, with which the parties agreed, was that there was a conference between the husband and his solicitor on 30 August 2006. There is an issue as to whether the document which was subsequently signed on 2 September 2005, was prepared by the wife’s solicitors or the husband’s solicitors. The husband said it was a document provided to him by the wife. The wife said she had provided a document to him earlier in the month, but the husband’s solicitor had retyped the document or revised the document. The wife tendered[14] another copy of a version of the financial agreement prepared by her solicitor. That document used a different typing font and different page format. I am unable to find that the agreement was re-engrossed by the solicitor for the husband, but I can and do find that it was revised by his solicitor on the instructions of the husband.
[14] Exhibit “W3”
In any event, it is common ground that the revised agreement was discussed by the husband with his solicitor on 2 September 2006. The certificate under s 90G was provided and the agreement was then signed. That document, the agreement, was given to the wife who took it to her solicitor the following day. At that time negotiations took place with regard to the amendment. As a consequence of those negotiations clause 17 was amended, the wife’s solicitor then completed a certificate in accordance with the s 90G. The wife then signed the agreement. The agreement was then returned to the husband who on 4,5 or 6 September 2005, took it back to his solicitor and accepted the amendment and initialled every page of the agreement. The husband was in conference with his solicitor for at least fifteen minutes and perhaps thirty minutes.
The husband says he has no recollection of what happened to the document, after that time, except that he did not have the original document. The wife asserts that both she and the husband had the document photocopied and the husband was given a photocopy of the document. The husband annexed a photocopy of the complete agreement, with the amendment, to his affidavit and then made a submission that a copy of the agreement had not been served on him in accordance with s 90G1(e). This submission was not withdrawn until the end of evidence. It is instructive that the husband was endeavouring to avoid the agreement on the basis that he was not provided with a copy of it, yet annexed a copy of the agreement to his affidavit. Bearing this in mind and with my general findings with regard to the quality of the evidence of the husband, I find that the husband had a copy of the agreement in his possession or control at all relevant times. I infer that the husband was seeking any available avenue to avoid the agreement and its consequences.
The wife gave oral evidence in chief in relation to the agreement. This being in circumstances where the form of the agreement under s 90G was not challenged until a few days before the trial. Her evidence included:-
(a)There was discussion between the parties about the agreement before she saw a solicitor. She said the parties had reached an equal division of both their properties.
(b)The wife’s evidence was that the husband insisted she see her solicitor and have a draft agreement prepared. At first she opposed this course but then, when the husband insisted, she adopted the course required of her by him.
(c)The wife went to see her solicitor and asked him to prepare an agreement on the basis of the agreement reached.
(d)The wife’s solicitor prepared the first draft and gave it to the wife. She gave that to the husband who gave it to his lawyer. As far as she was aware the husband’s solicitor kept the agreement.
I find that the wife still had significant feelings for the husband in July/August 2002 but was concerned about his violence and that a significant part of her return to the relationship was the husband’s promise that there would be no further violence.
I find that the husband was well aware the amount that the wife would receive, in respect of the MVA claim, was unknown and could be as little as $40,000 or much higher. He was not led to this by any representations by the wife, let alone misrepresentations. I infer that he formed his own opinion and determined to enter into the agreement to ensure that he received one half of that sum. This was with knowledge of the risk and with the knowledge of the detail of the legal proceedings and the medical evidence surrounding the claim. He had independent legal advice as to the financial consequences of the agreement. He took that chance in the hope that he would achieve a windfall but with the knowledge that there was a risk that the amount would be less than the equity in his property.
The husband’s solicitor continues to practice in South Australia and was available to give evidence. No sworn testimony was provided from the solicitor and his file/diary notes were annexed to the husband’s affidavit and were admitted into evidence uncontested.
I prefer the evidence of the wife, that the original agreement was prepared after the husband and wife had discussions about settlement but that the husband had insisted that she use her solicitor to prepare the documents. The wife chose an independent solicitor as did the husband. There were negotiations and at least two forms of agreement were prepared. This was not one party overbearing or overwhelming another as is submitted by the husband.
Mr H had been the husband’s solicitor in relation to the breakdown of his previous marriage. He was someone the husband had dealt with over a number of years and with whom he had a good relationship. The husband selected this solicitor independently of any influence of the wife.
The initial document prepared by the wife’s solicitor did not reflect the agreement the parties had sought to put in place. Accordingly, another document was prepared and there was negotiation in relation to that document as to the terms of the agreement, including the husband’s request that the joint property be purchased as tenants in common rather than joint tenants and other amendments.
Expert evidence
The NSW and Commonwealth Evidence Acts govern expert evidence in NSW and in Commonwealth proceedings. Heydon J observed in Makita (Australia) Pty Ltd v Sprowles[15], that in HG v R (1999) 197 CLR 414 at 39-44 Gleeson CJ construed these provisions as enacting some of the central elements of the common law. The relevant provisions are in ss.76-80. These provide:
[15] 2001 NSWCA 305.
"76. Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
"The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed.
"The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
"79. If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
"80. Evidence of an opinion is not inadmissible only because it is about:
(a) a fact in issue or an ultimate issue; or
(b) a matter of common knowledge."In Makita, Heydon J noted that an expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question: Ramsay v Watson[16]; Arnott’s Ltd v TPC[17].
[16] (1961) 108 CLR 642.
[17] (1990) 24 FCR 313 at 347-348.
He also noted that the provisions of s.79 would often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.
Heydon J said that the above statement of the law corresponds with the views of Black CJ, Cooper J and Emmett J in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd[18], where the justices said:
"21. The primary judge considered that it was permissible to examine the reports and draw inferences from the form and contents of them. His Honour considered that it was permissible to take into account:
· the factual context in which the report was produced;
· the description and designation of the person making the report;
· the contents and language of the report and the nature of the assertions made in it;
· the form of the report;
· the expressed qualifications of the person making it as set out in the report.
"22. However, it is not permissible to conclude from those matters alone that an author of a report has any specialised knowledge, except to the extent that the report states (or it otherwise appears from admissible evidence) what that knowledge is. Nor is it permissible, by reason of those matters alone, to conclude that any specialised knowledge that the author of a report has is based on any training, study or experience of the author. Thus, it is not permissible to conclude, simply because a person expresses an opinion on a particular subject, referring to particular technology, that that person has any specialised knowledge in relation to that subject. There must be specific evidence as to specialised knowledge of the person in relation to that subject and as to the training, study or experience upon which that specialised knowledge is based.
"23. The further requirement that an opinion be based on specialised knowledge would normally be satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached. Thus, a report in which an opinion is recorded should expose the reasoning of its author in a way that would demonstrate that the opinion is based on particular specialised knowledge. Similarly, opinion evidence given orally should be shown, by exposure of the reasoning process, to be based on relevant specialised knowledge."
[18] 2000 FCA 1463 at 21-23
Heydon J noted that the last quoted paragraph had been applied by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd 2001 NSWSC 123 at 19, and summarised the application thus:
"Evidence not complying with the principles described in it might be inadmissible as irrelevant (s.56(2)), as not complying with s.79, or on discretionary grounds (s.135)."
In his analysis, Heydon J added:
"There is no doubt about Professor M's authority, experience, qualifications and skill. It is also the case that Professor M's report is quite lengthy and detailed. But, given that the court is not obliged to take the opinion of an expert as conclusive even though no other expert is called to contradict it, can it be said that Professor M's report goes beyond a series of oracular pronouncements? Does it usurp the function of the trier of fact? More vitally, did it furnish the trial judge with the necessary scientific criteria for testing the accuracy of its conclusions? Did it enable him to form his own independent judgment by applying the criteria furnished to the facts proved? Was it intelligible, convincing and tested? Did it go beyond a bare ipse dixit? Did it contain within itself materials which could have convinced the trial judge of its fundamental soundness?"
The Full Court of the Family Court in Re W and W[19] considered the nature of an expert's report where the facts upon which the opinion was based were impeached to the extent that the report demonstrated bias and thus little, if any weight, should have been attached to the opinion. In this case, involving allegations of child sexual abuse, the expert had not seen either of the parties nor the children, and had stepped out of the role of an expert witness and assumed the role of advocate for the husband. In their joint judgment, Nicholson CJ and O'Ryan J discussed at 157-165 principles to be borne in mind when dealing with expert evidence, and at 192 -193 argued for reform in the area of expert evidence.
[19] (2001) FamCA 216.
In this case the evidence of a Mr J and Dr R were put into evidence and the weight I attach to such evidence is of some consequence. I am not satisfied that the history given by the husband to either expert is entirely accurate and that his assertions to Mr J that he “demonstrated a level of dependency that has been detrimental to his own interests” or that he “repeatedly accommodated unreasonable demands that were against his own interests’ or that his report of “considerable concern and duress in relation to a number of significant decisions …” or that “[he] intimately again capitulating in desperate attempts to hold on to a relationship “ are factually correct. His many assertions, in this regard, to both experts are unfounded. I find that during the relationship the husband was violent to the wife and domineering in the way the parties interacted. He was not as accommodating, as he claimed to the experts, but was forceful both emotionally and physically to the wife.
As a consequence, the expert opinions of both Mr J and Dr R must be given little weight, where they are based upon that history.
In July 2004 the husband sought a report from Mr J, a psychologist. This report was arranged through the husband’s solicitors and commissioned prior to the commencement of these proceedings and I find that the report was obtained solely for forensic reasons and not for any therapeutic reasons. The husband’s evidence was that he had not made copies of Mr J’s report available to any of his treating medical practitioners.
In the context of the history provided, by the husband, to Mr J, I find that the husband is manipulative in his evidence and tailors such evidence to suit his perceived needs.
There was one attendance with Mr J in June 2004, with a face to face interview for one and half hours to two hours, followed by the husband completing psychometric testing.
The husband had previously undertaken a type of psychometric testing prior to June 2004 but he said that he had not done the identical test before. The earlier test was administered by a psychologist, Dr G, in 1997 or 1998. Dr G was not called to give evidence in these proceedings. The husband is not seeing a specialist in Tasmania in respect of the psychological issues set out in Mr J’s report. I repeat the findings I made above in respect of the husband’s non-discloser of his health concerns to either his employer or in his education.
Mr J’s instruction from the husband’s solicitor was by letter dated 10 June 2004[20] and included the following
“It is my view that is supported by the advice of his then treating psychiatrist, a report for which is enclosed, that [the husband] was suffering from a dependency disorder.
I am sending him to you to provide further opinion upon that dependency disorder and, in particular, to comment how that would manifest itself in actions taken by [the husband] and how his decision making was, and is, thus affected.”
[20] Exhibit “W1”.
The instruction presupposed the disorder. On cross-examination Mr J agreed that the letter of instruction[21], from the husband’s solicitors, provided that the husband suffered from a dependency disorder and was put to Mr J that the report follows that instruction. Mr J agreed that that was the basis of that instruction but said that he made an independent diagnosis.
[21] Exhibit’ W1’.
In his report Mr J says[22]
“For these reasons, both Major Depressive Order and Dependent Personality Disorder are diagnosed here”.
[22] Page 8.
Mr J went on to conclude as follows:
“I conclude that the independent personality traits outlined above, that enable the formal diagnosis made, were instrumental in [the husband’s] decision to enter into the financial agreement with [Ms C]”.
He was provided with a report from Dr O and used that as part of the material in coming to his conclusion. Dr O did not give evidence and his report and affidavit were not relied upon by the husband.
Mr J was provided with a copy of one of the reports from the single expert, Dr R[23], but was not asked to comment on it prior to hearing.
[23] [Dr R] was a single expert who reports in these proceedings the first dated 22 February 2006 ([Dr R’s] first report) and second dated 6 April 2006 ([Dr R’s] second report).
Dr R expressed an opinion that;
1.1It would appear that [the husband] showed an unusual degree of compliance with the demands of a partner, particularly in circumstances characterised by a threatened loss of a conjugal relationship.
1.2-1.4However, he does not, in my opinion, have a condition so pervasive as to justify a diagnosis of personality disorder.
1.5The described trait could lead to errors of judgment and the implementation of decisions later to be regretted.
1.6In view of contemporaneous evidence by way of a Lawyers Certificate, it would appear that [the husband] adopted the decision made at the time, despite any misgivings he may have had, or contrary advice he may have received. In a case of dependent personality disorder, a greater degree of vacillation would have been expected in comparable circumstances.
1.7(a) The features of a personality disorder, and specifically dependent personality disorder, have been detailed above.
(b)Threatened loss of conjugal relationship would appear to be the only consistent “trigger” for the manifestation of a dependent trait.
(c)A lay observer made aware of the situation might consider [the husband] to have been unusually compliant.
1.8A dependent trait is likely to have been present since [the husband] became an autonomous individual. In the absence of any evidence of specific effects from a head injury in early childhood, the impact of this on later personality traits cannot be assessed.
The expertise of parental conflict and the suicide of his father when he was aged thirteen might tend to reinforce a dependent trait.
In Dr R’s first report he noted the diagnosis of Mr J. Dr R did not agree with the diagnosis by Mr J of a dependent personality disorder. In Dr R’s second report he stated[24];
(a)[Mr J] was simply mistaken in the criteria he used to apply a diagnosis of dependent personality disorder. On page 8 and 9 of the previous report I had quoted “DSM IV Criteria for a Personality Disorder” and for a Dependent Personality Disorder. For the later diagnosis to be made the Criteria for a Personality Disorder have to be met and in addition the Criteria for a Dependent Personality Disorder must be applied. It is my opinion that he [the husband] does not meet the general diagnostic criteria for a personality disorder according to DSM-IV.
[24] Page 1 of second report
In his second report Dr R goes on to say :
1.1The history from [the husband] indicated that he showed an unusual degree of compliance with the demands of a partner, particularly in circumstances characterised by a threatened loss of conjugal relationship. However, [the wife] contends that the agreement in question was developed as a result of his important wishes.
1.2-
1.4Throughout the greater part of the period of [the wife’s] experience of [her husband], he appears to have presented a number of personality traits that might suggest a Personality Disorder. It is likely that these would have manifested in previous relationships, but it remains possible that they may have been specific to this particular relationship. His described behaviour suggested compliance with criteria for a Personality Disorder under A but Criterion B, requiring an “enduring pattern”, “inflexible and pervasive across a broad range of personal and social situations” cannot be demonstrated on the available information”.
1.6In view of contemporaneous evidence by way of a Lawyer’s Certificate, it would appear that [the husband] adopted the decision made at the time, despite any misgivings he may have had, or contrary advice he may have received. In a case of dependent personality disorder, a greater degree of vacillation would have been expected in comparable circumstances.
1.7(a) The features of a personality disorder, and specifically dependent personality disorder, have been detailed above.
(b)Threatened loss of a conjugal relationship would appear to be the only consistent “trigger” for the manifestation of a dependent trait.
(c)A lay observer made aware of the situation might consider [the husband] to have been unusually compliant.
1.8A dependent trait is likely to have been present since [the husband] became an autonomous individual. In the absence of any evidence of specific effects from a head injury in early childhood, the impact of this on later personality traits cannot be assessed.
Neither the qualifications of Mr J, as a psychologist, nor Dr R as a consultant psychiatrist were challenged. Considering the evidence of both Dr R and Mr J, I prefer the evidence and diagnosis of Dr R to that of Mr J.
Even on that finding, there is an underlying assertion that the husband may have shown an “unusual degree of compliance” in relation to the dealings he had with the wife. This is based on the history of the husband, and as I have said above, I do not accept the history of submissiveness given, by the husband, to Dr R or Mr J is accurate.
It was put to Dr R that the involvement of the wife in the preparation of his single expert reports may have affected its outcome. He said it did not and I accept his evidence in that regard.
Determination of the husband’s submissions.
1 The submission that agreements in the context of parties to a marriage are to be treated differently to agreements at law generally, as they are well outside normal commercial law.
The husband submits that agreements between parties to a relationship ought to be dealt with differently to agreements generally. In essence, there ought to be strict compliance with the statutory regime and further that such agreements should be treated differently and the general principle that parties are generally bound by their agreements should not apply.
I do not agree with this approach. The Family Law Amendment Act, which introduced financial agreements, was accompanied by an explanatory memorandum which stated;
“The Bill will make provision for financial agreements dealing with all or any of the parties' property to be made before or during marriage or on marriage breakdown, setting out how such property is to be divided. People will be encouraged, but not required, to make financial agreements. For these agreements to be binding, each party will be required to obtain independent legal advice as to the legal effect of the agreement before concluding their agreement.
Because parties will have obtained prior advice, the court will only be able to set aside an agreement in certain limited circumstances, for example if it were obtained by fraud, including failure to disclose material assets, duress or undue influence that would make it unfair to give effect to the agreement. The grounds for setting aside include all common law and equitable grounds, which includes, for example, that a party engaged in unconscionable conduct in obtaining the agreement. These grounds are modelled upon those set out in existing paragraph 87(8)(c). A court will also be able to set an agreement aside where there is a material change in circumstances relating to the care, welfare and development of a child that would make it unfair to give effect to the agreement.The Bill provides for the determination by the court of issues of the validity, enforceability and effect of binding financial agreements. Existing subsection 87(11) makes provision for proceedings on the validity, enforceability and effect of an approved maintenance agreement to be determined according to the principles of law and equity, and similar provision will be made in respect of the new financial agreements. Common law and equitable doctrines of particular relevance to binding financial agreements include mistake, rectification, fraudulent, negligent and innocent misrepresentation, collateral contract, estoppel and damages for breach”
The protection provided by the requirement for independent legal advice is considered in the explanatory memorandum where it provides;
“Because parties will have obtained prior advice, the court will only be able to set aside an agreement in certain limited circumstances..”
In Toll (FGCT) Pty Ltd –v- Alphapharm Pty Ltd[25] the High Court considered the approach regarding contracting parties, where Gleeson C J, Gummow, Hayne, Callinan and Hayden JJ, stated:
“42.Consistent with this objective approach to the determination of the rights and liabilities of contracting parties is the significance which the law attaches to the signature (or execution) of a contractual document. In Parker v South Eastern Railway Company [26], Mellish LJ drew a significant distinction as follows:
"In an ordinary case, where an action is brought on a written agreement which is signed by the defendant, the agreement is proved by proving his signature, and, in the absence of fraud, it is wholly immaterial that he has not read the agreement and does not know its contents. The parties may, however, reduce their agreement into writing, so that the writing constitutes the sole evidence of the agreement, without signing it; but in that case there must be evidence independently of the agreement itself to prove that the defendant has assented to it."
43..More recently, in words that are apposite to the present case, in Wilton v Farnworth[27] Latham CJ said:
"In the absence of fraud or some other of the special circumstances of the character mentioned, a man cannot escape the consequences of signing a document by saying, and proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the document until he understood it and was satisfied with it. Any weakening of these principles would make chaos of every-day business transactions."
[25] (2004) 219 CLR 165.
[26] 1877 (2 CPD 416 at 421).
[27] (1948) 76CLR 646 at 649.
In Oceanic Sun Line Special Shipping Company Inc v Fay [28] , Brennan J said:
"If a passenger signs and thereby binds himself to the terms of a contract of carriage containing a clause exempting the carrier from liability for loss arising out of the carriage, it is immaterial that the passenger did not trouble to discover the contents of the contract."
It should not be overlooked that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents, as Latham CJ put it, whatever they might be. That representation is even stronger where the signature appears below a perfectly legible written request to read the document before signing it.
[28] (1988) 165CLR 197 at 228.
The agreements to which parties to a marriage or relationship enter into should be subject to the same principles of law and equity that govern ordinary contracts. Agreements under Part VIIIA already have a protective provision, that being s 90G. The solicitors who give advice as to such agreements need to be aware that the general law applies so that they are able to give the advice that the Act requires.
2 The submission that the agreement is void or should be set aside because the legislative basis of financial agreements under Part VIIIA should be construed strictly. This is because such agreements are unique in that, if binding, they exclude Courts from exercising powers under Part VIII of the Act
The approach of Courts exercising jurisdiction under the Family Law Act should be to give effect to agreements under Part VIIA, taking into account the protections offered to parties under the Part, including the requirements set out in s90G and the broader protections provided in s90K and s90KA. These later sections bring with them the protection and obligations afforded to parties having regard to the principles of law and of equity.
In terms of the approach suggesting strict interpretation of the provisions the husband relied upon a decision in respect of an agreement under Part VIII of the Act in J and J[29], Collier J said;
“14. It is my view a matter where that which has been done in an effort or attempt to comply with the relevant sections and sub-sections requires close examination , and perhaps interpretation, to ascertain what is required by the legislator and what has been done in the present case”.
[29] 29 March 2006 – unreported.
His Honour goes on to say at paragraph 19 and 20:
“19. To my mind, the words that appear in S90G(1) ‘if and only if’, are words of well significance. They have a meaning. They import a requirement or a level of compliance, if the agreement is to be binding, that is clearly a standard or level above or beyond what might be described as substantial. If those words ‘if and only if’ make it clear that each of the parties must ensure that that which is required to be contained and dealt with in the agreement, and the annexures to it, is in fact contained, appropriately and completely. Compliance therefore must be a full compliance, satisfying the statutory requirements.
20. Something approaching full compliance, or something that it looked at in a less than strict light, might come close to establishing compliance is not enough. Clearly, the legislation tendered that if this method of parties resolving their differences was to be used without any supervisory power of the court, in a situation where the parties’ rights were to be effected, then that which was to be done has to be done fully in compliance with that which the statute set out and required”.
The Court makes it clear in J and J that compliance with S90G ought to be strict. The argument in that case seemed to have focused upon the words “if any only if” at the commencement of S90G(1). The argument did not seem to focus on the words in sub-section 90G(1)(b), which provides;
“(b) The agreement contains, in relation to each party to the agreement, a statement to the effect that the party ……. “
It does not seem that the words “to the effect that” were argued before the Court in J and J. Furthermore it did not appear that the impact of S90KA of the Act was argued before His Honour.
The strict interpretation approach takes away the legislative meaning and the better approach is the objective approach, which has been the subject of consideration by the High Court in a number of decisions.
In the book, Statutory Interpretation in Australia by D S Pearce and R S Geddes, the authors outline the common law background of the two general approaches to statutory interpretation of legislation in Australia – the literal approach and the purposive approach..
In Amalgamated Society of Engineers v Adelaide Steamship Company Ltd[30], Higgins J stated the following about the literal approach at 161-162:
The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.
[30] (1920) 28 CLR 129.
The purposive approach seeks to give effect to the intent of Parliament in drafting the instrument, rather than the objective, natural meaning of the text alone. Pearce and Geddes[31] define this approach as follows:
The purposive approach was applied by determining the purpose of the Act, or the particular provision in question (the ‘mischief’ with which it was intended to deal), and by adopting an interpretation of the words that was consistent with that purpose. It was generally accepted that the purposive approach applied only when an attempt to apply the literal approach produced an ambiguity or an inconsistency: see Dawson J in Mills v Meeking (1990) 91 ALR 16 at 30-1...
Under the literal approach, an ambiguity refers to a mistake in the text, such as a ‘syntactic or grammatical’ error, whilst under the purposive approach, an ambiguity ‘extends to circumstances in which the intention of the legislature is for whatever reason, doubtful.’ (Spigelman CJ, Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc (2000) 171 ALR 523, 550).
[31] p22, para2.5.
Further, s15AA of the Acts Interpretation Act 1980 provides as follows:
In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
The preferred purposive approach was noted by Dawson J in the High Court case of Mills v Meeking[32], regarding the Victorian Interpretation legislation:
[T]he literal rule of construction, whatever the qualifications with which it is expressed must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to that which would not… The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction… The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.
[32] (1990) 91 ALR 16, 30 – 31
Pearce and Geddes[33] suggest that Dawson J’s comments in Mills v Meeking indicate that the interpretation legislation provisions have displaced both the literal and purposive common law approaches outlined above and that ‘[i]t is therefore unhelpful to treat those approaches as representing anything more than stages in the development of the principle of interpretation that have current statutory force’.
[33] p26, para2.9.
The High Court stated in Kelly –v- The Queen[34];
Purposive construction
“Purposive construction is the modern approach to statutory construction[91]. Legislative enactments should be construed so as to give effect to their purpose even if on occasions this may require a "strained construction" to be placed on the legislation[92]. The literal meaning of the legislative text is the beginning, not the end, of the search for the intention of the legislature. As Learned Hand J famously pointed out[93]:
"Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."
[34] [2004] HCA 12 (10 March 2004) Gleeson McHugh J .
The High Court in Adams –v- Lambert [35] stated in relation to bankruptcy law as follows:-
“34. That view of legislative purpose is persuasive. The effect of the majority view in Lewis[36] is to attribute to the legislation an overwhelming preference for form over substance. That should not be done”.
[35] [2006] HCA10 (4 April 2006)
[36] [2000] 109 FCR 33
The intention of Part VIIIA is to enable ordinary people to enter into financial agreements which will deal with property and spousal maintenance and avoid the necessity of court proceeding. The agreements can be made before marriage and after marriage, whilst the relationship subsists or they can be made following the breakdown of marriage. The explanatory memorandum observes that it is the legislative intent to encourage the use of financial agreements under this Part of the Act. To enable such agreements to be binding the legislation requires that each of the parties to the agreements must have independent legal advice. If courts require strict interpretation of the legislation then this would have the effect of making such agreements less available to the broader community. It would positively discourage the use of financial agreements and it would limit the pool of legal practitioners who are equipped and willing to draft and/or advise in relation to such agreements. Such strict and inevitably narrow construction would add to the cost of such agreements and may put the cost to prepare and advise on them outside the financial means of the general community. That is not the legislative intent. The legislation does intend that the legal advice ought to be available Australia wide through the broad church of legal practitioners, whether specialist or not, whether in major capital cities, or in the suburbs or in the regions. Courts should not make the legal practitioners and the parties cross all of the “t’s” and dot all of the “I’s” to enter into and give effect to financial agreements. The form should not defeat the substance. The Act does not create a regime of strict compliance and there is a requirement on courts to give purpose to legislation. Accordingly, I will not be adopting a strict interpretive approach in terms of both the construction of the legislation and construction of the terms of the agreement. I will adopt the objective approach.
3 The submission that not only must the certificate be annexed to the agreement, the agreement must also contain a statement to the effect of S90G(1)(b).
The husband submitted that not only must the certificate be annexed to the agreement, the agreement must also contain a statement to the effect of S90G(1)(b).
“b. The agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the agreement relates has been provided, before the agreement was signed by him or her, as certified in the annexure to the agreement, with independent legal advice from the legal practitioner as to the following matters”.
The submission by the husband is that the lawyer’s certificates which are annexed to and are part of the agreement are not “a statement to the effect of S90G(1)(b).
The provision provides;
(b) the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters: …..
Adopting a purposive construction approach there seems to be no reason why the statement contained in the certificate is not contained within the agreement. The certificate is annexed to the agreement and forms part of it and in my view it is thus “contained within the agreement”, within the meaning of s90G(1)(b). The sub-section provides that the agreement contains a statement to the effect that a party, to whom the statement relates, has been provided with independent legal advice. The form of certificate in this case contains such a statement, and that certificate is part of the agreement. The legislative intent is that each of the parties has the benefit of independent legal advice and the structure of the sub-section ensures that that requirement is met. It is not designed to set up word traps for the unwary, it is designed to ensure that each party has independent advice, and that such advice addresses the matters set out in the sub-section.
The certificate clearly provides the statement required by the sub-section. If the strict approach were adopted then there would need to be a statement in respect of each of the parties. The condition of the sub-section is clearly met by a lawyer’s certificate, which is annexed to the agreement, and which states the explanation has been given in accordance with the sub-section.
In the event that I am incorrect in that analysis it would not make the agreement void under the section. As in any event the statement required under s90G(1) was imported into the main body of the agreement by virtue of Recital I which provides:
“R Each of the parties acknowledge that they have received independent legal advice as to the effect of this agreement prior to the execution of the agreement as evidence by the lawyer’s certificates appended hereto”
I am satisfied that the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in the annexure to the agreement, with independent legal advice from the legal practitioner as to the matters set out in the sub-section. To be clear, the annexure of that certificate satisfies the statutory requirements and further that the consequence of recital ‘R’ is to remedy that defect, if it was a defect in the first place.
4 The submission that the amendment to the terms of the agreement was made after the certificate had been signed means that the agreement is not binding under s 90G of the Act.
The husband submitted that with the amendment to the agreement on 3 September 2002 that he needed to, firstly, have further independent advice in respect of the agreement, secondly, to have the ss 90G(1)(b) certificate re-executed and, thirdly, that he needed to re-sign the agreement to enable the provisions of ss 90K(1)(b) to be met.
The husband had explained to him, prior to the certificate being executed and prior to signing the agreement on 2 September 2002, all of the matters set out in s90G(1)(b)(i) to (iv) . This included the provision contained at the end of clause 17. In evidence the husband made it clear that he understood the terms of the agreement and that he had read the agreement before signing it. The agreement has been subject to significant negotiation and the husband had had a number of meetings with his solicitors. At the time that the advice was given, in accordance with the sub-section, the husband knew the effect of that provision on his right, the advantages and disadvantages of that provision and the other matters set out in the sub-section. All of the terms of the agreement had been explained to the husband including the whole of paragraph 17.
I am satisfied that the independent legal advice provided by the legal practitioner and referred to in that practitioner’s certificate of 2 September 2002 included the whole of paragraph 17 including the provision which was subsequently removed.
It is worthwhile analysing the events from 2 to 6 September 2002 insofar as they relate to the agreement. The agreement is dated 3 September 2002 but on a careful analysis, it did not become an agreement between the parties until 5 or 6 September 2002. The agreement was prepared and was then signed by the husband. That “offer” of the husband was made when he signed the agreement and provided it, together with his solicitor’s certificate, to the wife.
It is common ground that the agreement was dated 3 September 2002. There is no issue that both parties had, at all relevant times, independent legal advice. The husband had a meeting with his solicitor on 2 September 2002, and he had had a number of meetings with this solicitor in relation to the agreement prior to this date.
I find that the solicitor had advised the husband as to the effect of the agreement on the rights of the husband, whether or not at the time the advice was provided it was to the advantage or otherwise of the husband to make the agreement, whether or not at that time it was prudent for the husband to make that agreement, and whether or not at that time and in the light of such circumstances the provisions of the agreement were fair and reasonable. As I have said above this advice included paragraph 17 and such advice was given before the husband signed the agreement on 2 September 2002.
I find that the husband’s solicitor then provided the certificate which is annexed to the agreement. That certificate was provided before the husband initially signed the agreement on 2 September 2002. The husband then signed the agreement and gave it to the wife.
The wife saw her solicitor the following day, 3 September 2002. An issue arose about clause 17 of the agreement. Clause 17 initially provided:
“17. During the period of cohabitation [the wife] and [husband] wished to share in equal proportions all electricity, gas, telephone and other household outgoings and all food and household supplies for their joint living but will otherwise separately maintain themselves and their children”.
The wife was concerned about the words “but will otherwise separately maintain themselves and their children”. The agreement was amended, which had the effect of rejecting the offer made by the husband in terms of the unamended agreement signed 2 September 2002. The agreement was changed by or on behalf of the wife, and she was given independent advice in respect of the amended agreement and then the certificate by her solicitor was completed. The agreement was then signed by the wife and dated.
The signed agreement was at this stage a counter offer, by the wife to the husband, and was open to be accepted or rejected by the husband.
At some time after the husband had signed the agreement on 2 September 2002 and before 4 September 2002, I am able to infer[37] that the wife asked the husband to delete those final words in paragraph 17. This call appears to have been made on Wednesday 4 September 2002 and an appointment was made for the husband to see his solicitor at 10.30am on Thursday 5 September 2002. On 5 or 6 September 2002 the husband had a conference with his solicitor and a file note annexed to the husband’s affidavit says:-
“Attending [the husband]. He bought the original agreement back to initial the change to clause 17.
We also discussed the issue of the withdrawal of caveat. I confirmed with him that the withdrawal of caveat that the wife has lodged over the property is not specifically covered in the agreement. I also explained the cost of the application withdrawal and lodgement fee. He does not think that should be a problem for his wife. I said that the caveat did not have to be off the property for him to list it for sale, but it needed to be off at settlement”.
[37]File note dated 4 September 2002 9.19am, annexure A1 to the husband’s affidavit.
I am able to infer that at that time the husband had been provided with independent legal advice, in terms of the matters set out in sub-section 90G(1)(b) of the Act, in respect of the agreement. The husband had legal advice in terms of s90K, the amendment was within the scope of that advice and the certificate was correct in that the effect of the agreement on the rights of the husband was explained, the advantages and disadvantages at that time were provided, whether or not it was prudent for the party to make the agreement and whether or not at that time and in such circumstances as were reasonably foreseeable was the agreement fair and reasonable. In terms of the amendment I am satisfied that the husband knew what this meant when it was included in the agreement and knew what it meant when it was not.
There was no need to provide a new certificate as the existing document was adequate. It confirmed that the advice required by the legal practitioner had been given and that certificate was annexed to the agreement. The husband, having been given the advice required by the sub-section, then initialled the agreement and the amendment. I infer that he did so to accept the amendment and to accept the wife’s counter offer, as contained in the amended agreement. It was at that point that the contract between the parties, as is constituted by the agreement, came into being. I find that the initialling of the agreement, by the husband, constituted his ‘signing of the agreement’ as envisaged by ss 90G(1)(b).
The submission by the husband, that the agreement failed for lack of independent advice prior to the agreement being signed by him, fails as does the submission that the certificate needs to be re-certified by the solicitor.
I determine that the agreement is binding having met the requirements of s90G of the Act.
5 The submission that the agreement was void or voidable and should be set aside as the wife had engaged in unconscionable conduct within the meaning contained in S90K(1)(e) of the Act.
The husband submits that pursuant to S90K(1)(e) that
“in respect of the making of a financial agreement – a party to the agreement engaged in conduct which was, in all the circumstances unconscionable”.
The husband submitted that in terms of the parties’ departure from the terms of the agreement the wife’s participation in the purchase of X without the settlement of the MVA claim was unconscionable. The husband submits that this is fatal to the agreement being upheld.
In The Principles of Equity[38], the authors observe that;
[205] The consequence of equity is expressed in a range of different doctrines. It is possible to discern five categories into which the doctrines may be placed. These are not entirely distinct categories. A particular doctrine might readily be placed in more than one category. The five categories are:
· The exploitation of vulnerability or weakness;
· The abuse of positions of trust or confidence;
· The insistence upon rights in circumstances which make such insistence harsh or oppressive;
· The inequitable denial of obligations;
· The unjust retention of property.
[38] Patrick Parkinson, ‘The Principles of Equity’, 1996, LBC Information Services, North Ryde, NSW, page 34.
The authors go on to say[39] that;
[213] At the heart of all different applications of the conscience of equity, there are two central concerns. The first is the protection of the vulnerable. The second is the protection of people’s reasonable expectations.
[39] Ibid, page 47 para 213.
The findings of fact in this case are such as would impeach any submission that the husband was vulnerable and consequently needed protection under the rules, principles and remedies in equity. Further the facts are not such as would need the principles of equity in the protection of the husband’s reasonable expectations. The husband’s submission in this respect fails.
The husband ought to be estopped from relying on the purchase of X as a basis for asserting the agreement was unconscionable. The husband was well aware of the terms of the agreement and yet willingly participated in the sale of V even to the extent of obtaining advice on the withdrawal of caveat [40]. In that file note the solicitor for the husband says:
“We also discussed the issue of the withdrawal of the caveat. Confirmed with him that the withdrawal of caveat that the wife has lodged on the property is not specifically covered in the agreement. I also explained about the cost of the application for withdrawal and lodgement fee. He does not think that should be a problem with his wife. He said that the caveat did not have to come off the property for him to list it for sale, but needed to be off at settlement”.
[40] Annexure A1 to the husband’s affidavit – file note 6/9/02
A further file note, attached to the husband’s affidavit, is evidence that the husband contacted his solicitor in November 2002 informing the solicitor that V was to be sold and that the account of $500.00 due to the solicitor [41] would be paid on the settlement on the sale of the home. The receipt for the payment of that $500.00 was also part of the said exhibit and shows a payment on 3 December 2002 of $500.00.
[41] Exhibit’ H2’.
The husband and wife borrowed about $53,800.00 from the ANZ Bank to enable the purchase of X. This was done in the absence of the settlement of the wife’s personal injury claim.
I determine that the purchase of X, in the absence of the settlement of the personal injury claim, was not unconscionable as asserted by the husband and further, that the husband ought to be estopped from claiming such action was unconscionable, bearing in mind his willing participation in that process.
Furthermore, in interpreting the agreement I ought to be endeavouring to give effect to it. The agreement provides, at paragraph 2
“following the sale of [V], the parties will reside in rented accommodation until such time as [the wife’s] CTP claim proceeds are received”.
The agreement goes on to provide, at paragraph 6 that:
“It is the intention of the parties to apply the funds in an interest bearing deposit to purchase the matrimonial home to be held by the parties as tenants in common ….”
The husband sold V and placed the money into an investment account. The parties jointly determined to purchase a property at X and did so clearly with the intention that this would be in accordance with the agreement. They accepted that they would need to borrow some money pending the outcome of the wife’s MVA claim and did so. It seems that such purchase was in the material interest of the parties to do so. They purchased X for $220,000 and agreed at the date of hearing its value had increased to $330,000. An increase of about 50% between the settlement in March 2003 and hearing in August 2006.
Whilst the parties have not acted precisely in accordance with the terms of the agreement they have acted substantially in accordance with the terms of the agreement, in that V was sold, a new home was purchased and the proceeds of the MVA claim were placed into a trust account. The other aspects in relation to that agreement namely:-
i) the $500.00 proceeds of sale of the BMW motor vehicle;
ii)the wife’s responsibility to pay one half of the mortgage repayments;
iii)the application of the monies from the MVA claim to the mortgage;
iv) make an adjustment in favour of the husband in relation to the legal costs deducted in respect of the financial agreement
These are able to be remedied and it is possible to give effect to the agreement.
The husband claims that the unconscionable behaviour of the wife is in respect of entering into the agreement. It was unconscionable bearing in mind the husband was so desperate to renew the relationship as set out in paragraph 46 of his affidavit. He submits that this Court has an obligation to regard the stronger party as taking advantage over a weaker party in accordance with the principles set out in the High Court in Commercial Bank of Australia –v- Amadio[42].
[42] (1982-1983) 151 CLR 447.
Taking into account the findings I have made in relation to the husband’s assertion that he was vulnerable and at risk, this submission cannot succeed.
The husband further submits that because he was ‘infatuated’ by the wife, his acts in signing the agreement were no less than that of the hapless solicitor infatuated with a woman, as discussed by the High Court in Lough –v- Diprose[43].
[43] (1992) 175 CLR 621.
Counsel for the husband went so far as to submit that if there was infatuation by one of the parties with the other then the agreement ought to fail. If that submission were to be accepted then there would be very few agreements, if any, which could be entered into under Part VIIIA of the Act. The object of the Part is to enable and encourage parties, who proposed marriage or who had married, to enter into financial agreements with regard to property and/or spousal maintenance. Whilst parties, whose relationships had not failed, may not be infatuated with each other it could be argued that parties proposing to marry or being in a marriage are likely to have some degree of infatuation between each other. The submission in that regard must fail.
In this case I have found that the husband’s state of mind was not as he asserted to the experts and to the Court. I accept that his solicitor was correct when he both formed the view and expressed the view that the husband had given him credible assurances that he was not acting under coercion or undue influence and he appeared to freely execute the agreement and I make that finding. Such assertion is made by the husband in the agreement and which assertion is relied upon by the wife.
6 The submission that the wife was estopped from holding the husband to the agreement because it was so unconscionable to him.
For the reasons set out above the husband cannot rely upon the estoppel asserted by him in his submissions. In this regard the husband relied upon his assertion that the wife had made promises and representations with regard to her MVA claim. I have held that she did not do so. Furthermore, he claims that the monies from the MVA claim were not paid into the mortgage. However, these funds were paid into a trust account and kept separate, pending the outcome of these proceedings, which were commenced about a month after the monies were received by the wife.
The husband seems to be complaining about the caveat placed on the title to the property. The wife, on advice from her solicitor, placed a caveat on the title to the property at V claiming an equitable interest. This presumably arising out of the $13,000.00 she applied to the benefit of the parties shortly before the marriage. In accordance with the agreement, the caveat was subsequently withdrawn.
7. The submission that the agreement was voidable for duress on the basis of the physical threats and violence by the wife and her son C, and or the agreement was voidable by way of undue influence on the basis that the wife was an ascendant party, and that the wife took an unfair advantage over the husband.
There is no finding of fact or inference that the husband was induced to make the agreement as a result of duress or undue influence. I do not accept the evidence of the husband as to his allegations of violence and oppression, against him, by the wife. In terms of the alleged physical violence by the mother’s son, C, against the husband, there is very little evidence of physical threat as asserted by the husband in his submissions. Such evidence is vague and in the context of the evidence of the husband is not such as would amount to duress or undue influence to induce him to enter into the agreement. I have not accepted his assertion as to his alleged psychological vulnerability. In general terms I reiterate the findings and analysis in these reasons. In terms of the allegation of duress or undue influence there is no factual basis upon which such a finding is able to be made and the submission in this regard fails.
8 The submission that circumstances have arisen since the agreement was made as to make it impracticable for the agreement or part of the agreement to be carried out, see S90K(1)(c).
The husbands counsel submitted that circumstances have arisen since the agreement was made which make it impractical for the agreement to be carried out. The basis of that appears to be that the MVA compensation was not added to the joint account before the house was purchased. In that regard the husband submitted;
“The parties separated after the house was purchased and the CTB compensation was not added to the joint account before the house was purchased”.
The question of the purchase of the house was discussed above and the consequence of that decision was that the parties have achieved a significant capital increase. The money from the sale of V was paid into an account and then used to buy X. The mortgage on X was necessary as the parties agreed to take advantage of the opportunity to buy that home and use the MVA money when it arrived at a later date. The essence of the husband’s submission was that the terms of the agreement need to be strictly interpreted and it is not open to the Court to ‘read between the lines’. I adopt a constructive approach to interpreting the agreement.
The home has been acquired and there is no reason why the money from the motor accident claim cannot be repaid against the mortgage. The adjustment with regard to the matters set out above including the mortgage repayments, proceeds of sale of BMW, legal costs deducted etc are relatively easy calculations. It is not impracticable to carry out the terms of the agreement.
9 The submission that the agreement is void for uncertainty in that it is be-ridden by apparent errors.
The husband asserts that the agreement is be-ridden by apparent errors, including clause 20 of the agreement, where it is submitted that the uncertainty arises.
In clause 20 the husband notes the inconsistent numbering. I determine that the intent of that provision in the agreement is clear from its terms. When construing a document a clause must not be considered in isolation, it must be considered in the context of the whole of the document[44].
[44] See Kim Lewison QC, ‘The Interpretation of Contract’, 2004, Sweet & Maxwell, London.
The husband submitted that there was uncertainty in the definition of the CTP claim and how the money received was entitled to be treated by the wife. Both parties agree that the proceeds of the MVA claim ought to be applied to the home. It is disingenuous of the husband to complain that the monies have not been paid when one of the first acts he undertook after the money had been received was to apply to this court to have the agreement either set aside or declared void. There is no uncertainty as to how the money is to be applied, nor is there uncertainly as to the claim itself.
The husband submits that there is not a delineation between the net amount or gross amount of the claim. However, the husband had himself received a compensation claim and I infer that it was known to him that the amount which would be applied to the benefit of the parties was the net amount. I infer he would have been aware deductions would have needed to have been made for legal costs and for medical expenses.
The husband was well aware that the proceeds of the MVA claim where unascertained at the time the agreement was entered into and that there was a risk involved. He was informed of that risk by his solicitor and as I have already determined in these proceedings made a decision in circumstances where he was fully apprised of the risks and impact upon him.
That the agreement is void or voidable and ought to be set aside because of misrepresentation and fraud on the part of the wife.
This part of his application is based on “Recital L” of the agreement. The husband asserted that the wife misrepresented to her capacity to work to him and as a consequence he entered into the agreement. To that end he says that she had asserted to medical practitioners that she was unable to work at all and it was based on that misrepresentation that the husband entered into the agreement. At all relevant times the wife has had some capacity to work. The husband attended with the wife to medical appointments and in fact assisted the wife with the provision of medical reports for her claims. He asserts;
“only the wife could have known her medical evidence at any stage relevant to the making of the BFA”.
That is not correct, as the husband was fully apprised of the wife’s medical evidence, at least up to the assault in May 2002, and I infer he was apprised of her medical circumstances from that time. He also contends that he was not aware of her lawyer’s files. The husband was aware of those files and was aware of the instructions she had given her legal advisors. The husband lived with the wife from November 2001 through to May 2003. He promoted the MVA claim and there was no misrepresentation or fraud as submitted by him. I find no evidence of misrepresentation and/or fraud as alleged by the husband. The husband needed to establish some procedural unfairness such as would relieve him from the contract. He was unable to establish those matters and his claim in that respect must fail.
11 That the agreement ought to be declared void on the basis of illusory consideration/promise based upon misrepresentation, presumably by the wife.
The husband submits that the promise of him gaining a share of the MVA claim was an illusion as it did not happen at all or until after separation. I find that the claim was real, not illusory. I repeat the findings above and the discussion in respect of the various submissions. There was no illusion in the claim or the settlement. There was no reason why the terms of the agreement could not be put into effect but for the husband’s application to have the agreement set aside or declared void.
12 That the agreement is void on the basis that the wife’s conduct has frustrated the implementation of the agreement.
The husband submits that the wife’s conduct also frustrated the agreement in that she frustrated its implementation. For the reasons set out above the husband’s submission in this respect is likewise dismissed.
The application of s 79 if it were determined that there agreement should be set aside or was otherwise void or voidable.
I invited Counsel for the parties to make submissions in relation to how the property ought be dealt with if the agreement was set aside or was void under s 90G. The submissions in that respect are outlined in these reasons.
If the jurisdiction of the Court was not ousted by the agreement the approach in this case would need to have involved a number of steps:-
a) The identification of the property and its value;
b) An evaluation of the parties’ contributions having regard to ss. 79(4)(a)(b) & (c).
c) Consideration of any adjustment to that assessment having regard to the relevant matters in ss. 79(d),(e),(f) & (g) (“the other factors”) including the matters referred to in s.75(2).
d) A review of the outcome against a just and equitable requirement
The identification of the pool of assets is as set out earlier in these reasons and totals some $347,760.00.
The initial contributions of the husband, at the time of commencement of cohabitation, were his interest in the home at V, furniture, furnishings and car. The wife’s initial assets, at the time of commencement of cohabitation, were her workers compensation claim, the MVA claim, furniture, furnishings and a car. After cohabitation the wife resolved her workers compensation claim for about $13,000. That sum was used for the parties wedding, the honeymoon and went into the house at V and clothing for the husband. The wife, after separation, contributed the sum of $41,000.00 from her MVA claim. The entitlement to this amount was a factor in the parties purchasing X. The parties moved to Tasmania in or about December 2002 and initially rented accommodation and then move into the home at X.
The parties commenced cohabitation in 2001 and were separated from July 2002 to September 2002. There was a short separation for a few weeks in March 2003 and then they reconciled and then final separation in May 2003. It is a relationship of a relatively short duration. The wife undertook duties as a homemaker and wife. From the evidence she contributed significantly in that regard, she prepared meals and maintained the homes in which the parties resided.
The parties each had children from their previous relationships residing with them, for various times, during the cohabitation period. The wife and husband each provided directly and indirectly to the relationship. On the contribution basis I determine that the wife has contributed thirty three per cent and the husband sixty seven per cent.
Both the husband and the wife have significant back disabilities and are able to work part time to a limited extent. The husband works with Y, gardening and undertaking his vocational training, the wife works as a receptionist and a carer. The wife has the care of children from her previous relationship. I find that the other factors under Section 79 are equally balanced and as such I would make no adjustment in that area.
Having regard to the contributions and other factors the net property ought to have been adjusted so that the wife would have received thirty three percent (33%) and the husband would have received sixty seven percent (67%). Looking at this result reflects the advantage to the husband of his initial contributions but takes into account the contributions made by the wife. It is my view that such a result would have been in this case just and equitable.
However, the financial agreement dated 3 September 2002 is binding on the parties and as such the property matters are covered by the agreement and the Court has no jurisdiction under Part VIII to adjust property as sought by the husband. The jurisdiction of the Court to determine the validity of the agreement and to enforce the agreement is contained within Part VIIIA of the Act.
For these reasons I make the following orders:-
1That the application of the husband to set aside the financial agreement dated 3 September 2002 between the parties be dismissed.
2That this matter be removed from the list of cases requiring determination.
3That all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
4That leave is given to the parties to apply within twenty eight days in respect of any argument as to costs.
IT IS CERTIFIED
5That pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
I certify that the preceding 176 paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Benjamin.
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AssociateDated: 15 September 2006
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