CALLANAN & CALLANAN
[2015] FCCA 1248
•14 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CALLANAN & CALLANAN | [2015] FCCA 1248 |
| Catchwords: FAMILY LAW – Section 90B Financial Agreement signed November 2006 – Husband, who migrated from (country omitted) in mid-2006, seeks to set aside Agreement and leave to file property and spouse maintenance application –whether Agreement signed 5 or 12 days before wedding – whether fraud/deceit, undue influence or duress or unconscionable conduct by Wife or the solicitors – whether material change in circumstances relating to child under s.90K(1)(d) - whether independent legal advice provided by Husband’s solicitor – application dismissed. |
| Legislation: Family Law Act 1975 (Cth), ss.90B, 90G, 90K and 90KA |
| Hoult & Hoult [2013] FamCAFC 109 Senior & Anderson [2011] FamCAFC 129 |
| Applicant: | MR CALLANAN |
| Respondent: | MS CALLANAN |
| File Number: | SYC 1987 of 2011 |
| Judgment of: | Judge Sexton |
| Hearing dates: | 23 and 24 February 2015 |
| Date of Last Submission: | 24 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: Solicitors for the Respondent: | Mr R. Schonell SC Broun Abrahams Burreket |
ORDERS
The Husband’s Applications to set aside the Financial Agreement dated 20 November 2006, and for leave to file an Amended Response for property settlement and spouse maintenance, be consolidated.
The Husband’s consolidated applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Callanan & Callanan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1987 of 2011
| MR CALLANAN |
Applicant
And
| MS CALLANAN |
Respondent
REASONS FOR JUDGMENT
Introduction
The Husband seeks to set aside a Financial Agreement entered into by the parties before their marriage, and dated 20 November 2006 (the Agreement).[1] He also seeks leave to file and serve a further Amended Response for orders for property settlement and spouse maintenance. The Wife seeks a consolidation and dismissal of the Husband’s applications.
[1] Annexure 7 to Husband’s affidavit sworn on 20 May 2013
The Court must determine whether (1) there is a valid financial agreement, (2) if so, whether it should be set aside and (3) if not, whether it is binding.[2]
[2] At paragraph 3 of Saintclaire & Saintclaire [2013] FamCA 491
The Husband was self-represented, assisted by an interpreter in the (language omitted) language. The Wife was represented by Broun Abrahams Burreket, solicitors and at hearing by Mr Richard Schonell S.C.
Background facts
The Husband, aged 47, was born in (country omitted).
The Wife, aged 43, was born in Sydney.
The parties met in (omitted) 2002 in (omitted), a city on the (omitted) in (country omitted), when the Wife was on a 3 week holiday. The Husband was employed in a tourist area at a (employer omitted) called (omitted), as a (occupation omitted).
In (omitted) 2003, the parties commenced a relationship. In (omitted) 2004, the Wife rented an apartment in (country omitted). The Husband owned and lived in a one bedroom apartment known as the Property E property.
In early 2004, the Wife bought a car in (country omitted) for approximately $10,000. The Husband and his friend helped with the purchase because the Wife could not speak (language omitted).
In (omitted) 2004, the Wife lent the Husband $15,000AUD to build a shop on his property.
On (omitted) 2004, the Husband asked the Wife for more funds for the construction. At the request of the Wife, the Wife’s mother Ms H transferred $8,540.83 to the Wife which was advanced to the Husband. The Husband rented the shop he constructed as a (omitted) store.
In (omitted) 2004, the Wife’s mother visited (country omitted) and paid all expenses for herself, and the parties, to tour (omitted) in (country omitted).
In (omitted) 2005, the Husband travelled to Australia with the Wife for a 3 month holiday. The Wife’s mother paid the Husband’s airfare as a gift to him.
In (omitted) 2005, the parties became engaged to be married. They commenced cohabitation in the Husband’s apartment in (country omitted). The parties agreed the Husband would complete the building of the restaurant on his property in (country omitted), his brother would run the restaurant, and the parties would move to Australia. The Wife did not pay the Husband rent, but paid for utilities and household expenses.
Between (omitted) 2005, the Wife’s mother transferred further sums totalling $14,675 to the Husband to complete the restaurant. The Wife’s mother says she agreed with the Husband’s plans as “I saw Mr Callanan as an industrious person.”[3] The Husband ran the restaurant with his brother who lived in the restaurant. The Wife’s mother did not charge interest on the loan, but says she expected to be repaid.[4]
[3] At paragraph 16 of affidavit of Ms H sworn on 26 July 2013
[4] Ibid
In (omitted) 2005, the Wife’s mother gifted the Husband and his family $4,128 because of damage suffered to his residential area as a result of a hurricane.
In late 2005 and 2006, the Wife’s mother assisted the parties with the Husband’s visa application.
In approximately (omitted) 2006, the Husband decided to close his restaurant because there was a “hole in the street”[5] which stopped taxi traffic, and the tenant left the shop. Because she was planning to move back to Australia, the Wife decided to sell her car, estimating its value at $7,000-$8,000. The Wife asked the Husband to sell the car for her before he came to Australia.
[5] At paragraph 33 of Wife’s affidavit sworn on 26 July 2013
On (omitted) 2006, the Wife moved back to Sydney. The Husband then told the Wife he had given her car to his sister, as “there was something wrong with the original papers for the car and I can’t sell it.”[6]
[6] At paragraph 37 of Wife’s affidavit sworn on 26 July 2013
In (omitted) 2006, the Husband joined the Wife in Sydney and they lived together in the Wife's Property B house, purchased for her with funds from her grandmother several years before the parties’ relationship commenced. The Wife’s mother paid the Husband’s airfares and provided him with an Assurance of Support for a period of 2 years from (omitted) 2006.[7]
[7] Annexure C to affidavit of Ms H sworn on 26 July 2013
The Husband’s brother and his wife and two children moved into the Husband's (country omitted) property and in exchange for accommodation, looked after it rent-free, but the Wife says neither the Husband nor his brother rented out the shop or the restaurant in which the Wife and her mother had invested approximately $38,000.
The parties married on (omitted) 2006 and continued to live in the Wife's Property B home.
On (omitted) 2007, the parties’ first child X was born.
In 2008, the Wife’s mother offered to lend the Wife money to help the Husband establish a restaurant called (omitted). The Wife’s mother says she expected the final debt not to exceed $200,000. However, the loan kept increasing as the (omitted) restaurant was losing approximately $14,000 a month. When the loan balance reached approximately $386,500, the Wife’s mother met the parties at their home to discuss the Husband’s options. The Husband determined to sell the business and asked the Wife’s mother to help him sell it. He said “we don’t want debts with you. We don’t want to owe you money.”[8] The Wife’s mother says the Husband was fully cooperative with the sale process.
[8] At paragraph 6 of affidavit of Ms H sworn on 29 January 2014
On (omitted) 2010, the parties’ second child Y was born.
According to the Wife, the parties separated under the same roof in Sydney on (omitted) August 2010 when the Husband “flew into a rage with me” and the police were called.[9] The following day, the Husband told the Wife’s mother that he wanted a divorce.[10] The Husband shortly afterwards said the Wife should “set up the divorce.”[11] The Wife was legally advised, as a first step, to send a letter to the Husband indicating that the marriage was over.
[9] At paragraph 59 of Wife’s affidavit sworn on 26 July 2013
[10] Ibid at paragraph 59 and at paragraph 31 of affidavit of Ms H sworn on 26 July 2013
[11] At paragraph 64 of Wife’s affidavit sworn on 26 July 2013
The parties attended marriage counselling between October 2010 and (omitted) January 2011. The Husband had told the Wife he was missing (country omitted) and his family. The Wife offered the Husband a return ticket to (country omitted) to help him. Her mother paid for the ticket. In early January 2011, the Husband left Sydney for (country omitted). While the Wife said she gave the Husband her letter about the marriage being over before he left, the parties communicated while the Husband was away to keep the possibility of reconciliation open. The Husband did not tell the Wife how long he would be away, so she picked an arbitrary date for his return when she purchased his ticket. The Wife says in a telephone conversation with the Husband in (country omitted), she told him she needed him to show her he was with her for love and “not for your comfortable life with us here” and that he should live outside the family home on his return, until he had established himself in at least part-time work.[12] In March 2011, the Wife says the parties had a conversation which made it clear the marriage was over. According to the Husband, the parties separated on his return to Australia in April 2011. The Wife signed a Separation Declaration[13] on 23 March 2011.[14]
[12] Ibid at paragraph 68
[13] Exhibit 8
[14] Section 90DA
The parties’ divorce became final on 2 June 2012, when the Registrar recorded that emails indicated final separation occurred on 5 March 2011. When the Husband returned from (country omitted) to Sydney on 5 April 2011, he moved to separate accommodation.
Parenting proceedings were commenced by the Wife in April 2011. She sought a watch list order and other parenting orders. In her Amended Initiating Application filed in May 2011, the Wife sought final orders for sole parental responsibility, for the children to live with her, and to spend time with the Husband on a supervised basis. In his Response filed July 2011, the Husband sought final orders for “joint” parental responsibility, that the Children live with him and spend time with the Wife 3 times a week during daytime periods and for half school holidays. The matter was listed for final hearing in July 2012, and on the third day of hearing, it settled on a long term interim basis.
Current interim orders made in 2012 and amended on 14 April 2014 by consent, provide for the Children to live with the Wife, to spend time with the Husband for two periods each week during the day, as well as time in holidays and on special days. Each party is complying with those orders.
The Husband is currently working casually as a (occupation omitted) and living in shared accommodation in (omitted). He says he has been unable to obtain full time employment and therefore cannot afford accommodation more appropriate for the Children.
The Wife is not in the paid workforce, and cares for the parties’ two Children. She lives with the Children in her unencumbered property in (omitted).
The Agreement
As already noted, the Wife returned to Sydney from (country omitted) in June 2006 and the Husband arrived in early July 2006.
The parties were engaged and had planned to marry on (omitted) 2006.
The Wife first discussed the issue of the Agreement with the Husband in September 2006. She told him it was her mother’s wish for the parties to enter into a pre-nuptial agreement. The Wife explained to the Husband that the effect of the proposed Agreement was that if they ever separated, his property in (country omitted) and finances would remain his, and her home, car and finances would remain hers. The Wife deposes to the Husband agreeing to sign an agreement in those terms. The Wife deposes to this conversation[15]:
[15] At paragraph 39 of Wife’s affidavit sworn on 26 July 2013
Wife: Are you willing to do this?
Husband: Yes, I don’t want your money, Ms Callanan.
The Wife then told the Husband arrangements would be made for lawyers to draft the Agreement and each of them would have to be independently advised on the Agreement. The Wife asked the Husband whether he would like the documents explained to him in (language omitted) and he said that he would.
On 5 October 2006, the Wife instructed Mr Nabil Wahhab, solicitor of The Argyle Partnership, to prepare a draft Financial Agreement, Superannuation Agreement and Deed of Release. At the Wife’s request, Mr Wahhab made inquiries to locate a Sydney family lawyer competent to explain the Agreement to the Husband in the (language omitted) language. As a result of his suggestion, the Husband consulted Ms Linda Manfre of Meyer Pigdon Lawyers for one hour on 1 November 2006.[16]
[16] Exhibit 3
On 9 October 2006, Mr Wahhab provided the Wife with a first draft of the Agreement. On 10 October 2006, the parties prepared a list of the assets, liabilities, superannuation interests and financial resources each owned, and estimated values for the purpose of including them in the Agreement. The Wife provided the lists to Mr Wahhab. The Wife deposes to her assets, liabilities, superannuation interests and financial resources being set out accurately in Schedule 1 to the Agreement. The total value of the assets, to the extent the values were included, was $1,426,000 with an additional estimated $114,000 in superannuation entitlements. However, against her jewellery, her household furniture and effects, and her interests in three discretionary trusts the values were marked ‘Not known’. According to Schedule 2 of the Agreement, the Husband owned assets in (country omitted) and Australia with a total value of $82,500, including land and buildings known as (omitted), (country omitted) with an estimated value of $80,000.
On 11 October 2006, the Wife’s mother emailed the parties an explanation of the draft Agreements and Deed of Release prepared by Mr Wahhab, in “her simplified English terms.”[17] The parties read through the documents together, with the assistance of the Wife’s mother’s explanatory email. The Wife deposes to asking the Husband after each point, as they worked through the documents, whether he understood each point. The Husband told her that he did understand each point, and the Wife says at no stage did he say or suggest that he did not want to enter into the Agreement, did not understand any of its terms, or had any difficulty with its terms. The Wife deposes to the Husband saying at around the time of discussing the Agreement “I don’t want your family’s money, Ms Callanan.”[18] The Husband acknowledges telling the Wife prior to signing the Agreement that he did not want any of her money.[19]
[17] At paragraph 42 of Wife’s affidavit sworn on 26 July 2013
[18] Ibid at paragraph 54
[19] At page 48 of transcript of proceedings 23 February 2015
The Husband attended a one hour appointment with Ms Linda Manfre, solicitor, on 1 November 2006, but later told the Wife that he was frustrated that Ms Manfre could not speak (language omitted) well enough and wanted to go through the documents with him in English. The Wife said to him:[20]
…you should definitely see someone else, it is not a problem. If there aren’t any good (language omitted) speaking lawyers you should get a translator.
[20] Ibid at paragraph 44
The Husband denies seeing the Agreement “completely”[21] or having anything about it explained to him, at the conference with Ms Manfre. The Husband said, “yes, I saw her, but I didn’t understand anything”…”she did not explain it to me.”[22] When asked what was discussed at the conference, the Husband acknowledged that Ms Manfre tried to explain the Agreement to him, but he did not understand what she told him.[23] He said “she tried to explain to me – what happened is she realised I wasn’t understanding anything so she reject me.”[24]
[21] At page 29 of transcript of proceedings 23 February 2015
[22] At pages 28 and 29 of transcript of proceedings 23 February 2015
[23] At pages 32 and 33 of transcript of proceedings 23 February 2015
[24] At page 31 of transcript of proceedings 23 February 2015
The Wife complained to Mr Wahhab about Ms Manfre given she had been recommended as a (language omitted) speaking solicitor, and requested that Mr Wahhab recommend another lawyer for the Husband and that an interpreter in the (language omitted) language be present at the appointment. In cross examination by the Husband, Mr Wahhab said he made two recommendations for solicitors, one of whom was Mr Paddy Moylan of Doolan, Wagner & Callaghan.
On 13 November 2006, the Husband consulted Mr Moylan, solicitor, in the absence of the Wife. (I address the Husband’s challenge to the accuracy of this date later). An interpreter from Associated Translators & Linguists Pty Limited was present at Mr Moylan’s office for an hour before the conference to familiarise himself with the documents and for the hour of the conference.[25] The Husband was accompanied at the appointment by his bilingual friend Mr S. Mr S is from (country omitted), and according to the Wife, speaks English very well. In Australia he worked in a (employer omitted), responsible for communicating with (omitted) in English. According to his file note dated 13 November 2006, Mr Moylan went through the documents with the Husband, and although the Husband was able to follow some of what he said in English, everything said was interpreted. Mr Moylan records highlighting his concerns with the Agreement and advising the Husband of the amendments he should request. Mr Moylan’s file note reads[26]:
He did not wish to consider any of the changes such as:
1. Amending the superannuation paragraph for him to get some form of super from her in the event of a breakdown.
2. That the Agreement have a Sunset Clause of say 5 years and that they revisit the agreement at that time.
3. That he receive a cash amount when he is evicted from the former matrimonial home to enable him to rent property. He considered this one and then said that his intention will be to go back to (country omitted) if they separate so he does not want any money.
4. My strongest advice was in relation to the fact that she is the beneficiary of various discretionary trusts and I indicated I should write to Nabil Wahhab, the Wife’s solicitor requesting disclosure in relation to the Trusts and the past level of distributions and forecasted level of distributions. The client did not want to get involved in this however despite me trying about 10 times.
5. In relation to the FPA Deed I explained to him the rights that he was waiving were significant and were not limited to a particular time.
[25] Exhibit 7 – tax invoice
[26] Exhibit 4
The client indicated that he felt like he was in Guantanamo Bay and had to sign the Agreement, he said that as a joke although he did indicate through the interpreter that it is not so much his wife as his wife’s family that wanted the Agreement to be entered into as they had some difficulties with the wife’s sister going through a break up.
Ultimately the client wanted to sign the Financial Agreement and Deed of Release.
Mr Moylan then records in his file note that the last page of the Agreement and Deed had the details of a previous solicitor he was going to consult (Ms Manfre) so the agreement was signed and Mr Moylan had a member of his staff delete the incorrect name from the documents. He said that during that 5-10 minutes he again took the Husband though the various problems he had with the documents, but “he remained wanting to sign the agreements.” Mr Moylan’s note states:
The client was listening to the advice given and raised some interest and surprise at some of the comments and advice that was given but after considering it, he then kept his original position of wanting to enter into the agreement.
The Wife says[27] that the Husband said to her after his meeting with Mr Moylan “I had the document explained to me and I discussed it in (language omitted).”
[27] At paragraph 3 of Wife’s affidavit sworn on 29 January 2014
Mr Moylan wrote to the Husband on 16 November 2006[28], and to the Wife’s solicitors in relation to the matter.[29]
[28] At Annexure 6 of Husband’s affidavit sworn on 20 May 2013
[29] Exhibit 6
On 20 November 2006, the Wife had a conference with Mr Wahhab, in the absence of the Husband. The Wife deposes to Mr Wahhab giving her advice about the Financial Agreement, Superannuation Agreement and Deed of Release, to her signing the documents and to Mr Wahhab signing the Certificate of Independent Legal advice to confirm he had provided the advice. The Advice was dated 20 November 2006. The Agreements and Deed of Release were dated 20 November 2006 on the front cover of the documents.
After the Wife’s conference with Mr Wahhab, the Wife says that the Husband took a cheque in the sum of $2,000 made out by her mother, to the officers of Doolan Wagner & Callaghan in payment of Mr Moylan’s fees.
On 21 November 2006, the Argyle Partnership sent a letter to Doolan, Wagner & Callaghan enclosing certified copies of the executed Financial and Superannuation Agreement and the Deed of Release.[30]
[30] Annexure 7 to Husband’s affidavit sworn on 20 May 2013
On (omitted) 2006, the Wife deposes to the parties having a simple wedding in her mother’s garden with approximately 14 people present, including a celebrant.
The Wife says that the Husband never mentioned that he felt any pressure to sign the Agreement or that he believed it was unfair. He never discussed the Agreement while they were married.
The Husband’s case
The Husband relies on his Application in a Case filed 20 May 2013, his Response filed on 16 May 2013 and 4 affidavits sworn by him on 19 February 2015, 5 January 2015, another on 5 January 2015 and on 20 May 2013. I read a further Affidavit of the Husband sworn 28 June 2011 tendered by the Wife’s counsel.[31]
[31] Exhibit 2
As already noted, the Husband was unrepresented, and at times during the hearing required the assistance of an interpreter. The Husband had difficulty articulating his case. I have therefore carefully considered all matters raised by the Husband in his applications, his affidavit evidence, in his oral evidence, and in his submissions. I find much of the Husband’s affidavit material irrelevant to the issues in the case. I summarise my understanding of the Husband’s case as follows:
a)The Wife, the Wife’s mother, the Wife’s solicitor Mr Wahhab, and his own solicitor, Mr Moylan, behaved in a fraudulent, manipulative and deceitful manner when preparing and executing the Agreement.
b)The deceitful actions of Mr A (lawyer), his wife Ms P, and lawyers Mr C, Ms M and Mr F, as well as Ms D who is employed by Mr C, have contributed to his overall disadvantage.
c)Mr Moylan, as part of this fraud/ deceit, claims to have given him independent legal advice and witnessed his signing of the Agreement, on 13 November 2006, when he is certain the conference took place on 20 November 2006.
d)The Wife and the Wife’s mother took advantage of his poor English and limited understanding of legal contracts, when he had only been in the country a short time.
e)The contents of the Agreement were not properly explained to him.
f)The Agreement “leaves me outside my family and without any right over my daughters.”[32] He will suffer extreme hardship if the Agreement is upheld, his relationship with his children will be adversely affected, and his future in Australia will be “in jeopardy.” [33]The Husband refers to the parenting orders of August 2012 where the Court notes “it is anticipated the matter will be relisted when the Father has settled into his own accommodation with suitable facilities for the children.” The Father says he is financially poor and therefore, if the Wife died, the children would not move to his full time care, unless he had the money to support them. He cannot presently afford the lifestyle his children are used to. He deposes to the main question being “who will take care of my daughters if something happened to their mother?”[34]
[32] At paragraph 8 of Husband’s affidavit sworn on 20 May 2013
[33] Ibid at paragraph 11
[34] At paragraph 23 of Husband’s affidavit sworn on 5 January 2015
Without referring to the provisions of s.90K, the Husband submits that the Agreement should be set aside for fraud/deceit, unconscionable conduct or as a result of duress/undue influence.
In final submissions, Mr Schonell SC summarised his understanding of the Husband’s case as follows:
a)In his Response filed 16 May 2013, the Husband said the Agreement was “obtained by fraud, abusing my good faith and poor understanding of English.” The same proposition is repeated in his Application in a Case and his Affidavit material.
b)There was a fraud and/or conspiracy involving Mr Wahhab, Mr Moylan and the Wife, and possibly the Wife’s mother in relation to the creation of the Agreement and its signing.
c)When he attended on Mr Moylan, he did not receive any advice. He then acknowledged receiving some advice, but he did not understand the advice because of his English.
d)He signed the Agreement under a form of duress and/or deception, and said something about a $10,000 payment.
Senior Counsel submitted that the Husband does not appear to be raising any issue about the formal legislative requirements of the Agreement, with the exception of the allegation that Mr Moylan did not give his advice independently.
The Wife’s case
The Wife relied on her Response filed 26 July 2013, two affidavits sworn by her and filed on 26 July 2013 and 29 January 2014, and two affidavits sworn by her mother Ms H and filed on 26 July 2013 and 29 January 2014.
It is the Wife’s case that the Agreement entered into by the parties in November 2006 is a valid Binding Financial Agreement and that the Husband establishes no grounds for having it set aside. The Wife’s counsel submits that the Husband’s contention that he was not sufficiently proficient in English is disingenuous, and that his allegations about Mr Wahhab and Mr Moylan are extremely serious and put without any substantiating evidence.
Legal principles
The Court’s power to set aside a section 90B Financial Agreement is found in section 90K of the Family Law Act 1975.
In Saintclaire & Saintclaire [2013] FamCA 491, Ryan J suggested that the following questions provided the appropriate pathway in such a case:
1.Is there a financial agreement?
2.If the answer is affirmative, should that agreement be set aside?
3.If the answer is negative, is the Agreement binding?
Is there a valid financial agreement?
The Act draws a distinction between agreements which are financial agreements (s.4, s.90B, s.90C and s.90D) and agreements which are binding financial agreements (s 90G).[35]
[35] At paragraph 74 of Saintclaire [2013] FamCA 491 per Ryan J and at paragraph 94 of Senior & Anderson [2011] FamCAFC 129
The subject Agreement is expressed to be a section 90B Agreement.[36] There is no dispute that the Agreement in this case satisfies the provisions of section 90B.
[36] Clause 8 of the Agreement - Annexure 7 to Husband’s affidavit sworn on 20 May 2013
The question is whether there is a financial agreement which is valid, enforceable and effective, having regard to the principles of law and equity. This requires consideration of section 90KA which provides that:
The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts…
I agree with Strickland J[37], that the purpose of s.90KA is primarily one of enforcement, but it also applies the general law to determine the question of validity.
[37] Senior & Anderson at paragraph 34
In Saintclaire & Saintclaire, Justice Ryan said in relation to s.90KA, that the equitable doctrines of undue influence and unconscionable conduct are both[38]:
…designed to achieve transactional fairness; that is to overcome the effect of unfair transactions. Undue influence is primarily focused upon the quality of the weaker party’s consent to the transaction rather than the existence of unconscionable conduct by the stronger party. On the other hand unconscionable conduct is primarily focused upon the conduct of the stronger party rather than consent.
[38] Saintclaire & Saintclaire at paragraph 80
The Husband contends that the Wife and the Wife’s mother:
..made me sign that financial agreement in relation to property after I had been living only one month in Australia…I never requested a lawyer and I had never engaged the services of a lawyer since I did not have money to pay for one. I also did not think I needed one. Ms H and Ms Callanan still chose a lawyer for me named Paddy James Moylan who told me “everything is fine, this is the Australian way.” … “They also hired a translator to explain to me the clauses of the contract, who was very difficult for me to understand. This lawyer was biased and did not act independently when advising me.”… “I told him “it looked like I arrived to Guantanamo Bay” and he replied “don’t worry, I have the keys to take you out of Guantanamo Bay, if you want to.” [39]
[39] At paragraph 33 of Exhibit 2
Fraud/deceit
The Husband said that the Wife’s mother explained 20 clauses of the Agreement in her email. When shown the email from the Wife’s mother that he referred to[40], the Husband conceded that the document did not refer to 20 clauses but he said “there is one who says there is 20”[41] and also “she can write whatever she want to, and she could alter any evidence.”[42] However, he did not challenge the Wife’s mother on this issue in cross examination.
[40] Annexure B to Wife’s affidavit sworn on 26 July 2013
[41] At paragraph 34 of transcript of proceedings 23 February 2015
[42] Ibid
The Husband is adamant that he consulted Mr Moylan and signed the Agreement on 20 November 2006, not on the 13 November 2006 as stated on a number of documents shown to him and the Agreement itself, and that the date was changed as a result of some form of collusion/fraud/deceit between Mr Moylan and Mr Wahhab. The Husband says Mr Wahhab and Mr Moylan “are both in collusion.”[43] He said “it’s clear it’s a trick. I’ve been set up.”[44] When shown Annexure 6 of his affidavit of 20 May 2013, a letter from Doolan Wagner Callaghan solicitors, dated 16 November 2006 to the Husband referring to their conference on 13 November 2006, the Husband said the letter was a forgery, because he did not consult Mr Moylan until 20 November.[45] The Husband alleges that Mr Moylan probably backdated the document by 7 days which was part of the fraud committed against him.[46]
[43] At page 48 of transcript of proceedings 23 February 2015
[44] At page 21 of transcript of proceedings 24 February 2015
[45] At page 37 of transcript of proceedings 23 February 2015
[46] At pages 27 and 47 of transcript of proceedings 23 February 2015
Both Mr Moylan and Mr Wahhab were cross-examined. Neither had an independent recollection of the matter and relied on documents produced from their files to give their evidence. Mr Moylan referred to his letter of advice to the Husband dated 16 November 2006, which states that the Husband had a conference with him and signed the Agreement on 13 November 2006. Mr Moylan and Mr Wahhab confirmed that the Agreement disclosed that Mr Moylan signed the Certificate of Independent Legal Advice for the Husband on 13 November 2006 and that Mr Wahhab signed the Certificate of Independent Legal Advice for the Wife on 20 November 2006.
I am in no doubt that the Husband had a conference with Mr Moylan on 13 November 2006, signed the Agreement on that date and that Mr Moylan gave independent advice to the Husband, and signed the Certificate, on that date. There are a number of documents in evidence which confirm the date of 13 November 2006, and no evidence to support the Husband’s contention that he met Mr Moylan and signed the Agreement on 20 November 2006. The documents in evidence include the letter from Mr Moylan to the Husband dated 8 November 2006, confirming his appointment on 13 November 2006;[47] the file note of Mr Moylan dated 13 November 2006;[48] the letter from Mr Moylan to the Husband dated 16 November 2006; the letter from Mr Moylan to Mr Wahhab dated 16 November 2006;[49] and the tax invoice from Associated Translators & Linguistics Pty Ltd[50].
[47] Annexure D to Wife’s affidavit sworn on 26 July 2013
[48] Exhibit 4
[49] Exhibit 6
[50] Exhibit 7
I am satisfied that the Agreement was executed in accordance with usual practice, and as required by the legislation; that is, that the Husband signed the Agreement on one day, in this case 13 November 2006, when his solicitor Mr Moylan signed the Certificate of Independent Legal Advice. The Agreement was then forwarded by Mr Moylan to the Wife’s solicitors. The Wife signed the Agreement on 20 November 2006, when her solicitor, Mr Wahhab, signed the Certificate of Independent Legal Advice.
I agree with Mr Schonell SC that the confusion in the Husband’s mind about the date of signing is likely to have arisen because the Husband signed at the bottom of every page when he signed the Agreement. He therefore signed his name (in error) at the bottom of the Certificate of Independent Advice, yet to be completed by Mr Wahhab.[51] When that page was signed by Mr Wahhab on 20 November 2006, the Husband’s signature remained at the bottom of that page, which may have caused the Husband to think he had also signed on 20 November 2006. In any event, the evidence is clear that the Husband consulted Mr Moylan and signed the Agreement on 13 November 2006.
[51] As shown on Exhibit 9
I find no evidence of fraud or deceit as alleged by the Husband.
Undue influence/duress
The Husband says he was not sufficiently proficient in the English language to understand the Agreement in November 2006.
The Wife deposes to the Husband, when in (country omitted), being sufficiently competent in English to communicate with tourists visiting the (omitted) in which he was working, to communicate with her and interpret for her, because she had no (language omitted). She says he read many books in English, and discussed complex subject matter with her. She and the Husband corresponded by email in English when she was in Sydney and he was still in (country omitted). The Wife’s mother deposes to spending time in (country omitted) with the parties in (omitted) 2004, and to conversing well with the Husband in English. When speaking to other (language omitted) speakers, the Husband translated for her. Prior to the Husband’s move to Australia, the Husband and the Wife’s mother corresponded by email in English.[52]
[52] Examples at Exhibit 1 and Annexure A to affidavit of Ms H sworn on 26 July 2013
In cross-examination, the Husband says he spoke English “not at all” or “very poorly” in 2006.[53] When Senior Counsel put to him that he had spoken to the Wife in only the English language since they met in 2002, the Husband said they spoke “(omitted)-ish” a language in between English and (language omitted). The Husband then acknowledged that he and the Wife had communicated only in English in the 6 weeks the Wife was with him in (country omitted) from (omitted) 2002, but that they also used body language.[54] The Husband denied they communicated in English during the year the Wife was in (country omitted) in 2004 because he claimed that the Wife learned (language omitted). He agreed he sent emails to the Wife when she returned to Australia in English but said, “a friend of mine helped me”,[55] and agreed that he also sent emails in English to the Wife’s mother.[56] The Husband agreed with the Wife’s evidence[57] that when in (country omitted), he read books in English and discussed their contents in English.
[53] At page 18 of transcript of proceedings 23 February 2015
[54] At page 19 of transcript of proceedings 23 February 2015
[55] At page 20 of transcript of proceedings 23 February 2015
[56] See email April 2006 to Wife’s Mother – Exhibit 1
[57] At paragraph 24 of Wife’s affidavit sworn on 26 July 2013
The Wife went through the draft Agreement with the Husband, assisted by the simplified version of the Agreement sent to the parties by the Wife’s mother in October 2006. The Wife says the Husband understood each point as she carefully went through the draft document with him, and raised no concerns about the terms. Mr Moylan was satisfied that the Husband was able to follow some of what he said in English in November 2006, even though he ensured everything said was interpreted for the Husband.
The issue here is the Husband’s proficiency in English at the time of entering into the Agreement in late 2006. However, I am satisfied it was also relevant to explore the current standard of the Husband’s English to answer that question. A finding that the Husband has very poor English skills in 2015 is likely to be relevant to his English language skills in 2006.
Mr Schonell SC cross-examined the Husband about his proficiency in English currently. When asked whether he could understand spoken English, the Husband said “not all”. He can understand written English, can read the newspaper, can read English novels but has to look up words he cannot understand in the dictionary. Senior Counsel submits that any suggestion the Husband cannot understand English “is but a charade”.[58] Senior Counsel asks the Court to find that the Husband answers questions when it suits him. Senior Counsel submits that the Husband has demonstrated a capacity to speak and understand English in its written and spoken form, even if he has some difficulty with technical and legal language. Senior Counsel highlights the fact that the Husband did not require any of his affidavit evidence to be translated from 2011 to date. He refers to the annexures to the Husband’s affidavit sworn on 19 February 2015 in relation to his dealings with police in 2013[59], all communication, both written and verbal, in English. The Husband had lodged a complaint to the NSW Police Service alleging that the police failed to provide him with translator services. The police officer who interviewed the Husband found the Husband had no difficulty understanding the questions asked of him, and said the Husband did not request an interpreter, despite being aware of his right to do so.
[58] At page 40 of transcript of proceedings sworn on 23 February 2015
[59] Annexure B to Husband’s affidavit sworn on 19 February 2015
I agree with the Wife’s counsel that the Husband demonstrated a capacity to understand spoken and written English at the time of hearing. During his cross-examination, I was concerned to ensure the Husband understood counsel’s questions. I said to the Husband[60]:
If you don’t understand the question exactly, then you may turn to your interpreter to assist you, but if you do understand the question and Mr Schonell keeps his questions short so they’re not complicated questions then you are free to answer, and you should answer if you understand the question. So just use the interpreter to the extent that you need to. Do you understand me?
[60] At page 41 of transcript of proceedings sworn on 23 February 2015
The Husband responded, “Yes”. I then asked, “What did I say?” The Husband said, “if I need the interpreter, I use it.” At other points in the hearing, when I asked the Husband whether he needed help, he said he understood what was being said. I find it noteworthy too, that from time to time when the Wife’s counsel was making final submissions, I asked the Husband whether he was following the arguments, (given at no point did he ask to have them interpreted) and he replied, “Yes.”[61]
[61] For example see page 29 of transcript of proceedings 24 February 2015
I am also satisfied that the Husband was sufficiently competent in English when he read and affirmed his own affidavits on 28 June 2011, 12 July 2011, 30 March 2012, 27 June 2012, 5 July 2012 and subsequently, without assistance from an interpreter. Also, when the Wife’s mother met the parties to discuss the financial losses relating to the Husband’s Sydney restaurant in August 2010, she deposes to a conversation between herself and the Husband in English, in which the Husband decided that the restaurant should be sold. She was concerned to ensure that the Husband fully understood his options before committing to a sale, and said his responses clearly demonstrated that he had fully understood what she had said to him. The Husband did not challenge the Wife’s mother’s evidence on this issue. The Husband also agreed that he has always communicated with his children in English, his first child having been born at the end of 2007.
I accept the Wife’s evidence that the Husband was able to read English to a reasonable level and understood spoken English to a reasonable level from the time she met him in (country omitted). It is evident from his email correspondence from (country omitted) to the Wife and to the Wife’s mother that he could also write in English at that time. However, I find, as the Wife’s counsel suggests, that he is unlikely to have understood legal terminology at the time of entering into the Agreement. I find it noteworthy that the Wife’s mother, in her letter to a lawyer in relation to the sale of the Husband’s restaurant[62] in September 2010 said in relation to the Husband, “his English is not strong enough yet for dealing with legal matters so he has asked me to act on his behalf at this stage.”
[62] Annexure 4 to Husband’s affidavit sworn on 20 May 2013
Despite this finding, I am nevertheless satisfied that the Husband did understand the purpose and effect of the Agreement, did understand its terms once explained by Mr Moylan with the assistance of an interpreter, and did understand the advice he was given by Mr Moylan. I am therefore not persuaded that the Husband can rely on his lack of proficiency in English to explain why he signed the Agreement against Mr Moylan’s advice.
The Husband alleges that Mr Moylan did not give him any legal advice and did not explain the contents of the Agreement. “He told me to sign the document. He read to me 10 clauses, and that was it.”[63] He alleges that Mr Moylan did not explain the contents or effect of the Agreement. The Husband also said:
…He [Mr Moylan] suggested that he was going to give me $10,000 for my daughters…but he was crazy…. and then he mentioned something about Guantanamo Bay…[64]
The Husband denied that Mr Moylan recommended that the Agreement be amended to ensure he would receive an entitlement to superannuation in the event of a breakdown of the relationship, and he denied that Mr Moylan had recommended that the Agreement be limited to a period of 5 years.[65] However, the Husband did agree that Mr Moylan suggested that he should receive a cash payment ($10,000) in the event of him leaving the matrimonial home. In cross examination, he also conceded that Mr Moylan told him that he should seek disclosure from the Wife’s solicitors about the various trusts of which the Wife was a beneficiary. The Husband denied telling Mr Moylan that if the relationship broke down he would return to (country omitted). The Husband agreed that he told Mr Moylan that he did not want any involvement in the Wife’s “finances.”[66] He denied that Mr Moylan explained the effect of the Family Provision Act Deed of Release. He denied he told Mr Moylan he felt he was at Guantanamo Bay as a joke. He said, “that was not a joke. It’s the truth.”[67] He did not recall that the solicitor’s name on the Certificate of Advice had to be re-typed before he signed the Agreement.[68]
[63] At page 27 of transcript of proceedings 23 February 2015
[64] At page 39 of transcript of proceedings 23 February 2015
[65] Ibid
[66] At page 42 of transcript of proceedings 23 February 2015
[67] Ibid
[68] Exhibit 5 is the unsigned, undated Agreement, which included the name Ms Manfre as the Husband’s solicitor
I find the Husband’s evidence as to what he was told in conference with Mr Moylan contradictory and unreliable. I reject the Husband’s allegation that Mr Moylan did not explain the contents of the Agreement and its effect. It is evident from Mr Moylan’s file note of 13 November 2006[69], and from his letter to the Husband of 16 November 2006[70], that Mr Moylan gave the Husband careful and independent legal advice including the effect of the Agreement on his rights to apply for property settlement and a splitting of superannuation and/or spouse maintenance under the Family Law Act 1975. He explained in plain language what would happen upon separation, including that the Husband would have 21 days to leave the former matrimonial home, without being provided with any funds. He advised that the Husband would receive none of the Wife’s superannuation accrued during the marriage, even if the Husband indirectly contributed to the Wife’s acquisition of the superannuation by performing domestic tasks. His advice was unequivocal that he did not recommend the Husband sign the Agreement as drafted. Mr Moylan raised concerns with the Husband about a number of significant clauses in the Agreement, and strongly advised the Husband to seek full disclosure of the Wife’s financial position, and approximately 20 amendments to the documents before entering into the Agreement. The Husband chose not to follow Mr Moylan’s advice. While I accept the Husband made a reference to Guantanamo Bay before signing the document, and note that Mr Moylan referred to this comment in his letter to Mr Wahhab, I am not satisfied this remark supports a finding of duress. The Husband did not equate this reference to the concept of duress at any time. I find that the content of Mr Moylan’s advice, that the Husband should not sign the Agreement as drafted, is further corroboration of his independence from the Wife.
[69] Exhibit 4
[70] Annexure 6 to Husband’s affidavit sworn on 20 May 2013
I find no basis for a finding that the Husband was under duress when he entered into the Agreement or that the Wife, her mother or either solicitor, exerted undue influence over him. I am satisfied the Wife took appropriate steps to ensure the Husband understood the purpose and effect of the Agreement and indeed, invited the Husband to raise any concerns he might have had. While the Agreement was finalised only days before the wedding, I am not persuaded the timing, in itself, is sufficient to support a finding of duress, or undue influence. While the Husband said, in relation to Mr Moylan’s suggestion that he seek further disclosure about the Wife’s interest in various trusts, that “five days is of no use,” he does not suggest he felt under pressure to sign. The parties had a small wedding (14 guests) and the Husband does not say that he was told, or that he believed, the wedding would be called off if he did not sign. He does not suggest that the wedding could not have been delayed if he had decided he needed more time to consider the issues raised by Mr Moylan. His focus is on the lawyers attempting to conspire against him, rather than on behaviours which might support a finding that he was affected by duress or undue influence.
Unconscionability
The Husband submits that both the Wife and her mother took advantage of his poor language skills and his recent arrival in Australia to obtain his consent to the Agreement. The Husband had no knowledge of legal matters, and did not have the financial capacity to retain his own solicitor, and was therefore in a vulnerable position. The Wife and her mother funded and selected his lawyer who was complicit with the Wife’s solicitor in deceiving him. He says the conduct of the Wife and her mother in organising the preparation and execution of the Agreement was therefore unconscionable.
As already noted, the Wife first raised the issue of a pre-nuptial Agreement in (omitted) 2006, approximately 2 months after the Husband’s arrival in Sydney and approximately 2 months before the wedding was planned. The Wife explained what the Agreement would mean, and the Husband made no complaint about the proposal. He said he did not want the Wife’s family money. The Wife’s mother then forwarded a detailed email about the key points in the Agreement and its effect, in non-legal terminology. The Wife and the Husband carefully perused together the draft documents and the email. The Husband made no complaint and raised no issue about their contents. The Husband later spent an hour with Ms Manfre, solicitor, on the drafted documents, and although Ms Manfre did not explain the Agreement in (language omitted) as anticipated, the Husband did spend an hour with her on the contents. I have made findings that the Husband would have understood the purpose and effect of the Agreement from conversations in English, though not necessarily the legal terminology. Two weeks later, the Husband spent an hour with Mr Moylan who spoke to the Husband through an interpreter. Again, while the Husband is likely to have had trouble understanding the legal terminology in the Agreement in English, I am satisfied from Mr Moylan’s file note of the conference and his letter to the Husband which followed, that Mr Moylan spoke to the Husband in plain language the Husband understood, and gave the Husband legal advice not to sign the Agreement for reasons the Husband understood.
I am satisfied that the Agreement is a valid Financial Agreement.
Should the Agreement be set aside?
The Husband must satisfy the Court that the Agreement should be set aside for one of the reasons set out in s.90K of the Act.
Section 90K provides (as far as relevant to this case):
(1) A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:
(a) the agreement was obtained by fraud (including non-disclosure of a material matter); or
…
(b) the agreement is void, voidable or unenforceable;
…
(d) since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or
(e) in respect of the making of a financial agreement--a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or
…
(2) For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:
(a) the person is a parent of the child with whom the child lives; or
(b) a parenting order provides that:
(i) the child is to live with the person; or
(ii) the person has parental responsibility for the child.
…
For reasons already given, I am not satisfied that the Agreement should be set aside on the basis of s.90K(1)(a)(b) or (e) because I am not persuaded that the Wife, nor anyone involved in the preparation and execution of the Agreement engaged in fraud, unconscionable conduct, or that the Husband was under duress. Nor am I persuaded the Wife, her mother or either solicitor exerted undue influence over the Husband in relation to the Agreement.
However, the Husband also submits that if the Agreement stands, it will adversely affect his relationship with his children and cause him hardship. While the Husband does not refer to s.90K(1)(d) specifically, and Senior Counsel for the Wife made no submissions on this provision, I have nevertheless considered it.
Justice Ryan in Saintclaire[71] considered section 90(1)(d) and applied the test formulated by Le Poer Trench in Pascot. Ryan J said at paragraph 119:
His Honour formulated the test thus:
[71] [2013] FamCA 491
354. For the purposes of sec 90K(1), it would be useful to adopt the test in the following terms:
a) There must be circumstances that have arisen since the making of the Binding Financial Agreement, being circumstances of a material nature relating to the care, welfare and development of a child of the marriage;
b) It must be demonstrated that the child or the applicant, if she has caring responsibility for the child, will suffer hardship if the court does not set the agreement aside;
c) The court may set the agreement aside if it considers it appropriate and make such orders under sec 90K(3) as it deems appropriate.
In relation to “material change”, Ryan J adopted Le Poer Trench J’s view[72]:
….his Honour said that such a change would have to be “…substantial, significant and relevant…”; that is, relevant to the care, welfare and development of a child (of the marriage).
[72] At paragraph 120 of Saintclaire & Saintclaire [2013] FamCA 491
In Saintclaire[73], her Honour was not satisfied that the Wife established her claim that there had been a “material change” because the circumstance she relied on, being a move outside the Sydney metropolitan area, was consistent with an intention she had made plain before the Financial Agreement was signed.
[73] [2013] FamCA 491
In the matter of Pascot & Pascot[74], the Wife sought to set aside a section 90C Financial Agreement. At the time the agreement was entered into, the parties were the parents of one child and the prospective parents of a second. No consideration was given in the Agreement to the possibility of the parties having a third child, nor was there any evidence that this possibility was discussed during the negotiations between the parties. His Honour therefore considered that the birth of a third child, not contemplated at the time the agreement was entered into, constituted a “material change of circumstances.”
[74] [2011] FamCA 945
In the present case, the Husband deposes to a material change in the parties’ circumstances relating to the care, welfare and development of their children. He says “I have a caring responsibility for my children until today.”[75]
[75] At paragraph 14 of Husband’s affidavit sworn on 20 May 2013
Since the Agreement was made, the parties have had two children, have separated and divorced. In Recital I to the Agreement and in Clause 7(c) the parties clearly considered that one or both of them could be subject to a change of circumstances, specifically including the birth of a child or children of the marriage, and that their marriage could break down. In these circumstances, I am not satisfied that the birth of the children is a “material change of circumstances” as contemplated by s.90K(1)(d). The second and third elements of s.90K(1)(d) are therefore not relevant.
I have determined that there is no basis under s.90K of the Act for the Agreement to be set aside.
Is the Agreement binding?
The Wife does not seek an order that the Agreement be declared binding. However, the Husband in his Response filed on 16 May 2013 and his Amended Response filed on 20 May 2013 seeks an order that he be granted leave to file and serve a further Amended Response to seek orders for property settlement and spouse maintenance. The Wife seeks an order that those applications be consolidated with the Husband’s Application in a Case and then dismissed. I therefore address the question of whether the Agreement is binding.
At the commencement of the hearing, the Wife’s counsel asserted[76] that the Agreement was binding. At the end of the hearing, Senior Counsel submitted that the question of whether the Agreement is binding was not an issue in this case, (which I interpret to mean that there was no challenge to the formalities of the Agreement in s.90G) unless the Husband’s allegation that Mr Moylan was not independent in the giving of his advice changes that position.
[76] At page 12 of the transcript of proceedings 23 February 2015
The Husband told the Court that he did not challenge the technical aspects of the Agreement.[77]
[77] At page 12 of the transcript of proceedings 23 February 2015
There must be compliance with s.90G of the Act for a Financial Agreement to be binding. Strickland J in Senior & Anderson[78] referred to the distinction in the legislation between agreements which are “financial agreements” and those financial agreementswhich are “binding”:[79]
The Act in effect draws a distinction between agreements which are financial agreements (s4, s90B, s90C, s90D) and those financial agreements which are binding (s90G). Financial agreements can, like any other agreement, govern the actions of the parties to them and bind the parties to obligations, but do not oust the jurisdiction of the court. Parties to an agreement that satisfies the definition of “financial agreement ” are bound by its terms (or not bound as the case may be), just as they would be bound (or not bound) by any other agreement (s 90KA) ...
[78] [2011] FamCAFC 129
[79] At paragraph 94
His Honour noted that s.90G is not relevant in respect of the contractual rights and remedies of the parties. If an agreement satisfies the definition of “financial agreement”, s.90G becomes relevant in determining whether the agreement is effective to bar claims by either party pursuant to Part VIII of the Act (s.71A) which will be the case “if and only if” it is “binding” within the meaning of s.90G.[80]
[80] At paragraph 95
Section 90G at the relevant time[81] provides that:
[81] As at November 2006
(1) A financial agreement is binding on the parties to the agreement if, and only if:
(a) the agreement is signed by both parties; and
(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:
(i) the effect of the agreement on the rights of that party;
(ii) the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and
(c) the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and
(d) the agreement has not been terminated and has not been set aside by a court; and
(e) after the agreement is signed, the original agreement is given to one of the parties and a copy is given to the other.
...
The onusof proving the financial agreementis binding lies with the Wife in accordance with the decision of the Full Court in Hoult & Hoult[82]. The Wife must establish the existence of the matters set out in s.90G, including the giving of the requisite legal advice to both parties. The Court is entitled to accept the signed Certificates of Independent Legal Advice as prima facie evidence that the advice has been provided. It is not necessary to ascertain the content of the legal advice. Once the party seeking to rely on the Agreement adduces in evidence a Certificate signed by each party’s solicitors, there is an obligation on the other party to adduce evidence which would disprove, or at least throw into doubt, the inference or conclusion to be drawn from the certificate.[83]
[82] [2013] FamCAFC 109
[83] Per Thackray J at paragraphs 60 to 62 of Hoult & Hoult [2013] FamCAFC 109
As already noted, given my finding that Mr Moylan provided his advice independently, I am satisfied that the signed Certificates of Independent Legal Advice are evidence that the independent legal advice has been provided to each party. I am not satisfied that the Husband has disproved, or thrown into doubt, the inference or conclusion to be drawn from the certificate.[84]
[84] Per Thackray J at paragraphs 60 to 62 of Hoult & Hoult [2013] FamCAFC 109
Given the Husband does not question any of the other technical aspects of the Agreement, nor any of the other requirements of s.90G, I am satisfied the Agreement is binding on the parties. I make no order as no order was sought.
Conclusion
As a result of my findings in this matter, I find the Agreement entered into between the parties and dated 20 November 2006 is a valid Binding Financial Agreement. The Husband’s applications to set aside the Agreement, and for leave to file an Amended Response seeking property and spouse maintenance orders, will be consolidated and dismissed.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Sexton
Associate:
Date: 14 May 2015
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