Chetri & Thapa
[2024] FedCFamC2F 1611
•14 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chetri & Thapa [2024] FedCFamC2F 1611
File number(s): SYC 4296 of 2023 Judgment of: JUDGE MURDOCH Date of judgment: 14 November 2024 Catchwords: FAMILY LAW – PROPERTY – Financial Agreement – where the wife seeks a declaration that a s90C Financial Agreement is not binding – Where the husband opposes such relief –Where it is found that the wife did not receive the advice prescribed by s90G(1)(b) of the Family Law Act1975 (Cth) ––Where the husband has not established that it would be unjust and inequitable if the Financial Agreement were not binding - Declaration made that the Financial Agreement is not binding - Where submissions are sought as to why the husband’s conceded conduct in forging the signature of both the wife and a retired barrister on a prior Application for Divorce of the parties should not be referred to the Department of Public Prosecutions for investigation and possible prosecution. Legislation: Family Law Act 1975 (Cth) ss 44(3), 71A, 79, 90C, 90G, 90K Cases cited: Abrum & Abrum [2013] FamCA 897
Dragomirov & Dragomirov [2024] FedCFamC1A 187
Hoult v Hoult [2011] FamCA 1023
Hoult & Hoult (2013) FLC 93-546
Logan & Logan [2013] FamCAFC 151
Parker & Parker (2012) FLC 93-499
Wallace & Stelzer and Anor [2013] FamCAFC 199
Waterford v Commonwealth [1987] HCA 25
Division: Division 2 Family Law Number of paragraphs: 110 Date of last submissions: 22 October 2024 Date of hearing: 21-22 October 2024 Place: Sydney Counsel for the Applicant: Mr Brennan Solicitor for the Applicant: B Law Firm Counsel for the Respondent: Mr Necovski Solicitor for the Respondent: Juris League Consultancy Pty Ltd ORDERS
SYC 4296 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CHETRI
Applicant
AND: MR THAPA
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
14 NOVEMBER 2024
THE COURT ORDERS THAT:
1.IT IS DECLARED THAT the Financial Agreement executed by the parties and dated early 2017 is not binding within the meaning of section 90G of the Family Law Act1975 (Cth).
2.Any party wishing to make an application for the costs of or incidental to the separate issues hearing are to file and serve by no later than 4:00 pm on 28 November 2024 an Application in a Proceeding specifying the orders sought as to costs and any affidavit in support thereof of no more than five pages.
3.Any Response and Affidavit of no more than five pages above is to be filed and served by no later than 4:00 pm on 12 December 2024.
4.Any such application for costs will be heard and determined on the papers in Chambers unless a party seeks a particular order that it be listed for oral hearing in their Application or Response.
5.The wife file and serve an Amending Initiating Application particularising the relief she seeks on a final basis in competent form by no later than 4:00 pm on 28 November 2024.
6.The Husband file and serve any Amended Response by no later than 4:00 pm on 14 December 2024.
7.By no later than 4:00 pm on 28 November 2024 the husband is to file any written submissions he wishes to make of no more than three pages as to why his conduct should not be referred to the Director of Public Prosecutions (New South Wales).
8.The substantive proceedings are listed for further Directions before a Judicial Registrar at 11:30 am on 21 January 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These reasons determine by way of a separate issues hearing whether a document entitled “Part VIIIA Financial Agreement Under section 90C of the Family Law Act 1975 (Cth)” purportedly entered into between the parties on early 2017 (“the Financial Agreement”) is binding and enforceable so as to attract the operation of section 71A of the Family Law Act 1975 (Cth) (“the Act”) to oust the jurisdiction of the court to adjust the property of the parties pursuant to section 79.
For the reasons that follow the Financial Agreement is found to be non-binding pursuant to section 90G of the Act.
BACKGROUND
The parties met in Country C in 1997. The wife migrated from Country C to Australia and the parties married in 1997. English is the wife’s second language. The husband asserts the parties separated on 1 March 2017. The wife asserts the parties separated on 15 June 2022. There are no children of the relationship.
Except for periods of time when the wife was in Country C, it is uncontroversial that the parties lived in a property owned by the husband in Suburb D until 15 June 2022 when the wife vacated the property and went to stay with her adult son from a prior relationship.
The husband filed an Application for Divorce on 17 May 2018. A Divorce Order was made on 13 November 2018. The fact and circumstances of the Application for Divorce and the grounding of the Divorce Order are the subject of findings recorded later in these reasons.
In 1997 the husband established “E Pty Ltd”. This corporation in 1999 purchased a business operating out of number 2 F Street, Suburb G. The parties worked in this enterprise during the relationship. In 2004, 1 and 2 F Street were purchased in the husband’s sole name. The enterprise operated from 1 F Street and 2 F Street was rented out.
In 2014 at the request of the husband the wife travelled to Country C to set up a business. The wife established H Ltd. This entity traded as a business in City J. It is uncontroversial that during the relationship the wife would regularly travel to Country C to manage the parties’ assets there and for the majority of the time the husband would remain in Sydney managing the parties’ financial interests in Australia.
In early 2017 the Financial Agreement was signed by each of the parties. The husband’s signature is witnessed by Mr Yakenian, the solicitor for the husband in these proceedings. The wife’s signature is witnessed by Mr S, solicitor. The Financial Agreement contains at Annexure C and Annexure D two pages which are both entitled “Statement under section 90G of the Family Law Act 1975 (Cth)” certifying that each party was provided with legal advice as required by s90G(1)(b) of the Act. One is signed by Mr Yakenian and dated early 2017. The other is signed by Mr S and is also dated early 2017. It records:
I, [Mr S]
being a solicitor of the High Court of Australia of [L Law Firm, M Street, Suburb N] NSW
and being independently instructed by [Ms Chetri] certify the following:
1.This Statement is an annexure to the Part VIIIA Financial Agreement under Section 90C of the Act entered into between [Mr Thapa] and [Ms Chetri].
2.I provided my client with independent legal advice prior to entering into this Agreement as to the following matters:
I.the effect of this Agreement on the rights of the parties: and
II.the advantages and disadvantages at the time that the advice was provided to my client of making this Agreement.
Annexure E to the Agreement is a document entitled “Separation Declaration” purportedly executed by the husband some three days later in 2017 recording that the parties separated on 1 March 2017 and have lived separately and apart from 12 March 2017.
The events leading up to the execution of the Financial Agreement, the execution of the Financial Agreement and the circumstances surrounding the execution of the “Statement under section 90G” by Mr S are highly contentious and will be discussed later in these reasons.
In mid-2022, the wife was charged with criminal offences. Those charges were dismissed in early 2023.
On 16 June 2023 the wife commenced proceedings seeking leave to institute property proceedings out of time pursuant to section 44(3) of the Act and an adjustment of property between the parties. Neither her Application nor Affidavit made mention of a Financial Agreement. The husband’s Response filed on 25 July 2023 seeks a declaration that the Financial Agreement is binding on the parties.
THE HUSBAND’S DIVORCE APPLICATION
On 17 May 2018 the husband filed a single Application for Divorce with this court. The husband’s signature was witnessed by his current solicitor, Mr Yakenian.
On 13 August 2018 correspondence from the court to the firm of the husband’s solicitor advised that the Application for Divorce had been adjourned as there was “no or inadequate evidence of service on the file”.
On 12 November 2018 two documents were filed by the husband with the court:-
·An Affidavit for eFiling Application which, in addition to the signature of the husband dated 17 May 2018 previously filed, now bore a signature purporting to be the wife’s and was purportedly executed before a Mr O, Lawyer on 14 June 2018. Mr O is a long‑term friend of the husband.
·An Acknowledgement of Service (Divorce) purportedly signed by the wife on 14 June 2018 and witnessed that same day by “[Mr O] Barrister (retired)”, noting that this is a different surname to that listed on the Affidavit for eFiling.
Upon being satisfied of service of the Divorce Application on the wife, the court granted the divorce on 13 November 2018 and it consequently came into effect on 14 December 2018.
In mid-2019 the wife had an accident in Country C and commenced proceedings to claim her medical expenses. She was unable to return to Australia after the conclusion of the legal proceedings as a result of the COVID-19 travel restrictions. She returned to Australia in mid‑2022 and was collected by the husband and Ms P from the airport. Ms P returned to Country C the following day and the wife stayed with the husband at the Suburb D property. Ms P is the husband’s current partner.
The wife deposes that on or around 14 June 2022 the husband advised her that he had filed and obtained a Divorce Order. The wife deposes that she was unaware of this until so advised by him; she had never seen a divorce application nor employed a lawyer to represent her in any family law proceedings.
The husband admits in his affidavit that he “executed the divorce application on [the wife’s] behalf too”. His affidavit is silent as to Mr O’s purported signature.
The husband deposes that he did this as when he contacted the wife in approximately March 2018 and advised her he wanted to finalise the divorce, the wife told him to:
Do whatever you want. I don’t Care. In fact, I authorise you to do whatever is necessary.[1]
(as per original)
[1] Affidavit of the Husband filed 25 July 2023, paragraph 15.
The husband deposes that he wrongly thought he needed the wife’s signature on the Divorce Application and “relying on her authority to finalise the divorce “executed” it on her behalf.” The husband does not depose as to his reason for forging the wife’s signature on both the application and the affidavit of service.
The husband does not depose at all in his written evidence as to the execution of the documents by Mr O.
Whilst submitting that this is not an excuse, “rather an explanation” the husband put to the wife in cross-examination that in 2018 when in Country C she told the husband to put her signature on the divorce application. Her firm response was that she “never said that at all.”
In cross-examination the husband:-
·Confirmed that he forged the wife’s signature.
·Admitted that he forged the signature of Mr O on both documents. There is no evidence nor any assertion made by the husband that Mr O, “authorised” him to do so or was aware of this forgery. Mr O was the subject of a professional complaint by the wife.
·Initially asserted that he printed out the divorce application himself. He then changed his evidence and deposed that he believed he received the divorce application from his lawyer who asked him to get the application signed.
·Conceded that he had the opportunity to talk to his lawyer and obtain advice about the application.
·Asserted that he did not tell his lawyer that the wife was in City J. However, he then later deposed that one of his solicitor’s suggestions was to “Send it over there…get it done.” When it was put to him that this evidence was in contrast to his prior evidence that he did not tell his solicitor that the wife was overseas, the husband’s evidence was that:
Well, I’m led to believe they knew she was overseas, because she frequented overseas regularly.
…
Is there a basis for the belief you say lead to belief?
I was pressured again by my….
The husband’s answer was non-responsive and began to allude to his allegation that he was being pressured to obtain a divorce from the wife. Ultimately there was no evidence as to the basis of the husband’s belief as to the solicitor’s belief that the wife was overseas, save for that recorded above.
·Asserted that he did not try to contact his solicitor before he made the decision to forge the documents because he was unavailable. He was not able to give any coherent evidence as to the basis for such a belief.
·Stated that he deliberated for “a day or two” before actually forging the signatures but it never occurred to him to ask the wife to “reconsider opening her mail.”
·Eventually conceded that his affidavit is the only evidence to support his assertion that the wife was aware of the divorce application.
The husband’s oral evidence as to his justification for forging the signatures of two people on two documents that he knew would be relied upon by this court expanded significantly from his written evidence. The husband was at pains to orally depose, non-responsive to the questions being put to him, that he was being pressured by the wife to “get it done”. Later on, his evidence was on several occasions that the wife was “pounding” him to get it done. Despite his evidence that it was the wife that was in fact pushing for the divorce, it did not occur to him to action the advice he had received from his solicitor to obtain the wife’s signature. He conceded that it was not his evidence that the wife was refusing to receive the application in Country C.
As between the husband and the wife I accept the wife’s evidence and find that she was not aware that the husband had forged her signature on an Application for Divorce and Affidavit of Service and that he consequently filed those forged documents with the court. I accept the wife’s evidence because:-
·The husband has admitted to forging the signatures of two people and fraudulently relying upon those signatures to obtain a Divorce Order.
·The wife’s evidence on this issue was firm and consistent and unshaken in cross-examination.
·The husband’s evidence was contradictory and inconsistent.
·I do not accept that the wife was “pounding” the husband to seek a divorce order such that he would feel it was necessary to forge signatures to obtain same. His explanation for doing so was unsatisfactory.
Arising from his own conceded behaviour, the husband will be afforded the opportunity to make written submissions as to why his conduct should not be referred to the Director of Public Prosecutions for investigation and possible prosecution.
THE FINANCIAL AGREEMENT
The Financial Agreement is entitled “Part VIIIA Financial Agreement under Section 90C of the Family Law Act 1975 (Cth)” and is dated early 2017. It was prepared by Mr Yakenian, the solicitor for the husband in these proceedings.
It is a twenty four page document including the title page and execution pages and is written in English. The body of the agreement is seventeen pages together with an additional two pages of schedules of assets and liabilities.
In the recitals of the Financial Agreement under the heading “Terms” and subheading “Introduction” it records that it is a Financial Agreement under section 90C of the Family Law Act and it is agreed it will cover all financial matters between the parties. It states that the parties:
desire and intend the terms of this Agreement be given effect by any Court called upon to adjudicate on all financial matters (property and maintenance) in issue between the Husband and the Wife pursuant to the Act.[2]
[2] The Financial Agreement dated early 2017, Paragraph B.
Annexure A records the assets and liabilities of the husband including two real properties at Country C and two real properties at Suburb G. It lists as the agreed estimated value one value of $4,000,000 for all four properties. The enterprise operating from 1 F Street, Suburb G is listed as an asset of the husband only with a value of $300,000. The husband’s assets are valued at $2,580,000 in total.
Annexure B records the assets and liabilities of the wife including two houses and a property in Country C with an agreed total estimated value for all three items of real property of $3,000,000. The wife’s assets are valued at a total of $2,110,000 including jewellery at $300,000.
Paragraph “I” records that the parties have had the opportunity to, and have made, due enquiry as to the assets, financial resources and liabilities of each other and are satisfied that Annexures A and B are accurate.
Under the heading “Background” it records that the parties do not own any assets or financial resources jointly, nor do they have any joint liabilities. It records at paragraph 2.17 that the husband has contributed to the separate property of the wife by way of:
(a)Initially contributed financially towards purchasing [properties] in [Country C].
It further records that other than this initial contribution by the husband, neither party has contributed to the separate property of the other.
Despite the parties already being separated at the time of the execution of the Financial Agreement according to the husband, there is a heading “Financial Rights and Responsibilities During the Marriage” recording the parties’ agreement as to their financial arrangements whilst they live together as husband and wife. This includes that they will both share or contribute to joint living expenses and will have unfettered right to dispose of their separate property.
Under the heading “Arrangements in the Event of Breakdown of the Marriage” the Financial Agreement broadly provides that each party will retain their own separate property as contained in the Annexures and any joint property will be divided between the parties in accordance with their respective shares.
It provides that each party will pay to the other party $10, the receipt of which is acknowledged and neither party will have any obligation to provide spousal maintenance to the other.
Paragraph 7.1 of the Agreement records that each party has:
sought, obtained and given due consideration to individual and independent advice from a solicitor prior to executing the agreement as to matters including but not limited to:
a)The effect of the agreement on the rights of each party to apply for property and maintenance orders; and
b)The advantages and disadvantages at the time the advice was provided for each party to enter into the agreement.
There is no operative clause that the Financial Agreement operates in substitution for any rights of either party under Part VIII of the Act.
ISSUES TO BE DETERMINED
By way of his Response filed on 25 July 2023 the husband sought a declaration that the Financial Agreement is binding on the parties pursuant to s90G of the Act and an order that each party retain their right, title and interests in their respective properties pursuant to such agreement.
By way of her Amended Initiating Application on 22 August 2023 the wife sought orders that the agreement be set aside pursuant to s90K of the Act. She further sought orders for the adjustment of property such that the husband “transfer the Applicant Wife half of his right, title, interests of Real and Personal properties, and interests in superannuation, shares and businesses” and that the parties be declared to be the sole owner in law and equity of all items of personal property and financial resources currently in their power, possession or control.” The substantive relief requires amendment so as to be enforceable and orders and directions will be made in this regard.
The relief sought by the wife pursuant to s90K of the Act was not pleaded or particularised. The parameters of the hearing were set by the joint document titled “Factual and Legal Issues for Determination” tendered by consent being:
Was the document styled “Binding Financial Agreement dated [early] 2017” signed by the Plaintiff with an understanding of its contents.
Was the document explained to the plaintiff in her native language by the solicitor that witnessed her signature as claimed by the defendant?
Was the document signed in [Suburb N] or [Suburb G]?
In the circumstances, is the document binding under section 90J of the Family Law Act?
Are the purported terms of the BFA fair to the parties? [3]
(As per original)
[3] Exhibit J1.
It was agreed that the relevant section as recorded in the document above was s90G of the Act. The wife pressed a finding on fairness only to support a finding that she would not have “knowingly” signed the Financial Agreement.
No case was pleaded that the agreement was not a financial agreement within the meaning of s90C of the Act and no submissions were directed to that issue.
There is no dispute that the agreement was signed by each of the parties, though the wife disputes that she signed the agreement knowing its content or effect.
The husband submitted at the conclusion of the hearing that it would be unjust and inequitable if the Financial Agreement were not binding. These submissions were outside the parameters of the trial and the hearing proceeded on the factual and legal issues as set out in paragraph 43 above. As no objection was taken to the husband’s submission, I will address subsections 90G(1A) and 90G(1)(b) in my reasons.
THE LEGAL PRINCIPLES
Section 90G(1) of the Act sets out the circumstances in which a financial agreement is binding on the parties. It provides:
(1)Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if:
(a)the agreement is signed by all parties; and
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c)either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(d) the agreement has not been terminated and has not been set aside by a court.
The section sets out each and all the requirements that must be met for a financial agreement to be binding on the parties and for jurisdiction pursuant to s79 of the Act to be ousted by s71A subject to the court’s power to set aside the agreement on specified grounds. There is no requirement of court oversight or scrutiny of agreements - there is no requirement that the terms of a financial agreement be just and equitable; a party will be held to a “bad bargain.” [4] The requirement for legal advice is an important legislative safeguard.
[4] Hoult & Hoult (2013) FLC 93-546 (“Hoult 2013”).
Whilst the Full Court has cited with approval earlier decisions that have held that the only enquiry necessary is to whether advice has been given and not as to the content of that advice[5], in Dragomirov & Dragomirov [2024] FedCFamC1A 187 (“Dragomirov”), the Appellate Division affirmed as correct the principles identified by Aldridge J in Abrum & Abrum [2013] FamCA 897 as to the content of legal advice required to be provided to achieve compliance with s90G(1)(b) of the Act:-
[5] Wallace & Stelzer and Anor [2013] FamCAFC 199 citing with approval the decisions of Logan & Logan [2013] FamCAFC 151 and Hoult 2013.
39. In order to give advice about the effect of an agreement on the rights of a party, that is their rights under the Act in relation to property, a legal practitioner must establish what those rights are at the time the advice is provided. This is because s 90G(1)(b) requires advice to be given on the effects of the agreement upon the rights of that party and the advantages and disadvantages of the agreement. If their rights are not known then it is impossible to advise as to the effect of the agreement on them.
40. It is unhelpful to advise a person that a financial agreement might adversely affect his or her rights if those rights are not identified. A party must know more than some unknown or undefined right is being given up. He or she must have some idea, at least in general, of his or her present entitlements or rights (to use the words of the section) with which he or she may compare the provisions of the proposed financial agreement. It is only in that way that there can be actual advice about the effect of the agreement on those present rights.
41. It is quite clear that a person may choose to enter into an agreement where he or she may very well be much worse off than if he or she were left to rely on their rights under s 79 of the Act. Thus, there is a requirement for specific legal advice to be given. That is the safeguard the legislature imposes when it permits the parties to deal with their property by agreement and without possible interference from a court.
42. Accordingly, the advice must be real and meaningful. It must be directed to the parties’ circumstances and their present rights.
43. Proper identification of a parties’ rights can only be done by identifying the property of the parties then held and a consideration of the parties contributions (financial and non-financial) to the acquisition of that property and to the welfare of the children. Any other relevant factors under s 79(4), including s 75(2), would then need to be considered. Only by doing so can advice be given that complies with the terms of s 90G(1)(b).
…
45. Similarly, advice about the advantages and disadvantages for a party making the agreement must involve a consideration and weighing of what would be their rights but for entering the agreement and those advantages and disadvantages after having entered the agreement. No doubt each would have its advantages and disadvantages and they need to be compared.
(Emphasis added)
The husband, who seeks the protection of the agreement, bears the onus of establishing that the requirements of s90G(1)(b) of the Act have been satisfied. The certificate executed by Mr S is prima facie evidence that the required advice has been provided. It is then incumbent upon the wife to demonstrate through evidence that this presumption is inaccurate. The presumption is no more than a rebuttable presumption of fact.[6]
[6] Hoult v Hoult [2011] FamCA 1023 paragraph 87.
THE WIFE’S CASE
The wife contends that, notwithstanding the Statement of Independent Legal Advice signed by Mr S, she was not aware of any Financial Agreement with her signature on it until a copy was provided to her on 23 June 2023 by her solicitor after it was filed by the husband by way of annexure to affidavit in these proceedings. She believes the signature on the agreement to be hers but that it came to be on the agreement without her having any knowledge.
It is the wife’s evidence that:
·She has not met a person who she now knows to be Mr S.
·She has never attended upon the offices of Mr S solicitor, or any solicitor’s office in Suburb N.
·She never paid any money to Mr S for his services.
·She never knowingly signed a document being a Financial Agreement.
·She has never been given any advice as to the agreement by Mr S or any other person.
·She denies the parties separated in 2017 and denies having any conversation with the husband in 2017 as to the parties’ separating.
·The only explanation she has for her signature on the agreement was that on one occasion in 2017 she and the husband were working in the business she thought they jointly owned in Suburb G, at approximately 4:00 pm to 5:00 pm three men dressed in suits started talking to the husband for a long time. She could see them but could not hear what they were saying. At some stage the husband called her over to the counter where only one of the men remained. She does not recall the man’s facial features. The husband told her that the men were from the tax office and she had to sign a document. The man said that he wanted to explain the document to her but the husband told him that she did not speak English and that he would explain it to her. The husband told her where to sign and she signed. The wife then asked the husband to see the paper but he told her to go back to work, which she did. The wife asked the husband again later to see the document she had signed but the husband advised her he had given it back to the man to take back to the tax office. The wife deposes that she was concerned and worried that the documents were going to get her into trouble and she asked the husband many times after that day what the documents were. The husband told her again that they were “tax” and “I tell them you don’t work in Australia anymore you don’t pay tax. I let the tax office know.”
·Mr S may have been the man who visited her in the business and watched her sign; she does not know.
·The terms of the agreement are very unfair to her and she would not have agreed to them.
The wife gave her evidence with the assistance of an interpreter. Her oral evidence is that her English is “30 per cent”; she can have conversations and can read “a bit” of English:
In English I can read simple documents, for example, books with children with some easy words, but some things, like, government documents, yes, I will not be able to comprehend.
I had the opportunity to observe the wife during the course of her brief cross-examination. Her oral evidence was firm and responsive in manner. She did not obfuscate and answered questions as soon as they were translated to her. She was not successfully challenged on her oral evidence which was consistent with her written evidence. I found her to be a credible witness.
Mr S, the solicitor who witnessed the wife’s signature on the agreement and signed the statement of independent advice was subpoenaed by the wife to produce his file and give oral evidence. Mr S filed a Notice of Objection to giving evidence that was listed at 10:00am on the first day of the hearing. This objection did not appear to be pressed and he gave oral evidence on the first day of the hearing. I will discuss his evidence later in these reasons.
THE HUSBAND’S CASE
The husband relies on the Statement of Independent Legal Advice executed by Mr S to discharge his onus of establishing that the Financial Agreement is binding.
The husband’s Affidavit is brief. He deposes that:-
·The parties separated in or about March 2017 and “at about that time” they came to an agreement that the wife would keep all the assets in her name and he would keep all the assets in his name. The husband does not depose as to any direct conversations between the parties during this time. There is no evidence at all as to any written correspondence between the parties’ or their solicitors negotiating the terms of the agreement.
·He instructed Mr Yakenian to prepare an agreement. There is no written evidence as to how the list of assets and recorded values in the agreement were obtained.
·Since the wife wanted a solicitor who was of similar cultural background and who could speak her language, he asked Mr Yakenian to source a solicitor to provide the wife with independent legal advice. He does not depose as to how Mr S was sourced.
·In early 2017 the wife met with Mr S and the agreement was executed by the applicant in “her presence”. The affidavit does not explain the husband’s source of knowledge for this assertion. The husband orally deposed as to his awareness that the wife was collected and driven to Mr S’s office in Suburb N by a person named “[Mr Q]” and “got explained, step by step, and agreed to sign, not disagree to sign.” The husband deposed that “[Mr Q]” recorded a conversation with the wife in the car that he has listened to. “[Mr Q]” is not on evidence. The tender of the recording was not pressed.
·When the wife gave him the executed copy of the agreement on an unidentified date they had a conversation to the following effect:
[Husband]: So did you sign everything? Did he [the solicitor] explain everything to you?
[Wife]:Yes, he did. He explained everything and he even spoke my language.
[Husband]:Good because once this is finalised, you get to keep everything in [Country C], and I can’t touch it or claim against it.[7]
·In early 2017 the agreement was executed and finalised by all the parties and their solicitors.
[7] Affidavit of the Husband filed 25 July 2023, paragraph 11.
In cross-examination the husband’s evidence was that:-
·The agreement was prepared on the instructions of both parties and the wife spoke to Mr Yakenian when they were “doing the BFA.” This evidence was not expanded upon. It was not put to the wife that she ever spoke to the husband’s solicitor. Mr Yakenian was an available witness in the husband’s case. He did not give evidence. Mr Yakenian heard the husband’s oral evidence whilst instructing Counsel for the husband at the trial.
·The wife did not have a lawyer to help her at the time the document was drafted, the husband did.
·Each of the parties sat down and wrote down with a pen their assets and their value. He accepts that the current value of the wife’s properties in Country C as opined by a registered valuer is $300,000. He had been led to believe by the wife that she owned a property in Country C but found out when they were doing the financial agreement that it was a government run property. To the proposition that in those circumstances some people would leave it out of the agreement, the husband asserted that it was “her choice.” When asked further questions as to the inclusion of a property in the wife’s schedule of assets that she did not legally own, the husband then deposed that the wife told him this after the agreement was concluded; “after the event”. The husband denied that he had earlier given evidence that the wife told him during the process of the drafting of the agreement. His evidence then morphed into such a version that in 2017 he found out that the wife did not own the property but that on the day of the hearing he thought it was the wife’s. His evidence then went on to be that he does not know who owns the property. The husband did not explain the contradictions in his oral evidence.
·When the agreement was “finished” the wife gave him her signed copy, which he has with him. He denied that this was not true.
·He denied that he never told the wife about the agreement.
·The wife’s English is very good; he has observed her read the newspapers fluently. Whilst English is the wife’s second language and he knows that the law can be a bit “tricky” and that even he misunderstood some of the questions put to him in cross‑examination, he did not have any concerns as to the wife not understanding the agreement; the wife knows how to read, write and speak English and she did accounts and invoices for the business. He denied that he did the invoices and that he explained documents from time to time to the wife in English, rather they had “in depth conversations” about government and/or legal documents rather than him explaining these to her.
·He read the agreement before he saw his solicitor and it took him forty-five to fifty minutes to read it. He received a copy of the financial agreement from his solicitor the day that he signed it.
I had the opportunity to observe the husband during the course of his cross-examination. He was non-responsive to questions and had to be directed on several occasions to answer the question asked of him rather than utilising the opportunity to give self-serving responses. On occasion the husband asked a question rather than answering and had to be directed not to answer a question with a question of his own. He gave contradictory evidence, for example deposing that he downloaded the divorce application himself, and then later deposing that his lawyer gave it to him. He was defensive, and on several occasions asserted he did not understand simple questions that were put to him:
Counsel for the Wife: Well, I think I am asking about her living in your house at the moment. Was she living in your house for about two and a half weeks in 2018, starting the day before your current partner left for [Country C]?
Husband: Sorry, I don’t understand the question.
….
Counsel for the Wife: Now, in 2017, were you acquainted with any lawyers?
Husband:Was I acquainted? Sorry. I don’t understand the question.
Counsel for the Wife: Do you understand the word “acquainted”?
Husband: Yes I do, sir.
Counsel for the Wife: And you understand the word “lawyers?”
Husband: Yes.
….
Counsel for the Wife: Well is there any suggestion that [the wife] provided instructions to [the husband’s solicitor]?
Husband: Is there any – sorry – I don’t understand the question.
…
Counsel for the Wife: ...I want to take you back to the time you admitted forging the divorce, okay. You came to the view in some way that putting forged signatures on the document would be a good alternative to sending the document to [Country C], didn’t you?
Husband: Sorry, I don’t understand the question.
The husband has admitted to forging the signatures of two people to successfully apply for a Divorce Order in this court. He conceded during final submissions that this act would have an effect on the weight I would place on his evidence if it is contradicted by the wife’s in the proceedings but that “they’re two separate matters, and the binding financial agreement was signed by the parties before he forged the divorce application.” I do not accept this submission.
Having regard to the conceded forging of documents by the husband and the nature of his evidence as recorded above, where the evidence of the husband conflicts with the wife’s evidence I accept the evidence of the wife. I do not accept the evidence of the husband unless it is corroborated by independent evidence. It is difficult to accept the husband’s evidence even if it appears to be corroborated unless the process of corroboration is also proven to the requisite degree, having regard to the findings made as to the forging of documents engaging the reputation of a retired legal practitioner.
FINDINGS AS TO COMPLIANCE WITH S90G(1) OF THE ACT
Mr S’s Evidence and Material Produced
A subpoena filed by the wife’s solicitors on 3 April 2024 and directed to Mr S sought the following documents for production:
1.a copy of this subpoena
2.All file notes, invoices, correspondence, legal documents and other records, including electronic, concerning matters where instructions to perform legal work were received from [Ms Chetri] and/or [Mr Thapa] concerning:
(I) Binding Financial Agreement dated [early] 2017.
3.Production of the subpoena documents in electronic form is acceptable.
Mr S produced only two documents to the court in answer to such subpoena; a copy of the executed Financial Agreement and a handwritten file note. The file note reproduced in full is as follows:
File note 10/3/17 12pm
•Met clt @ office to go through BFA
•explained to client that upon signing agreent, H keeps his assets, she keeps hers.
•Client paid - $880.00 [8]
[8] Exhibit A3.
Mr S said that it was his standard practice to have a hard copy of the file. He does not have a physical copy of the file as it is his practice to dispose of the entire file after seven years.
He conceded that this file note would be superior if it had a client’s name on it and details of the matters he discussed with the client. He conceded that he would have written the file note after he saw the client, not contemporaneously during their meeting. He is able to identify that this file note (despite having no client name on it at all nor any identifying information) is the file note relating to the wife as it records the “special rate” as between himself and Mr Yakenian and the file note date matches the date that he signed “it with her”.
He still has this particular file note and the Financial Agreement as he scanned both these documents and sent them to the husband’s solicitor. He did not say when he sent the file note to the husband’ solicitor, implicitly waiving legal professional privilege. No emails or any form of correspondence or documents were produced to the court.
His evidence as to whether he took any other notes arising from the conference with the wife included:
Counsel for the Wife: All right. Now, were there more documents generated at the time you did the work than were produced to the court?
[Mr S]: As a standard practice, there would have been a hard copy of the file, where I would have photocopied the client’s ID, which is her driver’s licence, but that would have been disposed of, so yes.
…
Counsel for the Wife: Now, with this particular file, did you dispose of any of it apart from identifying information?
[Mr S]: Well, I’ve scanned the financial agreement. I’ve scanned that, and I’ve sent it to my colleague, [Mr Yakenian], and also, the file notes happen to be in the email as well. So, yes.
Counsel for the Wife: I will ask it again. Did you dispose of any part of the file, other than identifying information?
[Mr S]: Like I said, most of the files, if it’s seven years and over, would have been disposed of. So if I can’t locate it in my archive, then it would have been disposed.
Counsel for the Wife: Is it any part of your practice to dispose of parts of files at different times, other than identifying information?
[Mr S]: If it’s more than seven years, then I will dispose of it.
….
Counsel for the Wife: Okay. Now, you’re talking about scans. Do you say that you’ve only got a scan and no physical copy?
[Mr S]:I don’t have a physical copy, no.
Counsel for the Wife: So would it be normal to scan your file before you dispose of a physical copy?
[Mr S]: Sorry?
Counsel for the Wife: Would it be normal to scan your file before you dispose of a physical copy?
[Mr S]: I will dispose of my file after seven years. So back then, I wouldn’t have to dispose of my file, no.
Her Honour: No, sorry, that wasn’t what was asked. You’re a solicitor, you should know better. You need to listen to the question and answer the question only, please?
[Mr S]: Sorry, your Honour.
Her Honour: Yes, my apologies, Mr Brennan.
Counsel for the Wife: Was it your practice to scan your files before you disposed of them?
[Mr S]: Sorry. I’m trying to get my mind around this. Is it my practice that I would scan the file before I dispose of them? No.
Counsel for the Wife: You scanned this one?
[Mr S]: I scanned this one. Yes.
Counsel for the Wife: Why?
[Mr S]: Because it’s for records for [Mr Yakenian] to make sure that he knows what happened and how much I’ve charged his client.
Counsel for the Wife: It’s to make sure [Mr Yakenian] knows what has happened, is it? Okay. Did you scan the whole file?
[Mr S]: I didn’t scan the IDs. No.
Counsel for the Wife: Did you scan the rest of the file?
[Mr S]: I scanned the financial agreement. Yes.
Counsel for the Wife: Did you scan any other handwritten notes you took?
[Mr S]: That’s the only notes that I’ve got there.
Counsel for the Wife: That’s the only notes you’ve got?
[Mr S]: Yes. From my understanding.
Counsel for the Wife: Have you got any typed notes?
[Mr S]: No.
Counsel for the Wife: Okay. Now, it’s a record of what you did, isn’t it?
[Mr S]: Yes.
I find on balance that the produced file note is the only note Mr S took – and this was done to provide it to the husband’s solicitor. I find that the hard copy file would have comprised the Financial Agreement, a photocopy of the wife’s ID and the handwritten file note that has been produced.
Whilst the file note is a record of what he did, Mr S disagreed that if it is not written down, he didn’t do it. When asked specifically what else he could have done that he didn’t write down, Mr S could not specifically recall, but:
So, like I said, as a standard practice, I would have taken the client’s ID’s, photocopied them and file notes, signed the agreement, went through the agreement with the client.
Whilst deposing that he could not specifically recall what he did that he did not write down, he then in response to the very next question deposed that he remembered undertaking his standard practice with the client as set out in his earlier answer. He deposed that it is his general practice to sit down with the client and read the financial agreement out to him/her.
He remembered that the meeting took place in his office in Suburb N and took thirty to forty minutes despite his concession that there’s a “fair bit” in the agreement. It was his recollection that it was just he and the wife at the appointment.
Mr S is of Country K heritage and he is proficient in Country K language and English. He does not speak Country C language; it is not on his website that he speaks Country C language and he has never claimed to speak Country C language. There was nothing said to him about him not speaking the wife’s language. He firmly disagreed that there was any expectation or suggestion that he would speak the wife’s language. He spoke to the wife in English. He recalls that the wife was “not fluent” in English and he recalls that:
I had to speak English very slowly and explain to her.
I accept and find that, in contrast to the husband’s evidence, any explanation of the Financial Agreement provided to the wife by Mr S, if it did occur, did not occur in Country C language, but rather in English.
Was Any Advice Independent?
It was Mr S’s oral evidence that he and the husband’s solicitor were both practicing solicitors in the Suburb N area and once in a while Mr Yakenian (referred to by Mr S throughout the course of his evidence by his first name) would ask him if:-
I could assist in going through, like, financial agreements for his clients.
Mr S’s appointment with the wife was arranged by the husband’s solicitor; he deposed that he would have received an email telling him that the wife was coming to see him “today at around 12 noon.”
The only file note produced by Mr S was a file note he prepared for the husband’s solicitor. After this meeting with the wife he scanned the financial agreement and the file note he had prepared for the husband’s solicitor and sent both to Mr Yakenian as:
..it’s for records for [Mr Yakenian] to make sure that he knows what happened and how much I’ve charged his client.
The file note records that “the client” was charged $880. As to who this was, it was Mr S’s evidence that he:
charged [Mr Yakenian]’s client 880 special rate, because normally I charge more than that.
There is no evidence as to why a cheaper “special rate” was charged in this circumstance.
It is unclear whether the $880 charged to “[Mr Yakenian]’s client” meant that the husband was charged for the conference, or whether he is referring to the wife as the client of the husband’s solicitor.
Again, the reference to “his” (being Mr Yakenian’s) client being charged can be taken only one of two ways: the husband was charged for Mr S’s conference with the wife or Mr S charged the wife for the conference but is referring to her as Mr Yakenian’s client.
Mr S’s later evidence that “the client” would have paid cash and there would have been a cash receipt did not assist in this regard as Mr S no longer has that receipt. It would have generated part of his quarterly returns and his annual return and so there “could be” financial records but he did not think to try and locate them. Again, it is uncertain as to whether Mr S is referring to the wife, the husband or “Mr Yakenian” as his client.
No evidence was adduced as to who was charged and who paid for this conference. The clear evidence by the wife is that she has never paid any money to Mr S. The wife was unchallenged on this evidence and I so find. I find on balance that if any fees were paid to Mr S, such payment originated from the husband.
Mr S was in a position of conflict in providing any advice to the wife. Even accepting Mr S’s evidence, I am not satisfied, despite the certificate of Independent Legal Advice executed by Mr S, that any advice received by the wife was “independent” within the meaning of section 90G of the Act. [9] Any appointment was arranged by the husband’s solicitor. If any fees were paid they originated from the husband. It is unclear as to who Mr S perceived his client to be. The file note prepared by Mr S was for the purpose of providing it to “Mr Yakenian” only, therefore implicitly waiving legal professional privilege as between he and the wife.
[9] See Brennan J in Waterford v Commonwealth [1987] HCA 25.
What is the Evidence as to the Advice Given?
Mr S does not speak Country C language. The husband’s evidence that the wife had the Financial Agreement explained to her in Country C language is clearly wrong. Any conference occurred in English as I have found; being the wife’s second language. I accept the wife’s evidence that her English is limited and reject the husband’s evidence that it is very good.
It was Mr S’s evidence that the entire appointment time with the wife was thirty to forty minutes. He had spent five minutes prior to this time reading the agreement – being a “power reader.” He later deposed in answer to his going through the items in the schedule separately with the wife in the thirty to forty minutes that he spent with her:
Counsel for the Wife: And you say that in the half hour you had, you went through those items separately?
[Mr S]: I haven’t got the chance to go through this agreement yet. I – I did look at it a couple of weeks beforehand.
To the question in re-examination as to whether he recalls reading the entire document out to the wife, Mr S’s evidence was that he would have read it “really quickly”, and the “crucial part would be the last five pages” – that is the “gist” as to why the wife signing it. He did not explain why he did not engage with his usual practice of reading the entire document to the wife.
As to what was explained to the wife during this thirty to forty minute appointment where Mr S was speaking very slowly to the wife in simple language so she could understand as English is her second language, the evidence was:-
Counsel for the Wife: And what did you explain to her?
[Mr S]:The – the contents of the agreement and, of course, the crucial part which is the – the annexures.
Counsel for the Wife: You explained all the annexures as well?
[Mr S]: Yes.
Counsel for the Wife: And when you’re explaining them, what did you describe them as?
[Mr S]: I – I read whatever is in the annexures that was being drafted.
Counsel for the Wife: Did you just read them out?
[Mr S]: I – I read them out and I said to her, “Annexure A is your husband, annexure B is yours. Are you happy for this arrangement?” She said yes, she understood it.
The evidence continued:
Counsel for the Wife: Did she ask you if that was a good idea?
[Mr S]: I – I don’t recall if she asked me that question.
Counsel for the Wife: One of the things in exchange for $880 is explaining to the client whether or not it’s a reasonable agreement in all the circumstances and the law, isn’t it?
[Mr S]: Well, my job was to go through the agreement with her, explain to her what she’s getting and what the other party is getting, and she was happy to sign it, so----
Counsel for the Wife: Okay. What did you explain to her about what she was getting?
[Mr S]: I – I read all the list of properties that she’s getting, and his – his part.
He further deposed:
[Mr S]: It’s pretty straightforward. I mean, I explained to the client, [Ms Chetri], that, “Your first annexures, these are the properties that upon finding this your ex‑husband is keeping.” And on the following page, which is her annexure, I explained to her, “All these properties here, you keep.” And then I explained to her at the bottom, the total amount, and she understood everything.
….
Counsel for the Wife: Is there anything else that you say, other than the word yes, that gave you an indication that this client understood very well all the implications of this binding financial agreement?
[Mr S]: Like I said, it was very straightforward. I explained to her the – the contents of the agreement and the summary of both annexures, and I told the client that, “Upon signing this, this is what you’re keeping.” And I – I – I explained to the client, “The total amount is valued this much, and his property is valued this much.” She understood it.
The solicitor did not recall asking the wife if she agreed with the listed values as set out in her schedule of assets. He did not recall having any conversation with the wife about the Australian exchange rate with the Country C currency. He could not recall the wife asking him any questions.
Mr S was surprised that the wife never had a property in Country C. He initially deposed that this was because he knew he would have specifically asked her. He conceded that it would not serve the wife’s interest to state that she owned a property that she did not when she was looking to divide property.
In circumstances where the husband himself concedes that the wife does not own a property in Country C, despite his evidence being inconsistent as to when he became aware of this, Mr S was asked as to the Financial Agreement recording that the husband “initially contributed financially” towards the purchase of the property in Country C:
Counsel for the Wife: Okay. Do you remember reading that out to your former client?
[Mr S]: Yes, I would have read it out.
Counsel for the Wife: Do you remember reading it out to your former client?
[Mr S]: Like I said, I would have read it to her.
Her Honour: That wasn’t what was asked?
[Mr S]: Well, I remember reading it out to her. Would it - would it assist if I can have a quick look at the agreement, because I don’t have it in front of me.
Counsel for the Wife: I’ve read out the bit I want, but, yes, you can have a look. 2.17. I’ve got another couple. It’s right down the bottom of the page?
[Mr S]: Yes, I do remember. I would have read it out to the client.
Yes.
Her Honour: No. You need to be very clear with your language?
[Mr S]: Yes.
Her Honour: You said, “I do remember. I would have read it out to the client”. Do you understand that that’s two different assertions that you’re making in the same sentence? You were clearly asked do you remember reading out that particular paragraph to your client, not would you have read it out. Do you remember?
[Mr S]: To be honest, your Honour, I wouldn’t – I wouldn’t remember if I read it out. No.
Mr S did not recall a conversation with the wife as to who owned the business, he believed from the document it was the husband but stated that he would not be surprised that the wife believed she was a half owner in the business. This contradiction was not explained or explored further.
Despite giving evidence that he would have asked the wife about her ownership of assets, the evidence then proceeded as follows:
Counsel for the Wife: Given that it’s unsurprising, in 2017, you would be asking clients very careful questions about business ownership, wouldn’t you, sir?
[Mr S]: I wouldn’t go into that detail. Like I said, my job. Like I said, my job was to go through the contents of the agreement, read through the agreement items on each side, the annexures, and explain to the client, this is what she’s getting. So in terms of the detail of each property, whether you own half of this business, I don’t recall I would have asked that question.
Counsel for the Wife: Well, if you’re going to divide property, it’s important to know who owns what, isn’t it?
[Mr S]: I don’t understand where you’re getting
Counsel for the Wife: You don’t understand why it’s important to know who owns property when you’re advising who should have property or keep property. Is that what you’re telling me?
[Mr S]: I don’t understand the question.
Counsel for the Wife: You see, the list at 2.7 includes business known as [R Business] under the name of your ex-client’s husband, doesn’t it?
[Mr S]: That was from annexure A, the list.
Counsel for the Wife: Don’t worry about how the brief is assembled. I’m asking about the agreement, which you say you have a memory of from 2017?
[Mr S]: Yes.
Counsel for the Wife: You took no care to inquire as to who owned the business or whether this person was satisfied as to who was going to own it, did you, sir?
[Mr S]: Like I said, I don’t recall.
Mr S’s cross-examination concluded as follows:
Counsel for the Wife: Can I suggest to you that the idea of you being able to explain these 11 pages to a person with limited English, together with its ins and outs, advantages and disadvantages, in half an hour to 40 minutes, is not a thing you can do to a professional standard?
[Mr S]: I disagree. I’ve done it.
The nature of Mr S's evidence was such that I asked some questions of him as follows:-
Her Honour: Thank you. [Mr S], I have a few questions for you?
[Mr S]: Yes, your Honour.
Her Honour: Did the wife - did your client bring a copy of the agreement with her to the appointment? Do you recall?
[Mr S]: I'm trying my best here to - to recollect, because I printed a copy out from - from the email. I would say she had a copy with her.
Her Honour: No. I don't want you to say "I would say". I've asked you a very specific question. If you don't recall, then tell me you don't recall?
[Mr S]: I - I don't recall, your Honour. No, don't recall.
Her Honour: And what did you - did you take instructions from the wife as to her financial contributions and non-financial contributions during the relationship?
[Mr S]: Yes.
Her Honour: And what were those?
[Mr S]: So I've asked her, "Are these houses yours? The one in [Country C]?"
Her Honour: No, that's not what I asked. Do you understand what I'm talking about when I say what contribution she made during the relationship?
[Mr S]: Okay. I don't recall asking those them questions.
Her Honour: Did you ask her about her section 75(2) factors?
[Mr S]: I don't recall.
Her Honour: Do you know what section 75(2) factors are?
[Mr S]: No.
Her Honour: And what did you tell her, if anything, the advantages of entering into the agreement were?
[Mr S]: Well, I - I went through the agreement with her and I went through the list of items on--
Her Honour: No, I understand you did that?
[Mr S]: Yes.
Her Honour: What I asked is what did you say to her the advantages for her that there were into entering the agreement?
[Mr S]: I don't recall asking that question
Her Honour: Do you recall asking - sorry. No. My question to you was what was the advice that you gave to her as to any advantages? Did you give her any advice as to what advantages there were for her to enter into the agreement?
[Mr S]: I don't recall.
Her Honour: Do you recall giving your client any advice as to the disadvantages of her entering into the agreement?
[Mr S]:I - I don't recall.
Her Honour: How long did it take for you to read through this agreement? Do you remember?
[Mr S]: I read it beforehand. Before she came in.
Her Honour: I understand that. I'm asking you how long did it take you? Do you remember how long it took you to read through this?
[Mr S]: For me, myself?
Her Honour: Yes?
[Mr S]: I would say five minutes, because I - I read pretty quickly.
Her Honour: You read through this document in five minutes?
[Mr S]: Yes. I - I power read, so--
Her Honour: You power read?
[Mr S]: Yes.
I found the evidence of Mr S to be inconsistent, contradictory and on occasion non-responsive. In contrast, I found the wife to be a credible witness.
For the purpose of these reasons as recorded below, it is unnecessary for me to make findings as to the conflict in evidence as to whether the wife met with Mr S in his office at Suburb N or was signed in the circumstances deposed to by her. In addition to Mr S not being independent for the purposes of any advice given pursuant to s90G(1)(b) of the Act I find that at its highest, Mr S’s evidence, if accepted was that:-
·Mr S could not have read the Financial Agreement himself in its entirety in five minutes despite his assertion that he is a “power reader”.
·He did not read the entire agreement to the wife as was his practice.
·Mr S spent less time in conference with the wife than it took the husband to read the Financial Agreement to himself.
·He advised the wife what property she would retain and what property the husband would retain on entering the Financial Agreement.
·There is no evidence as to Mr S obtaining instructions from the wife as to whether she accepted the items of property listed in the Schedule in Annexures A and B. The Financial Agreement records a property in Country C that the wife does not own and records that the husband made direct financial contributions to the property not owned by her. I find that it is improbable that the wife would record an asset that she did not own in an agreement adjusting property between the parties.
·Despite his experience as a legal practitioner for at least seven years and having provided advice on “more than 100” Financial Agreements, including those “more complicated than this one” Mr S had no knowledge of the contents of s75(2) of the Act.
·Mr S did not take instructions from the wife as to the parties’ contributions (both financial and non-financial) to the acquisition and conservation of property. He did not then consider the relevant factors under s79(4) including s75(2) of the Act. Mr S did not establish the rights of the wife as to property adjustment pursuant to s79. He did not advise as to the advantages and disadvantages to the wife of entering the Financial Agreement.
Notwithstanding the execution by Mr S of the Statement of Independent Legal Advice and the wife’s signature of the Financial Agreement confirming that she has received such advice as recorded above in paragraph 39, I find that the wife has established to the requisite degree that she did not receive, prior to her execution of the Financial Agreement, the advice as prescribed by s90G(1)(b) of the Act.
Was each spouse party provided with a signed statement by the legal practitioner?
Mr S gave no evidence that he provided a copy of the signed statement to the wife, nor a copy of the Financial Agreement. The only evidence is that Mr S provided a copy of the signed Financial Agreement to the husband’s solicitor. As between the husband and the wife, I reject the husband’s assertion that the wife gave him her copy of the Financial Agreement. I am not satisfied that the wife was provided with a signed statement by Mr S.
Was a copy of such signed statement given to the other party or to that party’s legal practitioner?
There is no evidence that the husband provided a copy of the Statement of Independent Legal Advice from his solicitor to the wife until she was served with a copy under cover of the husband’s affidavit filed 25 July 2023. I accept therefore that the wife did not receive the certificate signed by the husband’s solicitor until six years after the agreement was signed by her. Section 90G(1)(ca) however has no temporal element. I agree with Justice Aldridge’s view as stated in Abrum that the provision of the statement years after it was signed and months after separation:
….do not comply with the requirements of the Act because a requirement for prompt exchange necessarily arises from the proper construction of the provisions of the Act.[10]
[10] Abrum & Abrum [2013] FamCA 897, paragraph 65.
Given my findings above I do not need to make a finding in this regard.
I find for the reasons recorded above that the agreement is not binding within the meaning of s90G(1)(b) of the Act.
SECTION 90G(1A)
The husband submitted that it would be unjust and inequitable for the Financial Agreement to not be binding on the parties as seven years have passed since the parties’ separation and so “the contemporaneous evidence is not available.”[11] It was submitted that the applicant’s movements in and out of Australia “support the husband’s version of events about the separation, the reason for the separation, and ultimately the divorce.”
[11] See s90G(1A)(c) of the Act.
Section 90G(1A) of the Act provides:
(1A) A financial agreement is binding on the parties to the agreement if:
(a) the agreement is signed by all parties; and
(b) one or more paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and
(c)a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and
(d)the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and
(e)the agreement has not been terminated and has not been set aside by a court.
Upon the preconditions of s90G(1A) being satisfied there is a broad discretion as to whether a declaration is made that a Financial Agreement is binding.[12] There are no restrictions on what matters inform that finding; a failure to received legal advice as prescribed by s90G does not preclude the operation of s90G(1A).[13] The nature and extent of non-compliance is an important consideration, and regard is to be had to the facts and circumstances surrounding the making and the performance of the agreement.[14] The expression “unjust and inequitable” is not to be conflated with the expression “just and equitable” as it appears in s79(2) of the Act; a consideration of the property adjustment which would have occurred but for the agreement has no place in the analysis of whether the parties will be held to their bargain.[15]
[12] Parker & Parker (2012) FLC 93-499 at 229-232 (“Parker”) as affirmed by Campton J in Dragomirov at 63.
[13] Parker at 230 and Hoult 2013 at 181 as affirmed by Campton J in Dragomirov at 63.
[14] Hoult 2013, paragraphs 291 – 306.
[15] Ibid.
The husband’s submissions are not accepted. Whilst no findings were sought to be made as to the date of separation, the parties’ divorce was obtained on fraudulent grounds. The wife was not aware of the parties’ divorce until “around” 14 June 2022. Any alleged prejudice to the husband is of his own doing. Given the inadequate legal advice provided to the wife under s90G(1)(b) I find that it would be unjust and inequitable if I were to declare that the Financial Agreement was binding on the parties.
CONCLUSION
For the reasons recorded above the Financial Agreement is not binding.
Orders and Directions will be made for the further progression of the substantive proceedings between the parties.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 14 November 2024
0
6
1