Clowes & Konig - [2022] FedCFamC1F 565

Federal circuit and family court of australia
(DIVISION 1)
Clowes & Konig [2022] FedCFamC1F 565

File number(s): SYC 4231 of 2021

Judgment of: CAMPTON J

Date of judgment: 10 August 2022

Catchwords: FAMILY LAW – PROPERTY – De facto relationship – Where the parties entered into a ‘domestic relationships financial agreement’ in 2005 pursuant to the then applicable Property (Relationships) Act 1984 (NSW), four years into their relationship – Where the parties intentionally kept their property entirely separate and largely kept the balance of their finances separate in the course of their 20 year relationship – Where the parties implemented the terms of the financial agreement throughout their relationship including, by way of their distribution of the proceeds of sale of a real property – Where the applicant now applies to challenge the financial agreement and seeks orders for adjustment of property pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) – Where the applicant contends that the agreement is not a binding agreement for the purposes of Pt VIIIAB of the Act – Where, in the alternative, the applicant seeks that the agreement be set aside by reason of s 90UM of the Act – Applicant’s challenges to the agreement not successful – Declaration that the financial agreement is a binding financial agreement within the meaning of Pt VIII of the Act – Finding that the agreement excludes all of the property of the parties, including their superannuation entitlements, from an exercise of Pt VIIIAB jurisdiction inconsistent with the terms of the agreement – Consideration of whether it would be just and equitable to adjust property if the finding as to the agreement applying to all the property of the parties in any event – Upon consideration of s 90SM of the Act, finding that there it would not be just and equitable to alter the parties’ existing property interests – Application dismissed.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4, 90B, 90SA, 90SF, 90SK, 90SM, 90UJ, 90UM, 90XT, Pt VIIIAB

Family Law Amendment (de facto financial matters and other measures) Act 2008 (Cth), Sch 1, Items 85, 88, 94

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.06, 12.06

Property (Relationships) Act 1984 (NSW) s 3, 20, 46, 47, 50

Cases cited:
Axelsen v O’Brien (1949) 80 CLR 219; [1949] HCA 18

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Chanter v Catts (2005) 64 NSWLR 360; [2005] NSWCA 411

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14

Crapp & Crapp (1979) FLC 90-615

Edgehill & Edgehill [2007] FamCA 1102

Franklin & Ennis [2019] FamCAFC 91

Gollings & Scott (2007) FLC 93-319; [2007] FamCA 397

Hoult & Hoult (2013) FLC 93-546; [2013] FamCAFC 109

Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9

Jones v Skinner (1835) 5 LJ Ch 87;

Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56

Marchant & Marchant (2012) FLC 93-520; [2012] FamCAFC 181

Mullane v Mullane (1983) 158 CLR 436; [1983] HCA 4

Robb & Robb (1995) FLC 92-955; [1994] FamCA 136

Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Wallace & Stelzer (2013) FLC 93-566; [2013] FamCAFC 199

Weir & Weir (1992) FLC 92-338; [1992] FamCA 69

Division: Division 1 First Instance

Number of paragraphs: 284

Date of hearing: 11 – 14 July 2022

Place: Sydney

Counsel for the Applicant: Mr Apelbaum

Solicitor for the Applicant: Parker Law

Counsel for the Respondent: Mr Lethbridge SC with Ms Seric

Solicitor for the Respondent: Urban Family Lawyers
ORDERS

SYC 4231 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CLOWES

Applicant

AND:
MR KONIG

Respondent

order made by:

CAMPTON J

DATE OF ORDER:

10 August 2022

THE COURT ORDERS THAT:
1.The applicant’s Amended Initiating Application filed on 27 June 2022 is dismissed.
2.It is declared that the domestic relationship financial agreement executed by the parties dated 15 June 2005 (“the Financial Agreement”) is a binding financial agreement within the meaning of Pt VIIIAB of the Family Law Act 1975 (Cth).
3.That the parties forthwith do all acts and things to implement the Financial Agreement, and specifically Clause 14(b) therein, and in aid thereof, without implying any limitation:
(b) (i)The parties will immediately list the [B Street] Property for sale by private treaty with such agent as the parties agree to appoint and in default of agreement as to agent within 14 days [from the date of these orders] with such agent as the President of the Real Estate Institute of New South Wales appoints, the costs of and incidental to such appointment to be borne equally by the parties as and when they fall due, dispose of their jointly owned property by agreement, and
(ii) The parties will list the [B Street] Property at such price as may be agreed between the parties or failing agreement at the price nominated as a fair market value by a licensed valuer appointed by the President of the Australian Institute of Valuers, the costs of and incidental to such appointment to be borne equally by the parties as and when they fall due.
(iii) If the [B Street] Property remains unsold for a period of 3 months from the date that it is first listed for sale, the parties will list the [B Street] Property for sale by public auction with such agent as the parties agree to appoint and in default of agreement as to agent within 14 days after the 3 month period referred to above, with such agent as the President of the Real Estate Institute of New South Wales appoints, the costs of and incidental to such appointment to be borne equally by the parties as and when they fall due.
(iv)The reserve price for the purpose of such auction will be such as the parties agree upon or failing agreement will be the price nominated as a fair market value by a licenced valuer appointed by the President of the Australian Institute of Valuers. The costs of such valuation will be borne equally by the parties. If the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested party and effect the sale of the [B Street] Property.
(v) The balance of the proceeds of such sale after deducting all costs and expenses associated with the sale, including without limitation, legal costs, agent's commission, valuation fees, auction fees and discharge of mortgage amount, if any, shall be paid equally to the parties.

4.Costs of each party are reserved for 28 days from the date of these orders.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Clowes & Konig has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
Introduction

Ms Clowes (“the applicant”) commenced proceedings by way of an Initiating Application filed in what was then the Federal Circuit Court of Australia on 10 June 2021 seeking to challenge:
(a)The validity and effect of a Domestic Relationship Agreement (“the Financial Agreement”) made between she and Mr Konig (“the respondent”) pursuant to the Property (Relationships) Act 1984 (NSW) (“the NSW Act”) on 15 June 2005; and
(b)If that challenge was unsuccessful, she sought to set aside the Financial Agreement, and upon it being set aside, sought orders adjusting property pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”); and
(c)If the Financial Agreement was not set aside, she contended it did not oust a s 90SM jurisdiction of the Court as to some of the property of the parties, and sought orders adjusting those residual items pursuant to s 90SM of the Act.
The Financial Agreement, being Exhibit 1, did not contain a clause to the effect of it operating in substitution for the rights of either party to apply for orders as to the adjustment of property between them on the termination of their relationship.
The respondent contended that the Financial Agreement operates as a binding financial agreement for the purposes of Pt VIIIAB of the Act and hence a prohibition exists against a court making an order adjusting property inconsistent with the agreement. It is his case that the Financial Agreement regulates all of the current property of the parties such that no property remains available for adjustment pursuant to s 90SM of the Act. The respondent’s alternate position, in the event his contention as to the Financial Agreement dealing with the all of the property of the parties was not accepted, was that there is no warrant for adjustment pursuant to s 90SM of the Act of any residual property not dealt with by the agreement.
The applicant and the respondent commenced a de facto relationship in either October 2000 (as asserted by the applicant) or November 2001 (as asserted by the respondent). Their de facto relationship terminated upon the parties separating while continuing to reside in their home at B Street, Suburb C (“the B Street property”) in November 2020. The respondent vacated the home on 17 May 2021.
The parties did not have children together. The applicant’s son from her prior marriage, Mr D (“Mr D”) who was born in 1991, lived with the parties during the relationship.
The parties lived in NSW for the duration of their relationship. The jurisdictional requirement pursuant to s 90SK of the Act is satisfied.
For the reasons that follow, the Financial Agreement is declared to be a binding financial agreement for the purposes of the Pt VIIIAB Act, and in circumstances where there is no residual property to adjust outside that identified in the Financial Agreement, the applicant’s Amended Initiating Application filed on 27 June 2022 is dismissed. In the event my findings as to the Financial Agreement not regulating all of the parties’ property are in error, I would have determined that it is not just and equitable to adjust the residual property as identified by the applicant to fall outside the agreement. Putting it another way, there would be no warrant for an exercise of a s 90SM discretion of the contended residual property in the circumstances of this relationship.
Evidence
The applicant relied upon the following documents:
(a)A Case Outline document filed on 7 July 2022 being Exhibit 3;
(b)An Amended Initiating Application filed on 27 June 2022;
(c)A Reply and Points of Claim document filed on 16 August 2021 being Exhibit 2;
(d)Her Financial Statement filed on 27 June 2022; and
(e)Her affidavit filed on 14 March 2022;and
(f)An Amended Minute of Order Sought, being Exhibit 19, tendered on the final day of the trial.
The respondent relied upon the following documents:
(a)A Case Outline document filed on 7 July 2022 being Exhibit 4;
(b)An Amended Response to an Application in a Proceeding (read as a Response to an Initiating Application) filed on 7 July 2022;
(c)His affidavit filed on 14 April 2022;
(d)His Financial Statement filed on 27 June 2022; and
(e)An affidavit of Mr E filed on 20 March 2022.
The applicant did not require Mr E for cross-examination. Each party relied on the affidavit of Mr F, the single expert witness engaged to value the B Street property. Annexed to his affidavit was a valuation report of the B Street property dated 24 June 2022.
The applicant’s Reply filed on 16 August 2021 included her Points of Claim. It pleads the applicant’s challenges to the Financial Agreement being broadly fourfold:
(a)Firstly, that:
26.At no time prior to entry into the [Financial] Agreement did the Applicant receive independent legal advice as to the effect of the [Financial] Agreement on her rights to apply for an order under Part 3 of the [NSW Act], and the advantages and disadvantages, at the time of entry into the [Financial] Agreement, to her of making the [Financial] Agreement.
and hence, at the time of the entry of the Financial Agreement, as the requirements of s 47(1)(d) of the NSW Act were not satisfied, there was no prohibition against a court making an order adjusting the property of the parties on terms that were inconsistent with the agreement; and
(b)Secondly, that the Financial Agreement ought be set aside by reason of s 90UM(1)(a) of the Act, in circumstances where it was obtained by fraud, such fraud in this case being pleaded as a material “non-disclosure” by the respondent; and
(c)Thirdly, in the event that challenge is unsuccessful, that the Financial Agreement be set aside by reason of s 90UM(1)(e) and (h), being that it is “vitiated by duress, undue influence and/or unconscionable conduct and is, therefore, void or voidable”, and
(d)Fourthly, if none of the above challenges are made out, that the Financial Agreement is void for uncertainty.
Background
The applicant was born in Country H in 1965. She is now 56 years old. The respondent was also born in Country H, in 1958. He is now 64 years old.
Each of the parties has previously been married and divorced. They met in Sydney in late 2000 and commenced a relationship.
At the beginning of their relationship, the applicant lived in a property owned by her father at G Street, Suburb C (“the Suburb C Unit”) and the respondent lived in his property on J Street, Suburb K (“the Suburb K property”).
On 28 January 1998 the respondent purchased vacant land at L Street, Suburb M (“the Suburb M property”) from his parents for $25,000 funded by his savings. He thereafter caused a “kit home” to be built on the vacant land. The evidence establishes and I find that by the time the parties met, the house was all but completed and capable of occupation.
On 6 July 2001, the applicant’s father transferred to her the Suburb C Unit for notional consideration of $1.
In September 2001 the respondent sold the unencumbered Suburb K property for $270,500. He received the deposit less agent’s commission, and an amount of $243,266.88 on settlement.
On 31 October 2001, the respondent completed the purchase of a property at N Street, Suburb C (“the N Street property”) for $427,000. He contends there were additional acquisition costs in the range of $30,000. The respondent applied the proceeds of sale of the Suburb K property and his savings (the quantum of his savings at this time is disputed) to the acquisition. The balance of the purchase price was funded by a portfolio loan from O Bank of $190,000, secured by mortgage on the property.
The date of the parties’ cohabitation is disputed. The applicant contends they began living together in October 2000 at the Suburb C Unit. Her evidence was that the respondent spent “most weekdays” at the Suburb C Unit, and most weekends at the Suburb M property. The respondent contends they began living together in November 2001 at the N Street property. He accepted that he spent some overnights with the applicant at the Suburb C Unit prior to November 2001 but said he lived during this period between her home, the Suburb M property, and with friends.
There was little objective evidence adduced by either of the parties to support one version over the other, except for the Financial Agreement. It records in the recitals that:
A.[The applicant and respondent] have been living in a domestic relationship since November 2001.
I find that it is more likely than not that had the applicant been of the view in 2005 when she entered the Financial Agreement that the parties’ relationship had commenced on a date other than as recorded in the document she would have sought to rectify the identified recital. As recorded later in these reasons, the applicant provided instructions to her solicitor in 2005 to seek amendments to some of the recitals recorded in the first draft of the agreement and to include other additional recitals she considered relevant. There is no evidence that she sought any amendment to the recital recording the date of commencement of the de facto relationship. I find on balance that the parties commenced their de facto relationship at the N Street property in November 2001.
Between 2000 and 2002, the parties undertook work on the Suburb M property, including painting and landscaping. The applicant gives evidence that she and the respondent worked on the property “every weekend” from the start of their relationship. She said that they “cleaned the house, painted the architraves… the deck and stair railings, and helped to establish the garden” at the property. The respondent disputes the extent of her contributions. There was little cross-examination of her evidence on this topic. I find on balance that the applicant applied her efforts to improving the Suburb M property as she asserts.
On 29 June 2002, the respondent sold the Suburb M property and received sale proceeds of $208,000. Of that sum, he applied $187,200 to reduce the portfolio loan in his name secured by mortgage on the N Street property in favour of the O Bank.
At some time in 2002, the applicant received $9,000 from her father that she applied to purchase a car. She gave no evidence of this fact; it was conceded by the respondent in his affidavit (at paragraph 120).
In early 2003 the applicant found the B Street property being advertised for auction. The applicant and respondent attended the auction. The respondent made a bid. The property was passed in. Subsequent negotiations secured the property at $560,000. On 1 February 2003 the respondent alone exchanged contracts to purchase the B Street property.
The import of the case prosecuted by the applicant was that she and the respondent jointly acquired the B Street property. Her affidavit records her belief that the property was to be purchased in “joint names”. In cross-examination when it was put to her that she had not signed the contract of sale, the applicant said that she “didn’t know it at the time, because [she] signed something” and that she “thought she did” sign the contract. She did not identify the document she said she signed in her affidavit or oral evidence. I find that she did not sign the contract for purchase or any loan or mortgage document relating to the acquisition of the B Street property.
In March or April 2003, the respondent refinanced his existing N Street property loan with O Bank, and obtained a portfolio loan facility of $600,000 (“the portfolio loan”). The portfolio loan was to facilitate the completion of the purchase of the B Street property. It was secured on the N Street property, and was to be secured on the B Street property upon the settlement of the acquisition.
The respondent’s evidence was that he made various deposits into that portfolio loan account. In his affidavit he said that on 8 May 2003 he deposited $263,000 advanced by way of loan from his father into the portfolio loan account. The applicant deposed that she had “no idea where those monies came from”. Her Case Outline document recorded that “both the loan and the contribution are disputed by the applicant”. The respondent remained firm in his oral evidence that the funds advanced were by way of loan. The applicant did not put this factual dispute into issue during submissions. She proffered no alternate explanation as to the source of the deposited funds. I find on balance that the funds deposited into the portfolio loan account on 8 May 2003 were advanced by way of loan from the respondent’s father.

On 9 May 2003, the applicant paid $34,000 to the respondent’s father. The fact of the transfer was verified by way of her bank statement. This was before the completion of the sale of the Suburb C Unit. The applicant in her affidavit evidence said that she believed the transfer:
50.…was related to the purchase of the [B Street] property, as the Respondent said words to me to the effect of:
“I need the money for the purchase of [B Street] property.”
The Respondent told me words to the effect of “pay the money into my parents' account.” I understood at that time that the Respondent had access to an Australian account in his parents’ names.
The respondent said that he did not request or direct the applicant to transfer funds to his parents and that he was unaware as to why she had done so.
On 20 May 2003, the B Street property settled. This became the parties’ home for the duration of their relationship.
The applicant identified that on 23 May 2003, some 14 days after she paid $34,000 to the respondent’s father’s account and three days after the date of completion of the settlement of the B Street property, the respondent deposited $38,000 into the portfolio loan account. It was her case that part of this later transfer was funded by the monies she had provided to the respondent’s father. During the trial evidence emerged, and I find, that respondent from time to time transferred funds to and from Australian bank accounts in the name(s) of his parent(s).
The respondent said that the $38,000 applied to the portfolio loan account originated from his “business working capital”. He was challenged on this in cross-examination, but remained firm and unshaken in his evidence. The cross-examination did not reveal a deposit of $34,000 into his business working account. He said that the funds provided by the applicant to his father were not required by him to complete the B Street acquisition. The respondent had obtained financing for the B Street property from O Bank sufficient to complete the acquisition prior to the applicant making the transfer of the $34,000. The $38,000 deposit to the portfolio loan was made after the completion of the B Street acquisition.
The respondent’s father passed away in mid-2021. His mother lives in Country H. She did not give evidence in the respondent’s case. The respondent’s parents were present in Australia from time to time between 2003 and 2005. The applicant did not give evidence as to any conversations she had with either of the respondent’s parents during that two year period as to the $34,000 transfer. She had the opportunity to do so. She also had the opportunity to give evidence explaining (if it was the case) why she did not have those conversations. It emerged at trial that the applicant’s solicitors had the benefit of the respondent’s parent’s bank statements produced under subpoena.
Notwithstanding that the value of the $38,000 transferred by the respondent into the portfolio loan is not dissimilar to the value of the $34,000 provided by the applicant to the respondent’s parents, I am unable to make the finding as prosecuted by the applicant that the respondent was the ultimate beneficiary of these funds or that they were applied to the portfolio loan. That said, I infer and find that the payment of the $34,000 by the applicant grounded a benefit for the respondent. It was not necessary to enable the completion of the B Street acquisition, but it represented the receipt of funds by the respondent’s father in circumstances where the father had advanced $263,000 to the respondent some 15 days beforehand on 8 May 2003. There was no evidence of the respondent’s father providing funds to the applicant by way of loan at any time, nor was such proposition put to the applicant in cross-examination.
On 23 June 2003, the applicant completed the sale of the Suburb C Unit for $290,000. The applicant said that the respondent “had the entire proceeds of sale of [the] Suburb C Unit”. That evidence shifted in her cross-examination. The applicant accepted that she retained the deposit less agent’s commission being approximately $22,000. At settlement, the sale proceeds other than the deposit were $267,568.19. $237,500 was paid to the respondent, $29,073.99 was paid to the respondent’s father and the balance was directed to pay solicitors’ fees on the transaction.
There was a dispute between the parties in respect of who provided instructions to the applicant’s solicitor as to the distribution of these funds. It is not contentious that the applicant signed the contract for the sale of the property and that she engaged a solicitor to act on the transaction on her behalf. The tenor of the applicant’s case was that the payment of the proceeds of sale by the solicitor was orchestrated by the respondent for his benefit. I am unable to make such a finding. The applicant has not discharged the onus to satisfy me that the direction to pay the proceeds of sale of the Suburb C Unit by her solicitor was in any way improper or contrary her instructions.
There was no evidence as to the reason for $29,073.99 being paid to the respondent’s father. As was the case with the $34,000 payment, there was no evidence of the respondent’s father providing funds to the applicant by way of loan at any time, nor was such proposition put to the applicant in cross-examination. Again, in circumstances where the receipt of these additional funds by the respondent’s father occurred without explanation some six weeks after the father had advanced $263,000 to the respondent on 8 May 2003, an inference is available and I find that this further payment by the applicant also grounded a benefit for the respondent.
The respondent applied the $237,500 proceeds he received to the portfolio loan, and in doing so brought the loan’s debit balance to $1,245.22 as at 30 June 2003. The respondent’s affidavit said that he held the $237,500 on trust for the applicant and that those funds were not “a contribution to the purchase of the [B Street] property”.
Renovations were undertaken to the B Street property after its purchase. They continued until around 2005. The applicant said that she undertook “renovations, painting, cleaning and gardening” at the B Street property but otherwise gave no particulars in her evidence as to her contributions to the improvements.
The respondent said that the B Street renovations took place in three stages, and that his friend, Mr E, worked on each stage. The respondent’s evidence was unchallenged that he did not pay Mr E for his labour and instead performed labour for Mr E in exchange for his services.
Mr E is a friend of the respondent and is a tradesman. His affidavit evidence was unchallenged. He gave evidence of attending the auction of the B Street property, and of joining the respondent to negotiate with the real estate agent after the auction had passed in. He deposed to the work he and the respondent completed on the B Street property soon after its purchase over a period of about six months, including “major structural changes”, installing new windows, doors, and internal walls, and retiling and flooring the property. It was his evidence that he did not charge the respondent for his labour, but that the respondent provided him with unpaid labour in return. He estimated the value of his work on the improvements was approximately $35,000 in addition to a builder’s margin of 15 per cent.
In 2005 Mr E assisted the respondent with further renovations to the B Street property, including an extension to the deck, guttering and roofing, and construction of an external toilet and storeroom. Again he said he did not charge for these services. He estimated the value of his work on the improvements was approximately $5,200 in addition to a builder’s margin of 15 per cent.
In 2015 Mr E carried out a final stage of renovations to the B Street property, including installing car-port roofing, decking, and repainting the roof of the house. He estimated that the value of his labour on these improvements was $1,600 plus a builder’s margin of 15 per cent.
I accept Mr E’s evidence and so find.
The gravamen of the respondent’s evidence is that the parties maintained separate financial identities throughout their relationship. He said that they kept separate bank accounts, save for one Commonwealth Bank account into which rent from the N Street property was paid for a short period of time. This joint account was closed in May 2005, prior to the execution of the Financial Agreement. The respondent’s case on this topic was reinforced in the cross-examination of the applicant.
The applicant accepted that she kept a record of payments she had made on the respondent’s behalf at his request for the B Street property renovations. A six page document written by the applicant recording payments she had made taken from invoices she had paid for the renovation materials on the B Street property was marked as Exhibit 8. The document recorded the amounts that the respondent was required to reimburse to the applicant. The applicant agreed she received these reimbursements from the respondent.
The applicant’s oral evidence painted a clear picture of how she and the respondent lived their financial lives vis-à-vis one another. She said the “deal” was that she paid for the groceries and household expenses, while the respondent paid for the rates and utilities on the B Street property. She accepted that she and the respondent “did not discuss finances” The applicant said this was not the way that she desired the relationship to be conducted, but accepted that it was the reality of their relationship. She agreed that she and the respondent maintained separate financial lives during the period of their cohabitation.
In cross-examination the respondent gave evidence, absent any further challenge, as to purchasing items on his credit card at the request of the applicant, and the applicant later reimbursing him for the value of these purchases.
There was no evidence of the applicant meeting the repayments on the portfolio loan secured on the N Street or B Street properties save for the funds distributed to the respondent on the sale of her Suburb C Unit. It was agreed that any rent received from the N Street property after the closure of the Commonwealth account was paid to the portfolio loan account.
On 8 February 2005 the respondent executed a will (“the first will”). The first will provided for the applicant to receive $10,000 and for the balance of the respondent’s estate to be left to his parents.
On 16 February 2005 the respondent transferred $180,000 from the portfolio loan account to an account in his father’s name verified by Exhibit 15. The respondent’s affidavit is silent as to the fact and purpose of this transfer.
Although it was not part of the submissions of either party, the value of the 9 May 2003 transfer made by the applicant to the respondent’s father of $34,000, the 23 June 2003 direction to pay the respondent’s father $29,073.99 from the proceeds of sale of the Suburb C unit, and the 16 February 2005 portfolio loan withdrawal of $180,000 paid to the respondent’s father total $243,073.99. This quantum is not dissimilar to the value of the loan advance made by the respondent’s father of $263,000 on 8 May 2003. The Financial Agreement made on 15 June 2005 does not record any reference to the 8 May 2003 loan advance made to the respondent by his father. The evidence does not make any reference to when the loan advance was repaid or from what source.
The applicant discovered the respondent’s first will in late February 2005. The respondent said that there was an oversight in the drafting of the first will in that it was his intention to leave to the applicant half of his estate, in addition to the $10,000. He said that the $10,000 specific bequest was intended to cover the costs of his funeral. The parties each gave evidence of that discovery causing the applicant to become upset and of an emotional exchange that subsequently occurred between them.
The applicant’s affidavit records at the end of this exchange:
61.… I said words to the effect of: “It is over.” The Respondent said words to the effect of:
"I love you. I will fix this. I will put you on the title of the house. We will have a great life and one day we will get married.”
In cross-examination the respondent broadly agreed with the applicant’s version of events save that he initially denied having communicated any plans to get married. He later said that he may have told the applicant he would marry her “when [he was] ready”.
The respondent said that in order to “fix it”, he sought to amend his will so as to provide for the applicant. On 30 March 2005 the respondent executed an amended will (“the second will”), which included a provision for the applicant to receive a half-share of the respondent’s estate upon his death.
It was controversial as to whether, and if so when, the applicant knew of the fact and contents of the respondent’s second will. The respondent in his affidavit recounted telling the applicant about the amendment in March 2005 “in order to try and appease her concerns”. The applicant said she only became aware of the second will during the course of these proceedings. I will return to this factual dispute later in these reasons.
On the respondent’s case, the applicant was not sufficiently reassured by the fact and contents of his second will and requested “something more formal and binding”. He said he offered to the respondent to “…transfer the [N Street] property to [her] in [her] name so that [she felt] more secure”, and that she agreed to that proposal.
The respondent engaged a solicitor, Mr P of Q Solicitors to implement what he said was the parties’ arrangement. An invoice from Mr P directed to the respondent formed an annexure to his affidavit. It recorded work completed in respect of the “[Konig] Sale to [Clowes]” of the N Street property. It was the respondent’s case that the transfer of N Street to the applicant would incur significant stamp duty costs.
The applicant gave no affidavit evidence of this proposed arrangement. In cross-examination she said that she had no knowledge of the proposal, and that it was not communicated to her by the respondent. I will return to this factual dispute later in these reasons.
It was the respondent’s evidence that following conversations with the applicant, his instructions to Mr P shifted such that he was to prepare a domestic relationship financial agreement reflecting an equal division of the parties’ real property.
Around March 2005, the applicant’s father provided to the respondent $200,000. Her affidavit recorded:
64. My Father said to the Respondent after screaming at him, words to the effect of:
“How much does it take for you to be equal?”
And the Respondent replied “$200,000.00”.
65. I understood from the discussion between my father and the Respondent, that my father was going to pay the Respondent $200,000 and I was to become a joint owner of both the [N Street] and the [B Street] properties.
66. My Father subsequently told me that he had sent the Respondent a cheque in the sum of $200,000.00. I do not know what the Respondent did with those funds.
The respondent said that he does not know where the funds were applied, or to which account (he said it could have been either to his account or to the applicant’s) but that he “acknowledged” its receipt. The applicant was not meaningfully challenged on her evidence that the $200,000 was paid to the respondent. I accept her evidence on this topic, and find that the respondent received those funds himself and had the benefit of those funds.
The respondent agreed that upon the respondent’s father advancing $200,000, each of he and the applicant had contributed about $500,000 to the two real properties (the B Street property and N Street property).
The respondent engaged Mr T of R Solicitors to act on her behalf in respect of the Financial Agreement. She records in her affidavit that she was referred to Mr T by either the respondent or his solicitor, Mr P. She attended on Mr T for the first time in April 2005.
The file of R Solicitors was annexed to the respondent’s affidavit. Some selected documents from the file were also contained in the applicant’s tender bundle, being Exhibit 14.
Remarkably, the applicant conceded in cross-examination that she had not read the R Solicitors file and that was she not aware of its contents. I shall return to the circumstances surrounding the alleged avoidant and delayed production of this file by the applicant during these proceedings, and to the contents of the file, especially when cast against the applicant’s affidavit evidence, later in these reasons.
A first draft financial agreement was provided to the applicant’s solicitor Mr T in April 2005. That three page document of 13 recitals and 11 operative clauses was contained within the R Solicitors file. By way of summary it recorded that:
(a)The agreement was a ‘domestic relationship financial agreement’ as between the applicant and respondent;
(b)It refers to the NSW Act but does not specifically reference s 47 of that Act;
(c)Its recited purpose was “to promote harmony between themselves, to reduce the possibility of resorting to litigation and to avoid or reduce any disputes between them in the future about ownership, use and descent of property”; and
(d)Broadly, it provided that:
(i)The parties would meet equally the loan repayments and any other costs associated with the N Street property, in which they held equal shares as tenants in common (the reality was that the legal interest was not so held); and
(ii)The respondent would transfer to the applicant a 50 per cent interest in the B Street property;
(iii)The parties would meet equally the loan repayments and any other costs associated with the B Street property (hence the portfolio loan mortgage security would remain secured on the property) ;
(iv)That all other property acquired by the parties before their relationship, or property acquired by them during the relationship (by way of purchase, gift, devise, bequest or inheritance) shall remain property of the party who acquired it; and
(v)That any jointly owned property would be disposed of within one year of the parties’ separation; and
(vi)Mutual releases in favour of the other as to rights to make an application as to the estate of the other after death pursuant to the Family Provisions Act 1982 (NSW) (“the Family Provisions Act”).
It was the applicant’s contention that the PO Box to which letters were sent to her by Mr T was in reality the respondent’s address, and that she had “no recollection of receiving a copy of [the letter dated 11 April 2005]”. The tenor of her evidence was that she was denied the opportunity to read any letters by her solicitor except the letter dated 9 May 2005 by the respondent. This was denied by the respondent. Both parties had keys to the PO Box.
The applicant conceded in cross-examination that she was the sole source of instructions to her solicitor to send his letters to the PO Box. She did not explain how she knew after her first consultation when to get in contact with the solicitor to provide instructions as to the process of the evolving amendments to the terms of the Financial Agreement, to attend to execute the agreement, or to complete the execution of the caveat, as recorded later in these reasons. The applicant has not established the implication that the respondent had intercepted any letters sent by her solicitor. I reject that contention.
On 15 June 2005, the parties executed Exhibit 1 titled “Domestic Relationship Financial Agreement”. It is recorded as follows:
K. Separate legal representatives have advised each party independently before executing this Deed concerning the following matters:
(a) the legal significance of this Deed and the effect it has upon each party's rights to apply for an order under Part 3 of the Property (Relationships) Act 1984;
(b) the advantages and disadvantages, at the time that the advice was provided, to each party of making the agreement; and

By way of broad summary, the agreement:
(a)Required the parties to share equally in the expenses and mortgage repayments on the N Street property, and that if the N Street property was sold during the relationship, and provided that the nett proceeds of sale shall be divided between them equally, save that the applicant’s liability for the O Bank loan would be capped at $90,000; and
(b)Provided the respondent’s consent for the applicant to lodge a caveat on the title of the N Street property; and
(c)Provided for the respondent to transfer to the applicant a half interest in the B Street property and that the portfolio loan mortgage to be released from the property so that it would be unencumbered; and
(d)Declared that “all property acquired by the [a party] prior to the relationship”, and “all property acquired by [a party] during the relationship by purchase, gift, devise, bequest or inheritance” shall remain property of that party upon separation; and
(e)Provided that (other than the B Street property), the parties shall dispose of all jointly owned property by agreement upon separation, and the B Street property shall be listed for sale “immediately” and divide the proceeds of sale equally between them.
The Financial Agreement annexed two “Certificate[s] for the Purposes of Section 47(1)(d) Property (Relationships) Act 1984” (“the s 47 certificates”), executed by the respective solicitors of each party.
On 6 July 2005, the applicant’s solicitor sent a letter to the applicant enclosing a draft application for a caveat on the title of the N Street property recording an “equitable interest in one half of the proceeds of sale” by operation of the Financial Agreement. The applicant executed that caveat document on 14 July 2005, and her solicitors lodged it on the same day.
The applicant agreed in cross-examination that all rental income received from the N Street property after the execution of the Financial Agreement was paid to the respondent’s portfolio loan secured on the property. She makes complaint about the respondent’s use of the portfolio loan after the date of the Financial Agreement, deposing in her affidavit that she “was not aware that the respondent had access to funds” in circumstances where he “claimed he had no money”. It was not disputed by the respondent that he had use of the portfolio loan and accessed funds from the loan from time to time. It was the respondent’s affidavit evidence that:
88.The Portfolio loan provided me with flexibility to pay for the running costs of my business and purchase stock. I didn't have separate business accounts but used offset accounts and Portfolio Loans to reduce the interest payable. I also received income from business into the Portfolio Loan.
When challenged on his use of funds from the portfolio loan in cross-examination, the respondent reinforced his affidavit evidence. The applicant did not adduce any evidence to suggest that the respondent had used the portfolio loan funds after the date of the agreement in any way other than asserted by him, and I so find.
In July 2007, the applicant received $99,887 by way of inheritance upon her mother’s death. She retained those funds in a Term Deposit held in her sole name.
On 17 September 2007 the respondent sold the N Street property for $620,000. On 3 October 2007, he transferred to the applicant from the proceeds of sale of $212,258.10
The respondent’s affidavit recorded an explanation as to the distribution of the sale proceeds, which was accepted as being accurate by the applicant’s counsel in submissions:
69.Pursuant to Clause 7 of the Agreement, [the applicant] was entitled to 50% of the net proceeds. I say that this amounts to $212,258.10. [The applicant] received $212,258.00 by way of cheque from my O Bank […] account ending #[...] on 3 October 2007.
70.      The figure is calculated on the following basis:
a. Half of the sale price of $620,000.00 is $310,000;
b. $310,000 minus $90,000 for [the applicant]'s share of the mortgage leaves $220,000;
c. $220,000 minus 50% of sale costs of $7,741.90 leaves $212,258.10.
71.      The 50% share of sale costs of $7,741.90 consists of the following:
a.        Half of agent's fees $6,648.50
b.        Half of conveyancing $659
c.        Half of bank fee $4 5
d.        Half of mortgage discharge fee $175
e.        Half of council rates $121.50
f.        Half of water rates $47.90
g.        Half of caveat withdrawal $45
72.I discharged the amount owing on the Portfolio Loan of $286,068.99 using $90,000 of my $310,000 share of the sale proceeds and paid the balance of $196,068.99 from my own funds as I understood as a result of the Agreement that [the applicant]'s liability was capped at $90,000 and I honoured this.
(As it was recorded)
The proceeds of sale of the N Street property were applied in the terms specified in the Financial Agreement. Each of the parties thereafter retained their respective funds received by way of the distribution in their own accounts. Neither party knew how the other party applied the monies that they received.
The applicant contended that the respondent “told [her] that she [had] to pay Capital Gains Tax on the sale” of the N Street property. She gave evidence, supported by bank statements, of transferring to the respondent the sum of $22,591.40 on 5 November 2007, which she said she understood to be her capital gain tax liability. The respondent in his affidavit denied that the applicant had contributed to the payment of capital gains tax arising from the sale of the N Street property. It was his evidence that the value of that liability was not close to the amount transferred by him to the respondent, it being $5,244.01 as recorded in his 2008 taxation return lodged some seven months or more after November 2007. The respondent said, as recorded earlier in these reasons, the payment of $22,591.40 was a reimbursement made to him by the applicant for a credit card purchase he had made on her behalf. That oral evidence was not thereafter challenged and I so find.
On 1 May 2009, the respondent received two lump sum cash payments totalling $482,005.40. He said those funds were advanced by way of gift from his parents. The applicant by her Case Outline “disputes the assertion” that those monies were gifted. It was the applicant’s contention that these monies were in fact the respondent’s and not his parent’s funds. In cross-examination, she conceded that she had no knowledge of the alleged gift until these proceedings had commenced.
The Konig Super Fund, being the respondent’s self-managed superannuation fund (“SMSF”) was established after he received the $482,005.40 from his parents. The respondent is the sole member of the SMSF and sole share and office holder of the corporate trustee. It was uncontroversial that the respondent contributed $450,000 to the fund and that the source of that contribution was from the $482,005.40 he received in May 2009 and I so find.
On 17 May 2021 the respondent vacated the property and has lived in rental accommodation in Suburb S since that time. The applicant continues to reside at the B Street property.
On 19 May 2021, the respondent served a Separation Declaration on the applicant pursuant to the terms of the Financial Agreement, requiring the applicant to join in on the sale of the B Street property.
Procedural history
On 15 June 2021, orders were made by a Senior Registrar which, inter alia, directed the respondent to file within 28 days his Response, affidavit and Financial Statement, and injuncted the parties from “selling, transferring, disposing, or further encumbering” the B Street property, or from taking any steps to enforce the Financial Agreement pending further order.
On 26 July 2021, the respondent filed an Application for Review of the July 2021 order obliging him to file a Financial Statement, on the premise that the Court’s jurisdiction had been ousted by the parties’ Financial Agreement.
By orders of Harper J made on 4 August 2021 and reasons then delivered, the applicant’s Application for Review filed 16 July 2021 was dismissed. On 11 August 2021, the respondent was ordered to pay the applicant’s costs of and incidental to his Application for Review in accordance with the then applicable Family Law Rules 2004 (Cth).
On 13 October 2021, the respondent filed his Financial Statement in compliance with the 15 June 2021 orders.
The matter came before me on 29 November 2021. It was listed for trial and directions made as to the filing of evidence.
The parties each filed Costs Notices pursuant to r 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The applicant on 8 July 2022 had incurred $84,806 in legal fees, of which $57,046.10 was paid from “the applicant’s income and savings” and $27,760 of which remained unpaid. The respondent’s Costs Notice records that as at 10 July 2022, he had incurred $102,418.00 in paid legal fees, met from “his personal savings”.
The competing relief of the parties
The applicant’s primary relief prosecuted by way of her Minute of Order dated 14 July 2022 marked as Exhibit 19 in the proceedings sought:
(a)The Financial Agreement not be considered to be a binding financial agreement under Pt VIIIAB of the Act; or
(b)In the alternative, the Financial Agreement be set aside; and
(c)The respondent transfer to the applicant his interest and title in the B Street property, and that simultaneously with that transfer, the applicant pay to the respondent an adjusting sum of $488,203. In that scenario the applicant does not seek an alteration of the parties’ interests in superannuation, but contends that the Court should deal with the non-superannuation and superannuation property in a single pool.
By way of alternate relief, in the event the Financial Agreement is declared binding on each of the parties (and hence the B Street property would be sold and the proceeds of sale divided equally between the parties) the applicant sought a superannuation splitting order pursuant to s 90XT(1)(a) of the Act of a base amount of $536,869 be made in her favour from the respondent’s member entitlement in the Konig Super Fund to a fund of the applicant’s choosing.
It was conceded by the respondent that he remains the sole member of the SMSF and the sole office holder of the corporate trustee of the SMSF. I find that the fund had been afforded procedural fairness as required for the superannuation splitting order sought.
In addition, in the event the Financial Agreement was declared binding the applicant sought that the respondent pay to her an additional adjusting sum of $188,491 being:
2.… “reimbursement of monies had and received from, or not paid to, the applicant being monies to which he was not entitled pursuant to the [Financial Agreement], and interest thereon.
The evidentiary foundation grounding the claim and quantum of the “adjusting sum” asserted to be payable by the respondent to the applicant by way of implementation of the terms of the Financial Agreement in the event it was declared binding was contended to arise from the distribution of the proceeds of sale of the N Street property in 2007. If I understood the applicant correctly, it was her assertion that she ought to have received this additional amount including an interest component over and above the $212,258.10 she received on 3 October 2007. The concession made by the applicant during submissions as recorded in paragraph 80 of these reasons ought to have led to this claim of relief being withdrawn or abandoned. It was not. There is no evidentiary foundation to support this claim by way of enforcement of the Financial Agreement in the event it is binding. This claim of relief will be dismissed.
The respondent seeks by his Amended Response filed on 6 July 2022 that the Financial Agreement be declared as binding on each of the parties pursuant to s 90UJ of the Act, and seeks orders giving effect to that agreement, including an order that in the event the applicant fails to comply with the Financial Agreement within seven days of written demand that she do so, then the respondent be appointed as trustee for the sale of the B Street property.
It is his primary position that the Financial Agreement “covers the field” such that save the property of the parties identified in the operative clauses of the agreement, no property remains to adjust by way of s 90SM of the Act. Hence he seeks that the applicant’s Amended Initiating Application be dismissed.
The respondent also seeks relief in two alternates avenues:
(a)the first is if the Financial Agreement is not set aside but a s 90SM process is undertaken in respect of the parties’ superannuation interests, then he contends no warrant for any adjusting order ought to be made and seeks that the s 90SM relief of the applicant be dismissed; and
(b)the second being in the event the Financial Agreement is set aside pursuant to s 90UM, he seeks that:
(i)should the applicant elect in writing to retain the Suburb C property, she pay to him an adjusting sum of $1,275,000; or
(ii)should the applicant not elect to retain the Suburb C property, or unable to pay the adjusting sum within 42 days, then the respondent retain the property and pay to the applicant the adjusting sum of $1,275,000; and
(iii)should neither party be able to retain the Suburb C property and make the adjusting payment to the other, then the property be sold and the proceeds of sale be divided equally between the parties; and
(iv)there be no further adjusting order as to the parties’ property and superannuation interests.
The witness
The applicant
I had the opportunity to closely observe the applicant during her cross-examination. At times she was candid and did her best to answer the questions asked but more often than not tended to construct her answers to direct and leading questions by adding commentary that she perceived would promote her case. It was evident during her oral evidence that she is yet to come to terms with the fact and circumstances of the parties’ separation which at times affected her evidence.
The applicant’s evidence on a number of topics was inaccurate or unreliable. These topics recorded in these reasons thus far included her implication that she signed a document to acquire an interest in the B Street property at the auction and her assertion that the respondent “had the entire proceeds of sale of [the] [Suburb C] Unit” (made notwithstanding she had the benefit of the settlement statement issued at completion). Other more reckless aspects of her evidence are recorded later in these reasons.
The respondent
The respondent presented as responsive and straightforward in his oral evidence. His affidavit evidence was supported by a range of objective contemporaneous documents. In cross-examination, he tried his best to directly answer the questions put to him, including by making concessions where appropriate.
In his affidavit, the respondent contended he had savings at cohabitation of $140,000-$150,000 held in his bank accounts. The date of cohabitation was just after the N Street purchase completed. During cross-examination he was shown Exhibit 14 being his finance application submitted to O Bank on 27 September 2001 to obtain a loan for the purchase of the N Street property. That application, submitted two months prior to the date of cohabitation, recorded that the respondent had cash savings of $7,244, in addition to the monies from the sale of his Suburb K Property. The respondent conceded that he would have disclosed any assets he had at that time in that finance application and that his affidavit evidence as to having savings of between $140,000 to $150,000 in addition to the proceeds of sale of the Suburb K property was incorrect.
The applicant submitted that a finding ought to be made as to the respondent failing to comply with his obligations of disclosure. She seeks a finding that the respondent, in transferring money into his parents’ bank accounts, was attempting to hide or secrete these funds.
She sought a further finding that “at least part of the money in the parents’ accounts [in 2009 on the transfer of $482,005.40 into the respondent’s account] was the respondent’s money”. She did not submit what part or proportion of the transferred funds from the parents’ accounts were beneficially those of the respondent. That said it was her case that the $180,000 transferred from the portfolio loan in 2005 into his parents’ account had, by an unspecified process, increased by $302,005.40 over the next four years to become the $482,005.40 deposited into the respondent’s account in 2009.
The applicant correctly submitted and I accept that the responsibility of disclosure of his relevant financial conduct rested with the respondent. A party to proceedings in this forum is required to make full and frank disclosure of all documents and information relevant to the issues in dispute in the proceedings. As between the applicant and the respondent, this includes disclosure of their financial circumstances (Weir & Weir (1992) FLC 92-338) (“Weir”). That case law is reinforced by r 6.06 of the Rules.
In Weir, the Full Court stated at 79,593 that:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour’s findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
While this general statement is often quoted, it is important to engage in the particular facts of the non-disclosure and the inferences that should be drawn from them. There are those cases where a finding of non-disclosure is no more than one which complicates the fact finding process (see Franklin & Ennis [2019] FamCAFC 91 at [9]). There are other cases where the nature and extent of the non-disclosure make the approach described in Weir thoroughly permissible. In this matter I find that the former applies. I find that the evidence identified by the applicant cannot establish to the requisite degree an intention on the part of the respondent to secrete movements of funds between his account and the accounts of his parents for the purposes of some forensic advantage such that I should be unduly cautious in making findings or drawing inferences in favour of the applicant.
I find that the respondent’s moving of funds between his bank account and the account (or accounts) of his parents was an unsatisfactory aspect of his affidavit evidence. He did not adduce evidence in his affidavit as to the frequency, nature or quantum of those transfers. In cross-examination the respondent said that he had “limited” authority to use his parents’ account, “on instructions from [his] father” he was allowed to “invest their money”.
It was not suggested or put to the respondent he had failed to disclose any relevant banking records. His cross-examination on a number of occasions as to the movement of funds between his and his parent’s accounts took the form of “discovery on the run”. It included questions being put to the respondent as to transactions sourced from large volumes of the respondent’s disclosed bank statements extending over a lengthy time frame from shortly after the commencement the relationship and for many years thereafter cross-referenced to similar banking documents of his parents produced on subpoena, the respondent was open and responsive in his answers in cross-examination on these subject matters.
The enquiries by way of the cross-examination of the respondent were reflective of the absence of financial information exchanged and shared between the parties and the stringent maintenance of each of their separate financial identities during their cohabitation. That dynamic is best illustrated in that the applicant was not aware of the fact of the $482,005.40 deposited into the respondent’s account in 2009 until eleven years later, by way of disclosure in the currency of these proceedings.

It was not submitted that the respondent has assets or funds that have not been identified in the balance sheet recording the current property of the parties.
Issues for determination
A preliminary issue to be determined in these proceedings is the status of the Financial Agreement entered by the parties on 15 June 2005 pursuant to the NSW Act, for the purposes of Pt VIIIAB of the Act.
Determination of that issue requires a consideration of the provisions of each of:
(a)The NSW Act; and
(b)The Act; and
(c)The Family Law Amendment (de facto financial matters and other measures) Act 2008 (Cth) (“the Amending Act”).
Different issues arise for consideration of the Financial Agreement under the then applicable NSW Act to those that would have arisen if the Financial Agreement had been entered into pursuant to the now applicable Act.
Attached to the Financial Agreement is a certificate signed by Mr T of R Solicitors as the solicitor for the applicant, and a certificate signed by Mr P of Q Solicitors as the solicitor for the respondent. It was agreed that each certificate recorded the provision of advice as identified in s 47 of the NSW Act and complied with the requirements of the NSW Act at the date of entry of the agreement.
Until 1 March 2009 the property adjustment entitlements of separating parties to a de facto relationship in NSW were to be determined by operation of the NSW Act. After 1 March 2009, those rights and entitlements were determined by operation of the Act.
Part VIIIAB of the Act addresses the alteration of property interests of parties to de facto relationships upon the breakdown of their relationship. The parties to a de facto relationship are able to enter into a financial agreement under the Act, and if binding, the effect of such agreement is to exclude the jurisdiction of the Court to make such orders under Pt VIIIAB of the Act.
The operation of Pt VIIIAB can only be excluded to the extent that s 90SA(1) of the Act is satisfied. Section 90SA(1) of the Act provides:
This Division does not apply to certain matters covered by binding financial agreements
(1) This Division does not apply to any of the following matters to which a Part VIIIAB financial agreement that is binding on the parties to the agreement applies:
(a)       the maintenance of one of the spouse parties;
(b)       the property of the spouse parties or of either of them;
(c)       the financial resources of the spouse parties or of either of them.
(2)       Subsection (1) does not apply in relation to:
(a)       proceedings between:
(i) a party to a de facto relationship; and
(ii)the bankruptcy trustee of a bankrupt party to the de facto relationship;
with respect to the maintenance of the first‑mentioned party after the breakdown of the de facto relationship; or
(b)       proceedings between:
(i)a party to a de facto relationship; and
(ii)the bankruptcy trustee of a bankrupt party to the de facto relationship;
with respect to the distribution, after the breakdown of the de facto relationship, of any vested bankruptcy property in relation to the bankrupt party.
The central element of s 90SA (1) for the purposes of these proceedings is the phrase “a Part VIIIAB financial agreement that is binding on the parties”.
To be effective for the purpose of Pt VIIIAB and s 90SA(1) of the Act, it is necessary that the agreement between the parties amounts to a “financial agreement” for the purposes of the Act. Section 90UJ(2) of the Act mandates a series of formal and particular requirements to be attended to when entering a financial agreement pursuant to the Act.
It was submitted by counsel on behalf of the applicant that in order for it to be binding on the parties, the Financial Agreement needs to comply with both s 47 of the NSW Act and s 90UJ(1) of the Act. I encountered some difficulty in following this submission. I enquired of counsel for the applicant as to how the provisions of s 90UJ(1) of the Act (applying to the contents of the certificates of independent legal advice) could apply to a Financial Agreement that had been entered four years prior to the amendments to the Act incorporating Pt VIIIAB coming into effect. He was not able to direct me to a legislative pathway or authority to support this contention.
The Amending Act sets out provisions that deal with various transitional matters arising upon commencement of Pt VIIIAB. Relevantly, Item 88(2) of Schedule 1 provides that:
Pre-commencement agreements-made during de facto relationships
(1)      This item applies if-
(a)before commencement and while in a de facto relationship, the parties to the de facto relationship (the couple) made a written agreement, signed by both of them, with respect to any of the matters (the eligible agreed matters) mentioned in subitem (3); and
(b)the agreement was made under a preserved law of an earlier participating jurisdiction; and
(c)a court could not, because of the preserved law, make an order under that law that is inconsistent with the agreement with respect to any of the eligible agreed matters; and
(d)immediately before commencement:
(i)        the agreement was in force under the preserved law; and
(ii)       the de facto relationship had not broken down; and
(iii)      the couple were not married to each other.
Paragraph (a) extends to an agreement made with one or more other people.
(2)For the purposes of the new Act, the agreement is taken, on and after commencement, to be a Part VIIIAB financial agreement made as mentioned in subsection 90UC(1) of the new Act to the extent that the agreement deals with the eligible agreed matters.
Note: After commencement, the agreement can only be enforced, varied, terminated or otherwise set aside under the new Act.
(3)      The matters referred to in paragraph (a) of subitem (1) are the following:
(a)       how all or any of the:
(i)        property; or
(ii)       financial resources;
of either member, or members, of the couple at the time when the agreement is made, or at a later time and during the de facto relationship, is to be distributed in the event of the breakdown of the de facto relationship;
(b)the maintenance of either member of the couple in the event of the breakdown of the de facto relationship;
(c)matters incidental or ancillary to those mentioned in paragraph (a) or (b).
(4)For the purposes of paragraph (c) of subitem (1), disregard whether the preserved law permits the court to make such an order if the court varies or sets aside the agreement.
The ‘earlier participating jurisdiction’ here is New South Wales, and the ‘preserved law’ is the NSW Act (see Item 85 of Sch 1).
Further, the requirements of s 90UJ(1) do not apply to the agreement in this matter as a result of Item 93(1)(d) of Sch 1 of the Amending Act, which provides as follows:
Application of new Act to agreements covered by this Part
(1)For the purposes of the application of the Act to an agreement covered by item 87, 88, 91 or 92:
(d)section 90UJ of the new Act has effect as if the references in that section to section 90UE of the new Act included references to that item; and
The Financial Agreement is not (and could not have been) one entered under Pt VIIIAB of the Act. Rather, as the Financial Agreement was entered into before the commencement of that legislation, the question is whether it is one that is now taken to be a financial agreement for the purposes of Pt VIIIAB. That question is to be answered by reference to legislation that deals with the recognition of agreements which existed under state law when Pt VIIIAB came into force.
Thus in considering the status of the Financial Agreement in this case, it is necessary to consider various aspects of the NSW Act.
Section 47 of the NSW Act provides:
47 Effect of agreements in certain proceedings
(1)Where, on an application by a party to a domestic relationship for an order under Part 3, a court is satisfied:
(a)that there is a domestic relationship agreement or termination agreement between the parties to the relationship,
(b)that the agreement is in writing,
(c)that the agreement is signed by the party against whom it is sought to be enforced,
(d)that each party to the relationship was, before the time at which the agreement was signed by him or her, as the case may be, furnished with a certificate in or to the effect of the prescribed form by a solicitor which states that, before that time, the solicitor provided legal advice to that party, independently of the other party to the relationship, as to the following matters:
(i)the effect of the agreement on the rights of the parties to apply for an order under Part 3, and
(ii)the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement, and
(e) that the certificates referred to in paragraph
(d) are endorsed on or annexed to or otherwise accompany the agreement,
the court shall not, except as provided by sections 49 and 50, make an order under Part 3 in so far as the order would be inconsistent with the terms of the agreement.
(2)Where, on an application by a party to a domestic relationship for an order under Part 3, a court is satisfied that there is a domestic relationship agreement or termination agreement between the parties to the relationship, but the court is not satisfied as to any one or more of the matters referred to in subsection (1) (b), (c), (d) or (e), the court may make such order as it could have made if there were no domestic relationship agreement or termination agreement between the parties, but in making its order, the court, in addition to the matters to which it is required to have regard under Part 3, may have regard to the terms of the domestic relationship agreement or termination agreement.
(3)A court may make an order referred to in subsection (2) notwithstanding that the domestic relationship agreement or termination agreement purports to exclude the jurisdiction of the court to make that order.
Is there in fact an agreement between the parties?
Section 46 of the NSW Act provides this question is to be answered by reference to the law of contract. I find that the document being Exhibit 1 executed by the parties recognises this fact and I so find.
Does the Financial Agreement amount to a financial agreement for the purposes of Pt VIIIAB and s 90SA(1)?
As recorded earlier, the determination as to whether the Financial Agreement is a Pt VIIIAB financial agreement falls to be determined by reference to the identified provisions of the Act, the Amending Act and the NSW Act.
By reference to s 47 of the NSW Act, I find that:
(a)While in a de facto relationship, that commenced in November 2001, the parties entered into the Financial Agreement;
(b)The Financial Agreement is by its title a “domestic relationship financial agreement”;
(c)It is in writing;
(d)It was signed by each of the parties;
(e)It is an agreement that deals with how property of the parties is to be distributed in the event of a breakdown of their relationship;
(f)It was entered pursuant to the NSW Act (being a “preserved law”);
(g)Attached to the Financial Agreement are the certificates of the respective solicitors for the parties each dated 15 June 2005 certifying as to the provision of advice then required.
I find that immediately prior to the commencement of the relevant amendments to the Act, the parties remained in a de facto relationship, had not married, and the Financial Agreement was one enforced pursuant to the NSW Act. There is no evidence to ground a finding that the parties did not intend to enter the Financial Agreement pursuant to the NSW Act (see s 44 of the NSW Act), nor is there any suggestion that they revoked (including by way of words or conduct) the Financial Agreement (see s 50 of the NSW Act).
The applicant’s case as to an absence of the prescribed legal advice
The certificate provided by Mr T is evidence of compliance with his statutory obligations to provide legal advice to the applicant. It causes the onus or evidentiary burden to fall to the applicant to displace the presumption that the requirements set out in s 47 of the NSW ACT as to legal advice have been satisfied (see Hoult & Hoult (2013) FLC 93-546 (“Hoult”) at [62], [261]; Wallace & Stelzer (2013) FLC 93-566 at [102]). As was articulated in Hoult, the nature of that inquiry is not directed to the content or quality of legal advice received, but the fact of its receipt.
I raised with counsel for the applicant at trial, and he confirmed, that the applicant implicitly asks the Court to make a finding that Mr T had signed the certificate when he had in fact not provided the applicant with the legal advice as identified in the certificate. That assertion was maintained notwithstanding that the applicant deposed in cross-examination that she “never said that [Mr T had] given a false certificate”.
The implication of a finding that the certificate signed by Mr T contained a misleading or false representation is that he acted in a manner that would have seriously compromised his professional integrity. Such a serious finding of fact must only be made on satisfaction of the civil standard of proof as contained in s 140(2) of the Evidence Act 1995 (Cth), requiring me to take into account “the gravity of the matters raised”. Where allegations of misconduct of this nature are raised, the Court’s reasonable satisfaction of a fact must not be “produced by inexact proofs, indefinite testimony, or indirect inferences” (Dixon CJ in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362).
The applicant’s affidavit evidence as to the advice she received prior to executing the Financial Agreement was:
89. I did not understand that the object of the Domestic Relationship Financial Agreement was to make provision in case the relationship with the Respondent broke down. I understood, from my discussions with the Respondent, that the Domestic Relationship Financial Agreement was to "fix things" so that we became equal owners of the [B Street] property and the [N Street] property.
…
90. I believed that I had to sign the Domestic Relationship Financial Agreement for the Respondent to sign over half of the [B Street] property to me as I sold my unit for half share of the [B Street] property.
93. I did not discuss the Domestic Relationship Financial Agreement with any of my friends or family members. The only person with whom I discussed the Domestic Relationship Financial Agreement was the Respondent.
…
97. The file of my former solicitor does not contain any further letters advising on the effect of the agreement on my rights or the advantages and disadvantages of my entering into the agreement.
98.I have no recollection of receiving oral advice from my former solicitor. The Respondent told me what was in the agreement, and I did not ask the solicitor for explanation.
…
102. I did not ask questions of the lawyer as I did not have money at the time and trusted the Respondent. The only person with whom I discussed the Domestic Relationship Financial Agreement was the Respondent.
...
106. I did not discuss with my lawyer at that time the significance of the statements about contributions as set out in the Agreement. I was completely unaware of the Respondent's financial position because we kept separate bank accounts throughout our relationship
107. I also did not understand, at the time that I signed the Domestic Relationship Financial Agreement, that I would be liable for 50% of the $180,000 [O Bank] Loan secured over the [N Street] property, or that the Respondent would be able to borrow further money using that property as security. I only became aware of this when I spoke to my current lawyer in the context of negotiating a property settlement with the Respondent
A starting point from the applicant’s own evidence to demonstrate some deficiency in the requisite legal advice received was that she had “no recollection of receiving oral advice [from her solicitor]” that she “did not ask my solicitor for explanation” and that “the only person with whom I discussed the Domestic Relationship Financial Agreement was the Respondent”. It is to be observed that, even taking this evidence at its highest, the fact of “no recollection” does not easily equate to a positive assertion as made in the applicant’s pleaded case being:
26.At no time prior to entry into the [Financial] Agreement did the Applicant receive independent legal advice as to the effect of the [Financial] Agreement on her rights to apply for an order under Part 3 of the [NSW Act], and the advantages and disadvantages, at the time of entry into the [Financial] Agreement, to her of making the [Financial] Agreement.
In response to questions about the nature of advice she received about the Financial Agreement, the applicant said that “he never told [her] any other option” and then that she didn’t “recall talking to Mr T about this”. She repeated in her oral evidence that it was solely the respondent who discussed the Financial Agreement with her.
Various documents contained within the R Solicitors file were put to the applicant in cross-examination.
The applicant accepted in cross-examination that upon commencing these proceedings, she knew that she had attended on Mr T and that he had acted for her in the preparation of an agreement which had ultimately been signed by herself and the respondent. She denied that she had a copy of the Financial Agreement at the time that she commenced these proceedings. The respondent made at least two requests to the applicant’s solicitor, on 21 January 2021 and 9 March 2021, for a copy of the agreement. The applicant confirmed in her oral evidence that she made no attempt to locate a copy of the Financial Agreement including by contacting her former solicitors at R Solicitors.
The applicant accepted that the R Solicitors file was made available to her solicitor “some months” prior to the matter being listed for a hearing on 29 November 2021. The file contained Exhibit 1. The applicant delayed in disclosing the R Solicitors file. The respondent was compelled to seek an order for its release on 29 November 2021.
The R Solicitors file comprises a series of letters sent by the applicant’s solicitors to the respondent’s solicitors, and vice versa, by the applicant’s solicitors to the applicant, and a handwritten undated file note.
The applicant said the reason why she did not read the file upon it becoming available was that she “didn’t know [she] had to”. In circumstances where the applicant’s case as to this challenge in the proceedings is grounded from the fact, nature and content of the legal advice she received prior to entering the Financial Agreement, I find that response to be incredulous. This remarkable circumstance is compounded by the fact of the applicant’s solicitors, having the R Solicitors file in their possession, drafted the applicant’s trial affidavit and then arranged for her to swear that document. I find that the applicant had every opportunity to be informed as to contents of file before she swore her affidavit.
Having regard to the documents contained in the R Solicitors file and the matters identified in the following paragraphs, each of the following statements in the applicant’s affidavit evidence were patently false:
93.…The only person with whom I discussed the Domestic Relationship Financial Agreement was the Respondent.
98.… The Respondent told me what was in the agreement, and I did not ask the solicitor for explanation.
102. I did not ask questions of the lawyer as I did not have money at the time…
107.I also did not understand, at the time that I signed the Domestic Relationship Financial Agreement, that I would be liable for 50 per cent of the $180,000 [O Bank] Loan secured over the [N Street] property, or that the Respondent would be able to borrow further money using that property as security.

Each of the above authorities apply to the respondent in this case. I reject Item 20 on these bases.
I find that the property of the parties at the time of the trial is as recorded in paragraph 218 above, save as to Item 20.
Does the Financial Agreement regulate all of the parties’ current property? If not, what property remains available for adjustment pursuant to s 90SM of the Act?
Each of the parties agreed that for the purposes of any exercise of any s 90SM discretion, a single pool both the superannuation property and non-superannuation property would be applied.
Clause 12 of the Financial Agreement regulates the property of the parties in existence at the time of their cohabitation, some of which is specifically identified. Clause 13 of the Financial Agreement regulates property acquired by a party including from various from sources or methods during their relationship.
It was the applicant’s submission that in the event the Financial Agreement was found to operate as a Binding Financial Agreement for the purposes of Pt VIIIAB of the Act, such that a prohibition existed against the Court making an order adjusting property inconsistent with that agreement, items 2, 3, 14, 15, 16, 19, 23, 24 and 25 from the balance sheet identified in paragraph 218 of these reasons would be available to adjust pursuant to s 90SM of the Act and the balance of the property excluded from that process.
By way of illustration in a table, the contended property to which the applicant contends that no prohibition exists against a court in adjusting is:

Ownership Description Value ($)

ASSETS

2 Applicant CBA Netbank Account 1,784

3 Applicant CBA Complete Access 464

14 Respondent O Bank Incentive Saver #...94 214,036

15 Respondent O Bank Sense #...84 360

16 Respondent O Bank Account #...88 100

19 Respondent Funds held in trust account of Urban Family Lawyers 103,725

Total 320,469

SUPERANNUATION

Member Name of Fund Type of Interest Value ($)

23 Applicant Super Fund 1 Accumulation 131,430

24 Respondent Super Fund 2 Accumulation 97,079

25 Respondent Self-Managed Super Fund Self-managed 846,707

Total 1,075,216

Ownership	Description	Value ($)
2	Applicant	CBA Netbank Account	1,784
3	Applicant	CBA Complete Access	464
14	Respondent	O Bank Incentive Saver #...94	214,036
15	Respondent	O Bank Sense #...84	360
16	Respondent	O Bank Account #...88	100
19	Respondent	Funds held in trust account of Urban Family Lawyers	103,725
Total	320,469

SUPERANNUATION
23	Applicant	Super Fund 1	Accumulation	131,430
24	Respondent	Super Fund 2	Accumulation	97,079
25	Respondent	Self-Managed Super Fund	Self-managed	846,707
Total	1,075,216

On the applicant’s case, the value of her excluded property is $343,861 and the value of her property available subject to a s 90SM discretion is $133,678 (not including the B Street property). The value of the respondent’s excluded property is $166,019 and the value of his property available subject to a s 90SM discretion is $1,164,928 (not including the B Street property).
At the conclusion of the s 90SM adjustment process, on the applicant’s case should she be successful, she would achieve property to the value of $2,477,399 and the respondent would retain property to the value of $1,977,666, a differential of $499,733.
Items 23, 24 and 25 – Superannuation
The applicant submitted that the agreement does not and cannot oust the jurisdiction of the Court to make orders adjusting superannuation interests. She contends that the Financial Agreement “does not address superannuation” in that:
(a)Clauses 12 and 13 of the agreement do not refer to superannuation;
(b)Superannuation is not “purchased”, it is accumulated;
(c)The agreement must still be interpreted in the context of the NSW Act, where the term “property” does not include superannuation. The term “financial resources” refers to superannuation in the definition section of the NSW Act;
(d)Domestic financial relationship agreements can deal with financial matters that include financial resources;
(e)As Clause 13 of the agreement identifies “property”, it expressly does not take up a “financial resource”;
(f)Section 20 of the NSW Act was restricted to permitting alteration of interests in respect of “property”, not “financial resources”.
The respondent submitted that on its proper interpretation, the Financial Agreement covers the entirety of the parties’ entitlements to property as identified in the balance sheet, including as an element of that concept, each of their superannuation entitlements.
The respondent conceded that it was open to the parties to include a reference to superannuation as a financial resource in the Financial Agreement at the time of entry into the agreement and they did not. It was the respondent’s submission that a temporal interpretation of the word “property” for the purposes of the Act is appropriate – that is, at the time of the implementation of the Financial Agreement.
He submitted that Clauses 12 and 13 of the Financial Agreement covers “all the parties’ residual property not specifically identified elsewhere in the agreement”. He submitted that consistent with the analysis of the High Court in Kennon v Spry (2008) 238 CLR 366 the applicant’s right to access his superannuation, and in particular his SMSF of which he is the sole office holder of the trustee and sole member of the fund, is a proprietorial right. It was submitted on his behalf that the respondent has “absolute control” of the SMSF and that fund constitutes his property. As to his accumulation fund he contended that while he does not have ultimate control of the fund, he has immediate control of the entitlement because, having regard to his age, he can immediately access that fund and so it would constitute property.
As to the applicant’s submission that the interpretation of the agreement must be in the context of the NSW Act, the definition of “property” in s 3 of that Act includes:
3 Definitions
…real and personal property and any estate or interest (whether a present, future or contingent estate or interest) in real or personal property, and money, and any debt, and any cause of action for damages (including damages for personal injury), and any other chose in action, and any right with respect to property.
In Chanter v Catts (2005) 64 NSWLR 360 (“Chanter v Catts”) Byrson JA said at [90], approved by Hodgson JA at [20]:
90.In my opinion, the respondent's superannuation entitlements, which clearly are a financial resource having regard to the definition in s 3(1), are also “property” within the widely extending definition of inclusion also found in s 3(1); that definition extends to any present, future or contingent interest in personal property and money, any other chose in action and any right with respect to property.
That judgment of the NSW Court of Appeal was handed down proximate to the time of the parties entering into the Financial Agreement. Significantly, the superannuation entitlement in question in that matter was also a self-managed superannuation fund. I find that the Court’s reasoning is applicable to the facts of this case. The reasoning of the NSW Court of Appeal militates to a finding that at the time of the execution of the Financial Agreement, that superannuation entitlements are “property” within the definition of s 3 of the NSW Act.
By reason of the Amending Act, “property” as defined by s 4(1) of the Act was amended so that it extended to:
4 Interpretation
(1)In this Act, the standard Rules of Court and the related Federal Circuit Court Rules, unless the contrary intention appears:
property means:
(a) in relation to the parties to a marriage or either of them—means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion; or
(b) in relation to the parties to a de facto relationship or either of them—means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.
The subsections relating to property have remained unchanged since the Amending Act came into force.
In an often quoted sentence, Lord Langdale MR said “‘property’ is the most comprehensive of all terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have” (see Jones v Skinner (1835) 5 LJ Ch 87 at [90]). That narrative synchronizes with the current statutory definition.
The High Court, years prior to the entry of the agreement, in Mullane v Mullane (1983) 158 CLR 436 (“Mullane”) identified that an interest in property is a right of a proprietary nature. This authority, coupled with the broad definition of property in s 4 of the Act, both support the respondent’s contention that applying a broad interpretation of “property”, including superannuation, for the purposes of Clauses 12 and 13 of the Financial Agreement, at the time of implementation of the agreement.
In Marchant & Marchant (2012) FLC 93-520 (“Marchant”) the Full Court at [66] referred to what Fogarty J said in Crapp & Crapp (1979) FLC 90-615 at 78,176, as to what can be the subject of a property adjustment order pursuant to the Act:
… an order can only be made… under s 79 where a party has a present or future interest in a particular item of property. Clearly where a party has a present interest no difficulties arise, and by “future interest” in the above sense, I take it to mean a situation where a party has an established interest in an item of property but the date of receipt is postponed to some future time. That is different from the case where a party may become entitled to an interest in a property in the future provided that certain events occur and/or provided that certain disqualifying events do not occur in the meantime.
I find further supports the contention of the respondent as being applicable to the parties’ superannuation in the circumstances of this case.
It is within this Court's power pursuant Pt VIIIB of the Act to presently make an order adjusting an interest in an entitlement to superannuation, including an entitlement which has not yet, at the time of making the order, reached the stage where it can be readily converted into money. This erodes the submissions made by the applicant as to superannuation not being regulated by the agreement.
I find that the respondent has a right of a proprietary nature in both his SMSF and in his accumulation fund. I find that the applicant has a right of a propriety nature in her accumulation fund. For the reasons identified above, being the definitions of property within s 3 in the NSW Act as identified by the NSWCA in Chanter v Catts, together with the dicta of the High Court in Mullane and Kennon & Spry, the Full Court in Marchant, and the broad definition within s 4 of the Act, I find that superannuation items may be regulated by the terms of the Financial Agreement and hence may not available for adjustment.
The respondent gives evidence in his affidavit as to his Super Fund 2 accumulation interest (Item 24 in the balance sheet) being held as at the date the parties commenced cohabitation. In the circumstances that superannuation entitlement becomes the subject of Clause 12 of the Financial Agreement and is regulated by the agreement.
The SMSF fund of the respondent was established by him after 2009 by way of an initial contribution from funds he received from his parents of $450,000 (transferred into the fund in two tranches in November and December 2011) and was thereafter supplemented by contributions the respondent made thereafter from his property. I find that the respondent’s interest in the SMSF fund is regulated by Clause 13 of the Financial Agreement.
The applicant’s superannuation interests are not insubstantial. I safely infer that this entitlement also commenced accumulation prior to the parties’ relationship and is the regulated by Clause 12 of the agreement.
Items 2, 3, 14, 15, 16 – Funds in the respondent’s bank accounts
The applicant gives unchallenged evidence of her current savings deriving from the proceeds of sale of the N Street property and the inheritance she received in 2009 and otherwise from her disparate and separated income that became her property by way of her cash at bank. These items are the subject of Clause 13 of the agreement.
I have found that the source of the respondent’s first deposit into his SMSF established after the date of entry into the Financial Agreement came from the gift of $482,005.40 he received from his parents in 2009, such that $250,000 was put into the fund. The evidence cannot support anything but a strong inference that the cash held by the respondent (being Items 14, 15, 16 and 19) and his shareholdings (being Item 19) derive in part from the balance of the gift from his parents or were sourced from his share of the proceeds of sale of the N Street property or from the income that became his property in savings maintained separate from the applicant accumulated during the parties’ relationship and subsequent thereto and I so find. These items are the subject of Clause 13 of the Financial Agreement.
I find that Clauses 12, 13 and 14 (Clause 14 regulating the distribution of the proceeds of sale of the B Street property) together regulate all of the property of the parties identified in the balance sheet at paragraph 218 of these reasons.
In circumstances where the effect of the agreement is to prohibit the Court from making an order adjusting property inconsistent with its terms of the agreement, I find that there is no property remaining available for adjustment pursuant to s 90SM of the Act. The s 90SM relief of the applicant will be dismissed.
Section 90SM relief
In the alternative, should I be in error in the finding recordings in the prior four paragraphs, I will undertake an evaluation of the property outcome of the applicant’s s 90SM relief should the items of property submitted by the applicant not be regulated pursuant to the terms of the Financial Agreement are accepted.
The High Court in Stanford & Stanford (2012) 247 CLR 108 observed that the Court can only make an order altering existing property interests if it is “just and equitable to do so” (see s 90SM(3) of the Act).
The High Court further recorded that whether making a property adjusting order is “just and equitable” is not to be answered by beginning from the assumption that one or the other party has a right to have the property of the parties divided between them or has the right to an interest in property which is fixed in various matters [as set out in this matter in s 90SM(4) of the Act]. The High Court made it clear to conclude that making an order is “just an equitable” only because of and by reference to the various matters in s 90SM(4) without a separate consideration of s 90SM(3) would be to conflate the statutory requirements and ignore the principles laid down by the Act.
In determining whether it is just and equitable to make any order as to the contended property not regulated by the agreement, I propose to take into account the matters identified in s 90SM(4) of the Act.
As recorded earlier in these reasons, at cohabitation the applicant contributed the Suburb C Unit. The respondent contributed a car, the N Street property, and the Suburb M property, some shares and some limited superannuation property. Upon the sale of the Suburb M property, he applied the proceeds to the loan secured on the N Street property.
There was limited evidence as to the value of the income earned by each of the parties at any time during the period of their cohabitation. The respondent deposed, which did not appear to be challenged, that the applicant’s income “increased throughout [their] relationship and peaked in 2017-2019 when she was earning over $90,000 per annum”. The respondent’s tax return for the financial year ending 31 June 2021 was Exhibit 12, and revealed that the respondent earned an income of approximately $77,000 in that financial year.
It was agreed between the parties during submissions that as at the date of the entry of the Financial Agreement their contributions to the real property comprising the N Street and B Street properties were equal. Additionally, the Financial Agreement entered on 15 June 2005 records:
11. That the parties have contributed equally financially to the relationship.
I would find that the terms of these agreements dispenses with any requirement to evaluate to the direct and indirect financial contributions made to N Street from the parties’ pre relationship properties or to the B Street property, or as to the funds paid by the applicant to the respondent’s father or to the $200,000 paid by the applicant’s father. The Financial Agreement specifically identifies some of the other property of the parties at the time of the entry of the agreement. It does not identify each party’s own separate bank accounts, their respective superannuation accumulation interests and their vehicles.
An essential feature of the parties’ relationship was that they kept their assets separate from one another, consistent with their Financial Agreement. So too did they maintain almost completely distinct financial lives. I would find that:
(a)Prior to the entry of the agreement and thereafter until separation the parties conducted their financial circumstances in such a way that neither acquired an interest in the property of the other save by way of the agreement that they implemented. They did not operate a joint account after the entry of the agreement. Neither had any other than a generalized awareness of the other’s financial circumstances or conduct;
(b)Save and accept for the applicant paying for groceries and household items and the respondent paying rates and utilities there is no evidence that they used their income other than how they chose to apply it without explanation or accountability to the other;
(c)There is no evidence as to joint financial decision making;
(d)From the date of entry of the Financial Agreement and up to the time of separation they were each unaware of the acquisition of, or value of, the other’s property.
I would find that the parties lived their relationship dynamic consistently with the terms of the Financial Agreement subsequent to its entry in 2005, including as to each of them keeping separate from the other what they each received from the proceeds of sale of the N Street property. They each kept and retained monies received from their respective parents in their own accounts, including the $99,887 received by the applicant by way of inheritance in July 2007 and the $482,005.40 the respondent from his parents in 2009.
I would find that the applicant undertook, as between the parties, the majority of the housework in the parties’ home, including cooking, laundry and cleaning. The respondent undertook significant works improving the B Street property in 2005 with the assistance of and contributions by his friend Mr E, as recorded earlier in these reasons.
The applicant submitted a contribution in her finding of 55 per cent in her favour of the residual property not regulated by the Financial Agreement after the proceeds of sale of the B Street property been divided equally grounded from her superior homemaking contributions (that she took on the majority of the cooking and cleaning for the parties) and the fact of the respondent having had the benefit of the portfolio loan facility after the date of the agreement in 2005 until the N Street property was sold two years later in 2007. She did not appear give any weight to the contributions made by the respondent to the improvement of the B Street property post the agreement, or the funds received by him from his parents in 2009. She contended there ought be no adjustment to the contribution findings on the basis of s 90SM(4)(d to g) or the Act.
The applicant’s son lived in the parties homes during the relationship. It was the applicant’s evidence that Mr D’s father paid little or no child support throughout the period of cohabitation of the parties. Although the evidence was scare on this topic, a contribution of the character identified in Robb & Robb (1995) FLC 92-955 was made to the accommodation of the applicant’s son and his incidental costs of living in the B Street property by the respondent. Would find that this is a marginally relevant factor pursuant to s 90SF(2) of the Act.

The applicant confirms that she is in reasonable health. Her current income is in the range of $75,000 per annum.
The respondent has some physical incapacities. He underwent surgery in 2017, and lives with “muscle deterioration” to his right arm and shoulder. He is currently past what he identified as the retirement age of 60 years.
I would reject absent evidentiary foundation the submission made on behalf of the applicant that the respondent’s current income is higher than as recorded in his last taxation return, being in the range of $77,000 per annum.
The applicant has continued to have the benefit of the occupation of the B Street property without paying rent subsequent to separation while the respondent rented accommodation. The applicant has met the costs of outgoings by way of rates and insurance on the property since that time.
I would find that there is no evidence of either party being at a disadvantage or having been prejudiced by the way that they conducted their lives. Both parties will be left with significant property. Importantly, they each had the opportunity during the relationship to make plans for the future as they considered appropriate. There was no evidence as to how they were hindered in living their lives on the terms identified in the agreement.
Taking into account the contended property to be retained by the applicant and that of the respondent as identified by the applicant as not being excluded by the agreement, in all the circumstances of this case and for the reasons earlier identified, including those recorded in paragraphs 259 and thereafter, I would find that it would not be just and equitable to adjust that remaining or residual property pursuant to s 90SM of the Act.
The applicant’s property that she will retain by way of implementation of the Financial Agreement consists of:

Ownership Description Value ($)

ASSETS

1 Half-share of the proceeds of sale of the B Street property 1,275,000

2 CBA Netbank Account 1,784

3 CBA Complete Access 464

4 CBA Term Deposit 330,927

5 W Company share 684

6 Motor Vehicle 2 9,050

7 Painting #1 200

8 7 Oriental carpets 1,000

9 2 crystal figures 1,500

10 Painting #2 500

11 Super Fund 1 Superannuation 131,430

Total 1,752,539

Ownership	Description	Value ($)
1	Half-share of the proceeds of sale of the B Street property	1,275,000
2	CBA Netbank Account	1,784
3	CBA Complete Access	464
4	CBA Term Deposit	330,927
5	W Company share	684
6	Motor Vehicle 2	9,050
7	Painting #1	200
8	7 Oriental carpets	1,000
9	2 crystal figures	1,500
10	Painting #2	500
11	Super Fund 1 Superannuation	131,430
Total	1,752,539

The respondent’s property that he will retain by way of implementation of the Financial Agreement consists of:

Ownership Description Value ($)

ASSETS

12 Half-share of the proceeds of sale of the B Street property 1,275,000

13 O Bank Incentive Saver #...78 0

14 O Bank Maxi Saver #...39 0

15 O Bank Retirement Access Plus #...41 0

16 O Bank Incentive Saver #...94 214,036

17 O Bank Sense #...84 360

18 O Bank Account #...88 100

19 Business including tools, Motor vehicle 3, equipment 47,000

20 Shareholdings 119,019

21 Funds held in trust account of Urban Family Lawyers 103,725

22 Super Fund 2 97,079

23 Self Managed Super Fund 846,707

Total 2,703,026

Ownership	Description	Value ($)
12	Half-share of the proceeds of sale of the B Street property	1,275,000
13	O Bank Incentive Saver #...78	0
14	O Bank Maxi Saver #...39	0
15	O Bank Retirement Access Plus #...41	0
16	O Bank Incentive Saver #...94	214,036
17	O Bank Sense #...84	360
18	O Bank Account #...88	100
19	Business including tools, Motor vehicle 3, equipment	47,000
20	Shareholdings	119,019
21	Funds held in trust account of Urban Family Lawyers	103,725
22	Super Fund 2	97,079
23	Self Managed Super Fund	846,707
Total	2,703,026

The net difference in the parties’ non-superannuation property excluded by the agreement is $138,131 in favour of the respondent (subject to the sale of the B Street property and any costs incurred in this process).
The applicant will retain total superannuation and non-superannuation property of $1,752,539 and the respondent $2,703,026, a differential of $950,487.
The balance of relief sought by the Respondent
The respondent sought relief as to the enforcement of the Financial Agreement, as if it were an order of the Court, pursuant to s 90UN(c) of the Act. Broadly his relief was that the terms of the agreement be enforced, and that if the applicant delayed in complying with the implementation of the terms of the agreement as to the sale of the B Street property, he be appointed as the applicant’s trustee for sale of that property.
Section 90UF of the Act provides that a separation declaration must be made for the provisions of a Financial Agreement to take effect. It is uncontroversial that the respondent signed the separation declaration on 19 May 2021 and served that declaration on the applicant. There is no evidence or suggestion made by the applicant that it was not a valid separation declaration.
The Financial Agreement regulates the mechanics to implement the disposal of the B Street property. It provides that upon separation, the parties are to “immediately list the B Street property for sale” with such real estate agent as agreed, or if not agreed, then within 14 days of separation with such agent as is appointed by the President of the Real Estate Institute of New South Wales. That time period has now elapsed, the parties having separated more than a year and a half ago. If the parties agree they can extend the time to implement Clause 14(b)(i) to ensure that the B Street property is appropriately prepared and marketed for sale so as to achieve its best price.
No suggestion was made and the evidence would not permit a finding that the applicant would not comply with the terms of the Financial Agreement, if it was confirmed to be binding, or with orders of this Court. I refuse at this time the respondent’s relief as to his proposed orders as to default mechanisms for enforcement. There are other less blunt methods of enforcement available by way of the Act if required, including relief by operation of s 106A of the Act, than the appointment of one party as the trustee for sale of the other. In the event a future dispute exists as to the enforcement of the agreement, the parties can make such application as they consider appropriate for such enforcement. The provisions of s 117 of the Act are plain as to enforcement proceedings attracting specific consideration pursuant to s 117(2A) of the Act.
Conclusion
For all of the above reasons, I make orders as set out in the forefront of this judgment.

I certify that the preceding two hundred and eighty-four (284) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.
Associate:
Dated: 10 August 2022

File number(s):	SYC 4231 of 2021
Judgment of:	CAMPTON J
Date of judgment:	10 August 2022
Catchwords:	FAMILY LAW – PROPERTY – De facto relationship – Where the parties entered into a ‘domestic relationships financial agreement’ in 2005 pursuant to the then applicable Property (Relationships) Act 1984 (NSW), four years into their relationship – Where the parties intentionally kept their property entirely separate and largely kept the balance of their finances separate in the course of their 20 year relationship – Where the parties implemented the terms of the financial agreement throughout their relationship including, by way of their distribution of the proceeds of sale of a real property – Where the applicant now applies to challenge the financial agreement and seeks orders for adjustment of property pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) – Where the applicant contends that the agreement is not a binding agreement for the purposes of Pt VIIIAB of the Act – Where, in the alternative, the applicant seeks that the agreement be set aside by reason of s 90UM of the Act – Applicant’s challenges to the agreement not successful – Declaration that the financial agreement is a binding financial agreement within the meaning of Pt VIII of the Act – Finding that the agreement excludes all of the property of the parties, including their superannuation entitlements, from an exercise of Pt VIIIAB jurisdiction inconsistent with the terms of the agreement – Consideration of whether it would be just and equitable to adjust property if the finding as to the agreement applying to all the property of the parties in any event – Upon consideration of s 90SM of the Act, finding that there it would not be just and equitable to alter the parties’ existing property interests – Application dismissed.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 90B, 90SA, 90SF, 90SK, 90SM, 90UJ, 90UM, 90XT, Pt VIIIAB Family Law Amendment (de facto financial matters and other measures) Act 2008 (Cth), Sch 1, Items 85, 88, 94 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.06, 12.06 Property (Relationships) Act 1984 (NSW) s 3, 20, 46, 47, 50
Cases cited:	Axelsen v O’Brien (1949) 80 CLR 219; [1949] HCA 18 Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Chanter v Catts (2005) 64 NSWLR 360; [2005] NSWCA 411 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 Crapp & Crapp (1979) FLC 90-615 Edgehill & Edgehill [2007] FamCA 1102 Franklin & Ennis [2019] FamCAFC 91 Gollings & Scott (2007) FLC 93-319; [2007] FamCA 397 Hoult & Hoult (2013) FLC 93-546; [2013] FamCAFC 109 Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9 Jones v Skinner (1835) 5 LJ Ch 87; Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56 Marchant & Marchant (2012) FLC 93-520; [2012] FamCAFC 181 Mullane v Mullane (1983) 158 CLR 436; [1983] HCA 4 Robb & Robb (1995) FLC 92-955; [1994] FamCA 136 Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52 Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 Wallace & Stelzer (2013) FLC 93-566; [2013] FamCAFC 199 Weir & Weir (1992) FLC 92-338; [1992] FamCA 69
Division:	Division 1 First Instance
Number of paragraphs:	284
Date of hearing:	11 – 14 July 2022
Place:	Sydney
Counsel for the Applicant:	Mr Apelbaum
Solicitor for the Applicant:	Parker Law
Counsel for the Respondent:	Mr Lethbridge SC with Ms Seric
Solicitor for the Respondent:	Urban Family Lawyers

SYC 4231 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CLOWES Applicant
AND:	MR KONIG Respondent

order made by:	CAMPTON J
DATE OF ORDER:	10 August 2022

SUPERANNUATION
Member		Name of Fund	Type of Interest	Value ($)
23	Applicant	Super Fund 1	Accumulation	131,430
24	Respondent	Super Fund 2	Accumulation	97,079
25	Respondent	Self-Managed Super Fund	Self-managed	846,707
Total				1,075,216