Corelli & Beroni

[2019] FamCA 911

FAMILY COURT OF AUSTRALIA

CORELLI & BERONI [2019] FamCA 911

FAMILY LAW – PROPERTY – BINDING FINANCIAL AGREEMENT – Where the wife seeks to either set aside or declare void a Binding Financial Agreement entered into with the husband and signed by the wife on 31 March 2011 – Issue of what extent the wife could communicate in, or understand, written and spoken English at 31 March 2011 – Where the court is satisfied the wife was not proficient in English on the day she signed the Binding Financial Agreement – Where the court is not satisfied that the wife was unaware of the essential nature of what she was signing on 31 March 2011 – Where the wife’s claim based on non est factum fails –Where the wife’s claim for duress fails – Where the wife was in a position of special disadvantage at the time she signed the Binding Financial Agreement – Where the advice given by the wife’s solicitor was not sufficient to remedy that special disadvantage – Where the husband insisted that the Binding Financial Agreement be signed by the wife knowing her special disadvantage – Where the wife entered into the Binding Financial Agreement as a result of unconscionability and undue influence – Where the wife’s claim to have the Binding Financial Agreement set aside succeeds.

Evidence Act 1995 (Cth) s 97 and s 100
Family Law Act 1975 (Cth) ss 90G, 90UJ and 90UM

Agricultural and Rural Finance Pty Ltd v Bruce Walter Gardiner & Anor (2008) 238 CLR 570; [2008] HCA 57
Bond v Walford (1886) 32 Ch D 238
Fitzgerald v Masters (1956) 95 CLR 420
IMM v R (2016) 257 CLR 300; [2016] HCA 14
Jacara Pty Ltdv Perpetual Trustees WA Ltd (2000) 106 FCR 51
LC & TC (1998) FLC 92-803; [1998] FamCA 47
Payne v Parker [1976] 1 NSWLR 191 at 200-202
Rowell v Rowell (1900) 1 QB 9
Summers v The Commonwealth (1918) 25 CLR 144; [1918] HCA 33
Taylor & Johnson (1983) 151 CLR 422; [1983] HCA 5
Thorne v Kennedy (2017) Fam LR 559; [2017] HCA 49

APPLICANT: Ms Corelli

RESPONDENT: Mr Beroni

FILE NUMBER: ADC 1771 of 2016

DATE DELIVERED: 2 December 2019

PLACE DELIVERED: Cairns

PLACE HEARD: Adelaide

JUDGMENT OF: Tree J

HEARING DATE: 26, 27, 28, February, 1, 2 March, 16 April, 22, 23, 24 October and 8 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Whitington QC together with Mr McGinn

SOLICITORS FOR THE APPLICANT: Angela Ferdinandy Solicitor

COUNSEL FOR THE RESPONDENT: Mr Livesey QC together with Mr Bullock

SOLICITORS FOR THE RESPONDENT: JKR Lawyers

Orders

1. That the Binding Financial Agreement between the parties dated 7 April 2011, be set aside. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Corelli & Beroni has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC1771/2016

MS CORELLI

Applicant

And

MR BERONI

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By her Initiating Application filed 16 May 2016, Ms Corelli seeks orders either setting aside or declaring void a Binding Financial Agreement which she and Mr Beroni entered into on 7 April 2011.  Although at that time the parties were in a de facto relationship, and never subsequently married, it is nonetheless convenient to refer to them in this judgment as respectively “the wife” and “the husband,” and although the parties disagree as to whether it binds them, it is likewise convenient in these reasons to refer to the 7 April 2011 agreement as “the BFA.” 

2. The claims advanced by the wife to impugn the BFA fall into two categories.  The first category relates to the circumstances surrounding its execution in 2011.  As to those, in her Points of Claim dated 27 July 2017, she pleads both non-statutory and statutory claims.  Her several non-statutory claims are advanced both at common law and in equity.  Not only does the husband deny the validity of those claims, but he advances a positive defence of estoppel to them.  The statutory claims advanced by the wife include both claims akin to her non-statutory claims (albeit perhaps broader than their common law and equitable analogues) and a failure to comply with the statutory preconditions for a BFA to be enforceable.

3. The second category relates to conduct post-dating the execution of the BFA, namely that the husband has subsequently repudiated or renounced it, by describing it as “rubbish,” and telling the wife that a “judge would throw it in the bin,” in consequence of which it was necessary for the parties to execute another agreement which was equitable in its terms.  Although the husband concedes that in fact negotiations towards a second BFA were undertaken, he denies they comprise repudiation or renunciation.

4. On 8 November 2018, after 10 days of trial spread over more than eight months, I reserved my decision in relation to the wife’s application.  This is that judgment and the reasons for it.  Whilst I regret the time it has taken for it to be delivered, the complexity of the issues engaged, and the unfortunate splitting of the trial, has meant that considerable time has been needed to review all the material, and then synthesize it into comprehensive reasons.  That said, I take responsibility, and apologise to the parties, for the very considerable delay.

BACKGROUND

The husband

1. The husband was born in Country K in 1932, and hence is presently 87 years of age.  He migrated to Australia at age 20, and initially lived in a Holding Camp in Victoria.  Thereafter he obtained work cutting sugar cane at P Town in Queensland, then worked on the Snowy Mountain Hydro Electric Scheme, before ultimately moving to Darwin in 1954, where he commenced work as a tradesman.  There he married his first wife in 1957, to which marriage three children, Mr M, Mr N and Mr O, were born.  It appears as though all three children were educated in Adelaide, and in part that may have prompted the husband and his first wife to relocate to that city in 1978, after some 24 years in Darwin.  By then, in 1977, the husband had received an award for his contribution to the Country K community in Darwin.

2. Both in Darwin and in Adelaide, the husband proved highly successful in business.  Those business endeavours appear to have principally focussed upon property development and management.  There can be no doubt that the husband was, and probably remains, an extremely hard working man, and perhaps that contributed to the breakdown of his first marriage in 1996.

3. The subsequent property proceedings between the husband and his first wife were acrimonious and hard fought.  Unfortunately, it does not appear as though their children were protected from that conflict, but rather the husband and his first wife each procured affidavits from at least one of their sons in support of their respective cases in that litigation.  This led to serious fracturing of the relationships between the other parent and those sons.

4. Whilst the evidence does not permit any real clarity, it seems that the value of the asset pool available for division between the husband and his first wife was in the order of $48 million, or perhaps a little more.  I say that because the husband estimated that, ultimately his first wife obtained a settlement valued at $17 million, which he said was 35 per cent to 37 per cent of the pool.

5. In his affidavit filed 12 September 2017, the husband says that “the years following my divorce were very difficult for me and I lived by myself for 15 years.”  During that time he had two relationships, each spanning some four years, however “those relationships did not continue and when each relationship ended I found myself very lonely.”

6. It was at that stage of his life when, aged 77, he met the wife.

The wife

1. The wife was born in Country G, in 1967, and hence is presently 52 years of age.  She grew up on a farm in the countryside.  She completed her high school education, and married in 1987, when she was 19 years of age.  In due course she gave birth to two sons, Mr X, in 1990, and Mr Y, in 1994.  In November 2008 she separated from her then husband, and left the family home with the two boys.  At the time she and her husband were operating a dry cleaning business, and a café/restaurant business; the wife took the former, and her husband took the latter.

2. In late 2008 the wife got in contact with an immigration agent, Mr B, who was a Country G national living in Australia.  I will have more to say about Mr B later in these reasons.

3. In 2009 the wife was granted a student guardian visa to come to Australia, in order to allow Mr Y to study here.  The conditions of that visa, which would expire on 31 January 2012, included that she could not work, or apply for a further visa, whilst in Australia.  The wife and Mr Y arrived in Australia on 18 November 2009 and were met by Mr B.  Initially the wife and Mr Y lived in a hostel in Adelaide.

4. On 2 December 2009, the wife was introduced to the husband through Mr B.  She was then 42 years of age.  They exchanged phone numbers.  The following day the husband telephoned the wife.  They agreed to meet, and later went on their “first date” in mid-December of that year.  It is common ground that thereafter the parties formed a de facto relationship, although it is not agreed as to precisely when it started.

The relationship

1. Irrespective of what date the relationship started on, being either January 2010, as the wife contends, or May 2010, as the husband says, at least by May, the parties had commenced living together in the husband’s house at Suburb L.  As at January 2010, there was considerable work being undertaken at the house.  The parties are in heated disagreement as to what role the wife thereafter played in completing those works, with the husband contending they were complete by May 2010, and the wife contending they continued until 2012.

2. There seems agreement that, at least initially, the parties had difficulty with communication, in that the husband was not able to speak, or understand the Country G language, and the wife had limited English.  However, as I shall later discuss, the wife knew a little of the Country K language, and by a combination of that language and English, the parties were able to achieve some type of communication.

3. The wife asserts that, from an early stage in their relationship, there were threats of violence by the husband towards her, and later physical violence.  The husband denies any violence or threats of violence whatsoever.

4. It is not contentious that, from early on in the relationship, the husband told the wife that he wanted her to sign an agreement in relation to the circumstances which would prevail in the event that their relationship concluded.  The parties are not agreed as to the words which the husband used in those conversations to describe the agreement.

5. In due course the parties retained separate solicitors and the BFA was drawn up, signed by the wife on 31 March 2011, and executed by the husband on 7 April 2011.  I will need to review in considerable detail the circumstances leading up to the signing of the BFA, and the events around the time of its signing.  But at this point I should note that the BFA was in English, and it was not translated to the wife, whether into Country G or Country K.  More, such explanation of its terms as may have been undertaken by the wife’s solicitor, was in English.  A critical issue in this case, therefore, is the extent to which the wife could communicate in, or at least understand, written and spoken English as at 31 March 2011.  The wife says she understood very little English; the husband denies that.

6. In May 2011 the wife was divorced in Australia from her Country G first husband.  That divorce became final in June 2011.

7. On 8 July 2011, via Mr B, the wife made an application for a spouse visa.  That visa issued later that month.

8. In mid-2013 the parties began to discuss a new BFA.  The wife says it was because the husband was of the view that the 2011 BFA was unenforceable; the husband says it was because, at around that time, there was discussion about the parties marrying.  Whatever be the case, again both parties retained solicitors, and began to negotiate the terms of a new BFA, however no agreement ensued.  By then, the parties’ relationship was in some difficulty. 

9. They attended relationship counselling in October 2013, and the wife consulted a solicitor in December of that year in relation to her situation.  The wife moved out of the parties’ mutual bedroom in June 2014 (albeit, remaining living in the Suburb L home) and the husband served her with a separation declaration on 7 July of that year.  However the parties reconciled on 28 August 2014, and thereafter agreed to marry. On 6 November 2014, the husband executed a will providing for the wife to have the use of the house at Suburb L for 12 months after his death, together with a payment of $3 million. 

10. Notwithstanding their agreement to marry, and the generous provision in the husband’s will, the parties’ relationship continued to experience some difficulties.  Marriage did not ensue, although the parties holidayed overseas to Country K in December 2015, albeit that the wife also travelled on to Country G by herself.

11. It seems common ground that the relationship finally failed in May 2016.

12. On 16 May 2016, the wife commenced these proceedings, seeking a declaration of the existence of a de facto relationship, orders setting aside the BFA, and for property settlement, spouse maintenance and costs.  At the time the parties were still cohabiting. Indeed the wife only moved out of the Suburb L property on 16 December 2016.

The trial

1. The trial of these proceedings was set down with an estimated hearing time of five days to commence 26 February 2018.  However it proved impossible to conclude it within that time frame, and indeed the applicant wife still remained under cross-examination at the end of that time.  To accommodate the difficulties which that inevitably gave rise to, the trial resumed again for one day on 16 April to conclude her evidence, but otherwise did not resume until 22 October 2018.  It then ran for a further three days, with oral submissions then being made on 8 November 2018.

CREDIBILITY OF WITNESSES

Overview

1. The husband and the wife are in marked disagreement as to a number of critical issues.  In some of those issues, they are the only witnesses, although in others, there are other witnesses and documents to which regard can be had, in determining which version of events is more likely correct.  However it is simply impossible to resolve all the disputed facts without recourse to questions of credibility.  It is therefore necessary to traverse the witnesses whose credit is in issue in this case.

The wife

Overview

1. The wife’s credit was squarely put in issue from the commencement of these proceedings.  Indeed, the way in which the husband conducted his case put her character in issue as well.  He claimed that, far from the wife being the victim, in fact it was he who was vulnerable and exploited by her, as part of a plan to secure her financial future in Australia.

Use of interpreter

1. One of the most significant attacks upon the wife’s credibility arose from her use of a Country G language interpreter when giving evidence in these proceedings.  A regular refrain of Senior Counsel’s cross-examination of her, was that it would save a lot of time if she stopped pretending that she could not speak English, and dispensed with the interpreter.[1]  That comment was prompted, from time to time, by the wife commencing to answer a question posed of her in English, prior to it having been interpreted into the Country G language.  The wife would then frequently concede that she had understood the question without the need for interpretation.  However she said that she needed the interpreter because, whilst her English was now passable, in some instances she did still need assistance in order to properly understand questions.

   [1]A list of some of those occasions was annexed to the husband’s written submissions.

2. The point which the husband made was that the wife was falsely trying to pretend that she had limited English even then, to buttress her claim that she had limited English in 2011.

3. I formed the view that, at the time of the trial, the wife was far more proficient in English than a simple observation of her in the witness box would have otherwise led one to conclude.  I am satisfied that she likely perceived a benefit in exaggerating her alleged present lack of proficiency in English, although I am by no means satisfied that it therefore logically follows that she is lying in relation to her proficiency in English in March 2011.  Nonetheless, her behaviour in the witness box causes me some concern.  I am also alive to the possibility that she was seeking to use the interpreter as a shield from direct cross-examination, as the husband also contends.

Date of visa

1. Turning then to the balance of the attacks on the wife’s credibility in a somewhat chronological order, the first is a matter arising from the date of her visa to first come to Australia.  Clearly on its face, the visa is dated 20 January 2009.  The wife, and indeed Mr B, strongly deny that was in fact the true date of its issue.  The reason why the matter was significant, was because the husband contended that, since the visa was dated January 2009, but the wife did not arrive in Australia until November 2009, she therefore had a significant period of time in which to learn English in Country G before arriving in Australia.

2. However I am well satisfied that the visa was not in fact issued in January 2009, and that the date it bears is a mistake.  Indeed that was the clear evidence of Mr B, and whilst his credibility was also attacked by the husband, in this respect I have little doubt that he was being truthful and I accept his evidence.  Particularly I note that in later documentation he prepared, Mr B asserted the visa issued on 2 November 2009, and further, his unchallenged evidence was that a visa needs to be acted upon within 90 days of its issue.  Therefore the date of the visa does not impact adversely upon the wife’s credit.

Commencement of cohabitation

1. The next attack on the wife’s credibility related to the date on which the parties’ cohabitation relationship commenced.  The wife says that she first slept in the husband’s home on New Years’ Eve of 31 December 2009, and, in effect, never moved out again until after separation.  The husband strongly denies this and says that the relationship commenced in May 2010 (although he has also claimed it may have been April).

2. Unhelpfully for both parties, documentation prepared during the course of the relationship supports neither case.  Particularly, the BFA asserts that the parties commenced living together in February 2010, as does the separation certificate issued by the husband.  Further, the wife’s spouse visa application refers to the relationship commencing in May 2010, and at that time she formally notified various entities of her change of address to the husband’s Suburb L home.

3. It is not incumbent upon me to determine when in fact the relationship commenced.  However plainly the fact that there is documentary evidence, signed by the wife, which would tend to suggest a date other than contended for by her, causes me to approach the credibility of her evidence with some circumspection.

Wife’s work on husband’s home

1. The next matter relied upon by the husband was the wife’s claims to have performed considerable physical labour during the course of the relationship, principally towards the completion of the renovations of the Suburb L home, which she says continued until 2012.  The wife’s evidence in this regard was quite remarkable.  She would have it that she was constantly working on clearing up rubbish, and would fill skip bins with material to be removed from the site on a regular basis.  In fact it seems her final estimate was that she had completed the filling of somewhere in excess of 100 skip bins.  The husband denies that the wife did any such work, or at least to the extent that she claims she did, and led evidence from the building contractors which he used at the time to effect the completion of the works.  None of those persons supported the wife’s evidence that she undertook building works.  That said, it does seem clear that the wife did assist the husband with some works around the garden of the Suburb L home, including installing an underground irrigation system, and clearing soil and rubble from the surface of the tennis court.

1. Again it is not incumbent upon me to make any finding as to what work the wife in fact did, but plainly the fact that her evidence is at odds with the builders (who, as shall be seen, I accept as honest) is a cause for concern.  However it does not necessarily speak to active dishonesty on her part, as distinct from a tendency to exaggerate.  In the case of the building works, that is plainly one of the concerns which I have.

Wife’s ironing

1. To like effect is the wife’s claim that she would iron the husband’s clothing, from some time after 9:00pm until 3:00am every day.  Even accepting that her evidence was that the husband owned between 50 and 60 shirts, and that the wife, rather than the husband, attended to all ironing in the Suburb L home, it is difficult to see precisely why so many items of clothing were worn with such regularity, presumably involving many costume changes each day, so as to require such extensive amounts of ironing.  I have real doubt that the wife in fact acted as she claimed, by ironing until 3:00am every morning, but rather regard it as an illustration of her tendency towards exaggeration.

2. Indeed that is tellingly borne out by the transcript relating to this issue.  At page 233, she said that she “ironed clothes from 9:00 in the evening to 3:00am every night,” but a little later, at page 272, then said “well there were some nights where I did iron, but there were some nights where I didn’t because I was too tired.”  To like effect is paragraph [96] of her affidavit filed 25 July 2017: “I would sometimes iron up to 3:00am.”

Physical violence

1. Also relevant to assessing credibility are the wife’s allegations of threats of physical violence by the husband, which are denied by him.  Because that is relevant to the claim of undue influence, I will discuss the evidence in greater detail later in these reasons, but as shall be seen, I am not persuaded such threats of violence as the wife alleges, occurred.

Hairdressing conversations

1. Although ordinarily one would not expect hairdressing to be a significant aspect of evidence in cases such as this, this case surprised in many ways.  No less than three hairdressers gave evidence before me, two of whom, called by the husband, asserted that the wife was able to converse in English with them, as to her needs and wishes for her hair.  For her part, the wife denied that she was so able to communicate with them.

2. However that was not the only matter in dispute between them.  In her affidavit filed 12 October 2017, one of those hairdressers, Ms Q, said that the wife first started coming to the salon sometime in 2010 and for the first one or two occasions, she was brought in by the husband’s daughter-in-law, Ms R Beroni.  Then, the wife started coming in with the husband, who was a long standing client of the salon.  She thought that wife stopped coming to the salon sometime in 2013, but in that time, would come to the salon at least every six to eight weeks.

3. The other hairdresser called by the husband, Mr S, thought that the husband and wife had jointly attended the salon over 20 times together, on some of which occasions he washed the wife’s hair.

4. The wife responded to these affidavits in her affidavit filed 21 February 2018.  Perhaps, quite surprisingly, at paragraph 238 of that affidavit, she claimed she was not “familiar” with Ms Q.  Further, she said that on every occasion she came into the salon, Ms R Beroni interpreted for her.  She continued that Ms R “would pick me up from the home, take me to the salon and return me home.”  She appears to concede that Ms R attended on the first couple of appointments, but thereafter, although the husband also accompanied her, Ms R continued to attend and interpret for her.  At paragraph 244 she said that she only attended the salon “on a maximum of about four occasions.”  That was because she did not like the way they coloured her hair.  As to Mr S, again she reiterated that she only visited the salon on approximately four occasions, and that he washed hair on only approximately four occasions.

5. Whilst the issue of the wife’s proficiency in English was raised in cross-examination by Senior Counsel for the wife with both witnesses, neither the attendance of Ms R Beroni, or her acting as an interpreter, was put to either of them.  Likewise, the difference between the wife’s evidence and their evidence as to the number of attendances was not explored.

6. By the same token, those matters were not explored with the wife either, although her evidence in this respect was traversed in the response affidavit of the husband filed 1 March 2018.   

7. For her part, the wife called another hairdresser, the late Ms T, who was also the partner of the husband’s son, Mr N, albeit he and the father are estranged.  In her affidavit filed 26 July 2017, Ms T said that the wife’s first appointment with her was on 20 May 2011, and she thereafter attended on a total of 14 occasions between 20 May 2011 and 11 October 2012, (ie about 16 months) to have her hair cut and coloured.  She said in her oral evidence that in compiling her affidavit about those appointments, she had referred to her old salon diaries.  She was not challenged as to any of that evidence, and I accept it.  However, it therefore seems unlikely that, in that period, the wife was also attending another salon, such as the evidence of Ms Q and Mr S would tend to suggest. 

8. Ms T gave evidence that she had great difficulty communicating with the wife.  As shall be seen, I formed the view that Ms T was an impressive witness, notwithstanding her (and her partner’s) estrangement from the husband. 

9. I am satisfied that the hairdressers were basically honest in giving evidence to the best of their recollection.  Ultimately, the conflict between their evidence causes me little concern as to the wife’s credibility.     

Mr O’s interventions

1. The next matter that is raised in relation to the wife’s credibility was her assertion that Mr O, another of the husband’s sons to his first marriage, needed to frequently intervene in relation to his father’s conduct towards the wife.

2. At paragraph 203 of the wife’s affidavit filed 21 February 2018 the wife said:

   ...On approximately 10 times, Mr Beroni’s son Mr O was present (and sometimes his wife) when Mr Beroni raised his hand at me.  On each occasion he would say “dad, what are you doing! Don’t raise your hand at her!” or words to that effect.  Mr Beroni replied “she make me crazy.  Go!”  Mr O would put his arm around me and say “don’t worry I’ll see you have us now.  You know him now, he treated our mother like this too” or words to that effect.

3. In his affidavit filed 1 March 2018, Mr O Beroni not only emphatically denied all of those assertions, but denied that the husband ever “struck or treated my mother in the way described by [the wife].”

4. Again, like the hairdressers, there was no challenge to that evidence in cross-examination of Mr O, nor was it otherwise traversed by the wife.  Whilst accepting that it is not incumbent upon counsel to doggedly adhere to the rule in Browne & Dunn,[2] nonetheless the failure to directly challenge contradictory evidence makes the resolution of the conflict more difficult.  The wife was cross-examined by reference to these allegations, but maintained her assertion that the husband had so acted. 

   [2] See LC & TC (1998) FLC 92-803.

5. Whilst I shall consider Mr O’s credibility in due course, for present purposes, his evidence necessarily causes me concern in relation to the wife’s credibility.

“Piece of paper” versus “agreement”

1. In her evidence, the wife was adamant that the husband had frequently referred to both the proposed and actual BFA, as a “piece of paper” seemingly in an effort to defuse any suspicion she might otherwise have had as to the significance of the document.  For his part, the husband denied that he had ever so described the proposed or actual document.  However, significantly, in his affidavit filed 12 September 2017, he says that prior to May 2010 “I told her that if she was going to move in with me she would need to make an agreement to avoid problems if we ended our relationship.”  Even on the husband’s own evidence, as at May 2010 the parties capacity to communicate was limited, and their conversations were a mix of Country K and English, neither of which were the wife’s first language. Necessarily, the potentiality for miscommunication and misunderstanding was high.

2. Further, it is difficult to obtain a clear picture of how it is, or indeed in what language, the husband described or characterised the proposed or actual BFA to the wife.[3]  Moreover, as shall be seen, I am not without concerns in relation to the husband’s own credibility, and particularly I am satisfied that he likely downplayed the BFA in conversations with the wife, so as to maximise the chances of her signing it.

   [3] Although the wife accepted it was in the Country K language (transcript page 278) and the husband’s counsel cross-examined the wife to like effect (transcript page 306).

3. Ultimately, this issue does not assist me in gauging the wife’s credibility more generally.

Rape allegation

1. The wife’s evidence was that on 16 June 2014, she moved out of the joint bedroom, and that “the next morning at about 5:00am, the husband grabbed me by the hair and pushed me down and made me have oral sex with him.  I did not report the matter to the police.”  She then says that the following night the husband tried to have sex with her again, although after she protested, he desisted.

2. In his affidavit of 12 September 2017, at paragraph 124 the husband denies that the wife moved out of their bedroom on 16 June 2014, but does not traverse the allegation of oral sex, or an attempt to initiate sex on the following night.  It is difficult to know what to make of that, although on one view it could be interpreted as consistent with an admission.  Nonetheless this was one of the matters that the wife was strongly cross-examined upon, and which was specifically raised in the husband’s written submissions as telling against the credibility of the wife.  It was said that “the court should reject the rape allegation and find that it an unsubstantiated attempt by [the wife] to harm [the husband’s] credibility and impermissibly support her allegations of duress in these proceedings.”  It is difficult to see how the allegation of rape attacks the husband’s credibility, however for present purposes the allegation per se does not reflect upon the wife’s general credibility, one way or the other.

3. In saying that, I do not overlook that in her medical records that were in evidence, the wife is recorded as having eschewed the suggestion of any physical assault of her by the husband, much less alleged rape.  However her demeanour when giving evidence under cross-examination in relation to this matter was congruent with the allegation, and her evidence that she was too “embarrassed” to raise it earlier than she had, is also credible.

Wife’s access to, and copying of, husband’s papers

1. It is uncontroversial that, after separation, and without the husband’s knowledge or consent, the wife copied a large number of his personal documents located within the study of the Suburb L home.  Many of these documents appear to have been communications between the husband and his solicitor.  The existence and possession of those copies by the wife was only disclosed by a list of documents served by her on 15 February 2018, although they had been in her possession for some years.  It is said by counsel for the husband that this conduct “reflects a willingness on the part of [the wife] to breach [the husband’s] legal rights and her own procedural and ethical obligations within these proceedings in order to gain a perceived advantage in the dispute.”  The only explanation given by the wife as to why she did this was that she was “curious” after hearing the husband speak to his commercial solicitors.

2. At the time the wife copied the documents, the parties were separated, but remained living in the same house.  The wife had by then consulted an independent solicitor.  I am satisfied that she was, in copying the documents, acting with stealth, and doing so because she thought they may assist her in the inevitable litigation which ensued.  Whilst it may speak somewhat to the wife’s character, it does not seem to me to speak much to her credibility generally. 

Evaluation

1. The cumulative effect of all of these concerns is to cast considerable doubt as to the reliability of the wife’s evidence, and perhaps her honesty more generally.  I am certainly satisfied that the wife is prone to exaggeration, and may well have, on occasions, succumbed to the temptation to do so, in an effort to draw attention to her asserted plight, or to otherwise augment her prospects of success in these proceedings.  However I am not persuaded that the wife is generally dishonest, such that her evidence should be wholly rejected.  Suffice to say that, where there are issues of credibility, particularly where exaggeration might be at play, I will be vigilant to see if the wife’s claims are supported by either a credible witness, or alternatively, by contemporaneous documentation.

Mr B

1. Mr B was a most colourful witness.  He seemed to think that he was giving expert evidence as to the inability of the wife to speak English at the relevant period, being mid-2011.  He exhorted counsel cross-examining him to make enquiry of other members of the Bar as to his honesty, arising from their experience of him undertaking interpretation in many criminal and civil proceedings in South Australia.

2. Moreover, he introduced some extraordinary evidence whilst under cross-examination, about his prior dealings with the husband, most saucily, the husband’s alleged recounting of his past sexual conquests to him, his desire to have Mr B find him a woman of Middle Eastern, or at least veiled, appearance, and his desire to seek to bring into the country a mother and daughter, with both of whom the husband had, according to Mr B, enjoyed sexual relations whilst holidaying in Asia.

3. For his part, in his affidavit filed 16 October 2018, at paragraphs 28 to 30, the husband denied that what Mr B had said was true in this respect.

4. However it is plain, even on the husband’s own primary evidence that he had a conversation with Mr B about him potentially finding a partner for him,[4] and indeed said Mr B had actually introduced him to one “potential companion,” although nothing came of it.[5]  It therefore seems reasonably clear on the husband’s own evidence that he regarded Mr B as a potential source of introductions of women, and it is not a long stretch of the imagination to conceive that he may have disclosed to Mr B his past sexual encounters, or his sexual interests.  Certainly it does not seem to be particularly – if at all – controversial, that prior to forming the relationship with the wife, the husband had been a sexually active, single man.

   [4] Husband’s affidavit filed 12 September 2017, paragraph 24.

   [5] Ibid, paragraph 25.

5. For his part, the husband seemed to be suspicious that Mr B may have had some species of sexual relationship with the wife during their de facto relationship, and even appeared to leave open the possibility that some kind of association continued at the time of trial.  For instance, there was a very strange part of the evidence in which it was suggested that, on a particular day, Mr B attended the Suburb L home, but did not come inside.  Rather he parked around the corner and, doing the best I can to piece together the odd inferences, it seems to be suggested that he then had some kind of sexual encounter with the wife in his car.

6. The husband’s submissions were scathing of the credibility of Mr B.  It was said he was plainly favouring the wife, and partisan towards her. 

7. However despite the colour which Mr B’s evidence introduced into the courtroom, and into the case generally, and despite his garrulous, but emphatic, demonstrations of his profound misunderstanding of his role in these proceedings, I nonetheless, upon balance, formed the view that he was indeed, as he so vociferously claimed, honest.  He may have some antipathy towards the husband, and given their common heritage, he may have some leanings towards the wife, which are matters that mindful of when considering the substance of his evidence, however, I do not think that those caused him to be generally unreliable, or dishonest.  On the whole, I accept Mr B as a witness of truth.

Mr N Beroni

1. Now is the time to record that unfortunately the husband has not proved able to maintain amicable relationship with all of his children.  I am deeply suspicious that he uses his very considerable wealth – or more precisely, the lure of a vast inheritance – to seek to control his children.  He does that by means which they find distasteful.  However those in favour with the husband are not guaranteed of a perpetual status as such.  That much is plain from these proceedings.  Mr N was at one stage, it seems, the favoured son, but in consequence of his father’s behaviour towards him, he is now very much not the favoured son.   It may fairly be said that Mr N has now been completely estranged from his father since 2014. 

2. The reason why Mr N is such a significant witness, is because he gives direct evidence as to the wife’s incapacity to converse socially in English in 2010.  His evidence is therefore vital, if it is truthful, for the wife’s case.

3. As shall be seen, also in a similar category was his wife, the late T, who sadly passed away from illness some time after she gave evidence in these proceedings.  Senior Counsel for the husband was particularly critical of both of those witnesses, because they used the same word to describe their perception, or view of the husband, namely that they were “indifferent” to him.  It was said that was too much to be a coincidence, and that they therefore likely had agreed that their evidence should include that term.

4. To the extent that it was suggested that they had collaborated in relation to their evidence, I reject that contention.  Not only did they deny doing so, but it is inevitable that they must have discussed the husband, in light of Mr N’s falling out with him, and it is likely they do hold substantially similar views about him. 

5. Further, I am not persuaded that there was some impropriety evidenced by both witnesses’ use of the word “indifferent.”  The impression I had was that both of them were somewhat embarrassed that their family dynamic was being exposed in a public courtroom, and they were trying to maintain a degree of, at least the appearance of, respect for the husband.

6. Counsel for the husband contends that the style of evidence given by Mr N Beroni under cross-examination reflected adversely on his credit. Indeed he was rather combatative in his dealing with questions, and at times needed to be pressed to give a responsive answer. 

7. Nonetheless, I find that Mr N Beroni was a truthful witness.  True it is that he likely does have some resentment towards his father for having acted as he did towards him, and the fact that he plainly will no longer likely be a beneficiary under his father’s considerable estate. But I did not form the view that he was motivated to give false evidence against his father by way of some punishment of, or revenge on, him.

Ms T

1. Ms T, when she gave evidence before me, was obviously terminally ill.  However her evidence was critical.  As I have already observed, she was one of the hairdressers who gave evidence. Importantly, she gave evidence of the wife’s proficiency in English at the time she first attended her on 20 May 2011, a date just after the signing of the BFA.

2. Again it was suggested to Ms T in her cross-examination, that she was motivated by some animus towards the husband, and therefore her evidence either should be rejected as false, or alternatively, recognised as being influenced by strong emotion, and hence unreliable.

3. I reject that suggestion.  Indeed there was one particularly telling exchange in her cross-examination, when, although in agreement with counsel that Mr N had described his father to her as a bully, who insists on getting his own way, and who manipulates others, she disagreed with the suggestion that he had told her the husband was “not to be trusted.”  That evidence struck me as entirely consistent with someone who was prepared to be highly critical of someone, but only in an honest way. 

1. Ms T struck me as a quite honest witness, and whilst, in my assessment, she was somewhat embarrassed about her family circumstances, I find she was nonetheless generally truthful.

The husband

1. The husband had a number of disabilities in giving his evidence, not least of which was his impaired hearing.  He also had some general health issues, and to my observation, on occasion appeared to be determined to demonstrate that he was not fatigued, when in fact he was.  In part, that might have been a desire to appear still in command of things at his considerable age, in front of family members, and a former partner.  That was certainly the evidence of his son, Mr O.  I will be mindful of all of those things when assessing his credibility.

2. However even taking those matters into consideration, there are some areas of concern in relation to the reliability of his uncorroborated evidence. 

3. One of the more significant of these is his adherence to the date of the commencement of the relationship of May 2010, rather than some earlier date.  I must confess to some difficulty in understanding quite what the husband’s evidence was.  He seemed in his affidavit filed 12 September 2017 at paragraph 17 to have accepted that the parties started “dating” in early 2010, but said that they were not in a committed relationship until May 2010.  However at paragraph 50 of that same affidavit, he appears to concede that he was in a relationship with the wife prior to May 2010, at which time they were “going to dinner and dancing together at a club every Sunday night…”  Further, he concedes that he thinks “it was about in February 2010” that the wife first started spending “the night with me” and then at paragraph 53, says “for months, [the wife] would spend the night at my house and I would drive her back to the hostel the following morning.  Eventually, I started to feel sorry for [the wife] when I saw the way she was living in the hostel because she was living in a small student room with her son which had two single beds in close confines.”

4. At paragraph 54 he continued “[i]n or about April or May of 2010 I invited [the wife] to come and live with me as I believed she hoped that I would ask her to move in.”  He then says that the wife “moved in” in May 2010.  Perhaps when he says that this was when the relationship commenced, he is referring to the commencement of a de facto relationship, rather than a personal relationship.  If so, then I am troubled that there is, from his position, a strategic advantage in that date, in that it aligns with when he says that the renovations to the house were complete.  That would therefore, potentially at least, suggest that any contribution which the wife may have made to the building of the house was prior to the commencement of the de facto relationship.

5. Moreover, at paragraph 56 of his 12 September 2017 affidavit, the husband says that the wife “moved into the house on or about 22 May of 2010.”  How the date of 22 May was selected is unclear, however the reference to “on or about,” given the specificity of the date, is curious.  Cross-examination did not dispel my concerns.  At page 641 of the transcript, the husband, in answer to the question “[y]ou don’t independently remember 22 May, do you?” answered “not really,” but then, only a short while later, when tested again as to the date, when asked “How are you so sure it’s 22 May” answered “[n]o.  It is not before 22 May anyhow.”

6. I have already adverted to the fact that the separation certificate and the BFA itself do not support either parties’ evidence, but instead suggest that the time for the commencement of the relationship was in February 2010.  On any view, those were documents compiled on the parties’ instructions.  Those instructions were, of course, given far closer to the date of the commencement of cohabitation than their trial affidavits, or indeed their oral evidence at trial. 

7. Although relative slender, there was another matter which caused me considerable concern in relation to the husband’s reliability, or at least the accuracy of his memory.  It related to his translation of the wife’s application for divorce, to which I shall return later in these reasons.  However for present purposes, as shall be seen, I am satisfied that the wife’s application for divorce was read to her in the Country K language by the husband, in the presence of Mr E, on 14 January 2011.  Particularly there is a file note of Mr E precisely to that effect, which I accept is likely accurate.

8. In relation to those early meetings with Mr E, at paragraph 80 of the husband’s affidavit filed 12 September 2017, he said “I may have translated a document into Country K for [the wife] in one of these meetings, although I cannot now recall the details of that.”  However at paragraph 26 of his subsequent affidavit of 1 March 2018, he says “I recall that I did on one occasion interpret a document into Country K for [the wife] but this was in relation to a divorce application only.”  Why it is that he could not remember that on 12 September 2017, but could on 1 March 2018, was unexplained.

9. Later, in cross-examination, there was an exchange as follows:

   Well, let me finish – you were present with Mr E in his office and [the wife] on 14 January 2011 when she signed this application for divorce?... Yes, sir.

   And you saw her sign it didn’t you? … I think so.  Yes.

   And you translated every paragraph of the document to her?... I don’t know what … I – I don’t remember reading anything like this.

   Do you deny that …? … I said I don’t remember anything I read, thing like this.  And I don’t know what to explain here.  I don’t know – I wouldn’t have a clue.

   All right.  So well, let me put it to you, are you denying that you translated this document to [the wife] or are you saying you can’t remember?... I can’t remember.

   So it’s quite possible you did?... could but I doubt very much because I – I wouldn’t know what – what she has to know.  Is only 12 months or something. I don’t remember reading these things.  Sorry. 

   Right.  Well, do you say it would be quite wrong to record that you had translated every paragraph to her?  Would that be quite wrong?... I’m sorry – I’m sorry.

   Would it be quite wrong to record that you translated very paragraph to her … I don’t remember.

   Would it be wrong?... Well, if I don’t remember I wouldn’t know if it’s wrong or right.

10. Whilst I shall in due course review the significance of any interpretation of a document in January 2011, it is obvious that, if even the husband recognised a need to interpret the application for divorce in January 2011, absent some profound change in the wife’s proficiency in English by 31 March 2011, the need for interpretation likely still loomed large.

11. The final matter also relates to the reliability of the husband’s memory.  At paragraph 7 of his affidavit filed 1 March 2018, he swore that the construction of the swimming pool at the Suburb L home was completed in February 2011.  He repeated that evidence at paragraph 17.1.  On 1 March 2018 (Transcript p. 272) it was put to the wife in cross-examination “[n]ow, the pool was finished by the middle of 2011”, which she denied, claiming it was only finished one week before the husband’s 80^th birthday in 2012.

12. However in between the two tranches of the hearing, the husband obtained documents relating to the construction of the pool.  In his subsequent affidavit filed 16 October 2018, he said “[h]aving reviewed the construction documents referred to above, I now believe that [the February 2011 date] is an error and that the swimming pool (including filtration system and lighting) was completed in early 2012…”

13. Although plainly of itself not a significant matter, it nevertheless casts doubt upon the accuracy of the husband’s recall in relation to dates, and perhaps more broadly, events in general.[6]  It also, in a small way, speaks to the wife’s accuracy of re-call.  

    [6] See also for instance, paragraph 41 of the husband’s affidavit filed 16 October 2018.

14. The ultimate conclusion which I draw is somewhat similar to that which I make in relation to the wife.  I do not wholly reject the husband’s evidence, nor do I find that he is generally a dishonest person.  However in critical areas of his evidence, I do have concerns as to, at least the reliability of his memory, and on other occasions, the motivation behind his evidence, and particularly his implacable desire not to be at the mercy of the Family Court again.  I have little doubt that the very painful events surrounding the separation from his first wife, and particularly the large amount of money which he was ultimately obliged to pay her, still sting to this day.

Mr O Beroni

1. Mr O is another of the husband’s sons.  He is the son presently in favour with his father.  However he has not always enjoyed that position, and has been excluded from the husband’s favour in the past.

2. Ultimately, although his evidence was cast in a way which was highly critical of the wife, it bore little direct relevance.  Particularly, he gave little evidence as to any observation of the wife’s proficiency in English at relevant times, but rather gave evidence as to that from “around 2014/15 and following.”  As shall be seen, I am not particularly influenced by the wife’s asserted fluency in English in years long after the signing of the BFA.  Particularly that is the case because, as shall be seen, on any view, by 2013 she had engaged in a course of instruction in relation to the English language.

3. Ultimately whilst I am persuaded that Mr O likely has a very dim view of the wife, it is unnecessary for me to go on to make any further observation about his credibility.

Ms Q

1. I have already addressed some issues relating to Ms Q earlier in discussing the hairdressing evidence.  I have to confess to some trouble in relation to her attempt in her oral evidence to move away from the description of the wife’s “broken English” at paragraph 10 of her affidavit, but nonetheless, I formed the general view that she was attempting to give evidence to the best of her recollection, and to do so honestly.  However I do not overlook the fact that she was giving evidence as to insignificant events that had occurred many years earlier.

Mr S

1. Ultimately I have reached the view that Mr S was, like his colleague, Ms Q, generally honest in giving his evidence.  I was particularly impressed by the unexpected movement in his evidence during re-examination, which retreated from the evidence which he had previously given, in a way that favoured the wife.

The tradesmen

1. I am well satisfied that the three tradesmen who gave evidence before me were honest, and I accept their evidence.

THE FAILURE TO CALL MR E

Overview

1. Mr E was the only other person present when the wife signed the BFA.  He was, on other occasions, the only person present for periods during earlier conferences, and one of three people present for others.  For these reasons, he must have been able to give evidence relevant to the events which transpired on those occasions, the wife’s proficiency in English, and her apparent understanding of the substance of the BFA.

2. No affidavit of Mr E was filed by the wife, nor was the subpoena she served on him called upon.  However she expressly waived privilege in her communications with him, and invited the husband to call Mr E instead.

3. The husband says an inference should be drawn that Mr E’s evidence would not have assisted her case; the wife denies such an inference should be drawn.

Relevant legal principles

1. In Payne v Parker [1976] 1 NSWLR 191 at 200-202, Glass JA said as follows

   Before considering whether the trial judge fell into error in denying the plaintiff the [Jones & Dunkel] direction which was sought on her behalf, it is necessary to advert to the relevant law…From these various sources it is possible, I believe, to deduce the following propositions:

   (1) The rule is a principle of the law of evidence whereby a particular form of reasoning is authorized.

   (2) The reasoning which is permissible involves the treatment of a failure to adduce evidence as a reason for increasing the weight of the proofs of the opposite party or reducing the weight of the proofs of the party in default: O'Donnell v. Reichard. The principle may be invoked for a deficiency in the evidence either of a party bearing the legal onus of proving an issue, or of a party bearing the evidentiary burden only: Ibid; Steele v. Mirror Newspapers Ltd.  If the failure is of the latter kind, the direct evidence of the party with the onus of proof can be more readily accepted, and inferences in his favour may be more confidently drawn: Jones v. Dunkel.  If the failure is of the former kind, a consonant formulation would be that the direct evidence of the party carrying the onus may be more readily rejected, and the inferences for which he contends may be treated with greater reserve. The default “brings a great slur on his cause”:  Ward v Apprice.

   (3) The failure to call a particular witness is merely one instance of evidentiary deficiency which brings the principle into operation. Other instances are the failure to adduce any evidence at all: the Tozer Kemsley case; the failure to produce a particular document, and the failure to prove a particular fact: Wigmore, par. 285.

   (4)In a divided tribunal it is for the judge to determine whether the principle could be applied, and for the jury to decide whether it should be applied. The determination has the same legal status as a decision whether the res ipsa loquitur principle can or should be applied.

   (5) Whether the principle can be applied is a question of law, which admits of only one answer. No exercise of discretion is involved. The jury should not be denied proper guidance as to the relevance of the failure, if they find it to have occurred: Jones v Dunkel. A party is entitled in an appropriate case to have proper directions given to the jury on this question: Cafe v. Australian Portland Cement Pty. Ltd. If the judge wrongly withholds a direction that a failure may be used in a particular way, the party entitled to it is denied an advantage which could have helped him in the resolution of a conflict in the evidence: Earle v. Castlemaine District Community Hospital.

   (6) Whether the principle can or should be applied depends upon whether   the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.

   (7) The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par.  286,  or  the  witness would be expected to be available to one party rather than the other: O'Donnell v. Reichard, or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid, Regina v. Burdett, or where the witness' knowledge may be regarded as the knowledge of one party rather than the  other:  Earle  v.  Castlemaine District Community Hospital, or where his absence should be regarded as adverse to the case of one party rather than the other: ibid. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid. Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman: Cafe v Australian Portland Cement Pty. Ltd; his safety officer: Earle v Castlemaine District Community Hospital, his accountant: Steele v Mirro Newspapers Ltd, his treating doctor: O'Donnell v. Reichard.

   (8) According to Wigmore, par. 285, the second condition is fulfilled where         the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts: Jones v Dunkel, might have proved the contrary: ibid; would have a close knowledge of the facts: O'Donnell v. Reichard, or where it appears that he had knowledge:  Nuhic v Rail & Road Excavations.  I would think it insufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon  the  evidence,  the  tribunal  of  fact  is  entitled to conclude that he probably would have knowledge, there would seem to  be  no basis for any adverse deduction from the failure to call him.

   (9) The third  condition  is  satisfied  if  no  explanation  is  offered  for  the absence of the witness, or the tribunal thinks that the  explanation given is unsatisfactory. The explanation tendered may be that the witness is ill, overseas, dead or refuses to waive his privilege: Wigmore, par. 286.

   (Footnotes omitted)

2. In my respectful view, that helpful articulation remains an accurate summary of the relevant principles.

Consideration

1. Turning firstly to the conditions for the potential operation of the rule, the first is whether or not the absent witness would have been expected to be called by one party rather than the other. Mr E was the wife’s solicitor, and ordinarily subject to the restraints of legal professional privilege, which could only be waived by his client, one would expect her to call him.  However here the wife has waived legal professional privilege, and indeed expressly invited the husband to call him instead.

2. Mr E’s professional competence is plainly raised by these proceedings.  Moreover, there may be an interesting argument as to whether in advising the wife, he owed a duty of care not only to her, but also to the husband.  Therefore not only do his interests not necessarily align with those of the wife in the circumstances, but indeed, might not align with those of the husband.

3. He has refused to cooperate with the wife in these proceedings.  That confirms my suspicion that he is, or perceives that he is, at litigious risk in relation to his conduct. It would not be appropriate in those circumstances for the wife simply to call Mr E blind, even with the prospect of being able to have him declared hostile, and hence cross-examine him.

4. In these unique circumstances, I am not persuaded that he would be expected to be called by the wife, rather than the husband.

5. Turning then to the second matter, it is inconceivable that Mr E’s evidence would not elucidate a critical matter, namely the wife’s proficiency in English as at 31 March 2011, and also the extent to which he gave her advice as he later certified.  His evidence must necessarily have been highly illuminative of both of those matters, and probably others as well.

6. The final matter is whether his absence is unexplained.  In large part, it is explained.  He has not been prepared to cooperate with the wife.  That in itself is an explanation, and I am of the view it is, at least, satisfactory. 

7. I decline to draw an adverse inference against the wife from her failure to call Mr E.

8. However that is not the end of the matter.  That is because, in a sense, Mr E nonetheless did give evidence.  The entirety of his file was tendered.  It contains not merely his file notes, but also file copy and original correspondence, and other primary documents.  There is no reason to think that his file notes are not substantially accurate, or that his file is otherwise incomplete.  Much of his evidence in that form is unhelpful to the wife, for instance, his certificate of advice on the BFA, and his file notes which record him having given her certain advice.  Therefore even if I had been prepared to draw an adverse inference against the wife, I am far from persuaded that it would have been of a kind significantly more adverse to her than his evidence in the form of his file.

PROVISIONALLY ADMITTED EVIDENCE

Exhibit MFI “C” and the de bene esse evidence related to it

Overview

1. During cross-examination of Mr O Beroni, senior counsel for the wife sought to tender an affidavit affirmed by him in the matrimonial proceedings between the husband and his wife in 1999. The basis of the tender was under s 97 of the Evidence Act 1995 (Cth) (“the Evidence Act). Its admission was opposed by the husband. It was admitted provisionally, and the cross-examination proceeded de bene esse.  It is therefore incumbent upon me to rule as to the admissibility of that evidence.

Relevant statutory provisions and legal principles

1. Section 97 of the Evidence Act provides:

   The tendency rule

   (1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:

   (a)  the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

   (b)  the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

   (2)  Paragraph (1)(a) does not apply if:

   (a)  the evidence is adduced in accordance with any directions made by the court under section 100; or

   (b)  the evidence is adduced to explain or contradict tendency evidence adduced by another party.

   Note: The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.

2. In Jacara Pty Ltdv Perpetual Trustees WA Ltd (2000) 106 FCR 51 the unanimous Full Federal Court said this at [72], [73] at [76]:

   The test of “significant probative value”

   72. The tendency rule stated in s 97(1) of the Evidence Act departs from the common law position enunciated in Sheldon. The fact that tendency evidence is relevant to a fact in issue is not enough to make it admissible. Even if relevant, it will not be admissible if the Court thinks that the evidence would not have “significant probative value”. As Lehane J pointed out in Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 175-176:

   What is clearly required, if [tendency] evidence is to be   admissible, is that it could rationally affect the assessment of     the probability of the relevant fact in issue to a significant          extent; ie, more is required than mere statutory relevance.

   73. Precisely what more is required has been expressed in different ways.  In R v Lockyer (1996) 89 A Crim R 457 (S Ct NSW), Hunt CJ at CL said (at 459) that

   “significant” probative value must mean something more          than mere relevance but something less than a ‘substantial’   degree of relevance.”

   His Honour thought that this meant evidence that is “important” or       “of consequence” in establishing the fact in issue. The approach of   Hunt CJ at CL was quoted with apparent approval in R v E [2000] NSWCCA 332, at [67]. See also R v AH , at 709, per      Ireland J. Lehane J in Zaknic , deriving guidance from the pre-   Evidence Act cases, thought that the tendency evidence would have     to be “clearly and strongly probative of the relevant fact in issue” (at 176).

   …

   76. Perhaps the only additional point that should be made is that the probative value of the evidence must derive from its tendency to prove (in the words of s 97(1)) that a person has or had a tendency to act in a particular way. As has already been noted, if the evidence has probative value for some other reason, it will not be rendered inadmissible by s 97(1), at least to the extent that it is tendered for a purpose other than its value as tendency evidence. The probative value of the evidence as tendency evidence must depend on the circumstances of the case. The factors to take into account will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency of the person to act in a particular way and the extent to which that tendency increases the likelihood that the fact in issue occurred: cf J D Heydon, Cross on Evidence (6th Aust ed, 2000) at pars [21095], [21100], [21105].

3. Later in IMM v R (2016) 257 CLR 300 at [45]-[46] the High Court said :

   45 The use of the term “probative value” and the word “extent” in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge.

   46 Cross on Evidence suggests that a “significant” probative value is a probative value which is “important” or “of consequence”. The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.

   (Footnotes omitted)

The evidence

1. It is unnecessary to recite anything other than the gist of the affidavit, which was as follows:

   (a)The husband was possessive of his wife, thought she was being unfaithful to him, and in consequence monitored her whereabouts and movements ([28]) and recorded her phone calls ([32]);

   (b)The husband questioned his wife’s spending, and denigrated her publically ([29], [30]);

   (c)Mr O was so concerned about the husband’s behaviour, that he, in effect, stole a weapon owned by the husband, and only returned it after threat of criminal prosecution ([33]);

   (d)The husband tightly controlled the family finances ([34]); and

   (e)Once the husband thought that Mr O had sided with his mother in the divorce, he was progressively, but effectively, excluded from the business ([48]). 

Evaluation

1. The husband correctly contends that no written notice of the intended evidence was given, and no explanation was given for why I should order any dispensation with that requirement under s 100 of the Evidence Act. On that basis alone, its admission must be rejected.

2. However, correctly in my view, counsel for the husband also identifies that the necessary degree of probative value with evidence is lacking.  Correctly, they identified that was evidence relating to a single course of conduct 18 years ago.  Their written submission continued at [21]:

   21…

   There was no real similarity between the circumstances beyond a general relationship to a matrimonial dispute:

   21.1    there was no financial agreement in issue at the time;

   21.2the relevant conduct arose in the context of the breakdown of a long marriage, not in the context of the development of a new relationship;

   21.3there is no real similarity between the alleged conduct in the earlier circumstances (such as the references to a firearm) and the allegations made in the current proceedings;

   21.4the Court has no basis to understand the full context of the earlier alleged conduct due to a lack of evidence, and is really privy only to one affidavit filed on behalf of a party to family law proceedings with no information about the status of those proceedings, what other material was filed, or what the purpose of the affidavit was; and

   21.5there are no striking similarities, unusual features, underlying unity, system or pattern apparent in the evidence about the earlier alleged conduct and the allegations about the more recent conduct.

3. It follows that the tender of MFI C must be rejected, and the de bene esse evidence relation to it must therefore be excluded.

Evidence relating to alleged renunciation

1. On 27 February 2018, I ruled on objections to paragraphs 258-281 of the wife’s trial affidavit, for reasons to be delivered later.  What follows are those reasons.

2. The husband objected to these paragraphs on the basis that they were irrelevant, in that they could have no bearing on the wife’s repudiation claim.

3. Central to this issue is whether the drafting of a new BFA in 2014 was in contemplation of marriage or not.  The husband says it was; the wife denies it.  She says the husband described the BFA in terms consistent with it being unenforceable, and that was why it was necessary to draft a second one.

4. I am satisfied that the evidence sought to be relied on by the wife in the impugned paragraphs could, arguably, be consistent with repudiation.  Questions as to its clarity and ambiguity should not preclude its admission.

5. For those reasons I admitted the evidence.

Ms T’s affidavit

1. On 2 March 2018, I provisionally admitted paragraphs 15, 31, 33 and 34 of Ms T’s affidavit, subject to later ruling.  I am satisfied that those paragraphs, which are lay opinions as to the witnesses observations, and interpretations of those observations, of the wife, are potentially relevant to the time around the execution of the BFA, and hence potentially relevant to the wife’s claims of, at least, duress and undue influence.

2. I will therefore admit those paragraphs.  I do not do so on any tendency basis, but rather as to their potential insight into the wife’s state of mind at relevant times. 

A CRITICAL ISSUE – THE WIFE’S PROFICIENCY IN ENGLISH AS AT 31 MARCH 2011

Overview

1. Central to many of the wife’s claims is her asserted lack of proficiency in both written and spoken English at the time she signed the BFA on 31 March 2011.  It is said that she did not understand even the nature of what she was then signing (non est factum) or its contents (and hence under a unilateral mistake, the victim of misrepresentation, and under a special disadvantage, leading to unconscionability) and unable to in fact understand such advice required to be given to her under the Act, as may have been given.

2. It is pertinent to note that, in their extremely helpful written submissions, counsel for the husband assert, as a positive fact, that as at that date she signed the BFA, the wife’s “English skills were adequate.  She had the resources and opportunity to use an interpreter but chose not to do so (because she did not, in fact, require one).  She rejected [the husband’s] suggestion that a friend assist her with interpreting.”

3. Implicit in that submission is, I take it to be, a concession that this is an issue which substantially informs this case.

4. I therefore propose to identify and analyse the more significant evidence which bears upon the extent to which the wife had a capacity to communicate (whether orally or in writing) in English on 31 March 2011.

The evidence

Wife’s proficiency in English on arrival in Australia

1. Some parts of the wife’s evidence are unchallenged.  Particularly I do not understand it to be controversial that, when she was born in 1967, Country G was part of the Soviet Union, and hence then significantly under State control.  Her evidence that her family only spoke Country G was not challenged, and I accept it.  Her further evidence is that, growing up she had neither television, internet nor newspapers.  I also accept that evidence, which again was not challenged.  Additionally she said that radio broadcasts and other print and electronic communications were State owned, and only in Country G.  She was not challenged in relation to that.  Likewise her unchallenged evidence was that the study of foreign languages was not offered during her schooling.  I accept all of that evidence.

2. Next, her evidence was that when she was married, she and her husband owned a television, and by then, it was possible to access Country K television programs, in Country G, and that from watching those, she learned to speak and understand a few words in Country K.  That resulted in her being capable of some conversation in Country K, although she could not speak it fluently, or read it at all.  None of that was challenged.  Indeed it is obvious that, even on the husband’s case, after the parties commenced their relationship, much of their conversation, at least initially, was in Country K.

3. The only real challenge that was made by the husband to the wife’s proficiency in English at the time she came to Australia, related to the date of the visa under which she travelled here.  However as I shall later discuss, I am well satisfied that the date on it is an error, and that it was issued far closer to her date of actual travel.  I therefore reject the suggestion that she was able to, or did, prepare to integrate into Australian society by learning English whilst she was in Country G. It cannot be overlooked that she had only left her first marriage in late 2008. The suggestion that from January 2009 she was studying English, or at least in some way familiarising herself with English, strikes me as approaching fanciful.  She was still running the dry cleaning business which she and her husband had established.  There is no evidence whatsoever of any course of English being undertaken by her in Country G, although no doubt it is likely that one could have been sourced.  Indeed there is no evidence of her in fact engaging in any form of instruction in English in Country G whatsoever.  Absent that evidence, there is no adequate basis for me to conclude that she had embarked upon learning the English language prior to arriving in Australia.

4. This is supported by the fact that Mr B was the migration agent retained by the wife.  The wife’s evidence is that she came to know of him by virtue of the fact that, whilst in Country G, she lived in the same apartment block as his mother-in-law.  If she was proficient in English at that time, there was no reason for her to be seeking an Country G speaking Australian migration agent.  I am well satisfied that the reason she sought such an agent was because she could not converse in English.

5. Some additional support for her lack of English when arriving in Australia is that Mr Y, in preparation for his studies here in 2010, was required for some months to undertake formal English lessons for 5 days a week.  That, to my mind, does not suggest any English usage in the mother’s home in Country G.[7]

   [7] Although the wife conceded that Mr Y could speak some English: Transcript page 134.

Wife’s proficiency in English thereafter

1. That being my finding in relation to the state of her fluency when she arrived in Australia, the next question is what evidence there is of her proficiency improving in the sixteen and a half months thereafter, before she signed the BFA on 31 March 2011.  As to that, the wife’s evidence is that:

   (a)She and the husband predominantly spoke in Country K at home.  Indeed, even the husband conceded that they used a mixture; to the extent that he asserted that prior to 31 March 2011 it was predominantly English, I do not accept his evidence;

   (b)During that time, she largely stayed at home at the Suburb L house.  Particularly it was not suggested that she was frequently mixing with general members of the community, for instance, by working in Adelaide.  Her outside home activities extended to some socialising in the husband’s presence with members of the Country K community, going to occasional hairdressing and medical appointments, shopping with the husband, and some dining out with him, however even the husband conceded that he always ordered for the wife at restaurants;

   (c)When she did venture beyond the house, it was almost invariably with the husband; and

   (d)On the occasions when she was socialising with the husband, it was often in the Country K community, and hence Country K was the language generally spoken.  Whilst, as the husband asserts, his friends may have used English when speaking to the wife, it cannot be said it was the language generally employed at such gatherings.

2. There is also the particularly important evidence of Mr O Beroni and Ms T as to the wife’s inability to communicate with them at Mr O’s 50^th birthday party on 28 August 2010, and further meetings between them and the wife in 2010 and 2011.  According to both witnesses’ evidence, the wife’s capacity to converse in English did not materially improve.  I accept that evidence.

3. Aside from his own evidence as to the wife’s asserted capacity in English, as I have already noted, the husband led evidence germane to this issue from two hairdressers.  The first was Mr S, whose evidence was that during 2010, there were some occasions when he washed the wife’s hair.  He said “I would speak to [the wife] in English and she would respond to me in English.  I found that [the wife] and I communicated well in English.”  However to a significant degree, he retreated from that evidence during cross-examination, conceding that it would normally take only about 10 minutes to wash the client’s hair, and in re-examination, perhaps a little surprisingly, when given the option of categorising the wife as someone who wanted to talk, or did not want to talk, said “basically she did not want to talk.”

4. Ms Q recalled that the wife commenced coming to the salon where she and Mr S worked sometime in 2010, and stopped sometime in 2013.  In her affidavit she said that she and the wife only communicated in English, and the wife “would speak to me in broken English however I found that during those conversations she was able to understand me and I was able to understand her.”

5. In cross-examination, she seemed to have some difficulty with the word “broken,” preferring “basic” instead.  A little later in her oral evidence, she said that the wife spoke English slowly and clearly, but not fluently.  Her vocabulary was limited, and her sentence structure was poor, “but enough for me to understand what she was doing on the weekend for example, or where she was going for the evening, or whether I had to dress up her hair or just give her basic hairdos.”  That said, her evidence was that when selecting colours and styles, she would use pictures, and have the client select from those, although that was not unique to the wife.

6. However, on the other side of the ledger was the third hairdresser, Ms T.  In her affidavit she said that the wife first attended her salon on 20 May 2011 and “because I could not understand what [the wife] was saying, I looked on my phone for an App to translate from Country G to English and vice versa.  I could not find one and so we had to manage with gestures and pictures.”  Later in her affidavit, Ms T gave some examples of conversations which she had on the telephone with the wife between the middle of 2011 and the middle of 2013.  Obviously there were strong restrictions in their capacity to communicate.  As I have indicated, I accept Ms T as an honest witness.

7. There is then the further evidence derived from the file of the wife’s solicitor leading up to the execution of the BFA.  In my view the solicitor’s records are important, because they are contemporaneous, not subject to the vagaries of memory, or the influence of emotion, money or subsequent events.  Of particular importance are the following entries. 

Evaluation

1. The wife says that she was in a position of special disadvantage in dealing with the husband because:

   (a)She could not speak, read or understand English well, and was dependent upon the husband to assist her to do so:

   (b)She had no understanding of the law of property division upon the breakdown of a de facto relationship, whereas the husband did;

   (c)She could not read the BFA, whereas the husband could;

   (d)She was dependent upon the husband not informing immigration authorities of her breach of her guardian visa terms;

   (e)She was dependent upon the husband for her financial security in Australia, in that as at 31 March 2011, she was unable to work in the country, and her only form of income was an allowance in the sum of $2,000.00 per month which the husband was paying her;

   (f)She was dependent upon the husband for her accommodation, and she had no residence of her own in Australia, or the means to acquire one, albeit perhaps she could have rented;

   (g)She likely did not know that the BFA was manifestly unfair until she was told that by Mr E on 31 March, by which time she had already determined to sign it;

   (h)The only way that the wife could acquire permanent residence in Australia was by remaining in a relationship with the husband and obtaining a permanent visa, however the wife knew that if she did not sign the BFA, the relationship would not continue, at least past three years; and

   (i)The wife was fearful of returning to Country G because of her ex-husband, which the husband was aware of (transcript page 728).

2. I am satisfied all of those matters are established on the evidence.  In addition to them, I am further satisfied that the husband was generally controlling of the wife, and that she was somewhat fearful of him.

3. All of these, to my mind, combine to establish that the wife was indeed in a position of special disadvantage, vis-à-vis the husband, at the time she signed the BFA.

4. I am not satisfied that the advice which Mr E gave, or at least tried to impart to the wife on 21 March 2011, was sufficient to remedy that special disadvantage.  Leaving aside the inevitable language difficulties, which necessitated an interpreter, there is the further fact that I am well satisfied the wife was never given a copy of the BFA – as it would have been pointless, because she could not read it, much less understand it – and I am not persuaded that the wife had any real understanding as a result of her discussion of 30 minutes with Mr E on 31 March, as to the sort of value of claim which she would be giving up. The advice must have been, necessarily, given the language barrier and the 30 minute duration of the conference, wholly inadequate to remedy the position of special disadvantage.

5. The question then is whether the husband unconscientiously victimised, exploited, or otherwise conducted himself towards the wife by, firstly, insisting that she sign the BFA, and secondly insisting via her solicitors that it be in the proffered form, without variation.  In my view he did.  The husband must have known, even without Mr E’s letter, that the terms of the BFA were simply outrageous.  In my view the husband’s insistence that it be signed, and signed in an unamended form, given his knowledge of the wife’s circumstances of special disadvantage, means that his conduct in having the agreement signed, and insisting upon it being complied with, are unconscionable.  It is a form of exploitation of the wife.  It is, both legally and morally, inequitable.

6. This aspect of the wife’s claim therefore succeeds.

Undue Influence

Relevant legal principles

1. In Thorne v Kennedy , the plurality of the High Court summarised the relevant principles as follows:-

   30.In Allcard v Skinner, Lindley LJ said that “no Court has ever attempted to define undue influence”. One reason for the difficulty of defining undue influence is that the label “undue influence” has been used to mean different things. It has been used to include abuse of confidence, misrepresentation, and the pressure which amounts to common law duress. Each of those concepts is better seen as distinct. Nevertheless, the boundaries, particularly between undue influence and duress, are blurred. One reason why there is no clear distinction is that undue influence can arise from widely different sources, one of which is excessive pressure. Importantly, however, since pressure is only one of the many sources for the influence that one person can have over another, it is not necessary that the pressure which contributes to a conclusion of undue influence be characterised as illegitimate or improper.

   31.In 1836, in a passage which was copied verbatim by Snell thirty years later, Story said that a person can be subjected to undue influence where the effect of factors such as pressure is that the person “has no free will, but stands in vinculis [in chains]”. He explained that “the constant rule in Equity is, that, where a party is not a free agent, and is not equal to protecting himself, the Court will protect him”. In 1866, this approach was applied in equity by the House of Lords, recognising undue influence in a case of pressure that deprived the plaintiff of “free agency”. In 1868, in probate, Sir James Wilde also described undue influence as arising where a person is not a “free agent”. In Johnson v Buttress, Dixon J described how undue influence could arise from the “deliberate contrivance” of another (which naturally includes pressure) giving rise to such influence over the mind of the other that the act of the other is not a “free act”. And, in Bank of New South Wales v Rogers, McTiernan J characterised the absence of undue influence as a “free and well-understood act” and Williams J referred to “the free exercise of the respondent's will.

   32.The question whether a person's act is “free” requires consideration of the extent to which the person was constrained in assessing alternatives and deciding between them. Pressure can deprive a person of free choice in this sense where it causes the person substantially to subordinate his or her will to that of the other party. It is not necessary for a conclusion that a person's free will has been substantially subordinated to find that the party seeking relief was reduced entirely to an automaton or that the person became a “mere channel through which the will of the defendant operated”. Questions of degree are involved. But, at the very least, the judgmental capacity of the party seeking relief must be “markedly sub-standard” as a result of the effect upon the person's mind of the will of another.

   33.An example which illustrates the characterisation by a court of a lack of free will sufficient to amount to undue influence is the decision of this Court in Johnson v Buttress. In that case, Mr Buttress was a 67 year old man, who was “wholly illiterate, not very intelligent, and of little or no experience or capacity in business”. He made a voluntary transfer of land to a relative of his wife. The land was his only property and his only means of livelihood. When he made the transfer he did not understand that he had parted with the land irrevocably. After Mr Buttress died, the administrator of his estate brought an application to set aside the transfer. The trial judge set aside the transfer on the basis of undue influence. This decision was upheld in this Court. Although other members of the Court relied upon a presumption of undue influence, which is considered below, one member of the Court, Starke J, concluded that it was open to the trial judge to find that undue influence arose without any presumption. His Honour upheld the conclusion of the trial judge that the circumstances of the transfer invited the inference that it was “not the result of the free and deliberate judgment of the deceased”.

   34.There are different ways to prove the existence of undue influence. One method of proof is by direct evidence of the circumstances of the particular transaction. That was the approach relied upon by the primary judge in this case. Another way in which undue influence can be proved is by presumption. This presumption was relied upon by Ms Thorne in this Court as an alternative. A presumption, in the sense used here, arises where common experience is that the existence of one fact means that another fact also exists. Common experience gives rise to a presumption that a transaction was not the exercise of a person's free will if (i) the person is proved to be in a particular relationship, and (ii) the transaction is one, commonly involving a “substantial benefit” to another, which cannot be explained by “ordinary motives”, or “is not readily explicable by the relationship of the parties”. Although the classes are not closed, in Johnson v Buttress Latham CJ described the relationships that could give rise to the presumption as including parent and child, guardian and ward, trustee and beneficiary, solicitor and client, physician and patient, and cases of religious influence. Outside recognised categories, the presumption can also be raised by proof that the history of the particular relationship involved one party occupying a similar position of ascendency or influence, and the other a corresponding position of dependency or trust. In either case, the presumption is rebuttable by the other party proving that the particular transaction or transfer, in its particular circumstances, was nevertheless the result of the weaker party's free will.

   (Footnotes omitted)

Evaluation

1. It is pertinent to note that Mr E was alive to the prospect of undue influence in the months prior to the execution of the document, although it seems clear that he was troubled about actual undue influence, rather than presumed.

2. Although the wife contends for a presumed relationship of influence, I am not satisfied that it arises on the facts of this case.

3. On the other hand I am satisfied that there was actual undue influence, by virtue of the following matters:

   (a)The general position of dominance which the husband had in relation to the wife;

   (b)His insistence, over a considerable period of time, that the BFA be signed, and his later insistence it be signed without amendment;

   (c)The wife’s fear that he may inform immigration authorities that she was in breach of her visa conditions;

   (d)The husband and wife’s knowledge that, in order to obtain an permanent visa, the relationship needed to continue, but it could only continue if the BFA was signed; and

   (e)The wife’s dependence upon the husband for accommodation and income in Australia.

4. I am not persuaded that the execution of the agreement by the wife was the product of her free will.  Particularly, the stark improvidence of the transaction is unlikely to be the product of her free will, in the face of advice not to enter it.

5. I should, at this point, specifically deal with the husband’s assertion that signing the BFA was just a part of the wife’s scheme to get permanent residency in Australia, and in signing it, she knowingly took a chance that things would go well for her.  The husband claimed that, in reality, it was he who was the victim of the wife’s plot.

6. I reject that claim.  It is fanciful to claim that the husband was emotionally vulnerable to the wife’s manipulation.  If that were so, why insist on the BFA at all?  Why become angry at the suggested changes?  Why reject them and insist on it being signed unaltered?  The answer to all those questions, I am well satisfied, is that the husband uses his money to manipulate and control others, and if it were at any risk, he would have terminated the relationship prior to three years.

7. It therefore follows that this aspect of the wife’s claim also succeeds.

Misrepresentation

Relevant legal principles

1. There are three species of misrepresentations: innocent, negligent and fraudulent. However in all three cases the representation must be as to a matter of fact, and the representation must materially, although not solely, induce the entry into the agreement.

Evaluation

1. Although I am satisfied that the husband minimised the importance of the BFA and must have been aware that the chances of the wife learning of the true consequences of it without the benefit of an interpreter were slender, I am not persuaded that the husband engaged in a species of fraud by so doing.  To the extent that the wife’s claims are based upon non-fraudulent misrepresentation, I am not persuaded that they are made out either.  In any event, even if misrepresentation were established, I am not satisfied that it was a material inducement to the execution of the agreement by the wife, which was instead the product of undue influence and unconscionability, rather than some species of belief induced by misrepresentation. 

2. This aspect of the wife’s claim fails.

Unilateral mistake

Relevant legal principles

1. In Taylor & Johnson (1983) 151 CLR 422 at page 432-433, the majority of the High Court said this in relation to the doctrine of unilateral mistake:

   The particular proposition of law which we see as appropriate and adequate for disposing of the present appeal may be narrowly stated. It is that a party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension. What we have said is sufficient to demonstrate the broad basis of support which the authorities provide for that proposition. Moreover, and perhaps more importantly, it is a principle which is best calculated to do justice between the parties to a contract in the situation which it contemplates. In such a situation it is unfair that the mistaken party should be held to the written contract by the other party whose lack of precise knowledge of the first party's actual mistake proceeds from willful ignorance because, knowing or having reason to know that there is some mistake or misapprehension, he engages deliberately in a course of conduct which is designed to inhibit discovery of it. Our comment can, for present purposes, be limited in its application to the case where the second party has not materially altered his position and the rights of strangers have not intervened.

Evaluation

1. For the reasons which I have given above, I am not satisfied that the wife entered into the BFA under some species of mistake.  Rather I am satisfied that she entered it as a result of unconscionability and undue influence.  To the extent that, in this claim, there is a repetition of her assertion that she did not know the effect of the document that she was signing, I do not accept it.

2. This aspect of the wife’s claim therefore fails.

Estoppel

1. To all of the wife’s non-statutory claims, the husband says that, if they are established, she is nonetheless estopped from so asserting.  Particularly he says that, based upon her representations in the BFA, he acted to his financial detriment by continuing the relationship beyond three years.  He says that she is therefore now not free to depart from the expectation which he reasonably had, as a result of the wife signing the BFA.

2. However in my view, it was not reasonable for the husband to rely upon any such representation in the BFA, given its manifest unfairness, and his knowledge of the circumstances under which it was executed, particularly its unconscionable exploitation of the wife.

3. I should also confess to some misgivings about estoppel being used as a defence to equitable fraud, but given my findings in relation to the lack of reasonable reliance, I do not need to consider that issue further.

SECTION 90UM(1)(e)

Relevant statutory provisions

1. Section 90UM(1)(e) of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:

   (1)A court may make an order setting aside, for the purposes of this Act, a Part VIIIAB financial agreement or a Part VIIIAB termination agreement if, and only if, the court is satisfied that:

   …

   (e)  the agreement is void, voidable or unenforceable.

Evaluation

1. This is the statutory analogue of the wife’s various claims discussed above. It is therefore unnecessary to traverse them further, save to say that I am satisfied that the wife’s claims in relation to undue influence and unconscionability, to the extent that they are picked up under s 90UM(1)(e) of the Act, also succeed under that provision, as well as the general law.

SECTION 90UM(1)(h)

Relevant statutory provisions

1. Section 90UM(1)(h) of the Act relevantly provides:

   (1)A court may make an order setting aside, for the purposes of this Act, a Part VIIIAB financial agreement or a Part VIIIAB termination agreement if, and only if, the court is satisfied that:

   …

   (h)in respect of the making of a Part VIIIAB financial agreement a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable;

Evaluation

1. This is the statutory analogue of the wife’s claim for equitable unconscionability. Whilst there is an argument that the ambit of unconscionability under that Act is broader than that recognised in equity, it is unnecessary to traverse that further here, as it was not relied upon by the wife.

2. It follows that the wife’s claim under this provision also succeeds.

SECTION 90UJ

Relevant statutory provisions

1. Section 90UJ of the Act relevantly provides:

   (1)  Subject to subsection (1A), a Part VIIIAB financial agreement (other than an agreement covered by section 90UE) is binding on the parties to the agreement if, and only if:

   (a)  the agreement is signed by all parties; and            

   (b)  before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and

   (c)  either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and

   (ca)  a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and

   (d) the agreement has not been terminated and has not been set aside by a court.

   Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995.      

   (1A)  A Part VIIIAB financial agreement (other than an agreement covered by section 90UE) is binding on the parties to the agreement if:

   (a)       the agreement is signed by all parties; and

   (b)  one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and

   (c)  a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and

   (d)  the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and

(e)  the agreement has not been terminated and has not been set aside by a court.

(1B)  For the purposes of paragraph (1A)(d), a court may make an order declaring that a Part VIIIAB financial agreement is binding on the parties to the agreement, upon application (the enforcement application ) by a spouse party seeking to enforce the agreement.

(1C) To avoid doubt, section 90UN applies in relation to the enforcement application.

(2)  A Part VIIIAB financial agreement covered by section 90UE is binding on the parties to the agreement if, and only if, the agreement has not been terminated and has not been set aside by a court.

(3)  A Part VIIIAB financial agreement ceases to be binding if, after making the agreement, the parties to the agreement marry each other.

(4)  A court may make such orders for the enforcement of a Part VIIIAB financial agreement that is binding on the parties to the agreement as it thinks necessary.

Evaluation

1. There are three sources of evidence as to the requisite advice having been given to the wife. The first is in the file note of Mr E, the second is in his certificate to the BFA, accepting that it erroneously refers to s 90G of the Act, and finally the wife’s evidence under cross-examination recited earlier.

2. It is here that the failure of the wife to call Mr E looms large.  The wife is contending a case of a failure of her agent to properly advise her, and yet there is evidence as discussed above which is to the contrary.  If she wished overcome that evidence, then it seems to me she had to call Mr E, no doubt pursuant to subpoena, and probably seek to have leave to cross-examine him, rather than lead evidence-in-chief.  She would have then needed to overcome the very considerable obstacle which the other evidence presents, perhaps by his recanting it.  In this instance, whilst I do not draw any inference that Mr E’s evidence would not have assisted the wife’s case, her failure to call him means his other evidence is uncontradicted except by the wife directly.  I prefer the contemporaneous records.  It therefore follows that this aspect of the wife’s claim must fail.   

REPUDIATION/RENUNCIATION

Relevant legal principles

1. The wife’s Summary of Argument relies on the principle of contract law that parties may, by express or implied mutual agreement terminate (or renounce) a contract insofar as it remains executory or, alternatively, may be treated by their conduct as having abandoned their contract: Bond v Walford (1886) 32 Ch D 238; Rowell v Rowell (1900) 1 QB 9; Summers v The Commonwealth (1918) 25 CLR 144, 151-152; Fitzgerald v Masters (1956) 95 CLR 420, 432; Agricultural and Rural Finance Pty Ltd v Bruce Walter Gardiner & Anor (2008) 238 CLR 570, [88], [144], [162].

Evaluation

1. Whilst I accept that the husband did describe – as it transpires, accurately – the BFA as “rubbish,” which “would be thrown out by a judge”, I am not satisfied that therefore evidences an intention to no longer be bound by it.  It is nothing more than a recognition of the likely unenforceability of the BFA, and hence the need to negotiate another which was fairer, and executed in circumstances which would not tend to invalidate it.  In my view, clearer conduct than that relied upon by the wife would be necessary in order for the claim of a repudiation or renunciation to be established.  The fact that the parties thereupon commenced negotiating a new BFA does not, to my mind, thereby demonstrate a mutual abandonment of it.

2. Whilst I am not satisfied that the parties’ commenced negotiating the new BFA in contemplation of marriage, (notwithstanding the wife’s seeming concession as to that a page 97 of the transcript) plainly if I am wrong as to that, it would wholly preclude renunciation in any event.

3. This aspect of the wife’s claim therefore fails.

CONCLUSION

1. For these reasons the wife’s claim to have the BFA set aside succeeds, and there will therefore be orders as set out at the commencement of these reasons.

I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 2 December 2019.

Associate: 

Date: 2 December 2019