DAILY & DAILY - [2020] FamCA 486

FAMILY COURT OF AUSTRALIA

DAILY & DAILY

[2020] FamCA 486

FAMILY LAW – PROPERTY SETTLEMENT – Financial Agreement – Where the wife seeks a declaration that the agreement is not a binding financial agreement or that it be set aside pursuant to s 90K of the Family Law Act 1975 (Cth) – Where the husband seeks that the agreement be declared binding and that it be enforced pursuant to s 90KA of the Act – Where the parties entered into a financial agreement in 2005 – Consideration and application of the Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009 (Cth) – Where handwritten amendments were made to the agreement by the husband’s solicitor after the wife had signed the agreement – Where the wife and her solicitor subsequently initialled the amendments – Whether the requisite independent legal advice was provided to the wife – Where the advice does not satisfy the legislative requirements – Where it would be unjust and inequitable if the agreement was not binding on the parties – Whether there has been a material change in circumstances in relation to the care, welfare and development of a child to the marriage that would result in hardship if the agreement was not set aside – Where two children of the relationship were born following the marriage – Where the wife ceased fulltime employment to be the primary caregiver for the children – Consideration of the personal and financial circumstances of the parties in determining whether hardship will be sustained – Where the agreement is set aside.

Family Law Act 1975 (Cth) ss 4, 71A, 75(2), 79, 90B, 90G, 90G, 90K, 90KA
Family Law Amendment Act 2000 (Cth) Sch 2
Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009 (Cth) Sch 5
Law of Property Act 1936 (SA)

ADX Building Systems P/L v Macleod & Ors [2014] SADC 212
Fewster & Drake (2016) FLC 93-745
Frederick & Frederick (2019) FLC 93-900
Goddard’s Case (1584) 2 Co.Rep 4b; 76 ER 396
Hoult & Hoult (2013) FLC 93-546
Parker & Parker [2010] FamCA 664
Parker & Parker (2012) FLC 93-499
Pascot & Pascot [2011] FamCA 945
Ruane & Bachmann-Ruane [2009] FamCA 1101
Senior & Anderson (2011) FLC 93-470
Thorne v Kennedy (2017) 263 CLR 85
Wallace & Stelzer and Anor (2013) FLC 93-566

Explanatory Memorandum to the Federal Justice System Amendment (Efficiency Measures) Bill (No.1) 2008 (Cth)
Robert F Norton, A Treatise on Deeds, ed Robert J A Morrison and Hugh J Goolden (Sweet & Maxwell, 2^nd ed, 1928)

APPLICANT:

Mr Daily

RESPONDENT:

Ms Daily

FILE NUMBER:

ADC

4606

2018

DATE DELIVERED:

17 June 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

27 April 2020 to 1 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Robertson SC and Ms Miller

SOLICITOR FOR THE APPLICANT:

Jordan & Fowler Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Pyke QC

SOLICITOR FOR THE RESPONDENT:

Norman Waterhouse Lawyers

Orders

That pursuant to s 90K(1)(d) of the Family Law Act 1975 (Cth) the financial agreement entered into between the parties dated 21 July 2005 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 Daily & Daily 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: ADC 4606 of 2018

Mr Daily

Applicant

And

Ms Daily

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Further Amended Response to Initiating Application filed 11 December 2019, Ms Daily (“the wife”) seeks a declaration pursuant to s 90G(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) that the financial agreement (“the agreement”) made between the parties on 21 July 2005 is not a binding financial agreement (“BFA”), or in the alternative that the said agreement be set aside pursuant to the provisions of ss 90K(1)(b) and/or 90K(1)(d) and/or 90K(1)(e) of the Act.
If successful, the wife thereafter seeks orders for settlement of property pursuant to s 79 of the Act.
The proceedings have been bifurcated and the only aspect for consideration is the status of the agreement dated 21 July 2005. The wife’s Notice of Contention, filed 11 December 2019, sets out a summary of the facts upon which she relies in seeking the declaration and why the agreement should be set aside pursuant to s 90K of the Act.
By Reply filed 10 September 2019 and his Outline of Case, Mr Daily (“the husband”) seeks that the wife’s application be dismissed and that the agreement be declared binding on the parties either, because it complies with s 90G or by application of the provisions of s 90G(1A) and it be enforced as if it were an order of the Court pursuant to s 90KA of the Act.

Short history

The husband was born in 1971 and is now 48 years of age.
The wife was born in 1975 and is now 45 years of age.
The parties commenced cohabitation in or about August 1997, separated in 1999, resuming cohabitation in November 2001.
The parties were engaged on 27 October 2003, solemnised their marriage in 2005 and separated on 15 September 2018.
The parties obtained a divorce order in 2020.
There are two children of the marriage, X born in 2006 and Y born in 2009 (collectively “the children”).
The parties were able to successfully negotiate ongoing parenting arrangements and on 17 May 2019 orders were made by consent that the children spend equal time with the parties.
Whilst it is unlikely to be a significant factor in determining the competing applications of the parties, there remained some contention between the parties as to whether X would return to the wife’s care following the conclusion of the April school holidays and thereafter resume a shared care arrangement.
The evidence was not conclusive as to the future arrangements for X. Neither party sought that the proceedings be adjourned to a date that would enable a better understanding of whether X would reside primarily with one parent or the other.

Background

The parties met in December 1996. The husband was working for a company in F City in his capacity as a finance professional.
The wife was employed as a health professional and in August 1997 moved to F City where the parties commenced cohabitation.
The parties moved to Adelaide in early 1999 and separated upon their return.
The parties each lived separate lives. The husband purchased a property in J Street, Suburb H (“the J Street property”) and in late 2000 the wife was successful in an application to study. She graduated in April 2001.
There is some dispute between the parties as to whether they recommenced their relationship in October 1999 as asserted by the wife or whether it was not until she returned to Adelaide in November 2001 following a employment transfer to G City.
The husband considered that the parties were in an exclusive relationship, were cohabiting and had opened a joint bank account into which money was contributed for household and other expenses.
In December 2001 the wife purchased a property in K Street, Suburb H (“the K Street property”) that was adjacent to the husband’s J Street property. The husband assisted the wife’s purchase of the property by contributing about $23,000.
The wife was the sole registered proprietor of her property, contributed funds by way of deposit and obtained a bank mortgage to enable the purchase to be finalised.
The parties occupied the wife’s premises and rented out the husband’s premises.
The parties remained in the K Street property until April 2003. They then moved to the husband’s J Street property until it was sold in February 2004. The parties then purchased and moved to a property in L Street, Suburb M (“the L Street property”).
Reasonably extensive renovations were undertaken to the L Street property with the parties remaining in residence until its sale in November 2005. The net proceeds of sale were then used by the parties to purchase the former matrimonial home at N Street, Suburb P (“the N Street property”) in December 2005.
The husband sought advice from Ms Q, a solicitor at R Lawyers as to the preparation of a BFA.
The husband contends that in anticipation of a possible marriage in 2003 he sought an agreement that would enable each of the parties to retain their separate property, to share jointly acquired property equally and for there to be no spousal maintenance payable by one to the other.
The husband’s instructions culminated in a first and second draft of a document titled “Deed of Financial Agreement”. The husband says that following some amendments to a “second draft” of a document provided by Ms Q to him, it was signed by him on 11 November 2002. He recollects that he gave the signed document to the wife for her consideration. Initially the wife did not accept that she received a copy of the document prepared by Ms Q.
The execution of the document by the wife was not advanced and the husband concedes that his next personal contact with Ms Q was on 24 May 2005 when he requested that she send him a copy of the draft agreement that had been prepared in 2002.
The husband is uncertain as to the circumstances by which he gave a copy of the draft document to the wife, but by reference to [57] of the wife’s trial affidavit, filed 2 March 2020, she concedes that the husband provided her with a copy of a financial agreement (which she refers to as “the first BFA”) and recollects that she was told by the husband that it had been prepared by his solicitors.
The wife’s stated position is that there had not been any discussions between the parties as to the terms of the document, including the financial schedules prepared by the husband.
The wife’s position is that despite ongoing discussions with the husband as to their plans to marry, their finances and their mutual intention to start a family, the husband had not previously discussed his requirement that the marriage was conditional on the parties entering a financial agreement that would be considered binding on them.
It is likely that on 27 June 2005 the wife contacted the husband’s solicitor and requested a copy of the unsigned and incomplete document which she refers to as “the first BFA”. The wife took the document to Ms S a solicitor in the employ of T Lawyers.
It appears that the wife and her solicitor were not satisfied with the drafting of the document and Ms S was instructed to redraft the document which was then provided to the husband, who then gave it to Ms Q on or about 9 July 2005.
Further instructions were given to Ms S, such that on 12 July 2005 she recommended that there be further changes to the document she refers to as “the second BFA” and to the manner in which the property of the parties would be divided and changes to the treatment of the parties’ respective superannuation entitlements and pension entitlements that may have increased as and from the date of marriage. The wife signed the document she refers to as “the third BFA” which she provided to the husband.
The husband does not recollect any discussion with the wife about the changes as contained in the document but it is his position that he did not sign it.
The wife’s recollection is that the husband advised her of amendments that were required by him to the third BFA and following her instructions to Ms S, a redrafted document which incorporated the purported amendments appears to have been executed by the wife and Ms S on 15 July 2005.
The partially executed document referred to as “the fourth BFA” was then forwarded to the husband who took it to Ms Q on 21 July 2005.
The husband apparently observed that there had been “key changes” that had been made to the third BFA and were contained in the fourth BFA. The husband did not consider that they had been part of any negotiation with the wife. The document was amended by Ms Q in her own handwriting, in accordance with the husband’s instructions. Thereafter, the husband and Ms Q initialled the handwritten amendments, and signed the agreement on 21 July 2005. It was thereafter forwarded to Ms S for the further consideration of the wife and if accepted the handwritten amendments would be initialled.
It is not controversial that the final iteration of the document was signed by the wife and certified by Ms S on 15 July 2005 and following Ms Q’s handwritten amendments, signed by the husband and certified by Ms Q on 21 July 2005. It was then returned to Ms S with the handwritten amendments being initialled by the wife and Ms S on a date after 21 July 2005.
The wife contends that she does not have a clear recollection of her further attendance on Ms S when the handwritten amendments were initialled, but she recollects her solicitors advice that:-
(a)“the agreement would not be binding in the event that the husband and I had children”;[1]
(b)“the agreement would be binding in the event the husband and I did not have children”.[2]
[1] Trial affidavit of the wife filed 2 March 2020 at [91(a)].
[2] Trial affidavit of the wife filed 2 March 2020 at [91(b)].
Thereafter the parties continued with the wedding arrangements to take place on DD City in Country FF in 2005.
On 5 November 2018 the husband commenced proceedings by filing an Initiating Application seeking parenting orders for X and Y. The wife’s Response to Initiating Application was filed on 7 December 2018 in which she sought orders that the agreement made between the parties on 21 July 2005 be set aside pursuant to the provisions of s 90K(1)(d) of the Act and that thereafter orders be made for property settlement and division.
The husband’s Reply was filed on 10 September 2019 seeking orders that the wife’s application for property settlement be dismissed and that the agreement made between the parties on 21 July 2005 be declared binding and enforced pursuant to s 90KA(c).

Documents relied upon

The wife relies upon the following documents:-
·Further Amended Response filed 11 December 2019
·Trial affidavit of the wife filed 2 March 2020
·Financial Statement filed 2 March 2020
·Affidavit of the wife annexing financial agreement dated 21 July 2005, filed 19 December 2018
·Outline of Case document and Notice of Contention filed 24 April 2010.
The husband relies upon the following documents:-
·Reply filed 10 September 2019
·Affidavit of the husband filed 10 August 2019
·Trial affidavit of the husband filed 17 April 2020
·Financial Statement filed 17 April 2020
·Outline of Case document
By subpoena filed 23 April 2020, the husband sought the attendance of Ms S. It was agreed that Ms S would be called as part of the wife’s case.
Efforts to locate Ms Q were unsuccessful. She was not called. There was no application sought in relation to Ms Q, however a subpoena was filed on 23 April 2020 for her attendance.
Subpoenas were issued for the production of the solicitor’s file of Ms Q (“R Lawyers”) (Exhibit “2”) and Ms S (“T Lawyers”) (Exhibit “3”).

Legislative pathway

Section 71A(1) of the Act provides:-
71A(1) [Matters in financial agreements] This Part does not apply to:
(a) financial matters to which a financial agreement that is binding on the parties to the agreement applies; or
(b) financial resources to which a financial agreement that is binding on the parties to the agreement applies.
Accordingly, property and spousal maintenance orders pursuant to s 79 of the Act are not able to be made if the parties enter into a financial agreement that is binding.
The consequence is that the Court does not have power to make orders for settlement of property pursuant to s 79 of the Act.
Pursuant to the definition of financial agreement in s 4 of the Act, a financial agreement means:
an agreement that is a financial agreement under section 90B, 90C or 90D, but does not include an ante-nuptial or post-nuptial settlement to which section 85A applies.
Pursuant to s 4 of the Act, financial matters means:-
(a)in relation to the parties to a marriage – matters with respect to:
(i)the maintenance of one of the parties; or
(ii)the property of those parties or of either of them; or
(iii)the maintenance of children of the marriage; or
…
Part VIIIA of the Act provides for the provisions in respect of financial agreements.
Section 90B of the Act relates to financial agreements before marriage and provides:-
90B(1)      If:
(a)     people who are contemplating entering into a marriage with each other make a written agreement with respect to any of the matters mentioned in subsection (2); and
(aa) at the time of the making of the agreement, the people are not the spouse parties to any other binding agreement (whether made under this section or section 90C or 90D) with respect to any of those matters; and
(b)the agreement is expressed to be made under this section;
the agreement is a financial agreement. The people may make the financial agreement with one or more other people.
90B(2)      The matters referred to in paragraph (1)(a) are the following:
(a)     how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse parties at the time when the agreement is made, or at a later time and before divorce, is to be dealt with;
(b)    the maintenance of either of the spouse parties:
(i)during the marriage; or
(ii)after divorce; or
(iii)both during the marriage and after divorce.
90B(3) A financial agreement made as mentioned in subsection (1) may also contain:
(a)     matters incidental or ancillary to those mentioned in subsection (2); and
(b)other matters.
90B(4)     …
Section 90G(1) of the Act provides for the circumstances when a financial agreement is binding. The present iteration of s 90G(1) provides:-
90G(1)[Requirements for binding agreement] Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if:
(a)     the agreement is signed by all parties; and
(b)     before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c)     either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca)   a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(d)     the agreement has not been terminated and has not been set aside by a court.
Note:For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995.
Whether a financial agreement is binding is to be considered pursuant to s 90G(1A) and (1B) of the Act which provides:-
90G(1A) [Binding nature of financial agreement] A financial agreement is binding on the parties to the agreement if:
(a)     the agreement is signed by all parties; and
(b)     one or more 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.
90G(1B)[Declaration that financial agreement binding] For the purposes of paragraph (1A)(d), a court may make an order declaring that a financial agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement.

In the present case, the wife seeks a declaration that the financial agreement is not binding whereas the husband, by his enforcement application seeks that the financial agreement is binding on the parties.
Section 90G was inserted by Schedule 2 of the Family Law Amendment Act 2000 (Cth) and provided:-
(1)A financial agreement is binding on the parties to the agreement if, and only if:-
(a)the agreement is signed by both parties; and
(b)the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:
(i)the effect of the agreement on the rights of that party;
(ii)whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of the party to make the agreement;
(iii)whether or not, at that time, it was prudent for that party to make the agreement;
(iv)whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable; and
(c)the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and
(d)the agreement has not been terminated and has not been set aside by a court; and
(e)after the agreement is signed, the original agreement is given to one of the parties and a copy is given to the other.
Note:For the manner in which the contents of a financial agreement may be provided, see s 48 of the Evidence Act 1995.
(2)A court may make such orders for the enforcement of a financial agreement that is binding on the parties to the agreement as it thinks necessary.
The Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 (Cth) (“amending legislation”) introduced retrospective amendments with application to the provisions of the Act dealing with financial agreements, in particular s 90G.
The explanatory memorandum to the amending legislation in support of the amendments states as follows:-
Schedule 5 to the Bill amends binding financial agreement and termination agreement provisions of the Family Law Act 1975 to relax certain technical requirements that must be strictly satisfied for financial agreements and termination agreements to be binding. These amendments will respond to the concerns about the binding financial agreement provisions of the Act that have arisen following the decision of the Full Family Court in Black v Black. The Family Law Council has confirmed that amendments are required to restore confidence in the binding nature of these agreements.[3]
[3] Explanatory Memorandum, Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 (Cth) at 2.
Schedule 5 pt 1 item 8 of the amending legislation provides for the retrospective application of the amendments to financial agreements made on or after 27 December 2000. Subitems 8(6) and 8(7) provide as follows:-
(6)For a financial agreement made before the commencement of this item, paragraphs 90G(1)(c) and (ca) of the Family Law Act 1975, as inserted by item 2 of this Schedule, do not apply.
(7)For a financial agreement made before the commencement of this item, paragraph 90G(1A)(b) of the Family Law Act 1975, as inserted by item 4A of this Schedule, does not apply and the following paragraph 90G(1A)(b) of that Act is taken to have been inserted by that item and to apply instead;
(b) paragraph (1)(b) is not satisfied in relation to the agreement; and
…
The amending legislation provides for further transitional provisions in item 8A applicable to agreements made on or after 14 January 2004 and before the commencement of the amending legislation on 4 January 2010. The following transitional provisions apply:-[4]
[4]Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009 (Cth) sch 5, pt 1, item 8A.
(1)Subitems (2) and (3) apply in relation to a financial agreement made on or after 14 January 2004 and before the commencement of this item.
(2)Paragraph 90G(1)(b) of the Family Law Act 1975, as in force during that period, is also taken to be satisfied in relation to a spouse in relation to the agreement if, before signing the agreement, the spouse party was provided with independent legal advice from a legal practitioner about:
(a)the effect of the agreement on the rights of that party; and
(b)whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; and
(c)whether or not, at that time, it was prudent for that party to make the agreement; and
(d)whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable.
(3)Paragraph 90G(1)(c) of the Family Law Act 1975, as inserted by this Act, applies in relation to the agreement as if the reference in that paragraph to the advice referred to in paragraph (b) included a reference to the advice referred to in subitem (2) of this item.
…
In Senior & Anderson (2011) FLC 93-470 Murphy J considered the intended purpose of the amending legislation as follows at 85,730:-
178.It can be seen that, by Item 8(1), amendments made by the Amending Act apply in relation to “[all] financial agreements…made on or after 27 December 2000”. That retrospective application would, on its own, provide a foundation for numerous actions that would seek to “cure” non-compliance with the mandatory requirements of s 90G in respect of all financial agreements made pursuant to the Act. In order to prevent that occurring, the broad retrospective application provided for in Item 8(1) is qualified by the succeeding sub-parts.
His Honour then considered that the provisions of item 8A, by reference to the supplementary explanatory memorandum to the amending legislation, were to give effect to “similar purposes”:-
181.The Supplementary Explanatory Memorandum to the Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 (Cth) circulated by the Attorney General provides:
22.The amendment inserts new item 8A into Part 1 of Schedule 5 to the Bill which will provide for additional circumstances in which a financial and termination agreement made on or after 14 January 2004 and before commencement of item 8A will bind the parties to the agreement. Amendments to the Family Law Act 1975 which commenced on that date changed the matters about which spouses had to obtain prior independent legal advice for the agreement to bind them. Some legal practitioners continued to rely on old precedents relating to the provisions of the Act as they stood before 14 January 2004 for agreements made for some time after that date. Subitems 8A(2), 8A(3), 8A(5), 8A(6) will provide that the agreement binds the spouses if the prior independent legal advice obtained by one or both spouses was about matters on which advice was required under the Act to be obtained before 14 January 2004. Sub-item 8A(7) provides that Amendment 11 does not apply to agreements set aside before the commencement of item 8A. Accordingly, it does not give rise to the acquisition of any property rights.
His Honour considered the cumulative effect of the amending legislation and in particular the application of items 8 and 8A of the transitional provisions and accepted a “consolidated” construct of s 90G at 85,732 [189] of the judgment:-
“90G When financial agreements are binding
(1)Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if:
(a) the agreement is signed by all parties; and
(b)before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement;
OR
before signing the agreement, the spouse party was provided with independent legal advice from a legal practitioner about:
i.the effect of the agreement on the rights of that party; and
ii.whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; and
iii.whether or not, at that time, it was prudent for that party to make the agreement; and
iv.whether or not, at that time and in light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable.
(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 the italicised text or, in the alternative, stating that the advice referred to in the underlined text in paragraph (b) above, was provided to that party (whether or not the statement is annexed to the agreement); and …”
(footnotes omitted).
(Original emphasis)

2002 draft financial agreement

On 26 March 2002 the husband sought advice from Ms Q concerning financial matters arising from his de facto relationship with the wife. Exhibit “2” comprises his file with R Lawyers.
The new client file form (page 2 of the exhibit) describes the matter description as “de facto property” and involved initial advice only. Correspondence from Ms Q to the husband dated 28 March 2002 (page 4 of the exhibit) records that the advice given to the husband was preliminary in nature and concerned “Cohabitation Agreements under the DeFacto Relationships Act and Binding Financial Agreement’s under the Family Law Act.”
An email from the husband to Ms Q dated 12 September 2002[5] confirms that she was reinstructed to prepare a financial agreement in circumstances where the husband acknowledged that the wife wanted to get married in 2003 and there had been discussions between them about asset division upon separation.
[5] Exhibit “2” page 7.
The initial email was followed by a further email on 19 September 2002[6] asking that Ms Q provide to the husband relevant reading matter and necessary legislation that would help him “understand pre-nups and think through [his] issues”. Following correspondence to the husband on 30 September 2002[7] advising him of the risks of BFA’s under the Act, an appointment was made with Ms Q to commence the task of preparing a BFA.
[6] Exhibit “2” page 8.
[7] Exhibit “2” page 10.
The R Lawyers file also includes questions for Ms Q, her advice as to the husband’s understanding of the future plans of the parties following marriage and possible scenarios for the quarantining of the husband’s J Street property, what would happen if one party was unemployed or on maternity leave and how any financial agreement might have application if one of the parties were to die.
It appears that the husband prepared schedules setting out the separate assets and liabilities of each of the parties and their joint assets, principally comprised of the K Street property.
It appears that Ms Q forwarded a draft financial agreement to the husband enclosed in a letter dated 6 November 2002. The letter refers to the financial agreement as the “second draft”.[8] It is likely that the financial agreement that accompanied the correspondence was the document titled “Deed of Financial Agreement – Second Draft” found in Exhibit “2” at page 43.
[8] Exhibit “2” page 39.
The document is very much a draft. It does not include details of the husband’s employment at V Company, nor does it include the name of the wife’s solicitor for the purposes of the certificate of independent legal advice.
It is apparent from an R Lawyers file note on 11 November 2002[9] that on the husband’s instructions Ms Q made some further changes to the financial agreement which was then signed by the husband with the stated intention that he would give the document to the wife.
[9] Exhibit “2” page 65.
The husband no longer retains a copy of the signed document. It is only following the husband’s ability to access the R Lawyers file that he was able to confirm the dates upon which relevant events occurred. The husband has always maintained his position that he provided a copy of the draft financial agreement to the wife for her consideration. It is likely that the final 2002 “Draft Financial Agreement” is the document in Exhibit “2” at page 163.
The draft document refers to the intention of the parties to marry in May 2003 and that it is a financial agreement under s 90B of the Family Law Amendment Act 2000 (Cth). Accordingly, it is a financial agreement in anticipation of marriage.
The husband held employment as a manger at V Company and the wife is recorded as a salaried public servant. The essential provisions of the agreement are as follows:-[10]
[10] Exhibit “2” pages 165 and 166.
2.[The wife] agrees that:-
(a)      she has made no financial contribution towards [the husband’s] assets and resources as set out in the First Schedule;
(b)      she has no entitlement to [the husband’s] assets and resources as set out in the First Schedule or any accretion to them or any income from them;
(c)      she has no entitlement to any gifts or inheritances received, or which may at any time be received, by [the husband];
3.[The husband] agrees that:-
(a)      he has made no financial contribution towards [the wife’s] assets and resources as set out in the Second Schedule;
(b)      he has no entitlement to [the wife’s] assets and resources as set out in the Second Schedule or any accretion to them or any income from them;
(c)      he has no entitlement to any gifts or inheritances received, or which may at any time be received, by [the wife];
4.The parties may each contribute financially and non-financially towards the acquisition, conservation and improvement of assets and resources (other than those referred to in paragraphs 2. and 3. hereof) during their marriage to the best of their respective abilities.
5.Assets and resources acquired during the course of the marriage (other than those referred to in paragraphs 2. and 3. hereof) shall be deemed to be owned by the parties in the proportions described in any document evidencing title.
The first schedule reflects the husband’s assets and liabilities including his superannuation with W Company.
The second schedule sets out the husband’s understanding of the wife’s assets and liabilities including her superannuation and the third schedule sets out the joint assets and liabilities of the parties.
The certificates of independent legal advice provide for each of the parties to be given independent advice before the party signed the agreement as to the following matters:-[11]
1.The effect of the agreement on the rights of the parties to apply for an Order under the provisions of the Family Law Act 1975, the Family Law Amendment Act 2000, and otherwise at law and in equity.
2.Whether or not at the time it was to the advantage, financially or otherwise, for [her/him] to enter into the agreement.
3.Whether or not at the time it was prudent for [her/him] to enter into the agreement.
4.Whether or not, at the time and in light of such circumstance as were reasonably foreseeable, the provisions of the agreement were fair and reasonable.
[11] Exhibit “2” pages 172 and 173.
The matters referred to in the certificates were in accordance with the provisions of s 90G of the Act prior to the later amendments.
Initially the wife denied that she had been given a copy of the financial agreement in November 2002.
At [60] of the wife’s trial affidavit the following appears:-
The husband had never raised with me any issue in respect of his requirement for me to enter into a financial agreement notwithstanding that we have been engaged since October 2003 and had had numerous discussions about plans to marry and our future plans together including starting a family.
The importance of the wife’s assertion has relevance in that it explains the wife’s assertion in [63] that when the husband provided her with a financial agreement she was “extremely shocked and upset by his actions”. In cross-examination the wife accepted that whilst she did not have any independent recollection of having received the document, following a perusal of Exhibit “3” which comprises the file of T Lawyers for whom Ms S worked, she concedes that she had been given a copy of it by the husband.
Ms Q did not receive any further immediate instructions from the husband until 8 July 2003 when a file note records the husband again made contact with his solicitor and advised that he was intending to draft his own document.
No further instructions were received and on 15 October 2003 Ms Q wrote to the husband advising that she was intending to close her file.
On 24 May 2005 the husband contacted R Lawyers requesting a copy of the financial agreement that had been prepared for him in 2002 but which he had now lost or misplaced.
A file memo records that the file was retrieved from archives and a copy of the document was forwarded to the husband.
It is likely that the husband gave a copy of the financial agreement that had been forwarded to him to the wife. He does not recollect doing so but the wife conceded in cross-examination that the husband gave her a copy of the document and told her to take it to a separate lawyer to get advice.
The wife agreed that the advice was not general but rather it was particular advice in that it concerned how her rights may be affected by signing the document.
The wife made contact with the husband’s solicitors on 27 June 2005 advising that she had taken a copy of the document to her lawyer who advised her that the agreement was not appropriate and that a redrafted document would need to be prepared.
The file note of the telephone attendance (Exhibit “2” at page 89) has importance in explaining the sequence of events that then followed:-
From: Ms Z
To:     Ms Q
Date:   27/06/2005 1:10:41pm
Caller: Ms AA (partner of old client)
Phone: …)
[*] Telephoned  [*] Please call
[ ] Will call again  [ ] Returned your call
[ ] Wants to see you  [ ] Came to see you
[ ] Urgent
Ms AA is the partner of Mr Daily.
Mr Daily came to you about 2 years ago to have a pre-nuptial agreement drawn up. The agreement wasn’t signed or completed.
She has taken a copy of that agreement to a lawyer to get advice on her behalf who has told them that because of certain changes in things they will not be able to use that agreement and will need a complete new one.
Is that correct?
Could you please ring her back.
(Mr Daily rang us about 4-6 weeks ago asking for a copy of the agreement from his old file. I gave him a copy of that as he requested from the old file).
[Ms Daily]
27/06/05
Ms Z attending Ms AA on phone.
Advised her that HR cannot give her legal advice. Although can say that quite reasonable to expect that there would be the need for redrafting of agreement. She said that was fine.
It seems that the wife was seeking to confirm the advice of Ms S namely, that a redrafted document was necessary.

The terms of the signed financial agreement

The financial agreement signed 21 July 2005 appears at Exhibit “2” at page 120. In its original form the agreement was prepared by Ms S upon the wife’s instructions. The essential terms and provisions are as follows:-
·That the parties intended to enter into a financial agreement in the form of a Deed.
·That Recital E records that:
the parties want so far as is possible to contract out of the provisions of Pt VIII of the Family Law Act as amended and to enter into a binding financial agreement under s 90B of the Family Law Act as amended.
·That the assets of the husband are set out in Schedule A, the assets of the wife set out in Schedule B and the joint assets of the parties are set out in Schedule C to the Deed.
·That paragraph 9 provides:
(a)As and from the date of separation [the husband] shall retain for his sole use and benefit absolutely free from any further claim or demand of [the wife]:-
(i)His assets and liabilities as set out in Schedule A;
(ii)His work entitlements, long service leave, annual leave and other work related benefits save and except any superannuation or pension entitlements accumulated after the date of the marriage;
(iii)His clothing, jewellery and personal effects, and
(iv)Any gifts or inheritances received by him from any source.
(b)As and from the date of separation [the wife] shall retain for her sole use and benefit absolutely free from any further claim or demand of [the husband]:
(i)Her assets and liabilities as set out in Schedule B;
(ii)Her work entitlements, long service leave, annual leave and other work related benefits save and except any superannuation or pension entitlements accumulated after the date of the marriage;
(iii)Her clothing, jewellery, furniture acquired prior to the marriage and personal effects;
(iv)Any gifts or inheritances received by her from any source.
(c)The net matrimonial assets will be split consistent with family law.

Under the heading of legal advice the following paragraphs set out the parameters of the legal advice provided to each of the parties:-
34.[The husband] ACKNOWLEDGES that he has had legal advice on the provisions of and effect of this Deed from Ms Q, Solicitor of R Lawyers, CC Street, Suburb H, SA.
35.[The wife] ACKNOWLEDGES that she has had legal advice on the provisions of and effect of this Deed from Ms S, Solicitor of T Lawyers, BB Street , Suburb H, SA.
36.Before executing this Deed, each party received independent legal advice from a legal practitioner about:
(a)The legal implications of the Deed in the absence of the other party;
(b)The effect of the Deed on the rights of that party; and
(c)The advantages and disadvantage to the making of the Deed.
The Lawyer’s Certificates for each of the parties contained the following essential terms:-
1.[His/her] rights and responsibilities in the absence of this Deed;
2.The manner in which those rights and responsibilities are or may be affected by this Deed
and
3.The advantages and disadvantages of making this Deed.
The Deed was signed by the wife and her solicitor on 15 July 2005.
The Deed executed by the wife and her solicitor was then given by the wife to the husband who attended the offices of Ms Q on 21 July 2005. Ms Q’s file note of 21 July 2005 in Exhibit “2” at page 117 is relevant and is set out in full:-
21 July 2005
Ms Q office attendance Mr Daily on 21st July 2005.
Client providing Ms Q with a draft Pre-Nuptial Agreement.
Document was prepared by a solicitor from T Lawyers.
Document has been amended as suggested by Ms Q over the phone to Mr Daily.
Ms Q noting that further amendments are still really required.
They have excluded superannuation where really that needs to be included for both the husband and the wife.
Ms Q also expressed her ongoing concern in relation to the paragraph referring to distribution of joint property being in accordance with “family law”.
Ms Q advising client that this still leaves problems of uncertainty.
Ms Q explaining to the client that using the expression “in accordance with the family law” is no more certain than saying an equitable distribution, except that it is equity based on the Family Law Act.
Client saying that what they were really trying to do is just to get the joint assets divided equally but provided that [the wife] at least get $50,000. Client saying that at this stage there is no problem because the joint assets are over $100,000. Ms Q therefore amended the document to read “to be divided equally between the parties”.
Client then signed the document. Ms Q then witnessed the document and initialled the alteration.
Client to get wife to countersign the amendment and then provide Ms Q with a final copy.
End of office attendance: 30 minutes.
The husband signed the Deed in the presence of Ms Q and she in turn signed the Lawyer’s Certificate on 21 July 2005. As indicated by the file note there were three relevant handwritten amendments made to paragraph 9 of the Deed.
Paragraph 9(a)(ii) originally provided as follows:-
His work entitlements, long service leave, annual leave and other work related benefits save and except any superannuation or pension entitlements accumulated after the date of marriage.
It was amended by the deletion of the words “save and except” and the addition of the word “including”.
Paragraph 9(b)(ii) was amended in the same manner and paragraph 9(c) was amended by deleting the words “consistent with family law” and the addition of the words “equally between the parties”.
Each of the three amendments bears the initials of the husband and Ms Q.
The Deed was then returned to the wife who then took it back to Ms S. It is not controversial that the wife and Ms S initialled the amendments and as far as the parties and their solicitors were concerned the Deed was finalised.
It was faintly pressed by queen’s counsel for the wife that the handwritten amendments and the manner in which they were initialled by the parties in the absence of the entire document being re-executed results in there being no agreement. That contention is rejected. The construct of the agreement satisfies the contractual requirements of offer and acceptance.
The manner in which the agreement was executed and the alterations initialled by each of the parties evinces a clear intention that the parties intended to be bound by its terms and conditions. It is also a relevant consideration that the parties executed the document as a Deed.
At common law a Deed needed to be written on paper, parchment or vellum.[12] It needed to be sealed by the parties executing it and delivered.[13] The common law in relation to the execution of Deeds has largely been modified in South Australia by section 41 of the Law of Property Act 1936 (SA) which governs the execution and attestation of Deeds.
[12] Robert F Norton, A Treatise on Deeds, ed Robert J A Morrison and Hugh J Goolden (Sweet & Maxwell, 2^nd ed, 1928) 3.
[13]Goddard’s Case (1584) 2 Co.Rep 4b at 5a; 76 ER 396 at 398.
Where a natural person executes a Deed, they do so by either signing or making a mark on the Deed.[14]The Deed must also be attested to by at least one witness who is not a party to the Deed.[15]
[14]Law of Property Act 1936 (SA) s 41(1)(a) (‘Property Act’).
[15] Ibid s 41(2)(a).
Sealing is no longer a requirement in South Australia where the Deed is executed by a natural person.[16] Delivery is also no longer necessary in South Australia for the valid execution of a Deed.[17]
[16]ADX Building Systems P/L v Macleod & Ors [2014] SADC 212, 10 [29].
[17]Property Act (n 13) s 41(3).
Where a document is executed in accordance with section 41, it is a Deed if it is expressed to be a Deed or if it is expressed to be sealed or it appears from the circumstances of execution or from the nature of the document that the parties intended it to be a Deed.[18]
[18] Ibid s 41(5)
I note that the document does not express to have been “signed, sealed and delivered” and that it is missing the testimonium or any kind of execution clause at the end of it. However, I consider that the document clearly indicates the intention of the parties that they enter into a Deed. The parties have signed the Deed, with their signature having been witnessed by their solicitors. The Deed has been delivered and the evidence supports a finding that the parties intended to execute the document as a Deed and be legally bound by it. The document is also expressed to be a Deed.
The legislation is silent on the need for a testimonium or execution clause in order for a Deed to be validly executed. In any case, the parties and witnesses have signed the bottom of each page of the Deed. Even if the omission of a testimonium resulted in the defective execution of the Deed, I would still consider the execution valid given it appears from the evidence external to the Deed that the parties intended to be bound by it.[19]
[19] Ibid s 41(4).

Husband’s summary of argument

The husband contends that the agreement is binding on the parties because:-
a)It was signed and initialled by all parties;
b)That before the agreement was signed each of the husband and the wife obtained independent legal advice as prescribed in s 90G(1)(b);
c)That the husband and the wife were provided with a statement of their respective legal advisers stating that they had been provided with the prescribed advice;
d)That the husband and the wife received a copy of the statement of the other’s legal advisers stating that the prescribed advice had been given; and
e)The BFA had not been set aside or terminated by the Court.
It is further argued that if the prescribed advice was not given and that the consequence is that the agreement is not binding on the parties then the Court should declare that it would be unjust or inequitable if the financial agreement was not binding on the parties pursuant to ss 90G(1A)(c) and (d) of the Act.
If the Court declares that the agreement is binding on the parties the husband submits that ss 90K(1)(b),(d) and (e) of the Act have no application and in any event would not result in the BFA being declared void, voidable or unenforceable.

Wife’s summary of argument

The wife contends that the agreement is not binding on the parties as it does not comply with the provisions of s 90G(1) of the Act.
The gravamen of the wife’s contention is that prior to signing the document on 15 July 2005 she was not advised of the following:-
·Her rights and responsibilities in the absence of the agreement;
·The manner in which those rights and responsibilities are or may be affected by the agreement; and
·The advantages and disadvantages of making the agreement.
The wife submits that she was advised by her solicitor that the agreement would not be binding and would be set aside in the event that children were born of the marriage. The wife relied upon that advice when executing the agreement.
The wife considers that she was then contacted by her solicitor and advised that the husband had made certain amendments to the agreement that required her initials. The wife re-attended on Ms S on 15 July 2005 but states that she did not receive any further advice concerning the effect of the handwritten amendments.
The wife’s position at trial was largely predicated upon her recollection of the nature and extent of her engagement with Ms S. At [22] of her affidavit filed 19 December 2018, the wife states that following the purported demand by the husband that he would not agree to marry her unless she entered into a BFA, the wife consulted Ms S for advice.
Paragraph [23] of the wife’s Affidavit filed 19 December 2018 refers to the wife’s instructions to Ms S of her concern that the document given to her by the husband contained a provision that the agreement would be binding even in the event that children were born.
The wife recollects that Ms S redrafted the document which she signed on 12 July 2005 (Exhibit “12” page 36).
Thereafter the wife’s recollection of events is unclear but she accepts that the husband provided her with a copy of the financial agreement dated 21 July 2005 which varied significantly from the terms of the earlier document in that:-
·The document enabled each of the parties to retain for their sole use and benefit any claim, right or entitlement to long service leave, annual leave and other work related benefits including superannuation or pension entitlements; and
·The net matrimonial assets would thereafter be apportioned equally between the parties rather than as “consistent with family law”.
The wife acknowledges that the agreement was signed by her and witnessed by Ms S on 15 July 2005 but she has no recollection of attending on her solicitor on that date or of any attendance on her after 12 July 2005 for the purpose of initialling the handwritten amendments to the financial agreement.
The wife does recall that the handwritten amendments were undertaken after she had signed the first document. She has little recollection of the advice given by Ms S save and except that Ms S advised her the financial document would not be legally binding in circumstances where there were children of the marriage.
Following the wife’s perusal of the R Lawyers file, she accepts that she saw Ms S on three occasions, namely 12 July 2005, 15 July 2005 and on “an unknown date after 21 July 2005”[20].
[20] Trial affidavit of the wife filed 2 March 2020 at [66].
In her trial affidavit the wife maintained that when she saw Ms S on 12 July 2005 advice was given to her that the document should be changed to include as property to be divided between the parties any increase in their respective superannuation or pension entitlements that accumulated after the date of marriage.
The wife signed a document on 12 July 2005. Further amendments were required and following amendment a redrafted document was signed by the wife on 15 July 2005. It is the wife’s recollection that the appointment with Ms S was brief and nothing occurred other than that the wife signed the redrafted document. The wife contends that notwithstanding the certificate signed by Ms S on 15 July 2005, on that occasion no further advice was given.
In cross-examination the wife was asked to consider and compare the earlier iteration of the document in Exhibit “12” at page 16 to the penultimate document at page 36 of the exhibit. In the earlier document, Recital D provided that “the parties do not have any children of their relationship”. In the penultimate document that recital is not included.
The wife conceded that the issue of children had been a matter of discussion with Ms S and to that extent at least, she had received some advice as to the contents of the latter agreement.
Whilst her recollection was poor, the wife agreed that she understood the need to obtain a certificate from a lawyer confirming that she had been given certain advice about the content of the document. She accepted that she would not have been prepared to sign the agreement unless she was prepared to be bound by its terms and conditions.
The wife agreed that the whole point in the husband giving her a financial agreement to consider was that she needed to take it to a solicitor, obtain advice about the agreement and have a solicitor certify that advice had been given.
The wife conceded that the document in Exhibit “12” at page 36, notwithstanding that it was signed by the wife and Ms S was not given to the husband. It contained handwritten comments (paragraphs 4, 9(a)b, 9(b)(ii), 9(c), 16 and 22(c)). Moreover the structure and format of paragraph 9 was corrected in the final agreement.
It seems likely that following the husband receiving a copy of the draft document from the R Lawyers archived file, it was provided to the wife who took it to Ms S. From June to July Ms S produced a redrafted document and following further discussion and instruction from the wife on 12 July 2005 a further redraft of the document took place incorporating the wife’s further amendments. The agreement was signed by the wife in the presence of Ms S who then signed the lawyer’s certificate. The wife gave a copy of the financial agreement to the husband who then consulted Ms Q on 21 July 2005.
Ms Q amended the agreement in her own handwriting in accordance with the husband’s instructions as appears in sub-paragraphs 9(a)(ii), 9(b)(ii) and 9(c) of the document signed 21 July 2005.
The husband cannot recall any advice that Ms Q may have given to him but thereafter the husband and Ms Q signed the document and initialled the handwritten amendments. Ms Q signed the lawyer’s certificate.
It appears from Ms Q’s file note of 21 July 2005 that she told the husband to “get wife to countersign the amendment and then provide Ms Q with a final copy”.[21]
[21] Exhibit “2” page 118.

Issues to be determined

Given that the parties have signed the agreement pursuant to s 90G(1)(a) and that it has not been terminated, the focus of the wife’s contention is that before the agreement was signed she was not provided with independent legal advice as to the effect of the agreement on her rights and about the advantages and disadvantages at the time that the advice was provided.
As discussed, if the agreement is found not to be binding then the husband contends that it would be unjust and inequitable for the agreement not to be binding on the parties pursuant to s 90G(1A).

Was each party given advice as to the effect of the agreement once signed?

Given the wife’s position that the financial agreement of 21 July 2005 is not binding on the parties, it is a curious twist that whilst the husband had been steadfast in his position that a BFA would need to be entered into by the parties before a marriage could take place, the final version of the financial agreement was a document that had been prepared by the wife’s solicitor on her instructions.
There is no suggestion that Ms S was acting other than in her capacity as a solicitor instructed by the wife and independent of the husband. Ms S discussed with the wife that the first document as prepared by Ms Q and given to the wife by the husband was inadequate and not fit for purpose. It is not unreasonable to find that there was considerable discussion between the wife and Ms S as to the issues that underpin the financial agreement.
The wife acknowledges that at the very least, Ms S gave her advice that if there were children of the marriage, the financial agreement entered into by the parties would not be binding. If that advice was given, it was demonstrably wrong.
The essential provisions in the final signed agreement at paragraphs (9)(a)(ii) and 9(b)(ii) before the handwritten amendment were included as a result of the wife’s instructions. It was her initial position that any increase in the parties entitlement to superannuation and/or pension accumulated after the date of marriage would be split between the parties pursuant to paragraph 9(c) namely, “consistent with family law”.
It is difficult to understand how sub-paragraphs 9(a)(ii) and 9(b)(ii) could be capable of being determined or understood by reference to a meaningless concept of “family law”. Even so, as at 15 July 2005 I find that on the balance of probabilities the evidence supports a finding that the wife was given advice by Ms S as to the advantages and disadvantages to the wife of entering into the agreement (s 90G(1)(b) of the Act).
The wife concedes that at least on 12 July 2005 Ms S recommended further changes to the financial agreement including how “property” was to be divided between the parties and the treatment of any increase in their separate superannuation entitlements or pension entitlements accumulated after the date of marriage. At [73] of the wife’s trial affidavit she concedes that she agreed with the advice.
The wife complains that Ms S did not ask her for details of the financial history of the parties nor advise of the advantages of entering into the agreement.
Paragraph [75] sets out the extent of the wife’s recollection as to the topics covered by Ms S.
The wife’s initial position was that there were no further appointments with Ms S after 15 July 2005. The wife concedes that her recollection was flawed and that there must have been a further session after 21 July 2005.
The wife impressed as trying to do the best that she could to recollect the events of July 2005. She was prepared to accept that her memory was likely to be unreliable and it was only after she was able to peruse the subpoenaed files of R Lawyers and T Lawyers that she accepted that she initialled the handwritten amendments to the financial agreement after 21 July 2005.
I bring to account that the iteration of the agreement prior to the handwritten amendments was drawn by Ms S on the wife’s instructions. There was significant involvement with Ms S on 12 and 15 July 2005 and I find that on each of those occasions it is likely that the focus of the appointments was in respect to the financial agreement under consideration. I do not consider that the advice given by Ms S on 15 July 2005 could be considered as general advice only. I consider that the advice was sufficient to satisfy the requirements of s 90G(1) of the Act.
The Full Court in Wallace & Stelzer and Anor (2013) FLC 93-566 said at 87,593 [103]:-
Although there appeared to be some suggestion in the husband’s case before us that in a case such as the present the court is required to consider the accuracy of the legal advice provided, we did not understand that issue to be ultimately pressed. But in any event we note that in the recent Full Court decision of Logan & Logan [2013] FamCAFC 151, and relying on Hoult, it was held that the only enquiry necessary is as to whether advice was given, and not as to the content of that advice.

In Ruane & Bachmann-Ruane [2009] FamCA 1101 Cronin J considered that the only requirement was that the parties obtain legal advice as opposed to the quality or nature of the advice or even whether the advice was accepted.
I consider that whilst the correctness of the advice may not be a relevant inquiry, if the evidence supported a finding that notwithstanding a certificate, there had either not been any advice given or that it was so cursory or only tangentially related to the agreement, that may well allow a finding that no advice was given.
The husband seeks a determination that the agreement is binding. He carries the onus of proof. The husband has discharged that onus by reference to the recitals in the agreement, the matters raised in [34] to [36] of the agreement which acknowledge that each of the parties had received legal advice from a legal practitioner in respect of matters pursuant to s 90G(1)(b) of the Act and by reference to the lawyer’s certificate.
The evidence of matters discussed between the wife and Ms S up to and including 15 July 2005 is persuasive.
There is no issue raised by the wife as to the adequacy of the advice given by Ms Q to the husband on 21 July 2005. The husband acknowledges that there was discussion with Ms Q about the agreement, advice was given and the lawyer’s certificate as executed by Ms Q is not the subject of challenge.
Ms Q was not called to give evidence. At one level, the apparent ready acceptance of the documents comprising her file held by R Lawyers was sufficient.
The husband’s evidence of how the handwritten amendments were made to the financial agreement is unchallenged.
They were made by Ms Q consequent upon a discussion with the husband and his subsequent instructions. Whilst not relevant, it is likely that the handwritten amendments highlighted the differing position of the parties as to the treatment of their separate superannuation and pension entitlements. As considered, the reference to after acquired property being divided according to “family law” is not capable of ready interpretation and therefore required amendment in any event.
I accept the husband’s evidence that the handwritten amendments were made prior to Ms Q’s advice being given as to the amended document, the husband signing the financial agreement and initialling the amendments and Ms Q signing the lawyer’s certificate.
The central focus of the wife’s case is that she was not given advice from Ms S as to the effect of the agreement on her rights and the advantages and disadvantages of entering into the agreement following the handwritten amendments.

Did the handwritten amendments create a fundamentally new agreement?

The financial agreement executed on 21 July 2005 had its genesis in the first agreement that had been prepared by Ms Q in 2002.
The husband’s evidence is that he made it clear to the wife that not just a financial agreement would need to be entered into as a pre-condition of any marriage, but that its focus would be to quarantine the assets of each of the parties including their superannuation and pension entitlements from claim by the other and that property acquired after the date of marriage would be divisible between the parties.
The documents prepared by Ms S on the wife’s instructions promoted the wife’s position namely that any increase in the level of any superannuation or a pension entitlement after the date of marriage should be brought to account and together with after acquired property would be divided between the parties.
Whilst the phrase “family law” is not capable of any clear meaning, it is nonetheless an indication of the parties’ general intention that property acquired after marriage would in some way be divided between the parties in the event of a separation. The fundamental difference between the parties is as to the treatment of their separate superannuation and pension entitlements.
It is likely that neither solicitor invested much time in considering the nature of the parties’ superannuation and pension entitlements and whether they could be dealt with in any meaningful way in terms of an increase in benefit post-marriage.
In summary, the agreement signed by the wife on 15 July 2005 represented her position as to the treatment of the parties separate superannuation entitlements and the amended document signed by the husband on 21 July 2005 represented his position.
The wife obviously considered the handwritten amendments and without further correction, amendment or comment, initialled them.
The handwritten amendments go to the heart of the agreement and are fundamental.
Whilst it could be said that the amendments simplified the arrangement between the parties, in that it removed any issue of increase in the value of the parties separate superannuation entitlements and pension and was therefore capable of clear understanding, it could not be considered as a minor change or a drafting exercise but rather, one of substance.
I find that the handwritten amendments to the agreement fundamentally altered the document such that it could be considered as a new financial agreement.

The evidence of Ms S

Ms S was called by subpoena issued by the husband to give evidence in the proceedings. A decision was made that she would form part of the evidence presented on behalf of the wife.
There is no affidavit from Ms S nor any statement which set out the broad parameters or features of the evidence that she would likely give in examination in chief.
Ms S was unhelpful. She was able to recollect only by reference to the archived file of T Lawyers that she had represented the wife. She could not remember the wife nor could she remember any aspect at all of her involvement.
She was able to identify her signature on the document of 12 July 2005 and the agreement of 21 July 2005 but no more. She could not remember what advice if any that she gave to the wife although she conceded that if she had signed the lawyer’s certificate it was likely that as a result of professional practice and conduct she would have given some advice. She agreed that she would not have signed the certificate attesting to advice having been given if she had not done so.
Ms S was not challenged as to her inability to recollect ever having acted for the wife or the detail of any discussions concerning the financial agreements prepared by her. She was not asked as to her professional practice at the time when giving advice in respect of an agreement and in particular as to her conduct when an agreement has been the subject of substantial amendment.
Ms S was not asked as to what may have been intended by the use of the words “family law” nor whether in circumstances where the parties were considering the method and manner by which superannuation entitlements may be dealt with following separation, the extent of any inquiry as to the nature of a superannuation fund and the manner by which the value of any entitlement may increase.
The wife’s queen’s counsel did not make an application that Ms S be declared an unreliable witness thereby enabling her to be the subject of cross-examination.
The examination-in-chief and cross-examination of Ms S had a quality akin to counsel tiptoeing around the quicksand.
Ultimately, Ms S’s evidence provided no assistance as to the extent, if any, of the advice given to the wife following her receipt of the amended financial agreement.
The wife’s evidence as to the advice given upon consideration of the amended financial agreement is tempered by her poor recollection of events.
The wife conceded that matters raised in her initial affidavit of 19 December 2018 and then her trial affidavit of 2 March 2020 were inconsistent.
The wife summarises her position at [90] of her trial affidavit:-
I have no clear recollection of my further attendance on Ms S at a time or date after 21 July 2005 when she and I further initialled the change to the final BFA and specifically in respect to sub-paragraphs 9(a)(ii), 9(b)(ii) and 9(c) of the Final BFA.
She does however have a recollection that at some time Ms S confirmed her erroneous advice that the agreement would not be binding in the event that the parties had a child or children.

legal principles

In Parker & Parker [2010] FamCA 664 (Parker), a husband and wife entered into a financial agreement pursuant to s 90C of the Act. The wife sought that the agreement be set aside on the basis that it did not comply with s 90G of the Act, although Strickland J correctly found that the proper application was not to set the agreement aside but rather to find that it was not binding on the parties.
The circumstances of Parker (supra) were not dissimilar to the present case. In October 2004 the wife’s solicitors received a proposed agreement from the husband’s solicitors. The wife was advised that the agreement was unfair and that she should not enter into it. The wife ignored the advice and proceeded with the agreement.
In November 2004 the wife’s solicitor made handwritten amendments to the agreement, it was then signed by the wife and witnessed by her solicitor. The solicitor completed the lawyer’s certificate. The signed agreement was then given to the husband’s solicitors who made further written amendments before the husband signed the agreement and his solicitor signed the lawyer’s certificate.
The agreement was provided to the wife and her solicitor who then both initialled the amendments but without change to the lawyer’s certificate. His Honour found that the wife was faced with a new and different agreement following the unilateral amendments of the husband. There was scant evidence that the wife had received any advice consequent upon the amended agreement. His Honour did not consider that the lack of evidence as to the advice given or the failure of the wife’s solicitor to certify a fresh certificate could be a matter of rectification. His Honour could not be satisfied that the wife had received the necessary advice pursuant to s 90G(1)(b) of the Act with the consequence that the agreement was not binding on the parties.
His Honour then went on to consider the provisions of s 90G(1A)(b) of the Act and summarised his findings as follows:-
114.In these circumstances, I am not satisfied that it would be unjust and inequitable if the financial agreement was not binding. If the only issue of non-compliance with s 90G was that, for example, one of the parties had not been provided with a copy of the relevant statement from their solicitor or a copy of the statement from the other party’s solicitor, the court may indeed be satisfied that it would be unjust and inequitable in such circumstances for the parties to not be bound by the agreement due to a so-called “technical” omission.
115.However, the receipt of independent legal advice by all parties to a financial agreement is an essential requirement. Indeed, it could well be unjust and inequitable to the wife if she was bound by the financial agreement in circumstances where I have found she was not fully advised of the implications of the amendment to clause 15.
(Original emphasis)
The husband appealed the decision of the trial judge. A majority of the Full Court in Parker & Parker (2012) FLC 93-499 (Parker & Parker) allowed the appeal and remitted the matter for rehearing. Coleman and May JJ considered that whilst it was open to the trial judge to find that the agreement did not comply with the provisions of s 90G(1)(b) of the Act (albeit for different reasons), the majority considered that the trial judge had adopted an unnecessarily technical and narrow view of the proper application of s 90G(1A) of the Act.
Murphy J was in dissent and considered that the treatment by the trial judge was correct but went further and found s 90G(1A) of the Act had no application because the circumstances were such that no agreement was in existence. It seems therefore the Full Court was in general agreement that it was open to the trial judge to find that the provisions of s 90G(1)(b) of the Act had not been satisfied, but they differed on the extent and the proper application of s 90G(1A) of the Act.
In circumstances where I cannot be satisfied that the wife received the advice as required under s 90G(1)(b) of the Act, there has not been compliance with the section and subject to a consideration of the provisions of s 90G(1A) of the Act I have determined that the agreement is not binding on the parties.

Application of s 90G(1A)

Consequent upon a consideration of Items 8 and 8A of the Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 (Cth), ss 90G(1)(c) and 90G(1)(ca) of the Act are excluded from the operation of s 90G(1A) of the Act and the section is only applicable to financial agreements that are not compliant with s 90G(1)(b) of the Act.
Accordingly, s 90G of the Act should be read in the following form:-
90G(1A)A financial agreement is binding on the parties to the agreement if:
(a)     the agreement is signed by all parties; and
(b)     [section] 90G(1)(b) [as is set out both before and after the introduction of the Efficiency Measures Act] is 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.
90G(1B)For the purpose of paragraph (1A)(d), a court may make an order declaring that a financial agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement.
90G(1C) To avoid doubt, section 90KA applies in relation to the enforcement application.
90G(2)A court may make such orders for the enforcement of a financial agreement that is binding on the parties to the agreement as it thinks necessary.
Before it is permissible to apply the provisions of s 90G(1A) of the Act there must first be a financial agreement.
To avoid doubt, I do not elevate the status of the document signed by the wife on 15 July 2005 to that of a concluded agreement between the parties. The intention of the parties was to enter into an agreement that would be considered binding. The handwritten amendment to the document on 21 July 2005 should be considered as part of the ongoing negotiations between the parties, but in any event as a counter offer.
I have found that the initialling of the amendments by the wife and witnessed by her solicitor satisfied her contractual requirements of an offer by the husband and an acceptance by the wife. The intention of the parties was to conclude their negotiations by each of them entering into a Deed. Consideration was not required, but even if the agreement were not to be drafted as a Deed, consideration can be considered to be satisfied by the parties fulfilling the purpose of the agreement, namely as a condition precedent to marriage.
I do not consider that it necessarily follows that if the agreement entered into by the parties pursuant to s 90B of the Act is not capable of declaration as a BFA by reason of non-compliance of the provisions of s 90G(1)(b) of the Act that has the inevitable result that there is no agreement.
If that were to be the case it would seem antithetical to the thrust and purpose of the legislation and would render the utility of s 90G(1A) of the Act to be without application.
In Parker (supra) at [113] Strickland J considered the scope and application of s 90G(1A) of the Act as follows:-
As mentioned above, the intention of the amendments is to avoid financial agreements being found not to bind the parties due to technical difficulties. Although section 90G(1A)(b) includes subsection (1)(b) in the list of relevant subsections, it could be argued that the provision of legal advice is not a “technical” issue but a substantive matter going to the heart of the agreement.
On appeal Murphy J considered the issue of “technicality” at 86,380:-
230.Despite what is said in the Explanatory Memorandum accompanying the Efficiency Measures Act to which the trial judge refers in his judgment, the terms of the section as enacted make no reference to “technical” non-compliance with the relevant subparagraphs nor qualify in any way the non-compliance which might invoke section 90G(1A). Interpretation of the section is not assisted by qualifying, or adding a gloss to, the compliance required by the section; the section’s terms are complied with or they are not (see Senior at [121], [122]).
231.The plain words of section 90G(1A)(c) evidence a clear meaning. They envisage a broad discretion vested in the court in circumstances where the pre-conditions to the exercise of that discretion prescribed otherwise in section 90G(1A)(a) to (e) are established. Once that discretion is enlivened, nothing within the section suggests, in terms, any restriction on the matters that might inform it.
Accordingly, the application of the provisions of s 90G(1A) are to be determined by the application of judicial discretion that bring to account the circumstances in which the agreement was made as opposed to a more limited application of seeking to correct a technicality.
In Hoult & Hoult (2013) FLC 93-546 at 87,295 – 87,296 Strickland and Ainslie-Wallace JJ considered the extent and the application of discretion inherent in a consideration of s 90G(1A) as follows:-
286.Turning to the construction of the discretion in s 90G(1A)(c) (effectively Grounds 1 and 5), we have no difficulty with the trial judge’s reasons up to the point where he suggests that, “in the exercise of the s 90G(1A) discretion, the ‘justice and equity’ of the bargain, or, perhaps, its inherent ‘fairness’ referenced to ordinary notions of that term, cannot be wholly irrelevant to the exercise of the s 90G(1A) discretion” (paragraph 37 reasons for judgment). It is here where we parT Lawyers with the trial judge. We consider that his Honour has misdirected himself and applied the wrong test in interpreting and exercising the discretion.
287.Diverting for a moment, the trial judge and Justice Thackray refer extensively to the case of Parker, both the decision at first instance by Justice Strickland (Parker v Parker (2010) 43 Fam LR 548) and the decision of the Full Court (Coleman and May JJ, with Murphy J dissenting) (Parker & Parker (2012) FLC 93-499).
288.The interpretation of s 90G(1A)(c) was considered by the Full Court in that case. We need not repeat Justice Thackray’s summaries of the three judgments given, but we agree that the most that can be gleaned from that decision is that first, the fact that a party has not received the prescribed legal advice does not alone render s 90G(1A) inapplicable, and second, it is authority for the proposition that the operation of the discretion in paragraph (c) is not confined to “technical” breaches. The trial judge here also adopted that interpretation and we find no error in that approach.
289.However, as identified by Justice Thackray, the decision in Parker provides no assistance in understanding what the discretion does entail, and in particular in identifying the factors to be taken into account in exercising the discretion. It is to these issues that this aspect of this appeal is directed.
The Full Court in Hoult (supra) did not accept that the reference to “injustice and inequity” in s 90G(1A)(c) could in any way bring to account the content of the proposed agreement between the parties. That is, the expression “unjust and inequitable” in considering if an agreement was not binding should not be conflated with the concept of “justice and equity” as it relates to the terms and conditions by which the parties agree to divide their property consequent upon a breakdown of the marriage as might be informed by the application of s 79 of the Act.

No evidence was led as to the necessary connection with the parties separate desire to have children and that it was only if the parties were married that a family could be started.
If the wife had decided that the condition sought to be imposed by the husband was onerous and unacceptable, even if the relationship between the parties had ended, the wife would have remained financially independent although no doubt upset.
The wife’s claim of undue influence does not succeed.

Material change in circumstances

The wife relies on s 90K(1)(d) of the Act namely, that since the making of the agreement there has been a material change in the circumstances relating to the care, welfare and development of a child of the marriage.
The wife relies upon the following matters:-
(1)That at the time that the agreement was made she was employed as a fulltime serving public servant.
(2)That following marriage two children were born namely X, now aged 13 years and Y now aged 10 years.
(3)That the parties agreed the wife would cease her fulltime employment and take on the primary role of caregiver for the children.
(4)That the husband continued in his fulltime employment which resulted in a substantial increase in superannuation entitlements from $67,669 to $970,578 and savings of $74,230 to $693,508 at or about the time of separation.
(5)That as a result of the wife’s role as primary carer to the children she suffered a significant reduction in her earnings and has returned to part-time employment only now comprising 0.8 of fulltime equivalent.
(6)That her capacity to contribute to superannuation and accumulated savings was diminished and in any event is significantly less than the current financial circumstances of the husband.
(7)As a result of the marriage, the wife’s capacity to earn an income and support herself and the children has been substantially diminished.
By reference to s 90K(1)(d), I consider that the following steps must be considered:-
(1)That since the making of the agreement, there must be a material change in circumstances relating to the care, welfare and development of a child of a marriage.
(2)That as a result of the material change the child or a person who has caring responsibility for the child will suffer hardship if the court does not set the agreement aside.
(3)The court may set the agreement aside and make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were party to the financial agreement and any other interested persons (s 90K(3) of the Act).
In Fewster & Drake (2016) FLC 93-745 the Full Court examined the adoption of a three step test by La Poer Trench J in Pascot & Pascot [2011] FamCA 945. At 81,898 their Honours considered that in dissecting s 90K(1)(d) of the Act into three components his Honour did not include the:
50.… necessary link between the changing circumstances and the hardship. According to the clear terms of the subsection, the hardship must result from the material change in circumstances, and not from some other cause.
In Fewster (supra) the Full Court considered the meaning of the word “material” and held at 81,900 [62] that:-
The birth of a child leads inexorably to his or her care, development and welfare. We do not see why a birth cannot be a material change in circumstances for the purposes of s 90K(1)(d). Whether it in fact is such a change will depend on all of the circumstances.
The consideration by the Full Court of whether a birth could be considered a material change in circumstances was prompted by the husband’s submission that the material change in circumstances must be directed to the care, welfare and development of a child, not his or her birth.
There needs to be some inquiry as to the extent that a change in the circumstances will be considered “material”.
Section 90K(1)(d) is informed by a consideration of s 79A(1)(d) of the Act.
The difference is that s 79A(1)(d) provides that the change in the circumstances must be “of an exceptional nature”, whereas the change in circumstances under s 90K(1)(d) refers only to a “material change in circumstances” and appears to be a test more easily satisfied than is required under s 79A(1)(d).
In the present case the parties intended that consequent upon the marriage they would start a family.
The agreement is silent as to the provisions of the agreement in the event of children being born save that [19] and [20] of the financial agreement acknowledge the continued application of s 90K of the Act.
Whether contemplated or not, the advent of children should be considered as a material change in circumstances since the making of the financial agreement.
In Fewster (supra) the Full Court considered the husband’s submission that hardship was not synonymous with the concept of unfairness but that more was required. The Full Court considered the husband’s submission at 81,900:-
68.Finally, we accept the husband’s submission that the hardship required by the section is something more than unfairness. In In the Marriage of Whitford (1979) FLC 90-612 (“Whitford”) at 78,144-78, 145 the Court said that hardship is:
…akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment…
…
In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”. We consider that in subsec. 44(4) the word should have its usual, though not necessarily its most stringent, connotations.
69.Although Whitford was a case dealing with s 44(4) and applications for leave to institute property proceedings, these passages are relevant to s 90K(1)(d), as they discuss ‘hardship’ in the context of its ordinary meaning. There is nothing in the terms of s 90K that suggests a different approach should be taken.
In order to ascertain whether the wife and/or a child or children has sustained hardship, a consideration of the parties personal and financial circumstances needs to be given some consideration.
I have regard to the relevant terms and conditions of the agreement to assist in a comparison of the circumstances of the parties, not to consider the agreement is unfair, but to be better able to assess the nature and extent of the purported hardship as promoted by the wife and crucially whether it is “as a result of the change” in the material circumstances.
In Frederick & Frederick (2019) FLC 93-900 at 78,964 the Full Court summarised the exercise as follows:-
24.The primary judge correctly accepted that in applying s 90K(1)(d) of the Act, the Court must determine hardship by undertaking “some comparison between the position of the child, or the person with caring responsibility, if the agreement remains in place and the position of that child or person if the agreement is set aside” (Fewster & Drake (2016) FLC 93-745 (“Fewster”) at [67]).
And further at 78,972:-
98.Taking into account the other findings of the primary judge as to the application of s 90K(1)(d) of the Act, we are satisfied that the wife would suffer hardship if the Agreement is not set aside. The contributions made by her and the considerations mandated by s 75(2) of the Act to the care of X in particular, and the further considerations that flow from that care, cannot, in our view, be adequately satisfied out of the smaller pool, whether it be the greater or lesser value. Thus, hardship has been established.
In the preparation of the proceedings, each of the parties contemplated that if the agreement was not considered binding pursuant to s 90G(1) or was set aside pursuant to s 90K then the Court may embark upon a consideration of property settlement or the alteration of the parties interests in property.
As matters transpired, the proceedings were the subject of bifurcation. Nonetheless, the trial affidavits prepared by each of the parties were comprehensive in respect of matters relevant to settlement of property. In addition, each of the parties filed current statements of financial circumstances.
The husband sets out his assets and liabilities at the date that he signed the financial agreement on 21 July 2005 in Annexure “A” to the agreement.
The husband’s assets and liabilities were as follows:-

Description	Details	$
Bank Accounts	Westpac – Deposit …57	52,319.00
	Westpac – Savings …79	99,183.00
	Westpac – Savings …85	243.00
	Westpac – Cheque …39	24.00
	Westpac – Visa …31	30.00
Direct Shares	GG Company – 1000 shares @ $4.83	4,830.00
Direct Shares	HH Company – 3030 shares @ $6.46	19,574.00
Managed Funds	JJ Company – Account …48
	Cash	876.00
	MM Company – 11968 units @ $2.21	26,476.00
	LL Company – 5897 units @ $2.94	17,386.00
	NN Company – 16483 units @ $1.82	29,945.00
	PP Company – 365 units @ $1.17	427.00
Property	L Street, Extra Equity	75,000.00
Wine Collection	Various	10,000.00
Superannuation	W Company Super Trust -…49	67,017
Superannuation	KK Super Fund – …53	952
Liabilities	No liabilities	Nil
Total Net Assets	$404,282.00

Schedule B sets out the wife’s assets and liabilities as follows:-

Description

Details

$

Bank Accounts

QQ Bank – …51 S…

1,731.00

QQ Bank – …51 S…

773.00

Superannuation

TT Super – …83

29,783.00

Liabilities

No liabilities

Nil

Total Net Assets

$32,287.00

At [100] of the husband’s trial affidavit he provides his summary of the parties’ current assets and liabilities as follows:
Assets:

(a)

Balance of Westpac joint interest bearing account (recently transferred from the Offset Account)

$1,299,454

(b)

Motor Vehicle 1 (H) (valued)

$31,000

(c)

Motor Vehicle 2 (W) (valued)

$21,400

(d)

Furniture and effects (W) (valued)

$14,850

(e)

Furniture and effects (H) (valued)

$21,000

(f)

Savings (H) (ANZ)

$4,710

(g)

Savings (W) (QQ Bank) (as per financial statement)

$109,000

(h)

RR superannuation (H)

$1,002,875

(i)

TT Super (W) (as per financial statement)

$290,000

Total

$2,794,289

Liabilities

Credit Card (W)

$18,106

In addition, the husband acknowledges that he is the trustee of the D Family Trust which holds $182,987 set aside to pay the children’s private school fees.[22]
[22] Financial Statement of husband filed 17 April 2020.
The husband acknowledges that at the time of the commencement of cohabitation in 1997 he was in employment and well remunerated. Neither he nor the wife had significant assets but during their first separation between 1999 and 2001 the husband acquired the property at J Street.
The husband remained in fulltime employment during the whole of their relationship and at [81] of his trial affidavit summarises the financial aspect of his employment history:-
From 2005 to 2018 my annual taxable income ranged from approximately $125,000 to $950,000 (half of this was attributable to my SS Company redundancy and associated acceleration of long-term incentives). From 2005 to 2018 I estimate [the wife’s] annual taxable income was approximately $50,000 as a full-time employee and then as a half-time employee. My income was always paid directly to my personal bank accounts. I disagree that [the wife] was not aware of this fact.
The husband acknowledges that the wife “made valuable contributions particularly while our children were infants”.[23] He considers that he contributed to the management of the household and to the care, welfare and development of the children. He does not say that he was the principal carer but asserts that he was “the principal money earner”.[24]
[23] Trial affidavit of the husband filed 17 April 2020 at [92].
[24] Trial affidavit of the husband filed 17 April 2020 at [85].
The husband denies that the wife was unable to engage in fulltime work and contends that there was at all times an understanding that if the wife wished to increase her hours of employment then other arrangements could be made either in respect of after school care or using family members to assist in supervising the children.
The husband explains the arrangement as between the parties in terms of the wife’s employment at [94]:-
I regularly encouraged [the wife] to work and study more to earn more and obtain promotions like other parents (including other working mothers of whom I was aware) did. [The wife] told me that she did not want to increase her hours, that she did not want to undertake further study and that she was not interested in promotions and greater workplace responsibility. [The wife] told me that what she wanted was to do as she did and she asked me to accept her for who she was. I did.
The wife does not cavil with the husband’s assessment of the current asset pool.
At [60] of the husband’s trial affidavit he sets out the assets and liabilities at separation and at [62] the basis of his calculation of the entitlements of each of the parties by reference to the Financial Agreement and schedules A, B and C. His summary is as set out at [65]:-
According to the BFA then, [the wife’s] entitlement is broadly represented by the sum of her 25% equity in N Street, or $211,908 (being 25% of net proceeds of sale of $847,633.92), and her savings at separation, her car, furniture, effects and personal effects, and her superannuation of approximately $290,000 (subject always to the liabilities that pertain to the assets at the time).
The calculation of entitlement undertaken by the husband was that in addition to her assets a sum of $250,000 should be paid to the wife on 31 December 2018 with the payment being described as an “interim property settlement”.
The calculation was not accepted by the wife although it is common ground that she retained the sum paid and has used the money in part to pay her legal fees.
Of the total of $2,794,289 the wife retains the following:-
·Motor Vehicle 2  $21,400
·Furniture and effects  $14,850
·Savings (QQ Bank)  $109,000
·TT Super   $290,000
Total     $435,250
Less credit card liability  -$18,106
Net balance  $417,144
The wife makes the further comparison by highlighting that the husband’s superannuation increased from $67,669 at the time that the parties entered into the financial agreement to $970,578 at the date of separation and $1,002,875 as at 17 April 2020.
The husband’s separate savings and investments have increased from $74,234 at the time the parties entered into the financial agreement to $693,508 at the time of separation and $1,408,454 as at 17 April 2020.[25]
[25] Trial affidavit of husband filed 17 April 2020 at [100].
The financial circumstances of the parties are complicated by the extent to which the husband’s currently held assets include retrenchment and redundancy payments from his successful claim for unlawful termination of his employment and the wife’s contention that since separation the husband’s bank accounts and investments calculated by the wife to total $693,508 had diminished by $347,619 as at the date of the signing of his financial statement.
The wife is currently employed as a serving public servant. Her annual income is $81,000 gross.
She currently resides in rental accommodation which she considers is modest. The children live in a week about shared care arrangement and she asserts that as a consequence of the birth and her care of the children she did not pursue promotion.
By reference to the wife’s financial statement filed 2 March 2020 her total average weekly income is in the sum of $1,632 with total expenses of $2,680.
Whilst not the subject of any challenge, it is still necessary for the Court to consider whether the personal expenditure as set out in Part G of the financial statement and the average weekly expenses as set out in Part N appear reasonable.
I find that the wife’s expenses exceed her income.
It is also of some significance that as a result of the husband not currently being in employment, the wife has a Child Support Assessment liability of $75 per week.
For his part, the husband remains unemployed and he considers that his ability to return to paid employment is conditional upon a resolution of a diagnosed Adjustment Disorder and Anxiety that arises from his unfair dismissal.
At present the husband receives a jobseeker allowance, family assistance from Centrelink and child support from the wife. The husband’s average weekly income is $180 (not including the jobseeker payment) with total weekly expenditure of $1,430 including expenses for the children.
The current circumstances of the parties when considering income and expenditure are not dissimilar notwithstanding that the wife retains 0.8 employment.
A significant difference between the parties is the extent of their respective superannuation entitlements. Evidence was not tendered as to the nature of the fund and the manner and extent of contribution both compulsory and voluntary by each of the parties into their respective funds, but the difference is stark.
The terms of the financial agreement as relied upon by the husband is that the entirety of his superannuation entitlement is excluded from consideration on the basis that each party is entitled to retain their separate superannuation benefit and pension free of claim by the other.
It would appear likely that whilst the husband was in highly paid employment during the course of the marriage he was able to make significant contribution to his superannuation whereas the wife by reason of her less remunerative employment and her less than fulltime employment status was not able to contribute to the same extent.
I have found that the birth of the children represents a material change in circumstances. If I am wrong in that contention, I find that the fact of the parties’ separation, the arrangements thereafter for the care of the children by each of the parties and the significant disruption to the children’s lives by now spending time with their parents in two different houses would represent a material change.
As a result of the material change in circumstances the wife compromised her employment both in terms of the extent of her employment and potentially her capacity for advancement in order to fulfil the role of the children’s primary caregiver.
The parties agreed that the care, welfare and development of the children would be enhanced by the husband continuing in his role as the primary income earner and the wife as the primary homemaker.
The further consequence was that the husband’s superannuation entitlement and other investments were the subject of contribution by him in circumstances where the wife was not able to do the same.
The husband gained a significant benefit by the terms and conditions of the agreement not available to the wife, at least to a significant degree, by her less remunerative employment and her reduced capacity for employment.
A consideration of the wife’s current financial circumstance reveals that she has expenditure over income. Her asset base is modest and predominantly reflected in her superannuation entitlement which is not able to be utilised by her until she satisfies a condition of release.
The children’s care is now shared between the parties. The wife has determined that a necessary consequence of the current arrangement is that she does not consider it appropriate to return to fulltime employment for the foreseeable future.
The current position that the wife now finds herself in, namely:-
·Incurring reasonable expenses that significantly exceed her income; and
·No prospect of securing accommodation other than rental accommodation
represents significant hardship that results not just from the care, welfare and development provided by the wife for the children but also her current circumstances of being able to provide appropriately for herself and the children.

I have not embarked upon an exercise of seeking to determine what would be an outcome in respect of settlement of property by the application of s 79 considerations and s 75(2) factors.
I am however satisfied that the wife would likely be entitled to a more generous outcome than is considered by the husband to be her entitlement pursuant to the terms and conditions of the financial agreement.
Accordingly, I am satisfied that the wife’s ability to care for the children cannot be adequately satisfied by reference to the amount that she is likely to receive consequent upon a determination of her entitlement pursuant to the provisions of the financial agreement. It is also a relevant consideration that the parties are not agreed as to the wife’s entitlement, nor is it certain that the provisions of the agreement are capable of clear understanding.
Hardship has been established and I order that the financial agreement be set aside pursuant to s 90K(1)(d) of the Act.

I certify that the preceding three hundred and sixteen (316) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 17 June 2020.

Associate:

Date: 17 June 2020

(a)	Balance of Westpac joint interest bearing account (recently transferred from the Offset Account)	$1,299,454
(b)	Motor Vehicle 1 (H) (valued)	$31,000
(c)	Motor Vehicle 2 (W) (valued)	$21,400
(d)	Furniture and effects (W) (valued)	$14,850
(e)	Furniture and effects (H) (valued)	$21,000
(f)	Savings (H) (ANZ)	$4,710
(g)	Savings (W) (QQ Bank) (as per financial statement)	$109,000
(h)	RR superannuation (H)	$1,002,875
(i)	TT Super (W) (as per financial statement)	$290,000
Total	$2,794,289