Dragomirov & Dragomirov
[2024] FedCFamC1A 187
•17 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dragomirov & Dragomirov [2024] FedCFamC1A 187
Appeal from: Dragomirov & Dragomirov [2024] FedCFamC2F 730 Appeal number: NAA 169 of 2024 File number: MLC 3857 of 2022 Judgment of: CAMPTON J Date of judgment: 17 October 2024 Catchwords: FAMILY LAW – APPEAL – BINDING FINANCIAL AGREEMENT – Where the wife appeals from a declaration that the financial agreement entered between she and the husband be binding and enforceable – Whether the wife discharged the onus of proof as to the provision of advice to fulfill the requirements of s 90G(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) – Consideration of the principles identified in Abrum & Abrum [2013] FamCA 897 – Where the incontrovertible facts lead to the conclusion that the necessary advice prescribed by s 90G(1)(b) of the Act was not given – Error established – Where the primary judge determined in the exercise of discretion pursuant to s 90G(1A) of the Act that nevertheless it would be unjust and inequitable if the agreement were not binding – Where the wife appeals from an alternative declaration pursuant to s 90G(1B) of the Act – Where the wife appeals from the dismissal of her relief for the agreement to be set aside pursuant to s 90K(1) of the Act for non-disclosure of a material matter, or as to the agreement being void or voidable vitiated by undue influence, or unconscionable conduct – Where the wife contended errors as to a failure to take into account relevant considerations, taking into account irrelevant considerations, conclusions being contrary to the weight of the evidence, and failing to give adequate reasons – Where such errors are not established – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 71A, 75, 79, 90C, 90G, 90K
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited: Abrum & Abrum [2013] FamCA 897
Bar-Mordecai v Hillston [2004] NSWCA 65
Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148
Cusack & Cusack (No 3) [2024] FedCFamC1A 93
Daily & Daily (2020) 61 Fam LR 75; [2020] FamCA 486
Daily & Daily (No 2) (2023) FLC 94-151; [2023] FedCFamC1A 122
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118[ 2003] HCA 22
Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Hoult & Hoult (2011) FLC 93-489; [2011] FamCA 1023
Hoult & Hoult (2013) FLC 93-546; [2013] FamCAFC 109
Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41
Kaimal & Kaimal [2020] FamCA 971
Koyroyshs & Koyroyshs [2021] FedCFamC1A 54
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Logan & Logan (2013) FLC 93-555; [2013] FamCAFC 151
Parker & Parker (2012) FLC 93-499; [2012] FamCAFC 33
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robinson Helicopter company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Wallace & Stelzer and Anor (2013) FLC 93-566; [2013] FamCAFC 199
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Yarrow & Yarrow [2022] FedCFamC1A 135
Number of paragraphs: 126 Date of hearing: 1 October 2024 Place: Sydney Counsel for the Appellant: Mr Fuller Solicitor for the Appellant: Village Family Lawyers Counsel for the First Respondent: Dr Ingleby Solicitor for the First Respondent: AMT Legal Counsel for the Second Respondent: Ms Fisken Solicitor for the Second Respondent: Lander & Rogers ORDERS
NAA 169 of 2024
MLC 3857 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DRAGOMIROV
Appellant
AND: MR DRAGOMIROV
First Respondent
MS WOJDA
Second Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
17 OCTOBER 2024
THE COURT ORDERS THAT:
1.The declaration made on 7 June 2024 is amended to provide as follows:
The financial agreement entered between the Applicant and the Respondent on 19 May 2020 is binding on the parties and enforceable.
2.The Amended Notice of Appeal filed on 13 September 2024 be dismissed.
3.Within 28 days the appellant pay the first respondent’s costs fixed in the sum of $15,000.
4.Within 28 days the appellant pay the second respondent’s costs fixed in the sum of $13,514.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dragomirov & Dragomirov has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J
On 7 June 2024 a judge of the Federal Circuit and Family Court of Australia (Division 2) declared that a financial agreement entered between Ms Dragomirov (“the wife”) and Mr Dragomirov (“the husband”) dated 19 May 2020 was binding and enforceable. On 2 July 2024 the primary judge made orders dismissing the wife’s application to set aside the financial agreement pursuant to s 90K of the Family Law Act 1975 (Cth) (“the Act”).
By way of an Amended Notice of Appeal filed on 13 September 2024 the wife appeals from the declaration and orders.
The husband opposes the appeal. Ms Wojda, the wife’s lawyer providing the certificate pursuant s 90G of the Act attached to the financial agreement, was joined to the proceeding by the wife on 22 July 2022. The wife claims damages from Ms Wojda, by way of an exercise of accrued jurisdiction, alleging a failure to exercise reasonable skill, care, and diligence in providing legal services. Ms Wojda opposes the appeal in so far as the grounds challenge the findings made as to compliance or otherwise with s 90G of the Act.
For the reasons that follow the Amended Notice of Appeal will be dismissed.
THE DETERMINATIONS CHALLENGED ON APPEAL
On 7 June 2024 the Court declared:
1.Pursuant to s.90G(1B) of the Family Law Act 1975 (Cth), the financial agreement entered into between the [wife] and the [husband] on 19 May 2020 is binding on the parties and enforceable.
(Emphasis added)
On 2 July 2024 the Court ordered:
1. Other than:
a) as determined by the reasons of 7 June 2024; and
b) to the extent of:
i) the [wife’s] amended application for final orders as against the [Ms Wojda] (in the Statement of Claim accepted for filing on 27 June 2022); and
ii) the [husband’s] application for final orders that the [wife] pay their costs of and incidental to the application filed 12 April 2022 and the amended application filed 27 June 2022 (in the [husband’s] amended response accepted for filing on 24 March 2023); and
iii) [Ms Wojda’s] response to the final orders sought as against them and application that the [wife] pay their costs of and incidental to these proceedings (in [Ms Wojda’s] response accepted for filing on 24 August 2022);
all other applications for final orders in these proceedings be dismissed.
2. The relief sought by the [wife] against [Ms Wojda] be adjourned to a Mention at 10am on 4 September 2024 for the purposes of hearing the parties as to whether the Court has jurisdiction to determine the [wife’s] application for relief in the Court’s accrued jurisdiction. Parties wishing to address the Court about the question of jurisdiction are to file a short outline of submissions, no more than 5 pages in length, by no later than 10am on 2 September 2024.
(Original emphasis removed)
Order 1(b)(i) made on 2 July 2024 dismissed the wife’s application to set aside the financial agreement pursuant to ss 90K(1)(a), (b), and/or (e) of the Act. The wife’s Statement of Claim seeking damages from Ms Wojda dated 24 June 2022 and filed on 27 June 2022 remains extant.
On 7 August 2024 Order 2 made on 2 July 2024 was “vacated” pending the outcome of this appeal.
BACKGROUND
The husband is 55 years of age. The wife is 54 years of age. They commenced cohabitation in 1992, married in 1993, and had separated by March 2020. They have two adult children now aged 29 and 25 years.
In early 1994 they acquired a real property at J Road, Suburb B Victoria (“the Suburb B property”). From about 2000 they operated a service business registered in the name of the wife from rental premises. The wife primarily worked in that enterprise. The husband assisted outside of his full-time employment. The husband accumulated his superannuation entitlement during the marriage.
In 2020 the husband and the wife negotiated terms of a property settlement between them. The husband visited a solicitor, Mr C of D Law Firm, sometime in early 2020. D Law Firm prepared a draft financial agreement. The primary judge recorded at [18], unchallenged on appeal, that it was the wife’s evidence in her April 2022 and 23 February 2023 affidavits that in April 2020 the husband “put an envelope on the dining table which he said contained “documents from the lawyers that we’re using”, further said that she should read over them; [and] that this included a financial agreement”. On 5 May 2020 Mr C, as the husband’s solicitor, contacted Ms Wojda to take instructions from the wife in relation to the financial agreement. The “second draft” was sent by email from Mr C to Ms Wojda on 15 May 2020. On 18 May 2020 Mr C prepared a “third draft” of the financial agreement. A copy of the third draft was sent to Ms Wojda that same day.
On 19 May 2020 the husband and the wife attended a meeting with Mr C and Ms Wojda at the offices of E Firm, an office space which Ms Wojda occasionally used to meet her clients. This was the first time the wife had met or directly communicated with Ms Wojda.
On 19 May 2020, the wife then met with Ms Wojda in the absence of the husband and Mr C. The wife read the third draft of the agreement in private. She thought that it was a different version from one she had been provided by the husband in April 2020 as it did not contain a clause as to the husband performing future maintenance at the service business.
During the meeting on 19 May 2020 Ms Wojda provided advice to the wife. The wife also read a letter of advice provided to her by Ms Wojda in private (at [34]). Ms Wojda then asked the wife if she had any questions, of which the wife did not (at [34]). The wife then affirmed that she had read the letter of advice, signed the letter, and said that she wanted to enter the financial agreement (at [36]).
At the meeting on 19 May 2020 the financial agreement was signed by each of the parties and certificates pursuant to s 90G of the Act were signed by Ms Wojda for the wife and by Mr C for the husband.
The financial agreement dated 19 May 2020 recorded the property of the parties:
Assets Agreed estimated value [J Road, Suburb B] Victoria [the Suburb B property] $750,000.00 [K Business] business and assets $250,000.00 [K Business] account […]96 $5,200.00 NAB Joint account […]67 $5,200.00 [Super Fund 1] – [the wife] Account [...]94 $3,683.00 [Super Fund 2] – [the husband] Account [...]88 $500,000.00 [boat] $20,000.00 [trailer] $10,000.00 [Motor Vehicle 1] $10,000.00 [Motor Vehicle 2] $50,000.00 [Motor Vehicle 3] [,,,] $10,000.00 [Motor Vehicle 4] $20,000.00
Liabilities Agreed estimated value NAB home loan account […]68 $132,000.00 NAB personal credit card debt $ [F Finance Lender] loan $36,000.00 [G Finance Lender] loan $23,000.00 [H Bank] Leasing loan $10,000.00
Total Net Assets $1,433,083.00
No formal valuations of any asset were obtained by the husband and the wife (at [59]).
The primary judge said:
15It was not disputed that the intended effect of the financial agreement ultimately reached between [the husband] and [the wife] was to provide:
(a) For [the husband] to pay [the wife] an amount of $390,000;
(b) For [the wife] to retain the [service] business, a motor vehicle and a [trailer];
(c) For [the husband] to retain his superannuation subject to a payment split which would result in [the wife] receiving an amount of $20,000;
(d) For [the wife] to transfer her interest in the [Suburb B] property to [the husband];
(e) For [the husband] to retain a joint (NAB) bank account, a [boat], a motor cycle and two motor vehicles; and
(f) For family provision claims to be released.
The financial agreement provided for the following:
9. Division of Assets
On the agreed values set out in Annexure A and Annexure B, [the wife] acknowledges that she is receiving approximately $28,000 less than a one-half share of the net assets but accepts this in full and final settlement of the financial separation of the parties. [The wife] acknowledges that the entitlement she is to receive pursuant to this Agreement has been explained to her.
On 1 June 2020 the husband received an offer of credit from the NAB. On 12 June 2020 settlement occurred and the Suburb B property was registered in the husband’s sole name. The wife received the cash payment pursuant to the agreement.
On 25 June 2020 the husband’s superannuation fund wrote to Mr C to advise that it could not process the agreed superannuation split due to errors in the financial agreement. A copy of letter was sent from Mr C to the husband on 10 July 2020. It was sent from the husband to the wife on 15 February 2021. At the time of the trial the superannuation split had not been implemented.
On 12 April 2022 the wife filed the Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) seeking a declaration that the financial agreement dated 19 May 2020 is not binding for want of compliance with s 90G(1)(b) of the Act. In the alternative, she sought for the agreement to be set aside pursuant to s 90K(1) of the Act claiming non-disclosure of a material matter, or as to the agreement being void or voidable vitiated by undue influence, or unconscionable conduct. The wife filed an Amended Initiating Application joining Ms Wojda on 27 June 2022 seeking relief as pleaded in her Statement of Claim dated 24 June 2022 and filed on 27 June 2022.
The husband filed a Response to the Initiating Application on 8 July 2022 as amended on 24 March 2023, seeking dismissal of the wife’s Amended Initiating Application filed on 12 April 2022, a declaration as to the financial agreement entered on 19 May 2020 being compliant with s 90G(1) of the Act and being binding and enforceable, or in the alternative, that it would be unjust or inequitable if the agreement was not binding. For the purposes of the appeal, it was uncontroversial that the husband’s Amended Response filed on 24 March 2023 was an application for enforcement of the financial agreement.
On 24 August 2022 Ms Wojda filed a Response to the Amended Initiating Application and a defence.
The primary judge found:
(a)The financial agreement entered on 19 May 2020 was a financial agreement as defined in s 90C of the Act, recording how the property and resources of the parties were to be dealt with (at [126]–[127]); and
(b)The relevant elements of s 90G of the Act were established, including that as prescribed by s 90G(1)(b), being that each party, and specifically the wife, was provided with advice as to the effect of the agreement on their rights and about the advantages and disadvantages, at the time that the advice was provided, to them of making the agreement (at [150]); and
(c)In the event of error as to the finding of compliance with s 90G(1)(b), that it would be unjust and inequitable if the financial agreement was not binding on the husband and the wife, and a declaration to that effect would be made pursuant to s 90G(1B) of the Act (at [159]); and
(d)The wife had failed to establish that the entry of the agreement was vitiated by way of non-disclosure of a material matter by misrepresentation (at [182]), by undue influence (at [185]), or by unconscionability (at [185]).
THE APPEAL
The wife advanced seven grounds of appeal. Ground 6 was abandoned during the hearing of the appeal.
Ground 1 challenges the conclusion of the primary judge that the wife had received independent legal advice in compliance with s 90G(1)(b).
Ground 2 contends an error in that the declaration made on 7 June 2024 did not give effect to the primary judge’s finding at [150], instead giving effect to the alternate finding at [159].
Ground 3 challenges the primary judge’s conclusion that in the event the finding that the wife had received the legal advice required by s 90G(1)(b) was in error, then it would be unjust and inequitable if the financial agreement was not binding on the husband and the wife.
Ground 4 submits that the primary judge “erred in failing to consider” the wife’s case as to negligent misrepresentation and innocent misrepresentation.
Ground 5 contends that the primary judge erred by failing to find that the husband forged the wife’s signature on a State Revenue Office (“SRO”) Transferor Statement or by making a finding that the wife signed the SRO Transferor Statement, and that such failure or finding was plainly wrong and against the weight of the evidence.
Ground 7 challenges the primary judge’s finding that the wife had not established that the negotiation, preparation, and execution of the agreement was vitiated by undue influence or unconscionability.
A limitation to the participation of the second respondent in the appeal
The wife sought to limit the participation of Ms Wojda in the appeal, submitting:
5. Ms [Wojda’s] standing is confined to making submissions about findings of fact about her and her conduct. Order 3 of the orders of 21 September 2022 provides that the evidence in the separate question shall be the evidence in the balance of the final relief (including the negligence claim). Her standing does not extend to making submissions about the legal ramifications of any findings of fact. The Wife and Ms [Wojda] made submissions to the primary judge about this issue. It was not considered or determined by the primary judge.
Ms Wojda contended that she does have standing to contest the appeal and make submissions about the legal ramifications of any finding of fact as to Grounds 1–3. She does not seek to make submissions or be heard on Grounds 4–7.
As identified by the Full Court in Daily & Daily (No 2) (2023) FLC 94-151 (“Daily (No 2)”), the focus of this dispute is whether Ms Wojda has “a real interest” in the factual challenges and legal ramifications of the litigious controversy on appeal as to compliance with s 90G(1) of the Act (Ground 1) and as to any challenge to the alternate declaration pursuant to s 90G(1B) of the Act (Ground 3). The wife joined Ms Wojda to the proceeding and her cause of action relying on the accrued jurisdiction. The conferral of jurisdiction in relation to the non-federal cause follows upon the jurisdictional validity of the related pre-existing matrimonial cause as to the enforcement of, and challenge to, the financial agreement. The evidence in the original matrimonial cause as to the status of the financial agreement will be evidence in the wife’s damages claim against Ms Wojda. Findings made in the matrimonial cause determination will bind the wife and Ms Wojda in the damages cause, both as to liability and the financial loss claimed to be sustained by the wife. At the trial before the primary judge, counsel for Ms Wojda cross-examined the wife and made final submissions as to the status of the financial agreement. The wife elected to join Ms Wojda to the appeal absent limitation, acknowledging that Ms Wojda has capacity to participate and be heard on any matter in which she has a real interest, as was the case at trial. She agreed to directions absent limitation that Ms Wojda file a Summary of Argument. She now cannot be heard to the contrary (Daily (No 2) at [19]).
THE GROUNDS OF APPEAL
Ground 1 – “The learned primary judge erred in finding at [150] that the [wife] was provided with independent legal advice sufficient to meet the requirements of s 90G(1)(b) of the Act by misapplying the law to the facts”
Section 90G(1) of the Act provides:
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; 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.
Some background is required to this ground. At trial the wife contended that Ms Wojda did not provide “independent legal advice”. The primary judge found (at [137]–[149]), unchallenged on appeal, that the advice the wife received was independent for the purposes of s 90G(1)(b).
The wife in her Summary of Argument distilled seven principles said to be relevant to a finding as to compliance with s 90G(1)(b) of the Act drawn from a series of first instance determinations of what was then the Family Court of Australia, of the Federal Circuit and Family Court of Australia (Division 1) and of the Federal Circuit and Family Court of Australia (Division 2). They included Abrum & Abrum [2013] FamCA 897 (“Abrum”), Daily & Daily (2020) 61 Fam LR 75, and Kaimal & Kaimal [2020] FamCA 971.
The wife’s submission on appeal was that these seven principles were not challenged before the primary judge by the husband or Ms Wojda and there was no reason to doubt their correctness. The husband and Ms Wojda firmly put this into issue. They contend the wife has:
(a)Sought to elevate first instance decisions, described obliquely by the primary judge, to be binding authority, contrary to the well-established doctrine of precedent; and
(b)Reframed and expanded the reasoning in the identified first instance decisions to go beyond what they recite as relevant principle.
Each of the husband and Ms Wojda contended the submissions of the wife as to the doctrine of precedent were erroneous and misguided. This issue in this appeal is somewhat arid. The wife agreed at the hearing of the appeal that her seven principles were derived from the judgment of Aldridge J at first instance in Abrum.
No party on appeal, including the wife, challenge that the primary judge correctly identified the relevant principles to determine the provision of independent legal advice to achieve compliance with s 90G of the Act. The reasons record:
134 The established authorities relevant to consideration of s.90G are clear that the provision by a legal practitioner of a certificate of legal advice is prima facie evidence that the advice was given and may be relied upon by the party seeking to enforce the agreement. Further, that the issue is not the content or correctness of the advice but whether it was given. In this respect, an incorrect advice gives rise to a separate cause of action (as foreshadowed here): Hoult at [96] [101] [279]; see also Logan & Logan [2013] FamCAFC 151 at [51].
135 The purpose of the provision is to ensure that the party understands not only the rearrangement of property and financial resources but also that rights are being affected, those rights including exclusion of access to the courts subject to certain exceptions. The quality or nature of the advice given, or even whether or not the advice is accepted, has been considered irrelevant to the present inquiry: Ruane & Bachmann-Ruane & Anor [2009] FamCA 1101 per Cronin J at [76] (pre amendments), since cited with approval (post amendments) in Parker & Parker [2010] FamCA 664 per Strickland J at [116] and other judgements.
136 Notwithstanding the existence of a certificate, the Court may find that no advice was given at all, such as where the evidence supports a finding of cursory or tangential advice. In this way, the Court will pay regard to whether the advice given was real and meaningful: Kaimal v Kaimal [2020] FamCA 971 per Alstergren CJ at [16]. In order to give advice within the meaning and spirit of s.90G(1)(b), the legal practitioner must establish the rights of their client at the time the advice is provided, it being otherwise impossible to actually advise about the effect of the financial agreement on the rights at the relevant time: Michaels & Vidal [2022] FedCFamC1F 252 per Rees J at [37] citing Abrum & Abrum [2013] FamCA 897 per Aldridge J at [39]-[40], as cited in Suess & Suess [2024] FedCFamC1F 175 at [113].
(Emphasis added)
By way of Ground 1 the wife complains as to a failure by the primary judge to apply the uncontroversial principles identified at [134]–[136] to the facts as found. The husband framed his contentions as to the wife failing to “discharge her forensic obligation” to establish a failure to comply with s 90G(1)(b).
The questions required by the section appear relatively straight forward, but in reality, may not be (Parker & Parker (2012) FLC 93-499 (“Parker”) at [212])
Fundamental to the advice given in compliance with the requirements of the s 90G is the effect of the agreement being as to its binding nature by application of s 71A of the Act and as to the terms of the agreement itself (Hoult & Hoult (2011) FLC 93-489 at [64]). The focus of the finding is to determine that compliance. It is not whether the advice was correct, or whether it was accepted (Wallace & Stelzer and Anor (2013) FLC 93-566; Logan & Logan (2013) FLC 93-555 (“Logan”) at [51]).
The heart of this ground is the concluding finding (at [150]) that the wife was provided with legal advice by Ms Wojda as to the effect of the agreement on her rights and about the advantages and disadvantages at the time the advice was provided. The subsidiary findings supporting that conclusion were:
(a)At [151], the certification annexed to the agreement was prima facie evidence that Ms Wojda had provided the requisite advice. This is acknowledged by the wife in the terms of the agreement; and
(b)At [152], the agreement itself recorded:
(i)At clause 11, the certification was supported by a warranty contained in the operative provisions of the agreement; and
(ii)At clause 9 in the operative provisions an express acknowledgement that the wife understood she was to receive approximately $28,000 less than a one-half share of the net assets and that the entitlement she was to receive had been explained to her; and
(iii)At recitals F and H, the express intention to oust the jurisdiction of the courts under the Act;
(c)At [32], [33], and [154], the terms of the oral advice given by Ms Wojda to the wife during their private meeting on 19 May 2020, including:
(i)A step through of the main parts and commercial aspects of the financial agreement, including the annexure that specified the agreed values of assets and liabilities; and
(ii)A discussion as the values of the items of property in the schedule to the agreement. The wife did not tell Ms Wojda that she was not happy with the value ascribed to the Suburb B property or the service business; and
(iii)A discussion about the pros and cons of entering the financial agreement, including her maintenance of the service business, receipt of the cash adjusting sum from the husband, reduced costs by not commencing legal proceedings, certainty as to result, an expeditious resolution, not having a property to reside in, and receiving less than a one-half share of the net assets; and
(iv)The alternative options to a financial agreement open to the wife.
(d)At [153], as to the content of the letter of advice provided to the wife by Ms Wojda. The wife read the letter of advice in private on 19 May 2020. She told Ms Wojda that she did not have any questions arising from the letter (at [34]). The husband and the wife thereafter signed the agreement. Ms Wojda witnessed the agreement for the wife and signed the s 90G certificate.
None of these findings were challenged on appeal. Further, the primary judge accepted at [158] that the husband and the wife were amicable on 19 May 2020, but said that does not assist in the assessment of whether the obligation pursuant to s 90G(1)(b) to provide advice was discharged.
Critical to the consideration of this ground are:
(a)The findings at [33]:
33 [The wife] recalled a discussion with Ms [Wojda] wherein she asked about whether the agreement was “fair” and Ms [Wojda] kept circling back to costs, which characterisations Ms [Wojda] denied. For her part, Ms [Wojda] recalled having talked to [the wife] about costs and accepted she may have repeated herself in respect of saving legal fees. Ms [Wojda] was confident that, having discussed the $28,000 discrepancy, she could not imagine that she would have advised [the wife] that the agreement was “fair” as [the wife] had recalled. It was not contentious that Ms [Wojda] had not asked any questions of [the wife] as to ascertain contributions to the marriage or the assets, or about the factors contained in s.75(2) of the Act. It was also not contentious that Ms [Wojda] and [the wife] had discussed the pros and cons of going to court as an alternative way to resolve the property settlement as was recorded in Ms [Wojda’s] file note. [The wife] maintained that she was not advised about her entitlements to a property settlement but accepted in cross-examination that the pros and cons discussion was part of the advice Ms [Wojda] gave to her on 19 May 2020. Ms [Wojda] elaborated in cross-examination that their discussion about advantages and disadvantages included a discussion of future economic situations.
(Emphasis added)
(b)The content of the letter of advice from Ms Wojda to the wife. It included the following:
Property Settlement
If the parties have not entered into a financial agreement, following the breakdown of a marriage, the Court has a wide discretionary power under the Act to decide the property settlement entitlements of each party based on the facts of each individual case.
By entering into the Agreement, you and [the husband] will set out how you both want your property and financial resources to be divided, rather than relying upon the process set out in the Act. This may be very different from the outcome a Court may reach by applying the Act.
To properly identify the effect on your rights of entering into the Agreement, we need to explain how the Court might divide your property if you and [the husband] do not enter into a financial agreement.
Property Settlement under the Act
There are five steps the Court considers when determining a party’s entitlement to an adjustment of property interests as a result of the breakdown of a marriage. They are:
Step 1:To determine whether or not it is just and equitable to adjust the parties interests in property held by either party to the relationship.
Step 2:To identify and value all property held by either party to the relationship, irrespective of where it came from or when it was acquired;
Step 3:To consider the direct and indirect, financial and non-financial contributions made by and on behalf of each of you, including contributions in the role of the homemaker and parent. At this stage, a percentage apportionment reflecting those contributions is usually made (for example, 50% / 50% for equal contributions by both parties);
Step 4:To consider, among other things:
•the age and state of health of each of you;
•the income, property and financial resources of each of you;
•the physical and mental capacity of each of you for appropriate gainful employment;
•the disparity in the income earning capacities of each of you;
•any instances of family and/or domestic violence; and
•any commitments that are necessary for each of you to support yourself or any other person;
and to decide if these factors mean the apportionment in step 3 above should be varied (for example, if one party has a lower earning capacity than the other, the 50% / 50% contributions percentage may be adjusted to a 55% / 45% split in the lower income earner’s favour;
Step 5:To consider if the specific order the Court proposes to make to implement the percentage division decided upon is “just and equitable” in all the circumstances of the particular case and make any necessary adjustments.
The intended effect of the Agreement is to disregard the five-step process set out above and to divide your property and financial resources as provided for in the Agreement.
Provided that the Agreement is not set aside by the Court, the terms of the Agreement can be pleaded as an absolute bar and estoppel to any further application [the husband] (or you) may make to the Court for an order for property settlement and/or spousal maintenance.
(Emphasis added)
(c)The findings at [34]:
…Ultimately, in cross examination, Ms [Wojda] accepted that she had not gone through the 5-step process in the letter of advice she had given to [the wife] and therefore that she could not have given [the wife] advice about the effect of the financial agreement on her rights – at least in that respect.
(Emphasis added)
An evaluation of these subsidiary findings led to the following conclusion of the primary judge:
156…There is nothing before the Court to suggest that Ms [Wojda] did not take that information into account in providing advice to [the wife]. From this it may be said that there was more or better advice that could have been given - for example, about how a court may determine the appropriate split of assets were evidence of contributions or the s.75(2) factors taken into account. However, against this context, I do not consider the concession of Ms [Wojda] that she did not expressly inquire about the contributions to the marriage or s.75(2) factors to be conclusive or otherwise establish that the obligation at s.90G(1)(b) was not discharged.
157 In all of the circumstances of the present case, and the evidence of the advice that was given, I consider the better view is that the shortcomings (such as the absence of detailed written advice and Ms [Wodja’s] admitted failure to make a specific inquiries about matters going to s.75(2) factors) go to the quality and accuracy of the advice given as distinct from the question of whether the requisite advice was given.
(Bold and italics emphasis added)
It is trite to record that there is no requirement that the terms of a financial agreement be just and equitable (Hoult & Hoult (2013) FLC 93-546 (“Hoult (2013)”) at [295]). Parties are perfectly free to enter into a bad bargain by way of a financial agreement.
The heart of the ground are two aspects of the rights identified in s 90G. The first is the ouster of the s 79 jurisdiction of the court by entry of agreement. Advice on this subject matter was provided by Ms Wojda to comply with s 90G(1)(b) of the Act. The second is the entitlements or rights pursuant to Act. As to the second, the keys to the heart of this ground of appeal are themselves twofold.
Firstly, the primary judge identified the reasons of Aldridge J in Abrum (at [39] and [40] of those reasons) as recording relevant principles to determine the provision of legal advice to achieve compliance with s 90G of the Act. Those principles were identified by Aldridge J in full context as follows:
36.A binding financial agreement deals with the parties’ rights in relation to the property or financial resources of the parties in a way that ousts the jurisdiction of the court to make orders in relation to that property or financial resource. Those rights thus ousted must be the rights that the parties had under s 79 of the Act to seek an order for the adjustment of the parties’ property rights. When making such an order the court takes into account the matters set out in s 79(4) of the Act (the parties financial and non-financial contributions to the property of the parties and their contributions to the welfare of the family) and the various matters set out in s 75(2) of the Act. The parties’ rights to obtain a property settlement thus depend on those factors.
37.It is true to say that a party does not have a “right” to a property settlement, or a “right” to a particular property settlement, because under s 79 the court is not giving effect to existing rights but rather is altering property interests in a manner that it considers is just and equitable and thus creates new rights. In doing so it evaluates and weighs many factors. It is necessarily an imprecise exercise.
38.Nonetheless, when s 90G(1)(b) speaks of “rights” it must be speaking of the entitlement to bring a case under s 79 and the factors that weigh in favour of that person’s case under ss 79(4) and 75(2) otherwise it would have limited meaning.
39. In order to give advice about the effect of an agreement on the rights of a party, that is their rights under the Act in relation to property, a legal practitioner must establish what those rights are at the time the advice is provided. This is because s 90G(1)(b) requires advice to be given on the effects of the agreement upon the rights of that party and the advantages and disadvantages of the agreement. If their rights are not known then it is impossible to advise as to the effect of the agreement on them.
40. It is unhelpful to advise a person that a financial agreement might adversely affect his or her rights if those rights are not identified. A party must know more than some unknown or undefined right is being given up. He or she must have some idea, at least in general, of his or her present entitlements or rights (to use the words of the section) with which he or she may compare the provisions of the proposed financial agreement. It is only in that way that there can be actual advice about the effect of the agreement on those present rights.
41.It is quite clear that a person may choose to enter into an agreement where he or she may very well be much worse off than if he or she were left to rely on their rights under s 79 of the Act. Thus, there is a requirement for specific legal advice to be given. That is the safeguard the legislature imposes when it permits the parties to deal with their property by agreement and without possible interference from a court.
42.Accordingly, the advice must be real and meaningful. It must be directed to the parties’ circumstances and their present rights.
43.Proper identification of a parties’ rights can only be done by identifying the property of the parties then held and a consideration of the parties contributions (financial and non-financial) to the acquisition of that property and to the welfare of the children. Any other relevant factors under s 79(4), including s 75(2), would then need to be considered. Only by doing so can advice be given that complies with the terms of s 90G(1)(b).
(Emphasis added)
Secondly, the determination as to whether the obligation pursuant to s 90G(1)(b) to provide advice to the wife was discharged was binary. The conclusions of the primary judge on this fact (at [150], [156], and [157]) requires consideration of both the facts and the law (Fox v Percy (2003) 214 CLR 118 (“Fox v Percy”)).
It is an incontrovertible fact that the letter of advice from Ms Wojda to the wife confirmed, in the circumstances of this case where the parties had separated and their property had been identified and values ascribed to each item, that:
To properly identify the effect on your rights of entering into the Agreement, we need to explain how the Court might divide your property if [you and the husband] do not enter into a financial agreement.
The letter of advice went on to further say:
The intended effect of the Agreement is to disregard the five-step process set out above and to divide your property and financial resources as provided for in the Agreement.
It is an incontrovertible fact that Ms Wojda did not discuss the contributions of the husband and the wife to the marriage or any of the factors in s 75(2) of the Act (at [33] and [34]). Adopting the principles identified in Abrum, this was a requisite integer in the circumstances of this case of the advice prescribed by s 90G(1)(b). The wife did not receive advice as to what she was giving up on entering the agreement other than an unknown or undefined right. She did not receive advice, even in imprecise terms, as to what she might achieve by way of her entitlements or rights relying on s 79 of the Act at the time of entering the agreement to enable its comparison with what she would achieve by way of the provisions of the proposed financial agreement.
The absence of this advice did not allow the wife to consider or weigh “what would be [her] rights but for entering the agreement and those advantages and disadvantages after having entered the agreement. No doubt each would have its advantages and disadvantages, and they need to be compared” (Abrum at [45]).
The proper conclusion to be drawn from these incontrovertible facts lead to only one outcome in the Fox v Percy sense, being that necessary advice prescribed by s 90G(1)(b) of the Act was not given (Logan; Hoult (2013)). The shortcomings of Ms Wojda as to making specific enquiries as to the contributions of the husband and the wife to the marriage or any of the factors in s 75(2) went to whether the requisite advice was given, as opposed to the “quality and accuracy” of the advice. This makes it apparent that the primary judge’s determination as to the wife not discharging the onus of proof as to the provision of advice to fulfill the requirements of s 90G(1)(b), by application of the principles identified in Abrum, is in error and cannot stand.
Ground 1 is established. As agreed during the hearing of the appeal, that does not determine the appeal when regard is had to the alternate conclusion of the primary judge (at [159]) that it would be unjust and inequitable if the financial agreement were not binding (subject to challenge by Ground 3).
Ground 2 – “The learned primary judge erred in making an order (being order 1 of the orders of 7 June 2024) that did not give effect to her finding at [150] of the Reasons but rather appeared to give effect to the learned primary judge’ alternate finding at [159].”
To the extent that the primary judge declared that the agreement was binding pursuant to s 90G(1B), this reference was a mistake in it that plainly did not reflect the reasons of the primary judge. The reference to the section in the appealed declaration was unnecessary. The source of power for the declaration as made is exposed in the reasons. Neither its inclusion within, nor its omission from, the text of the declaration makes any difference to the validity of it.
Subject to the determination of the remaining grounds, should the appeal be dismissed, the declaration ought to be corrected by the erasure of the mistaken reference to a section of the Act. That result could have been achieved by inviting the primary judge to employ the slip rule (r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)). An appeal by way of this ground was unnecessary.
Ground 3 – “The learned primary judge erred in finding at [159] that she would have upheld the agreement pursuant to s 90G(1A) by failing to consider the relevant matters advanced by the Wife and also considering an irrelevant matter.”
Section 90G(1A) of the Act provides:
(1A) A financial agreement is binding on the parties to the agreement if:
(a) the agreement is signed by all parties; and
(b) one or more paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and
(c)a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and
(d)the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and
(e)the agreement has not been terminated and has not been set aside by a court.
The conclusion of the primary judge under challenge by this ground is:
159 To the extent that this conclusion were incorrect, and it were not possible that holistically the substance of the advice given by Ms [Wojda] to [the wife] was adequate to meet the obligation at s.90G(1)(b) of the Act, because Ms [Wojda] had not established what all of [the wife’s] rights precisely were and therefore could not have given advice about the effect of the agreement on those rights, I would in any event uphold the agreement as binding pursuant to s.90G(1A). In my view, it would be unjust and inequitable if the financial agreement were not binding on [the husband and the wife] including with regard to the above findings about the independence of [the wife’s] lawyer, the below findings about the absence of vitiating conduct and [the wife’s] own evidence was that she understood and agreed to the terms of the financial agreement (with the exception of the [service business] maintenance provision, which she accepted Ms [Wojda] could not have known about because she was not so instructed) and had attended the [E Firm] offices for the purpose of signing it which purpose was achieved.
(Emphasis added)
The husband’s recourse to relief by way of s 90G(1A) of the Act is not limited to technical breaches (Parker at [229]–[232]). Upon the preconditions of s 90G(1A) being satisfied, there is a broad discretion as to whether a declaration is made that the financial agreement is binding and there are no restrictions on what matters inform that finding (Parker at [118]; Hoult (2013) at [56]). A failure to receive legal advice as prescribed by s 90G does not preclude the operation of s 90G(1A) (Parker at [230]; Hoult (2013) at [181]). The nature and extent of non-compliance is an important consideration (Hoult (2013) at [306]). When considering whether to exercise the discretion, regard is to be had to the facts and circumstances surrounding the making and the performance of the agreement (Hoult (2013) at [291]).
The term unjust and inequitable does not refer to justice and equity as identified in s 79 (Hoult (2013) at [206], [305], and [313]). The contents of the bargain have no relevance to the exercise of discretion under s 90G(1A) (Hoult (2013) at [305] and [306]).
During the hearing of the appeal the wife confirmed that this ground was not a complaint as to inadequate or insufficient reasons. The wife did not contend on appeal that the preconditions of the section were not satisfied.
It was uncontroversial that the parties had implemented the terms of the financial agreement except for the $20,000 split from the husband’s superannuation. Any deficiency in the construction of the financial agreement as to the implementation of the superannuation split was not the subject of agitation by the wife at trial or on appeal as being relevant to the alternate relief sought by the husband pursuant to s 90G(1A). As to whether that deficiency is capable of rectification, or the subject of alternate cause, is outside the scope of this appeal.
The wife said that the “principal error” underpinning this ground was that the primary judge failed to consider the wife’s submissions as to the “nature and extent of the non-compliance” with s 90G(1) Act. The contention is hollow. As recorded earlier in these reasons, that subject matter was comprehensively considered by the primary judge. It was as at the forefront of the exercise of discretion as identified in [159] of the reasons.
As to considering an irrelevant matter, the wife focused on the use of language; citing the failure to advise the wife of all her rights “precisely”. It was difficult to distil the contention as to an absence of relevance or how this materially influenced the judgment. The complaint at the hearing of the appeal was more directed to a weight consideration in the exercise of a broad discretion. For the purposes of a discretionary determination, a complaint as to weight alone is not a competent ground of appeal (Hedlund & Hedlund (2021) FLC 94-065).
The written letter of advice to the wife identified with precision the process the court would adopt to assessment of the adjustment of property as between she and the husband.
The wife attended on Ms Wojda with an understanding of the factual matters relevant to each of the “5 steps”. Both she and her solicitor had access to the schedule which set out the estimates of value of the assets, liabilities, and superannuation. Ms Wojda, by way of the letter of advice, informed the wife in writing that if the court were to adjudicate, then the parties’ respective contributions and the s 75(2) factors would be relevant. Hence, the wife had both her own knowledge of these matters and the legal advice that they would be relevant. She could not be thought to be ignorant of the relevant factual matters personal to she and her husband.
Armed with this outline of the law, the wife chose to enter the agreement knowing that the process which had been explained to her in writing would not apply and in its place, she would have the bargain she had struck with her husband. Given that s 90G(1A) permits a declaration that an agreement is binding notwithstanding a failure to receive legal advice as prescribed by s 90G(1)(b), the primary judge was well within the bounds of the statutory discretion to find that it should appropriately invoked in this case.
Should the wife succeed on Grounds 4, 5, or 7 as to vitiating conduct on entering the financial agreement, the agreement will be void and Ground 3 will be irrelevant. Save as to the wife succeeding on Grounds 4, 5, and 7, Ground 3 fails.
Ground 4 – “The learned primary judge erred in failing to consider aspects of the Wife’s case about misrepresentations rendering the financial agreement in question voidable.”
At the hearing of the appeal the wife confirmed that this ground did not assert a want of reasons or inadequate reasons, or that findings were not open on the evidence, or that the findings were not predicated on the evidence.
The Summary of Argument and oral submissions advanced were unhelpful in identifying the contended appellate error. It identifies the ground being anchored from that recorded at [160]–[167] of the reasons. Those paragraphs identify applicable principle as to a financial agreement being set aside pursuant to ss 90K(1)(a) and (b) for fraud (including non-disclosure of a material matter), or that an agreement is void, voidable or unenforceable. No complaint is made as to the identification of those principles, or as to their consideration or application.
The wife’s Summary of Argument advances a narrative as to the primary judge failing to consider and determine her contentions as to innocent and negligent misrepresentation. Her grievance can be dealt with in short compass.
Firstly, the wife did not advance any legal principle to explain why the primary judge was obliged to determine issues she alleges were wrongly left undecided, and thus the non-determination of an issue could not be an error of law, fact, or discretion (Cusack & Cusack (No 3) [2024] FedCFamC1A 93 at [71]). Complaints of error by the primary judge “failing to consider aspects of the wife’s case” do not competently particularise appellate error. If the ground is intended to contend some other appellate error, I am unable to discover it.
Secondly, the primary judge found that the wife did not establish that the evidence demonstrated that the husband did in fact engage in a misrepresentation at all for the purposes of ss 90K(1)(a) or (b), whether it be fraudulent, negligent, or innocent (at [182]).
For the sake of completeness, it cannot be asserted by the wife that the primary judge did not consider evidence she identified as to the contended misrepresentation by the husband’s concealment of the “true value” or “his true opinion” of their pool of property at the time the financial agreement was signed, inducing her to sign the financial agreement.
The findings of the primary judge, unchallenged on appeal, as to:
(a)Each of the husband and the wife expressly agreed to the “estimated values” as recorded in the financial agreement at the time it was signed of the Suburb B property, the service business and the husband’s superannuation (at [171] and [172]); and
(b)At [32], that Ms Wojda asked the wife if she was happy with values recorded in the agreement. The wife was not dissatisfied with the recorded values; and
(c)At [167]:
There is authority for the proposition that disclosure in this context does not extend to the value of the assets themselves but rather their existence - the parties being entitled to satisfy themselves about the values of assets and financial resources should they so choose: Adame v Adame [2014] FCCA 42 at [135]; see also Anderson v Anderson (2000) FLC 93-016 at [29 – 30].
(d)At [173], as to the value of the husband’s superannuation interest, while it was neither $550,000 (in an earlier draft of the agreement) or $500,000 (in the agreement as executed), it being established to be $579,583.39, there was no concealment of the balance of his superannuation or attempt to do so. Rather, the primary judge found that “the balance of evidence supports a finding that the parties’ intention was to attribute notional not actual values to the assets and liabilities of the marriage”, including the superannuation; and
(e)At [175] and [177], that on her own evidence, the wife knew of each of the assets, had contemplated obtaining independent valuations of the items of property over a period of months, and had chosen not to do so; and
(f)At [177], that the value of the Suburb B property as ascribed by the bank for security purposes on the husband refinancing the mortgage loan to pay the funds to the wife pursuant to the financial agreement was not a matter to be disclosed to the wife; and
(g)At [179], that the wife’s claimed lack of knowledge of the takings and finances of the service business was entirely inconsistent with her 20 years of close involvement in the trading of the enterprise including as to its earnings and seasonal income, its machines, and its equipment; and
(h)At [181]:
The retrospective valuations of the [Suburb B] property, the [service] business and its equipment are not of assistance to the Court in circumstances where the existence of the assets were known to [the wife] before the financial agreement was signed.
As to the husband “misleading” the wife as to his “promise” to assist her in the operation of the service business including by way of maintenance of equipment for a period of three to four years, the maintenance provision was never included on the terms of the final draft of the financial agreement, a fact of which the wife was aware before signing and chose not to act upon. The primary judge found (at [159] and [182]) that the matter did not take on such importance to the wife as to represent an inducement to sign the financial agreement, nor was it important enough to raise with Ms Wojda.
The ground was always misconceived and fails.
Ground 5 – “The learned primary judge erred at [176] of the Reasons by failing to find that the SRO Transferor Statement was forged by the Husband or alternatively making the positive finding that it was the Wife who signed it because: a. It was plainly wrong; b. It was against the weight of the evidence or contrary to compelling inferences; c. It failed to take account of material matters advanced by the Wife; and d. The primary judge failed to give sufficient reasons.”
The complaint in Ground 5 is anchored in [176] of the reasons that commences with “[m]uch was sought to be made of the Victorian State Revenue Office transfer of land form with the allegedly forged signature of [the wife]. This was understood to be contended as relevant to the extent that [the husband] had committed forgery in an effort to conceal the true value (or his opinion of the true value) of the [Suburb B] property”.
This ground, unhelpfully, conflates asserted errors to two differing conclusory determinations of the primary judge. The Summary of Argument does little to assist in distilling the specific errors to each, it instead reproducing the wife’s contentions on this subject matter as made at trial. The wife’s case at trial was that establishing a finding that the husband forged the wife’s signature on the SRO Transferor Statement in turn established that the husband concealed the true value, or his true opinion as to the value, of the Suburb B property from the wife at the time of entry of the financial agreement on 19 May 2020.
There are two conclusive findings subject to challenge in [176]:
(a)“The forensic analysis of signatures [by the forensic document examiner] concluded a simulation process or simulation forgery behaviour but was subject of concerning limitations (in particular, having proceeded on copied documents) and, in any event, fell short of establishing that it was [the husband] who had forged the signature”; and
(b)That it was “more plausible” that the wife signed a series of documents relating to the conveyance of the Suburb B property on three days before signing the financial agreement, some of them passed onto her by the husband, who then dated them and sent them to the conveyancer.
As to the complaint of the first particular of the ground as to the alleged forgery, an unmade finding of fact cannot be either right or wrong. This portion of the construction of the ground cannot comprise an error of fact. It cannot be an error of law to refrain from making a finding of fact, absent identification of legal principle identifying a requirement that a finding is to be made (Cusack at [72]). There cannot be any question as to discretionary error either by way of failure to consider a relevant consideration, or taking an irrelevant consideration into account, when the underlying complaint is about the failure to make a finding.
The false assumption underpinning this particular of this ground is that the primary judge was obliged to accept the wife’s interpretation of the evidence to find that the husband forged the wife’s signature but did not do so. As a starting point, the complaint is difficult to distil where it was the wife’s own evidence, as found by the primary judge, that it was not the husband who forged her signature (at [84]). The wife said in cross-examination:
[COUNSEL FOR THE HUSBAND]: Now, what I’m not clear about, because you don’t come out and say it straight out – are you saying that [the husband] forged your signature; yes or no?
[THE WIFE]: ---No.
[COUNSEL FOR THE HUSBAND]: You’re not saying that?
[THE WIFE]: ---I’m not saying he did it, no.
[COUNSEL FOR THE HUSBAND]: Right. No. Right. Okay. Are you saying that [the conveyancing solicitor] did?
[THE WIFE]: ---I’m not saying anyone. I said – just said that’s not my signature.
(Transcript 20 May 2023, p.49 lines 1–7)
Secondly, the wife did not challenge on appeal the primary judge’s conclusion that the evidence of the forensic document examiner “fell short” of establishing that the husband forged the wife’s signature on the SRO Transferor Statement.
The SRO Transferor Statement bore the signature of the husband dated 15 May 2020. It was uncontroversial that the husband signed this document on his own behalf. The document also bore a signature purported to be that of the wife, also dated 15 May 2020. The wife asserted in the primary hearing and on appeal that such signature was not her own. The husband denied that he had forged or falsified the signature purported to be that of the wife. The SRO transferor statement did not have a value of the Suburb B property included on it as at 15 May 2020.
The submission on appeal that the wife’s concession in cross-examination is irrelevant is not accepted. The reasons for discounting the probative value of the expert’s opinion evidence were rational and persuasive.
As to the second particular of the ground being the finding that it was more plausible that the wife signed a series of documents relating to the conveyance of the Suburb B property, the wife gave unequivocal evidence that she signed documents relating to the Suburb B property transfer at the conveyancer’s office on 18 May 2020 and that she could not remember what documents she had signed then. On appeal the wife did not challenge the findings that she could not recall whether she had received email communications from the conveyancer attaching documents for signature, that she was “sick of signing documents”, and that her own identification of her signature was unreliable.
As confirmed by the Full Court in Koyroyshs & Koyroyshs [2021] FedCFamC1A 54, where a finding of fact is reasonably open on the evidence in the case, it will not be reversed merely because the appeal court would not have made the same findings (Edwards v Noble (1971) 125 CLR 296). It is not enough to displace a factual finding to establish a differing view. A finding of fact will only be set aside on appeal if it shown to be contrary to incontrovertible facts, compellable inferences, or is glaringly improbable (Robinson Helicopter company Inc v McDermott (2016) 331 ALR 550 at [43]; Lee v Lee (2019) 266 CLR 129). To put it bluntly, the wife’s argument is that the evidence tends to a different conclusion from that which she sought, not that the finding of the primary judge was not reasonably open on the evidence. The findings of the primary judge on this particular of the ground were open and the reasons were cogent and coherent.
The third particular of the ground was that the primary judge failed to take into account material matters advanced by the wife. This particular of the ground is another way of contending that the conclusions of the primary judge were not open on the evidence. It fails for the reasons the first and second particulars fail.
The fourth particular of this ground is an assertion of a failure to give sufficient reasons. The purpose of providing reasons is to ensure that the parties understand why a decision was made (Bennett & Bennett (1991) FLC 92-191) and identifying the basis and the extent to which their arguments have been understood and accepted (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110). Reasons need only be adequate, and adequacy depends on the circumstances. Reasons will be inadequate if the appellate court is unable to ascertain those reasons for the decision and if justice is not seen to be done (Yarrow & Yarrow [2022] FedCFamC1A 135). The pathway of reasoning by which the primary judge concluded that as determined at [176] of the reasons is clearly discernible. This particular of the ground fails.
Ground 5 fails.
Ground 7 – “The learned primary judge erred at [185] by declining to find the Agreement was vitiated by unconscionable conduct and undue influence by: a. Failing to consider material matters advanced by the Wife; b. Considering irrelevant matters; c. Making findings against the weight of the evidence or contrary to compelling inferences; and d. Failing to give sufficient reasons.”
As was the case for Ground 4, this ground conflates contended appellate errors to the conclusory findings that the wife had failed to establish unconscionable conduct in the entry of the financial agreement, or that it was vitiated by undue influence (at [185]). The case of the wife at trial, and the introduction of the wife in her Summary of Argument on appeal, was directed to the husband’s conduct “during [the] negotiation and signing of [the agreement].”
The wife in her Summary of Argument as to this ground commences with:
36. In just three paragraphs, the primary judge dispensed with what was a reasonably complex case about undue influence and unconscionable conduct. The modest number of paragraphs and the cursory nature of the content of those paragraphs itself is suggestive of the errors contended.
(Footnote omitted)
It then continued as to undue influence:
39. The Wife’s case of a presumed relationship of influence relied on seven factors. They are summarised at [216] of her submissions. They are then further developed with reference to the evidence at [236]-[264].
(Emphasis added) (Footnotes omitted)
The wife’s case at trial and on appeal was that the undue influence asserted was both actual and presumptive. The existence of actual undue influence may be proved by direct evidence of the circumstances of a particular transaction (Johnson v Buttress (1936) 56 CLR 113). Presumed undue influence is recognised in identified relationships of risk. The spouse relationship is not one which falls within this category of relationships and was not asserted by the wife in this case (Bar-Mordecai v Hillston [2004] NSWCA 65). Presumed undue influence may exist if it is proved that a “special relationship” of trust exists between the parties (Garcia v National Australia Bank Ltd (1998) 194 CLR 395). The wife said that the evidence established the relationship between she and the husband achieved this presumptive category.
The Summary of Argument records as to unconscionable conduct:
56. As to unconscionable conduct, paragraph [184] of the Reasons appears to represent the entirety of the Court’s consideration of this argument. That paragraph lists four reasons why the Court concluded that the Wife was not subject to a special disadvantage. The conclusion is erroneous for two reasons:
56.1. Firstly, it assumes that, to demonstrate ‘special disadvantage’, the Wife was required to show that she was completely and entirely bereft of any ability to participate in the business or negotiate matters with the Husband. That is not the law.
56.2. Secondly, it ignores the factors advanced by the Wife in support of the contention of unconscionable conduct. The same factors in support of (1) a presumed relationship of influence, and (2) actual undue influence were advanced in support of the unconscionable conduct case. For the same reasons advanced above, the primary judge failed to consider these 18 factors either individually and/or cumulatively.
(Emphasis added) (Footnote omitted)
The opening of submissions of the wife in her Summary of Argument as to both categories of undue influence and as to unconscionability ignore a reading of the reasons as a whole. Paragraphs [12]–[16], [18], [28], [29], [31]–[35], [60], [91]–[99], [139], [141], [143], [146], [147], [149], [151]–[154], [158], [168], [171]–[175], [177]–[179] of the reasons canvass cogent evidence and findings that are of significance to the conclusions of the primary judge subject to complaint in Ground 7.
The primary judge identified applicable principles and the differences between undue influence and unconscionable conduct (at [168]) by reference to the well traversed passages of the High Court in Thorne v Kennedy (2017) 263 CLR 85 (“Thorne v Kennedy”) at [38]–[40]. Importantly, the primary judge was alert to the High Court’s identification that:
40Although undue influence and unconscionable conduct will overlap, they have distinct spheres of operation. One difference is that although one way in which the element of special disadvantage for a finding of unconscionable conduct can be established is by a finding of undue influence, there are many other circumstances that can amount to a special disadvantage which would not establish undue influence. A further difference between the doctrines is that although undue influence cases will often arise from the assertion of pressure by the other party which might amount to victimisation or exploitation, this is not always required. In Commercial Bank of Australia Ltd v Amadio, Mason J emphasised the difference between unconscionable conduct and undue influence as follows:
"In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position."
The construction of the ground on appeal reflected that as framed by the wife at trial, being that the contended undue influence and unconscionable conduct arose from the same set of facts (Thorne v Kennedy).
Undue influence
The plurality in Thorne v Kennedy make plain that in a determination of undue influence:
32. … It is not necessary for a conclusion that a person’s free will has been substantially subordinated to find that the party seeking relief was reduced entirely to an automaton or that the person became a “mere channel through which the will of the defendant operated”. Questions of degree are involved. But, at the very least, the judgmental capacity of the party seeking relief must be “markedly substandard” as a result of the effect upon the person’s mind of the will of another.
43. … in undue influence there will be questions of evaluative judgment involved in assessing whether the extent to which a person’s will has been subordinated to another’s is sufficient to characterise the person as lacking free will. …
The question as to whether the wife’s entry into the financial agreement is “free” required consideration by the primary judge as to the nature of the relationship between the parties and of the extent to which the wife was constrained in assessing alternatives and deciding between them.
At trial the wife’s case as to undue influence vitiating the entry of the financial agreement was because of seven factors, being:
216.1. The Wife’s lack of financial and legal sophistication as compared to the Husband;
216.2. The Wife’s relative ignorance of the parties’ family and business finances and her historical tendency to rely on the Husband in relation to all matters of a financial and legal nature;
216.3. The Wife’s emotional dependence on the Husband;
216.4. The Wife’s reliance on the Husband for financial support;
216.5. The disparity of wealth between the parties at the time of making the Agreement;
216.6. The domineering position enjoyed by the Husband over the Wife due to the parties’ disparate personalities and the controlling behaviour or family violence exhibited by the Husband to the Wife during the relationship; and
216.7. The four misrepresentations made by the Husband as referred to above and related course of conduct to mislead or hide from the Wife the true value of certain assets.
The seventh factor is quickly disposed of by reason of the failures identified in Ground 4.
The first, second, fourth and fifth factors were also the subject of some of the failures on appeal canvassed in Grounds 4 and 5. The primary judge was aware of the wife’s contentions and made no factual error in dealing with them.
Paragraphs [91]–[94] of the reasons identified the wife’s contentions as to the husband controlling the family finances and the business. The contentions were not accepted (at [179] and [184]). In so far as this particular of the ground challenges the findings of fact made the independence of the wife by way of her knowledge of the operations and financial circumstances of the service business (at [179]) as being “wrong”, it is a repetition of an aspect of Ground 4. It fails for the same reasons. The wife is doing nothing more on this particular of the complaint than attempting to rerun her case at trial on appeal. It was the wife’s own evidence she understood and agreed to terms of the agreement (at [159]). She had plans to progress herself financially, knowing she would receive a cash payment with plans to improve the service business and then to sell it.
Unchallenged on appeal were the findings that the wife:
(a)In the period from striking the terms of the agreement until its entry on 19 May 2020 negotiated changes to the terms of the proposed agreement (at [12] and [184]). Rather than the husband pressuring the wife to enter the financial agreement, they each sought to enter it as soon as possible after its terms were negotiated; and
(b)Had the benefit of independent legal advice from Ms Wojda encompassing the commercial aspects of entry to the agreement. Information and resources were available to her at that time. She elected how and when to utilise them.
The “disparity of wealth” was recorded at a value of $28,000 out of $1,443,083 of superannuation and non-superannuation property, being in the range two per cent.
As to the sixth factor, the wife’s affidavit evidence as to family violence was that the husband was “controlling in his words and behaviour”, such as that he “often ‘went off’ at small and inconsequential things”. She said that the husband criticised her cooking and for her spending of money, and as to him calling her “crazy” and “embarrassing”. Both in his affidavit and in cross-examination the husband categorially denied that he was ever “abusive, controlling or otherwise ill-mannered” towards the wife. The husband correctly identified on appeal that the evidence as to family violence was broad and summary, lacking “any precision”.
While paragraphs [95]–[98] of the reasons identified the wife’s broad contentions as to social and emotional control being a feature of the relationship between the parties historically during the marriage, no express finding was made as to these contentions. Importantly, as to the third and sixth factors identified by the wife, the following findings as to the terms of the relationship between the parties were omitted by the wife in her submissions as to this particular of the ground:
(a)The finding (at [158]) as to the amicability of the relationship between the husband and the wife at the time of entry of the agreement; and
(b)Ms Wojda gave oral evidence that she discussed coercion with the wife, that the wife did not say that she was uncomfortable or nervous. The primary judge accepted the evidence of Ms Wojda (at [35]) that she did not notice anything about wife’s demeanour that would have been a “red flag” as to coercion (Transcript 1 June 2024, p.325 line 39 to p.327 line 2).
Each of these findings are not being the subject of challenge on appeal. The wife did not engage with them during the hearing of the appeal.
The fact that specific findings were not made as to the contended historic family violence does not mean that the subject matter was not taken into account(Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [95] – [98]). The construction of the reasons read as a whole reveal, by a process of inference and implication, that the relevant considerations as to the impact of family violence was borne in mind, even though it was not stated in as clear-cut a way as may have been preferred by the wife. The omission of a specific reference by the primary judge to this factor does not demonstrate that that the issue overlooked when specific findings are made as to the relationship dynamic at time of the negotiation of and entry into the financial agreement.
The primary judge did not accept that the wife had established the existence of influence. Having regard to the express or implicit determinations of the primary judge as to each of the “seven factors” identified by the wife, the particular of the ground as to they not being considered individually or cumulatively, is forlorn.
The primary judge had careful regard to the evidence that underpinned the implicit conclusions that the wife had not established that a relationship of presumed influence existed between the she and the husband, or that influence expressly was used “during negotiation and signing” of the financial agreement, so that it could not be considered as a free and voluntary act. The evaluative conclusion as to the wife failing to establish that she was constrained by the husband’s conduct at that time in assessing alternatives as to the terms of, and the entry into, the agreement and deciding between them was not only open, but to find otherwise would be contrary to the weight of the evidence.
The reasoning exposed is orthodox, rational, and cogent. The duty to give adequate reasons on this subject matter is discharged (DL v The Queen (2018) 266 CLR 1).
No appealable error is identified by way of the particular of the ground as the financial agreement being vitiated by undue influence.
Unconscionability
The High Court in Thorne v Kennedy made it clear that a conclusion of unconscionable conduct requires the wife in the case to establish that she was subject to a special disadvantage that seriously affected her ability to make a judgment as to her own best interests. The husband must also unconscientiously take advantage of that special disadvantage.
The primary judge found at [183] that “the evidence intended to evince an impression that [the wife] was in a position of special disadvantage in the present case was weak at best.”
At the primary hearing the wife said that the “special disadvantage” arose from the same seven factors as grounding actual and presumed undue influence. There was an absence of identification on appeal as to any other evidence of special disadvantage. There was an absence of identification as to the ingredient of the husband knowing of, or that he ought to have known of, that special disadvantage that may have existed, or of him unconscionably taking advantage of it, or exploiting the wife.
The primary judge considered the contended unconscionable aspect of the husband’s conduct as to the alleged misrepresentation (at [166]). A finding was made as to him having no intention to deceive or engage in unconscionable conduct (at [173]).
The failure of the wife to establish the identified factual matters to substantiate unconscionability is a repetition of the undue influence particular of this ground and fails for similar reasons. Similar conclusions are self-evident as to evaluative conclusion as to an absence of unconscionability (at [185]). The particular of the ground as to that conclusion being contrary to the weight of the evidence fails, as does the particular of the ground as to the factors identified by the wife not being considered individually or cumulatively, for the same reasons as the undue influence particular of the ground. No appealable error is identified by way of the particular of the ground as the financial agreement being vitiated by unconscionability. The particular of the ground as to unconscionability also fails.
Ground 7 is not established.
OUTCOME
Ground 1 is established. For the reasons identified, because Grounds 4, 5, and 7 fail, Ground 3 also fails and hence the appeal fails. By way of the determination of Ground 2, the declaration made on 7 June 2024 will be amended to remove the reference to s 90G(1B) of the Act. The appeal will be dismissed.
COSTS
In the event the appeal failed, the husband sought that the wife pay his costs in the sum of $15,000. If the appeal failed, Ms Wojda sought that the wife pay her costs in the sum of $13,514. The wife conceded both as to outcome and quantum. Those costs should be paid within 28 days.
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 17 October 2024
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