FRANKLIN & ENNIS

[2015] FCCA 2099

FEDERAL CIRCUIT COURT OF AUSTRALIA

FRANKLIN & ENNIS [2015] FCCA 2099

Catchwords:
FAMILY LAW – Property – whether an agreement entered into between a de facto couple on 6 May 1997 is a cohabitation agreement under the Property Relationship Act 1984 NSW – agreement found not to be a cohabitation agreement within the meaning of that Act.

Legislation:

Family Law Act 1975

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008
Property (Relationships) Act 1984, s.47

Applicant: MR FRANKLIN

Respondent: MS ENNIS

File Number: SYC 2160 of 2014

Judgment of: Judge Henderson

Hearing date: 10 July 2015

Date of Last Submission: 10 July 2015

Delivered at: Sydney

Delivered on: 6 August 2015

REPRESENTATION

Counsel for the Applicant: Mr Givney

Solicitors for the Applicant: Burt & Allen Lawyers

Counsel for the Respondent: Mr Kearney SC

Solicitors for the Respondent: Willis & Bowring Solicitors

ORDERS

1. A declaration that the agreement dated 6 May 1997 and entered into between the parties on that date is not a cohabitation agreement under the Property (Relationships) Act 1984.

IT IS NOTED that publication of this judgment under the pseudonym Franklin & Ennis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2160 of 2014

MR FRANKLIN

Applicant

And

MS ENNIS

Respondent

REASONS FOR JUDGMENT

1. This is an application brought by the respondent, Mr Franklin, seeking to invoke the Court’s jurisdiction under Part VIIIAB of the Family Law Act 1975, being financial matters relating to a de facto relationship. The de facto wife says he is estopped or prevented from so invoking this jurisdiction due to the existence of a cohabitation agreement that she asserts the parties entered into on 6 May 1997.

2. This agreement, the respondent asserts is a valid agreement under section 47 of the Property (Relationships) Act 1984 the NSW Act as it then was and by virtue of various transitional and other provisions of the Family Law Amendment (De facto Financial Matters and other Measures) Act of 2008, the Amending Act, to which I will later this agreement is now a binding financial agreement under the Family Law Act.

3. The respondent asserts that the document produced at the hearing marked Respondent Exhibit 5 is a cohabitation agreement under the NSW Act.

4. Paragraph 46 of the state legislation provides:

   Except as otherwise provided by this Part, a cohabitation agreement or separation agreement shall be subject to and enforceable in accordance with the law of contract, including, without limiting the generality of this section, the Contracts Review Act 1980.

5. Section 47 is the pivotal section for this particular application. It provides as follows, section 47(1):

   Where, on an application by a de facto partner for an order under Part III, a court is satisfied:

   (a) that there is a cohabitation agreement or separation agreement between the de facto partners;

   (b) that the agreement is in writing;

   (c) that the agreement is signed by the partner against whom it is sought to be enforced;

   (d) that each partner was, before the time at which the agreement was signed by him or her, as the case may be, furnished with a certificate in or to the effect of the prescribed form by a solicitor which states that, before that time, the solicitor had advised that that partner, independently of the other partner, as to the following matters:

   (i) the effect of the agreement on the rights of the partners to apply for an order under Part III;

   (ii) whether or not at that time it was to the advantage, financially or otherwise, of that partner to enter into the agreement;

   (iii) whether or not at that time it was prudent for that partner to enter into that 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

   (e) that the certificates referred to in paragraph (d) are endorsed on or annexed to or otherwise accompany the agreement.

   The Court shall not, except as provided by sections 49 and 50, make an order under Part III insofar as the order would be inconsistent with the terms of the agreement.

6. The question for me is did the parties enter into a cohabitation agreement in accordance with the provisions of section 47 of the NSW Act in May 1997.

7. Mr Givney of counsel acted for the applicant, Mr Kearney SC for the respondent.

8. The evidence I read was as follows.

For the applicant:

·Initiating application filed 11 April 2014.

·Affidavit of 10 April 2014.

·Financial statement filed 10 April 2014.

For the respondent:

·Response filed 2 July 2014.

·Affidavits filed 23 June 2014 and 5 June 2015.

·Financial statement filed 2 July 2014.

Exhibits:

For the applicant:

·Exhibit 1.a, Facsimile cover sheet dated 7.4.97 in the applicant’s hand.

·1.b, letter from Mr Burt solicitor dated 8 April 1997.

·1.c, a dated, signed by the applicant and witnessed by Mr Burt, copy of a cohabitation agreement dated 6 May 1997 without a solicitor’s certificate attached.

·Exhibit 2, letters and facsimile pages between solicitors dated 6 January 2014 and 30 January 2014.

·Exhibit 3.a, letter from Willis and Bowring to Mr Burt dated 17 March 2014.

·b, An undated copy of the cohabitation agreement signed by applicant, witnessed by Mr Burt and attaching a certificate of legal advice by Mr Burt dated 6 May 1996.

·c, the copy of the original letter sent by Willis and Bowring to Mr Burt and a further copy of the  cohabitation agreement signed by applicant, witnessed by Mr Burt and attaching a certificate of legal advice by Mr Burt dated 6 May 1996.

·The letter dated 17 March 2014 is as follows.

I refer to your facsimile received this afternoon in which you seek a copy of the cohabitation agreement relied upon by our client.

Notwithstanding the fact that a copy was forwarded to you on 6 January 2014, we enclose a further copy of the agreement entered into between our respective clients, pursuant to the De Facto Relationships (New South Wales) Act 1984, as signed by yourself and your client, attaching the certificate pursuant to section 47(1)(d) of that legislation, executed by yourself, dated 6 May 1997.

We note that this is the second time we have forwarded the agreement to you and confirm that it remains your client's position that the agreement entered into between herself and your client was executed in accordance with the law in place in May 1997 and that appropriate advice was given to each parties, such as that set out in the certificate signed by you. Accordingly, the cohabitation agreement has the full force and effect of the law.

1. It is clear the applicant did not have a copy of this agreement and it came to him from the respondent.

For the respondent:

·Exhibit 1, case outline document prepared by Mr Kearney SC.

·Exhibit 2, Subpoena to Mr Burt. No documents were produced.

·Exhibit 3, Subpoena to Macedone, Christie, Willis, MCW, solicitors no documents were produced.

·Exhibit 4, Full copy of the NSW Property Relationships Act 1984.

·Exhibit 5, Copy of an undated cohabitation agreement signed by the respondent and witnessed by Mr Burt with 2 attached solicitors certificates of legal advice each signed by Mr Burt dated 6 May 1996 and dated 6 May 1997.

1. I read an affidavit of Mr Christopher Burt, solicitor dated July 2014 nothing turned on this.

2. The reply filed 3 July 2014 was not moved on.

3. The application that was listed for trial was as follows:

   The matter is listed for final hearing of one day in relation to the status of the cohabitation agreement purported to have been entered into by the parties pursuant to the Property (Relationships) Act 1984, New South Wales -

   This determination was required as the applicant had filed an application seeking property orders pursuant to Part VIII AB of the Family Law Act on the breakdown of the de facto relationship between the parties.

4. The respondent’s response to this application sought orders as follows:

   (1) that the parties are declared, pursuant to section 90RD of the Family Law Act, to have lived in a de facto relationship for more than two years for the purposes of section 90BA and, further, that such a de facto relationship ended on or about 27 October 2013;

   (2) that the Court declares, pursuant to section 90RD of the Family Law Act, that both the applicant and respondent were ordinarily resident in the participating jurisdiction, namely New South Wales, throughout the duration of their relationship and at the time of the commencement of the proceedings;

   (3) that the initiating application filed on behalf of the applicant husband be dismissed;

   (4) that the cohabitation agreement entered into between the applicant and respondent, pursuant to the Property (Relationships) Act 1984, New South Wales, be given the full effect and force under the Family Law Act;

   (5) an order as to costs.

5. There is no issue with orders 1 and 2 of the response and these matters are agreed.

6. Order 4 is the matter for determination. Before the application filed by the applicant can be entertained the issue of the status of the cohabitation agreement pleaded by the respondent must be determined.

7. The thrust of the respondent’s case in her case outline and in submissions was at page 8:

   Ms Ennis submits that the Court ought to conclude there exists between the parties an agreement binding upon them for the purposes of Part VIIIAB of the Family Law Act and so declare.

8. If I make such a finding, the applicant is precluded from bringing an application to this Court following the breakdown of the parties' relationship, which the respondent asserts occurred on 29 October 2013 and the applicant in December 2013 due to the existence of the cohabitation agreement entered into under the New South Wales legislation in 1997.

Short Chronology

1. The applicant is 70 years of age and the respondent 61.

2. The parties commenced cohabitation in 1995.

3. In May 1997 the parties enter into an agreement which the respondent says is a cohabitation agreement under the Property (Relationships) Act 1984, New South Wales.

4. 6 May 1997, the applicant signed the cohabitation agreement and Mr Burt solicitor gave a certificate of legal advice dated 6 May 1997 in relation to the agreement.

5. 29 October 2013, respondent asserts parties separate under the one roof.

6. December 2013, applicant asserts parties separate.

7. 11 April 2014, the applicant commences proceedings in this Court.

8. The legislative pathway by which a Federal Circuit Court is enabled to determine the validity of an agreement made under a state act was clearly set out by Mr Kearney SC in Respondent’s Exhibit 1. This pathway was adopted by me and agreed to by Mr Givney of counsel. The Court thanks Mr Kearney SC for his helpful, clear and lucid submissions.

9. The pathway is as follows.

10. On about 6 May 1997 the respondent asserts the parties entered into a cohabitation agreement pursuant to the then De Facto Relationships Act 1984.

11. The issue to be determined is the status of that agreement for the purposes of Part VIIIAB of the Family Law Act.

12. To determine that issue requires a consideration of, the Property (Relationships) Act 1984, New South Wales, the Family Law Act, and the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008.

13. Up until 1 March 2009 the rights and entitlements of de facto parties in relation to property was governed by the state legislation. Following that date the Family Law Act was amended by the Family Law (De Facto Financial Matters and Other Measures) Act 2008. That Act provides, namely in Part VIIIAB of the Family Law Act, that the rights and entitlements of parties to a de facto relationship, or to an alteration of their interests in property, consequent upon the breakdown of their relationship is governed by the Family Law Act as amended and no longer the state jurisdiction.

14. From that date, that is, 1 March 2009, parties to a de facto relationship were able to enter into financial agreements under the Family Law Act, the effect of which, if binding, exclude the jurisdiction of the Court and the Court cannot make orders under Part VIIIAB of the Act.

15. The operative provisions of the Family Law Act for these purposes is section 90SA(1). That section provides as follows - 90SA(1):

    This Division -

    that is, Division VIIIAB of the Family Law Act -

    does not apply to certain matters covered by binding financial agreement.

    90SA(1):

    This division does not apply to any of the following matters to which a Part VIIIAB financial agreement that is binding on the parties to the agreement applies:

    (a) the maintenance of one of the spouse parties;

    (b) the property of the spouse parties or either of them;

    (c) the financial resources of the spouse parties, or either of them.

    90SA(2):

    Subsection (1) does not apply in relation to:

    (a) proceedings between:

    (i) a party to a de facto relationship; and

    (ii) the bankruptcy trustee of a bankrupt party to the de facto relationship;

    with respect to the maintenance of the first mentioned party after the breakdown of the de facto relationship; or

    (b) proceedings between:

    (i) a party to the de facto relationship; and

    (ii) the bankruptcy trustee of a bankrupt party to the de facto relationship;

    with respect to the distribution, after the breakdown of the de facto relationship, of any vested bankruptcy property in relation to the bankrupt property;

    (3) despite subsection (1), a party to a de facto relationship is not prevented from bringing property settlement proceedings under this part if a Part VIIIAB financial agreement is not binding on the party.

16. Thus the pivotal issue is, is there a binding financial agreement in existence in relation to these parties.

17. This agreement could not be regarded as a binding financial agreement simpliciter, pursuant to Part VIIIAB of the Family Law Act, as it was entered into prior to this Act being in existence and simply does not comply with many of the strict requirements for such a binding financial agreement as set out in section 90UJ(2) of the Family Law Act.

18. The question is then is the cohabitation agreement the respondent asserts the parties entered into in May 1997 an agreement for the purposes of Part VIIIAB of the Family Law Act.

19. There are specific references in the Family Law Act which recognise agreements entered into between parties prior to the passing of the legislation. Those specific references are contained in schedule 1 to the legislation, relevantly item 88(2).

20. Going to that section. Item 88 of the schedule to the amending Act provides as follows in relation to pre-commencement agreements made during de facto relationships. The parties agree this agreement was made during the de facto relationship.

21. Item 88 (1):

    This item applies if:

    (a) before commencement and while in a de facto relationship, the parties to the de facto relationship (the couple) made a written agreement, signed by both of them, with respect to any of the matters mentioned in sub item (3); and

    (b) the agreement was made under a preserved law of an earlier participating jurisdiction; and

    (c) a court could not, because of the preserved law, make an order under that law that is inconsistent with the agreement;

    (d) immediately before the commencement:

    (i) the agreement was enforce under the preserved law; and

    (ii) the de facto relationship had not broken down; and

    (iii) the couple were not married to each other.

    88(2):

    For the purposes of the new Act, the agreement is taken, on or after commencement, to be a Part VIIIAB financial agreement mentioned in subsection 90 UC(1) of the new Act.

22. Thus if I find this agreement was an agreement made under the preserved laws of an earlier participating jurisdiction and New South Wales is a participating jurisdiction and that it is a valid agreement under that jurisdiction this Court could not make an order inconsistent with its term where it was enforceable under the preserved law, the de facto relationship had not broken down or the couple had not married. Thus it is regarded as a binding financial agreement for the purposes of section of Part VIIIAB of the Family Law Act.

23. The facts that are not in issue are as follows:

24. The agreement was entered into and made during a de facto relationship.

25. If I accept that the agreement complies with section 47 of the NSW Act it is a valid agreement under a participating jurisdiction.

26. If the agreement is found to be valid this Court cannot make an order inconsistent with its terms.

27. The terms of the agreement are clear. Whatever property is in each party’s name they retain. Joint property is divided between them based upon their contribution. The parties have no joint property. The respondent owns real estate and has some superannuation.

28. The parties were not married to each other at the time the agreement was entered into.

29. The de facto relationship had not broken down at the time the agreement was entered into nor have the parties married.

30. This matter hinges on whether this agreement is one that is a valid cohabitation agreement pursuant to section 47 of the New South Wales Property (Relationships) Act.

31. The difficulty for the respondent in this matter is that she has been unable to produce her signed copy, dated or undated of the agreement, and most particularly a certificate of legal advice by a solicitor similar to that which the applicant has produced signed by Mr Burt of Burt & Allen. The inability of the respondent to produce those two documents resulted in this matter coming before the Court. Had those two documents been produced the matter would have been, as I see it, an open and shut case.

32. Mr Kearney SC submitted that the applicant was really not a witness of truth. He was very vague about what had happened. He had no recollection of this cohabitation agreement being in existence up until he attempted to commence proceedings under the Family Law Act and the respondent raised the agreement as a bar. He then remembered signing something. When he saw the document that was produced by her to his solicitors he began to have some recollections of that document. However, he said he had acted throughout their relationship as if there was no cohabitation agreement in existence. He had simply forgotten about it.

33. This then made it difficult for him to assert conversations in his affidavit and ultimately the bulk of his affidavit, apart from the jurat – and paragraphs 17, 18, 19 and 20 were not read by me.

34. Paragraph 17:

    On 6 May 1997 I signed a document titled Cohabitation Agreement. Annexed hereto and marked with the letter A is a true copy of that document. I recall handing the signed copy of the document to Ms Ennis that evening, or shortly thereafter. I only remember executing the document when a copy was forwarded to my solicitors by Ms Ennis’ solicitors under cover of their letter dated 6 January 2014. I have never received a document titled Cohabitation Agreement executed by Ms Ennis from her solicitors or any other person at any other time.

    Accordingly, Ms Ennis and I did not enter into a cohabitation agreement at any time. I do not remember any conversation or reference to that document that occurred between Ms Ennis and I during the whole course of our relationship from or after 6 May 1997.

35. Paragraph 19 annexes relevant correspondence.

36. Paragraph 20 concerns the financial arrangement between the parties at the commencement of their cohabitation for day to day expenses.

37. The applicant's case is that she brought home her signed copy of a cohabitation agreement with a solicitor's certificate annexed to it in late December 1996. At the same time she brought home a blank copy for the applicant to take to his solicitors to have executed. She kept reminding him about the agreement and when was he going to have it signed.

1. On the night of 6 May 1997, the applicant came home with his executed cohabitation agreement, solicitor's certificate attached and he and she exchanged copies of the agreement. Her evidence was "I remember exchanging the document with Mr Franklin as you do in an exchange of contracts." However, she has not produced a copy of her documents only the respondent’s documents.

2. At that time the respondent had been employed in a (employer omitted) for some 25 years as a (occupation omitted). Her employers had been (employer omitted) for that time.

3. Her oral evidence was that she spoke to a solicitor, a name she can now not remember at (omitted), obtained the necessary legal advice, had the agreement witnessed, certificate executed by that now unnamed, unknown solicitor and waited for the applicant to bring his executed agreement home.

4. She believed she put a copy of her executed agreement into the safe keeping packet at (omitted).

5. Her evidence in her affidavit of 23 June 2014 on this issue is as follows, paragraph 12:

   At the time I worked for (employer omitted) in the (omitted) known as (omitted). I arranged for the cohabitation agreement to be prepared and for a copy to be given to Mr Franklin for him to take to his solicitor for advice. I did not need to make an appointment to see a solicitor. I simply asked for the assistance of a solicitor who was available at that time.

6. At paragraph 13:

   I do not now recall who I asked to prepare this agreement on my behalf. I do, however, recall the comment of the solicitor who said words to the effect, "I hope you never have to use this."

7. Paragraph 14:

   I recall that I sat with the solicitor, whose name I now cannot recall, gave them instructions that I owned the property in my possession and control and that Mr Franklin owned his motor vehicle, office equipment and his business. I gave the solicitor instructions, should our relationship fail I was to retain all my property and Mr Franklin was to retain all of his.

8. Paragraph 15:

   I recall that the agreement was prepared and that I signed a copy of the agreement in the presence of that solicitor.

9. Paragraph 16:

   After my execution of the document I took it home with me, anticipating that Mr Franklin would have his copy executed and have it available to exchange with me. I recall that when Mr Franklin came home with his copy I dated both copies, gave him the document that had been executed by myself and my solicitor, and that he gave me his copy and I took it to my place of employment at (omitted) where I put it in their safe custody -

10. Paragraph 17:

    Unfortunately I did not retain a copy of the cohabitation agreement that I had signed with my solicitor as I did not anticipate I would requiring it and I believed, should I be in need of it, I will be able to obtain a copy from the office. Unfortunately, I have not been able to obtain a copy from (omitted) and believe that the original cohabitation agreement executed by me and my solicitor acting on my behalf has been destroyed.

    I do not know, nor did I ask, what Mr Franklin was going to do with his copy of my executed agreement upon receipt. I did not know, nor did I ask what Mr Franklin was going to do with his copy of my executed agreement upon receipt. I believe that Mr Franklin and I entered into a legally binding cohabitation agreement on 6 May 1997.

11. In her affidavit of 5 June 2015, the respondent asserts as follows:

12. Paragraph 11:

    I recall prior to Mr Franklin moving into my home at Property P, we had a conversation regarding the possibility of the two of us entering into a cohabitation agreement to protect my assets, and prior to making up my mind as to whether I wanted him to move into my home, I said to him, "Would you agree to enter into a cohabitation agreement with me? This would protect us both." Mr Franklin said, "I am prepared to sign a cohabitation agreement" -

13. Paragraph 12:

    Upon agreeing to enter into the formal agreement with Mr Franklin he moved into my home. At the end of the first calendar year, that is in about mid-'96, I recall saying to Mr Franklin, "I will arrange to have an agreement prepared for execution by us both. You will need to go and see a lawyer and get independent legal advice." Mr Franklin said, "I will make an appointment to see Chris Burt."

    In or about the end of 1996 I recall I went to a solicitor employed in the practice of (omitted) for assistance in preparing a cohabitation agreement. This was the legal practice that I was employed at as a (occupation omitted). I took the agreement home and said to Mr Franklin, "Here is the agreement we talked about. Let me know if you want any changes. I will get it sorted." Mr Franklin said, "Okay." He did not speak to me further.

14. Paragraph 14:

    Whilst I do not now recall the particular solicitor at (omitted) who I saw to sign the agreement, I do recall sitting in an office and having the terms of the agreement explained to me by that solicitor and I believe I was very aware of the nature of the agreement's effect. The solicitor said, "Do you understand what I have explained to you and what it may mean to you in the future?" I said, "Yes. I do. This agreement will definitely protect me and all my assets should my relationship with Mr Franklin fail, won't it?" The solicitor said, "Yes. It will" -

    As a consequence of the advice provided in the conversation with the solicitor, I believed that the agreement offered me protection of my assets should my relationship with Mr Franklin fall.

15. Paragraph 15:

    I recall I signed the agreement and the solicitor signed the agreement and a certificate attached to the de facto relationship agreement on my behalf.

    That is a significant difference to the original affidavit prepared by the respondent on 23 June 2014, that is, the addition of her now memory that an unknown solicitor she spoke to "signed the agreement and a certificate attached to the de facto relationships Act on my behalf".

16. Paragraph 16:

    I recall the agreement I signed was identical in terms to the cohabitation agreement annexed hereto and marked A. I recall I took the copy of the signed agreement home with me to exchange with Mr Franklin once he advised me he had signed his copy. Two or three months before Mr Franklin brought his copy home I recall I handed Mr Franklin the copy of the agreement signed by me. He gave me his agreement signed by him and his solicitor.

17. Paragraph 20:

    I placed the original agreement with Mr Franklin's signature into the safe custody packet I kept at (omitted). I believe that I made a photocopy of the agreement signed by me but I have been unable now to locate it.

    That again, is a difference to her affidavit of June 2014 namely making a photocopy of her signed agreement.

18. The respondent goes onto say, in addition to her 20 June 2014 affidavit, at paragraph 22:

    I have searched all documentation in my home and in all of the places which I believe I may have kept personal papers. I have also spoken with Mr S’s office. He is no longer employed by (omitted). He told he does not have a copy of the agreement. I have telephoned (omitted) lawyers and been informed that my current solicitors Willis & Bowring have made inquiries on my behalf. I have been told they cannot locate any records in relation to myself or a copy of my agreement. They have changed computer systems several times since my employment and cannot locate the electronic copy either.

19. In an attempt to explain in her affidavit why she kept a copy of the agreement signed by Mr Franklin and Mr Burt’s certificate but did not keep a copy of the agreement she asserts she signed and to which a solicitor's certificate was annexed, the respondent said:

    I was not concerned that I could not locate a copy of the agreement signed by me as I knew at all times I had in my possession the original agreement signed by Mr Franklin and his solicitor.

20. This evidence is pivotal. Mr Givney submitted to me that the explanation for this apparent inconsistency or oversight by an otherwise careful and cautious (occupation omitted) of over 25 years’ experience is:

    The respondent herself, being a (occupation omitted), drafted the cohabitation agreement.

21. Her evidence, under cross-examination on this issue confirms this. The respondent said she went and spoke to a solicitor, she was given several precedents and that she probably drafted up that cohabitation agreement. I find it is more likely than not that that is precisely what happened. She drafted up the agreement as well as the certificates to be attached to them.

22. I have no doubt that the respondent spoke to a solicitor in the office at that time about this agreement. In oral evidence, she was asked:

    You typed up the original cohabitation agreement?

    Possibly I did. I was given precedents by Mr D. I believe I probably did type it up.

23. It was then put to her that when she handed her agreement to Mr Franklin and he handed his to her she had no solicitor acting on her behalf because she had created this document herself. The witness answered:

    Mr D gave me the precedents. I believe Mr S was the solicitor who witnessed my signature and signed certificate.

24. That evidence did not appear in any affidavit. Neither Mr S or Mr D were called to give evidence or were on affidavit. The witnesses’ explanation for this apparent deficit was:

    Well, I couldn’t precisely remember, so therefore I would not call them to give evidence.

25. I do not accept this evidence for the following.

26. The respondent had been a (occupation omitted) since 1971. She continued to work at (employer omitted) for 9 or so years after the cohabitation agreement date. The respondent now works at (employer omitted) and is a (occupation omitted). The respondent gave evidence of the usual practice in solicitor’s offices of keeping copies of documents and the creation of files. I was impressed with her careful and knowledgeable answers to the usual practice in a solicitor’s office.

27. The respondent stated in her June affidavit how important it was that this agreement was entered into due to the experiences of her mother and her own experience after her first marriage broke down. I accept her evidence that she was most desirous of protecting her hard earned assets as best she could if her relationship with the applicant broke down.

28. As Mr Givney submitted to me for 8 to 9 years after this agreement was signed, the respondent must have come into contact almost daily with the very lawyer she asserts signed, witnessed and gave a certificate of legal advice of a document the benefit of which was crucial to her yet now asserts she cannot:

    a. remember who the solicitor was; or

    b. produce her signed agreement and signed solicitors certificate of this most important to her document.

29. It is impossible for me to accept that this otherwise careful, prudent witness who was clear in her answers cannot remember which solicitor she saw to obtain legal advice on the effect of the agreement and for the purpose of the signing of a certificate. It is beyond belief that, given the importance she placed on this agreement, as set out in her own affidavit of 5 June 2015, she did not keep a copy and cannot recall who the solicitor is that gave her the legal advice and signed the certificate.

30. Her affidavit of 5 June 2015 paragraph 6:

    When I agreed to Mr Franklin moving into my home, it was extremely important to me to protect the assets I had hoped to accumulate to ensure I was able to pass them onto my children upon my death.

31. Paragraphs 7:

    When I was one year of age, my mother was widowed. At the time, my parents had no savings and my mother sold the farm and I lived with my grandmother. Upon my grandmother’s death, she bequeathed a life interest only in the property.

32. Paragraph 9:

    These family events had nothing to do with me, other than they taught me to be wary and not trust a ….. financial security. When my ex-husband and I separated, on or about ’92, I believed it was crucial I retain the family home for the financial safety of myself and my sons, X, Y and Z. By increasing the mortgage and encumbering the property and careful budgeting and management of my salary, I was able to purchase my ex-husband’s interest in that property. This was the first step for me in ensuring my financial security and future well-being.

33. It is inconceivable, in the light of this evidence, the careful person the respondent is, her years of experience as a (occupation omitted) that she did not keep a copy of the agreement she asserts she signed in front of a solicitor and the solicitor’s certificate of legal advice and is unable to recall who that solicitor was.

34. I accept Mr Givney’s submission that the most reasonable explanation of this significant gap in the evidence is that the witness prepared the document and the certificate herself.

35. I accept Mr Givney’s submission that she believed, as she said in her affidavit and in oral evidence, once the applicant had signed the document, she was protected.

36. I accept the submission by Mr Kearney that the parties entered into an agreement, which is a contract under section 46 of the Property Relationships Act.

37. I accept his submission that the agreement was for her benefit and if in reading the section strictly I deprive her of this benefit then there is an injustice.

38. I accept that I do not need to have produced a signed agreement and certificate of legal advice for the respondent to find that both or either events occurred at the relevant time. 

39. The matters I must be satisfied to are set out in section 47 (1)(d).

40. I am satisfied that pursuant to section 47 (1)(a), there is a cohabitation agreement between these parties.

41. I am satisfied that pursuant to section 47 (1)(b) the agreement is in writing.

42. I am satisfied that pursuant to section 47 (1)(c) that the agreement is signed by the partner against whom it sought to be enforced. It is signed by the applicant and it is sought to be enforced against him.

43. The question is, in the absence of production of the respondent’s certificate of legal advice and a signed agreement, is this a binding financial agreement under section 47 of the Act. To so find I would have to be satisfied on her oral evidence that the certificate of legal advice was given and signed by a solicitor as she asserts it was and I am not so satisfied.

44. I am not satisfied that section 47 (1)(d) has been complied with. That section is in these terms:

    that each partner was, before the time at which the agreement was signed by him or her as the case may be, furnished with a certificate in or to the effect of the prescribed form by a solicitor which states that before that time the solicitor advised the partner independently of the matters.

45. I accept she spoke to a solicitor about what the agreement meant and what she needed to do, but I do not accept she had the solicitor’s certificate executed in the formal sense that the respondent did and as is required under section 47(1)(d) of the NSW Act for both parties to do and obtain.

46. If all that was required for an enforceable binding agreement was that the person against whom the agreement was sought to be enforced had obtained the certificate of legal advice then there is no reason to have included in section 47(1)(d) the words “each partner” and I give those  words their usual meaning. There is no need to read the section strictly.

47. I am not satisfied that the respondent had such certificate furnished to her in either the prescribed form or in the effect of the prescribed form. The careful manner by which this respondent has conducted her affairs, her years of experience in a solicitors office and knowledge of the importance of retaining copies of documents, the importance of this agreement to her for the reasons set out in her affidavit, are inconsistent with her evidence that she cannot remember which solicitor she spoke to, and does not have a copy of that executed agreement and solicitor’s certificate.

48. For those reasons, I find that this agreement is not a cohabitation agreement under the NSW Act. Therefore there is no binding financial agreement under section VIIIAB of the Family Law Act either at the time it was signed, at the time the parties separated, or currently.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Associate:

Date: 6 August 2015