Ismael & Ismael - [2021] FCCA 1581

FEDERAL CIRCUIT COURT OF AUSTRALIA
Ismael & Ismael [2021] FCCA 1581

File number(s): PAC 2242 of 2019

Judgment of: JUDGE BECKHOUSE

Date of judgment: 21 July 2021

Catchwords: FAMILY LAW – PROPERTY – binding financial agreement –where the Wife seeks to declare not binding or set aside a financial agreement between the parties – whether the Wife was provided with legal advice pursuant to s 90G(1)(b) of the Family Law Act – whether the financial agreement should be set aside on the basis of unconscionable conduct pursuant to s 90K(1)(b) and 90K(1)(e) of the Act and in accordance with Thorne v Kennedy [2017] HCA 49 –where the Wife was provided with necessary legal advice – binding financial agreement valid – where no unconscionable conduct by the Husband- financial agreement not voidable.

Legislation: Family Law Act 1975 (Cth) ss 90B, 90G, 90K, 90KA, 117

Cases cited:
Abrum & Abrum [2013] FamCA 897

Australian Securities and Investment Commission v Kobelt [2019] HCA 18

Beroni & Corelli [2021] FamCAFC 9

Commercial Bank of Australia Ltd v Amadio [1983] HCA 14

Daily & Daily [2020] FamCA 486

Hoult v Hoult [2013] FamCAFC 109

Kakavas v Crown Melbourne Limited [2013] HCA 25

Kaimal & Kaimal [2020] FamCA 971

Parker & Parker [2012] FamCAFC 33

Pascot & Pascot [2011] FamCA 945

Scott & Scott (No 3) [2019] FamCA 936

Thorne v Kennedy [2017] HCA 49

Number of paragraphs: 185

Date of last submission/s: 4 May 2021

Date of hearing: 4 March 2021

Place: Parramatta

Solicitor for the Applicant: Mr Killalea of Kazi & Associates Solicitors & Public Notary

Counsel for the Respondent: Ms Conte-Mills

Solicitor for the Respondent: Harb Lawyers
ORDERS

PAC 2242 of 2019

BETWEEN:
MS ISMAEL

Applicant

AND:
MR ISMAEL

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

21 JULY 2021

THE COURT DECLARES THAT:
1.The financial agreement entered into by the parties, dated 2011, is a binding financial agreement within the meaning of the Family Law Act 1975 (Cth).

THE COURT ORDERS THAT:
2.Pursuant to s 90G of the Family Law Act 1975 (Cth), the Wife’s application to set aside the financial agreement dated 2011 be dismissed.
3.All other applications be dismissed.
4.Leave is granted to the Husband to seek a relisting of the matter within 21 days should he wish to pursue an order for costs.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Ismael & Ismael is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

This is an application brought by the Applicant Wife, Ms Ismael (“the Wife”) seeking a declaration that the financial agreement entered into by the parties dated 2011 be set aside (“the financial agreement”). The Respondent Husband, Mr Ismael (“the Husband”) seeks an order that the Wife’s application be dismissed and that she pay his costs.
BACKGROUND
The Wife was born in 1976 in Country B.
The Husband was born in 1958.
The Husband and Wife had both previously been married. The Husband has two children from his first marriage: Ms C born in 1995 and Ms D born in 1996.
The Wife has three children from her first marriage: twin girls born in 1997 and a boy, Mr E born in 2002.
The parties met in Country B in around 2010. In 2011 the Husband arranged for the Wife to visit him in Australia. While she was in Australia they became engaged.
The Wife attended on a solicitor, Mr F, to receive legal advice about the financial agreement in 2011. Following further negotiations, the parties signed the financial agreement in 2011.
The Wife returned to Country B alone in 2011.
The parties were married in Country B in 2011.
The Wife remained in Country B after the marriage before immigrating to Australia in 2014 with her son, Mr E.
The Wife alleges that from her arrival in Australia in 2014 until the separation five years later, she was the victim of domestic and sexual violence at the hands of the Husband. She annexes to her affidavit a range of material that tends to corroborate her allegations including notes from her medical consultations, notes from a treating psychologist, and a letter from domestic violence counselling services. These allegations were not tested at the hearing.
The parties separated on 26 April 2019.
PROCEDURAL HISTORY
The Wife commenced proceedings on 16 May 2019 seeking Orders under section 79A of the Family Law Act 1975 (Cth) (“the Act”) for an adjustment of interests in property and spousal maintenance.
The matter was listed before Judge Harman on 22 May 2019 and directions were made for the filing of material. The following notation was made:
6. Note: That the Respondent asserts that the parties have entered into a Binding Financial agreement in the nature of a prenuptial agreement which would, unless that agreement is successfully impeached, preclude the Court’s exercise of jurisdiction at least with respect to property adjustment.
The matter was adjourned for further mention and directions on 17 October 2019 following a conference with a Registrar. On that occasion the Court noted that a copy of the binding financial agreement had been produced. Some additional notations and orders were made:
3. Note: It is now clear that the wife seeks to proceed on the basis of an Application pursuant to section 90UM of the Family Law Act 1975 (Cth) to set aside the agreement on the basis of fraud or other irregularity as to the agreement noting the wife’s allegation that she is not and was not fluent in the English language and the agreement was not explained to her or not explained to her in a language she was capable of understanding.
4. Note: The wife’s legal representatives have obtained from the solicitor who purported to provide a certificate to the wife under s 90G of the Family Law Act 1975 (Cth) the entirety of that solicitor’s file, which, in light of the grounds upon which the wife’s proceeds with her application and, the inherent waiver of legal professional privilege represented thereby, is discoverable.
5. The solicitors for the wife shall, within 7 days, cause notice of these proceedings to be provided to each of Mr F solicitor (being the solicitor who signed a s 90G certificate) and Law Cover so that each of those persons or entities might, if they so desire, seek to intervene in proceedings or seek other orders or relief as may be considered appropriate.
6. Pursuant to s 121 of the Family Law Act 1975 (Cth) each of the parties shall be entitled to provide to Law Cover copies of all or any documents filed in these proceedings to enable an assessment to be made as to whether intervention is to occur or any other relief sought.
In compliance with that Order, it appears that notice of the proceedings was sent to Mr F on 5 November 2019.[1]
[1] Exhibit W1.
On 3 September 2020 the Wife requested that a subpoena to produce documents be issued to Mr F. Production was required by 15 September 2020. The subpoena was complied with and on 17 September 2020 the Wife requested leave to inspect the documents produced.
On 11 September 2020 a call over took place before Senior Registrar Murdoch. The matter was adjourned for final hearing on a date to be advised and trial directions were made, including an order that the Applicant file Points of Claim “fully particularising the legislation, legal principles and/or jurisprudence relied upon to ground the relief sought from the Court that the financial agreement dated 2011 be set aside”.
On 2 October 2020 the Wife filed a Points of Claim document. It was revised on 4 March 2021.[2] The points of claim were that:
(a)The financial agreement is unenforceable as it did not conform with s 90G(1)(b) of the Act.
(b)The financial agreement was entered into in circumstances of unconscionable conduct by the Husband, because at the time of signing the Wife was at a special disadvantage, and therefore the agreement is voidable in accordance with Thorne v Kennedy [2017] HCA 49 (“Thorne v Kennedy”).
(c)The financial agreement was entered into by the Wife under undue influence of the Husband and is voidable under s 90K(1)(b) of the Act.
(d)In the alternative to ground (b) above, the Husband engaged in conduct that was unconscionable and the financial agreement should be set aside under s.90K(1)(e) of the Act.[3]
[2] Exhibit W2.
[3] It was agreed at trial that the wife was not pursuing a claim that the Financial Agreement be set aside on the basis of ‘fraud or other irregularity’, as referred to by Judge Harman on 17 October 2019.
On 18 December 2020 the matter was listed for final hearing for 4 March 2021 to determine the threshold issue of whether or not the financial agreement should be set aside.
On 24 February 2021 the Wife requested that a subpoena be issued to Mr F to attend and give evidence at the hearing. Given the hearing’s proximity, on 26 February 2021 the Wife made an application to serve the subpoena by email. The Wife was granted leave to serve the subpoena by email no later than 4pm on 1 March 2021.
Mr F wrote to the solicitor for the Wife on 3 March 2021.[4] He confirmed that his file had previously been produced in compliance with the subpoena of 3 September 2020. He acknowledged service of the subpoena of 24 February 2021 but noted that no conduct money accompanied it. He advised that he was unable to attend court on 4 March 2021 due to a prior commitment. His letter alleged that he had not been aware of the existence of these proceedings, notwithstanding the matters set out above and contained in Exhibit W1.
[4] Exhibit H3.
Both parties filed Case Outline documents. The Wife’s Case Outline was filed on 18 February 2021. It provided a summary of the contentions that would be put and they were consistent with the four grounds identified in her Points of Claim document filed on 2 October 2020.
The matter came before me for final hearing on 4 March 2021. While the matter of Mr F’s compliance with the subpoena was raised by the legal representative for the Husband, compliance with the subpoena was not pressed by the Wife, nor was an adjournment sought by either party.
At the conclusion of evidence, the parties were directed to provide written submissions.
On 24 March 2021 the Wife filed an Application in a Case seeking to adduce further evidence. This matter was resolved by consent and leave was granted for the proceedings to be reopened for the purposes of tendering the whole of the documents produced by Mr F under subpoena and for the Wife to rely on the Affidavit of Mofazzal Haque Kazi (her current legal representative). The time to file and serve written submissions was extended to 9 April 2021.
The Wife filed her amended written submissions on 13 April 2021 and the Husband filed his on 4 May 2021.[5]
[5] Exhibit W2.
In her written submissions the Wife departed from her Points of Claim dated 2 October 2020 (and revised on 4 March 2021) in that she has abandoned the assertion that the agreement is voidable due to undue influence pursuant to s 90K(1)(b) of the Act. The Wife is now limiting her arguments to three grounds:
(a)The financial agreement is unenforceable as it did not conform with s 90G(1)(b) of the Act because the advice provided to the Wife was not independent legal advice;
(b)The financial agreement did not comply with s 90G(1)(b) of the Act, and is unenforceable as the Wife was not advised about the effect of the agreement on her rights, and about the advantages and disadvantages of making the Financial agreement;
(c)The financial agreement was entered into by the Wife in circumstances of unconscionable conduct by the Husband. It is therefore liable to be set aside pursuant to s 90K(1)(e) of the Act or is voidable at common law.
MATERIAL RELIED UPON
The Wife relied upon:
(a)Further Amended Initiating Application filed 15 July 2019;
(b)Single consolidated affidavit of Ms Ismael affirmed 3 March 2021;
(c)Affidavit of Mofazzal Haque Kazi affirmed 24 March 2021;
(d)Case Outline document filed 18 February 2021;
(e)Revised Points of Claim dated 4 March 2021; and
(f)Written Submissions (amended) filed 13 April 2021.
The Husband relied upon:
(a)Response to Application for Final Orders filed 14 October 2019;
(b)Affidavit of Mr Ismael affirmed 25 August 2020;
(c)Affidavit of Mr Ismael affirmed 14 October 2019;
(d)Case Outline document filed 4 March 2021; and
(e)Written Submissions filed 4 May 2021.
The Husband and Wife were cross-examined.
The following documents were tendered and placed into evidence:

Exhibit Label Document Tendered by

H1 CV of Ms Ismael (2 pages) Respondent Husband

H2 Document titled “Brief on Company G” (2 pages) Respondent Husband

H3 Email from Mr F to Kazi & Associates and Claude Harb dated 3 March 2021 (3 pages) Respondent Husband

W1 Document titled “Notice of Proceedings” by Kazi & Associates (20 pages) Applicant Wife

W2 Document titled “Interim Application to Set Aside financial agreement: Points of Claim revised 4/3/21” (5 pages) Applicant Wife

H4 Joint Tender Bundle with hand written schedule (made up of the material produced on subpoena by Mr F) Respondent Husband

1 Whole of the documents produced to the court by Mr F and received by email in Chambers on 27/04/2021 (130 Pages). Court

COMPETING PROPOSALS

The Wife seeks to have the financial agreement set aside on three grounds:
(a)The financial agreement is unenforceable as it did not conform with s 90G(1)(b) of the Act because the advice provided to the Wife was not independent legal advice.
(b)The financial agreement did not comply with s 90G(1)(b) of the Act and is unenforceable as the Wife was not advised about the effect of the financial agreement on her rights and about the advantages and disadvantages of making the agreement.
(c)In the making of the financial agreement the Husband engaged in unconscionable conduct and therefore the financial agreement is liable to be set aside under s 90K(1)(e) of the Act or is voidable at common law.
The Husband opposes the Wife’s application and seeks that it be dismissed. He also seeks costs.
THE ISSUES IN DISPUTE
The issues required to be determined are:
(a)Whether the financial agreement is binding under s 90G of the Act; and
(b)If it is binding, whether the financial agreement should be set aside under s 90K of the Act or is voidable at common law.
THE PARTIES
The reliability of the parties’ oral evidence is important because each of their cases relies upon an acceptance of their version of the events surrounding the execution of the financial agreement.
Both parties were asked to recall events which occurred ten years ago. The Wife was asked to recall events that took place in a country that, and with people who, she was then unfamiliar with. Indeed under cross-examination she described herself as being “in holiday mode”.[6] I have taken these factors into account in assessing the credibility and reliability of the evidence that each party gave.
[6] Transcript 4 March 2021, p.31 line 18 (“Transcript”).
The Husband generally answered questions directly and in a matter of fact manner. Overall I found him to be a satisfactory witness.
I found the Wife to be an articulate and intelligent woman. When asked about her life in Country B as a business owner, her international travel as part of Country B’s delegation to various global summits for women, or her new career in Australia as a health care worker, she answered directly, confidently and with enthusiasm. Indeed during those aspects of cross-examination she presented far more confidently and competently as a witness than might be inferred from her affidavit.
However, when the Wife was asked about her dealings with the Husband, the circumstances surrounding her marriage, and the financial agreement, her answers were less clear and often self-serving. For example, following her being sworn in, when asked by her own legal representative about the truth of the contents of the affidavits she affirmed she said “yes...I was very stressed because I did not have any house or anything…so I was in a stress or maybe something I don’t remember.”[7]
[7] Transcript (n 6) p.3 lines 34-37.
When questioned specifically on the circumstances surrounding the entering into of the financial agreement and her comprehension of English at that time, the Wife’s recollection was limited, contradictory to what she had deposed in her affidavit, and sometimes inconsistent with the tendered material and the Husband’s evidence.
Accordingly, when making findings on the events and circumstances surrounding the entering into of the financial agreement, I treat the Wife’s evidence with caution and consider her evidence in the context of the Husband’s and other evidence.
THE FINANCIAL AGREEMENT
It is necessary at this point to set out some relevant recitals of the financial agreement:
E. Mr Ismael and Ms Ismael intend to marry in or about late 2011 and this agreement will commence on the date of marriage.
F. In order to arrange their property affairs the parties have agreed to enter into this agreement under the provisions of section 90B of the Family Law Act 1975 to deal with the division of their property, financial resources, liabilities and their maintenance in the event of the breakdown of their relationship.
G. This agreement is conditional upon the marriage taking place and is intended to deal with the whole of the property and financial resources of the parties now and in the future and their maintenance in the event of the breakdown of their marriage without resort to litigation.
H. The parties intended the terms of this agreement to be given effect by any court having jurisdiction to determine financial matters (property and maintenance) in issue between Mr Ismael and Ms Ismael pursuant to the Family Law Act 1975.
Set out in Annexure A and Annexure B of the financial agreement was the separate property of the Husband and the Wife and the agreed values attributed to those assets. There was a disparity in the relative financial wealth of the parties. At the time of signing the financial agreement the Husband estimated his net assets to be worth $2,791,000.00. The Wife estimated her net assets to be valued at $160,000.00.
There was no joint property of the parties listed.
Clause 4(a) of the financial agreement provided the parties shall contribute to their everyday living expenses as they agreed, and that any contribution to those living expenses would not result in any future entitlement in the individually owned property listed in Annexures A and B.
The financial agreement made no provision for any change in circumstances for the parties providing that:
4. During the marriage
(c) Before executing this agreement, each party has had regard to the possibility that one or both of them may be subject to a change of circumstances, including but not limited to
(i)        Children;
(ii)       Illness or injury;
(iii)      Unemployment;
(iv)      Death;
(v)Increases or decreases in the values attributed to the assets referred to in either or both of the annexures hereto;
(vi)      Separation;
(vii)     Divorce;
(viii)     Reconciliation;
(ix)      Bankruptcy
Clause 6 of the financial agreement provided for the division of property in the event of the breakdown of the marriage. In summary it provided:
(a)That each party will remain entitled to their separate property brought into the marriage;
(b)That their joint property will be divided in equal shares;
(c)A method for disposing of jointly acquired real estate failing agreement; and
(d)A method for determining entitlements to personal property failing agreement.

The financial agreement also made provision for the death of the parties. Clause 9 effectively released the parties of rights to apply for a provision order out of the others estate. The release being conditional on the parties making provisions in their wills in favour of the other party, for the Wife no less than 1/8^th of the Husband’s net estate, and for the Husband no less than ¼ of the Wife’s net estate.
Clause 7 warranted the provision of independent legal advice. Annexed to the financial agreement was a statement by the legal practitioners who purported to provide that advice. Mr F signed the certificate certifying that the Wife had stated she understood the nature and effect of the financial agreement, the obligations and risks involved in signing the agreement and that it appeared to him she did have such an understanding.
THE SIGNING OF THE FINANCIAL AGREEMENT
The circumstances leading to the execution of the financial agreement are central. The parties gave different versions of what took place.
The Husband’s Evidence
The Husband says he began contemplating marriage following his mother’s death. After meeting the Wife in Country B in 2010 they remained in contact. He says he admired the Wife because “she was independent, capable and business-minded like myself. I thought she would get along well with my daughters in Australia and would be able to communicate as they could not speak Country B language fluently.”[8]
[8] Affidavit of Mr Ismael affirmed 25 August 2020, paragraph 10 (“Husband’s Affidavit”).
The parties discussed marriage during their telephone courtship and the Husband consulted with friends about the suitability of Ms Ismael as a wife. He says that he asked her to come to Australia prior to marriage because he “told her that she would have to first travel to Australia and meet my children, family and friends to see if they would all get along and she agreed”.[9]
[9] Ibid paragraph 12.
The Husband said that his solicitor friend suggested that he enter into a financial agreement before marriage,[10] and stated the purpose of the financial agreement was to “[protect] my hard work and then my children, my family”.[11]
[10] Ibid paragraph 20.
[11] Transcript (n 6) p.52 line 11.
He gave evidence that he required the Wife to enter into a financial agreement with him prior to marriage and says he was very clear with her about this. He said they discussed it in Australia and “had many discussion[s] in my business.”[12] He also said in cross-examination “I took her everywhere. I told her everything and then after this she was appointed a solicitor to represent her.”[13] While the Husband’s position about entering into the financial agreement was clear, he says he did not “pressure” her to sign the financial agreement.[14]
[12] Transcript (n 6) p.49 lines 37-38.
[13] Transcript (n 6) p.50 lines 34-35.
[14] Transcript (n 6) p.54 lines 9-17.
While the Wife was in Australia she stayed with the Husband’s nephew.[15] The Husband often drove her around each day. These outings consisted of meetings with his friends and family. She spent time with a close friend of the Husband, Mr H and his Wife. Mr H’s wife did not speak Country B Language but he says the wife communicated with her in English.[16]
[15] Transcript (n 6) p.51 lines 19-20.
[16] Husband’s Affidavit (n 8) paragraph 14.
The Husband asked his lawyer Claude Harb to draft the financial agreement. On hearing that the Wife required independent advice, he asked Mr Harb to find an independent solicitor to advise her. Ultimately Mr F, solicitor was retained for this purpose.
The Husband accepts that he paid the Wife’s legal costs indirectly. He says that she had no money at all and that he had to pay for “everything” including her visa to Australia, flights and pocket money.[17]
[17] Transcript (n 6) p.49 lines 9-11.
The Husband drove the Wife to her first meeting with Mr F in 2011. Ms J, the Husband’s friend, accompanied the Wife to the meeting for the purpose of “support and in case Ms Ismael has any difficulties.”[18]
[18] Husband’s Affidavit (n 8) paragraph 21.
The Husband also drove the Wife to the second meeting with Mr F in 2011. At that meeting she was accompanied by Mr H who the Husband says “is fluent in English and can speak some Country B Language in case Ms Ismael had any problems.”[19]
[19] Husband’s Affidavit (n 8) paragraph 22.
The Husband says he waited outside in reception while the Wife consulted with Mr F. He denies taking the Wife’s copy of the signed financial agreement in 2011.
The Wife’s Evidence
The Wife’s evidence on the courtship of the parties leading to marriage at times differs with the evidence given by the Husband. For example, she says that she rejected the Husband’s offer of marriage when he was in Country B and it was not until 2011 that she agreed to the marriage.[20] Nothing really turns on this issue.
[20] Affidavit of Ms Ismael, affirmed 3 March 2021, paragraphs 8-9 (“Wife’s Affidavit”).
The Wife said she arrived in Sydney for the first time in 2011. She deposes an active week of social engagement with the Husband’s family and friends, mostly travelling in the Husband’s car. The Wife makes the point that she generally was seated in the backseat of the vehicle, and in the company of others.[21]
[21] Ibid paragraph 18.
The Wife recalls being taken to the Husband’s solicitor in Suburb K in late 2011 before their engagement party. She says “Mr Ismael didn’t tell me why we were going there.”[22] Under cross-examination the Wife had difficulty remembering with any certainty the details of the meetings about the financial agreement.
[22] Ibid paragraph 24.
In her affidavit sworn 3 March 2021 the Wife refers to Mr F as “the unknown man”.[23] When she swore her affidavit on 3 March 2021 she says of Mr F “I still don’t know his name.”[24] During cross-examination she was asked how many meetings she had with Mr F and she responded “Who is Mr F –Mr F? Like I heard the name after long time, so even – no, I can’t remember.”[25]
[23] Ibid paragraph 28.
[24] Ibid paragraph 29.
[25] Transcript (n 6) p.36 lines 17-18.
This evidence is misleading because:
(a)The Wife deposed that “on about 13/6/2019 Mr F solicitor provided my solicitor, Richard Killalea of Kazi and Associates, with a Flash Drive containing records from my file including a copy of a signed financial Statement”;[26]
(b)The Mr F file was the subject of discussion, orders and notations during the directions hearing on 17 October 2019;
(c)Material was provided on the return of subpoena to Mr F from late 2020;
(d)The Points of Claim document refers to the material obtained from Mr F’s file; and
(e)The email from Mr F to Mr Kazi dated 3 March 2021 suggests that the Wife called Mr F directly, and during that call alleged that he or his firm acted negligently.[27]
[26] Wife’s Affidavit (n 20) paragraph 46.
[27] Exhibit H3.
The Wife’s affidavit refers to her attending only one meeting with solicitor Mr F, and that was to sign the financial agreement. She recalled in her affidavit that the meeting took place prior to the engagement party in 2011.[28] Under cross-examination she conceded that she attended two meetings and that her recollection may not have accorded with the actual events due to the passage of time.
[28] Wife’s Affidavit (n 20) paragraphs 23 & 44.
The Wife asserts that she did not know why she was meeting with Mr F and describes what then transpired as follows:
30.      The Unknown Man passed me a document.
He said: ‘can you please sign it for me?’
I said: ‘What is this?’
He said: ‘This is for an Australian marriage. It’s a kind of agreement. Is your English good enough to read this?’
31.      I looked at the document but could only read some words.
I said ‘Not that good. It’s hard to understand.’
32. The Unknown Man then leant over the table and touched the front page of the document and said ‘sign here’.
33.      I then signed where he had indicated.[29]
[29] Ibid paragraphs 30-33.
She then deposes that certain advice was provided to her and says “I was really confused by what the Unknown Man said. Nothing like this happens, as far as I knew, in marriage matters in Country B. And certainly I had never talked with Mr Ismael about any such document.”[30]
[30] Ibid paragraph 37.
Under cross-examination, and with the benefit of the documents produced under subpoena by Mr F, the Wife agreed that she had attended two meetings.
She recalls that Mr H was in attendance at the meeting. She describes him as a “friend and business partner of the husband”. Under cross-examination she recalled that Mr F spent most of the meeting talking to Mr H and discussing issues arising from the financial agreement with him. She said “[h]e didn’t tell me nothing”.[31] The evidence she gave under cross-examination suggested that Mr H was present at the first meeting.
[31] Transcript (n 6) p.30 line 42.
The Wife was unable to accurately recall much of what had transpired when she attended on Mr F. For example she was cross-examined as follows on a range of amendments sought to the financial agreement by Mr F: [32]
[COUNSEL FOR THE HUSBAND]: You were concerned that part of the document required that if you and Mr Ismael ever separated he would get 60 per cent of the property assets and you would get 40 per cent; do you remember that?
[THE WIFE]: I– I did not discuss. How do I remember?
[COUNSEL FOR THE HUSBAND]: And you asked Mr F [sic] that you wanted to change that in the agreement so that you both got 50/50. Do you remember that?
[THE WIFE]: My god. No. It’s – it’s – no. I don’t remember and I didn’t – I don’t know. I didn’t ask that.
[32]Ibid p.30 lines 18-24.
And later: [33]
[COUNSEL FOR THE HUSBAND]: You also raised a concern with Mr F [sic] that you weren’t happy with the jewellery provision – in the draft agreement, didn’t you?
[THE WIFE]: Yes. Yes. I can remember about the jewellery but actually I was, very, like, in holiday mode and thinking about my kids so these things – I really not clear of what’s this so – yes.
[COUNSEL FOR THE HUSBAND]: In fact, you were quite adamant that you wanted the provision about the jewellery removed and that you would keep the jewellery with Mr Ismael to have no claim at all?
[THE WIFE]: What jewellery? What kind of jewellery?
[COUNSEL FOR THE HUSBAND]: There was a provision- do you remember- in the draft about your jewellery and you were not happy with that provision. You asked Mr F [sic] to remove it?
[THE WIFE]: I think that time – he – Mr Ismael’s friends work on behalf of me because I did not talk directly with him much; only the signed things. Yes. Signed – yes. ‘Can you read this?’ or, ‘You understand this?’ He gave me the paper like that, not fully, and then I – I only talk that much. I did not talk.
[33]Ibid p.31 lines 14-30.
At the end of the meeting Mr F gave her a copy of the signed financial agreement which she understood to be a marriage agreement.[34] She says that the Husband was waiting for her outside, that he took the financial agreement from her, and that she had not seen the document until after these proceedings commenced.[35]
[34]Ibid p.38 line 8.
[35]Transcript (n 6) p.40 line 38; Wife’s Affidavit (n 20) paragraphs 38-40.
The Tendered Material – The Mr F File
Harb Lawyers forwarded an email to Mr F at 1:33pm in 2011, enclosing a draft and incomplete version of the financial agreement.[36] Notably the annexures were incomplete. The email also confirmed an appointment for advice on “Monday 2011 at 3:00pm”.[37]
[36]Exhibit 1, p.116.
[37]Ibid.
At 10:04am on Monday 2011 Mr F sent an email to Harb Lawyers in reply indicating that he had reviewed the document and noting that it was incomplete. Indeed he stated that “to fully advise my client I will need a complete copy of the document including annexures”.[38] He also outlined over 17 drafting errors that he sought to have rectified: [39]
[38]Exhibit 1, pp.100-101.
[39]Ibid.
Parties
1.   The address of Mr L should be included at the top of the page.
Recitals
2.   At B, Mr L is either employed or self employed but not both.
3.   At C, Please indicate if Ms Ismael was previously married.
4.   At C, the name Ms Ismael appears to be misspelt in the second line.
5.   At D, the words in the brackets can be removed if Ms Ismael does not have children. If she does, then replace the second last word in brackets “is” with “if”.
6.   At E, replace the word “on” after marry “in”.
7.   At F, replace “s” with “section”.
Operative Part
8.   In my view the definition of separate property should come before the separate property itself. That is clause 2(c) should come first.
9.   I note as stated above that I do not have completed annexures A and B setting out that separate property.
10.   Clause 2(c) should read as follows:
Separate property is defined as (ii), then (i) then (iii)
11.   Sub clauses (iv) to (vii) should be added as follows:
Separate property also includes any increases or assets that flow from the separate property including:
Any property acquired in exchange for any separate property or an increase…
Any and all income and other gains derived from the separate property…
Any increase in the value of separate property…
I have suggested this distinction because it is not wise to include the term being defined (separate property) within the definition.
12.   The question on damages payments or potential damages payments should be better defined. For example is workers compensation payments damages payments? Where damages payments flow from litigation, are they separate property? I would imagine it would depend on the nature of the litigation and whether the litigation itself stemmed from a personal property or personal right.
13.   At clause 3(a) we await the completed annexure C.
14.   At clause 5, replace the word “in” in the last sentence with “if”.
15.   At clause 6(f), I say it would be prudent and more workable to divide personal property over which there is dispute in the same manner as furniture (clause 6(g)) rather than by auction.
16. At 9(f), the clause refers to the “act” at the end of the sentence. This act should be defined and if it is the Family Law Act 1975 it should be defined as such at recital F.
17.   At clause 12, what further things are anticipated to be done from time to time to give full effect to this agreement?
At 2:45pm on Monday 2011 Harb Lawyers responded, and enclosed an amended financial agreement which rectified or addressed the 17 drafting errors outlined by Mr F.[40]
[40]Ibid p.99.
Another two versions of the draft financial agreement follow chronologically on the file.[41] These contain the completed Annexures A, B and C listing the assets and liabilities of the parties. One of the versions contains handwriting and appears to record matters either discussed with the Wife or at least contemplated by a legal advisor as relevant to the matter. The handwritten notes also included a mobile phone number for the Wife.[42]
[41]Ibid pp.76-98.
[42]Ibid p.76.
A file note dated 2011 at 11:14am appears to record two meetings with the Wife.[43] The first note is headed “Conference with client”. It records that the client was accompanied by “Ms J”. It says that “I explained the document to the client and indicated my concerns in relation to a number of issues”.[44] It then details five concerns that were raised about the financial agreement and the Wife’s instructions about these concerns. Notably the file note records:
[s]he is reasonably happy to agree to what Mr Ismael proposes but for the death provision, children provision and the gifts. We went through the annexures and she now has an understanding of his wealth. I advised that I would negotiate with the other side and get her back in.[45]
[43]Ibid p.60.
[44]Ibid.
[45]Ibid.
Under the heading “Today” appears to be a summary of the advice given in 2011. It confirms that Mr H was in attendance at the meeting. In contrast to the Wife’s version of events, the file note does not reflect a pre-existing relationship between the advisor and Mr H. The note says: “[o]n this occasion she was accompanied by a person I see at the mosque I believe he goes by the name of Mr H.”[46] Importantly the file note concludes “she was happy with the amendments and signed the agreement and has taken a copy.”[47]
[46]Ibid p.61.
[47]Ibid.
In late 2011 at 10:25am an email appears to have been sent by Mr F to Harb Lawyers. It says: “Claude, [a]fter lengthy negotiations please find amended BFA enclosed. Regards Mr F” [48].
[48]Ibid. p.58.
The tax invoice from Mr F solicitors appears to charge the Wife for at least two “perusals” of the financial agreement, and two conferences with the Wife.[49] The invoice records the Wife as the client. An itemised description of the work billed for, and time spent indicates a total of 2.6 hours of work was undertaken by Mr F. The entire file produced contains 130 marked pages.
[49]Ibid p.9.
Should any adverse finding be made in the absence of evidence of Mr F
As outlined, Mr F did not give evidence. He did produce his entire file in compliance with a subpoena issued on 2 September 2020, and the entire file has been tendered. He says he was on leave until Monday 1 March 2021, was given at best 5 business days’ notice of the request, and no conduct money.
He advised the legal representative for the Wife that he was unable to appear as he was “required in another court on 4 March 2021 where I act for a client who is currently in custody. That matter has been listed for almost a month so I consider my appearance there a priority, particularly in view of your timing.”[50]
[50]Exhibit H3.
Notwithstanding that the affidavit of Mofazzal Haque Kazi annexes a letter purportedly sent to Mr F on 5 November 2019 giving notice of the proceedings pursuant to the Orders of 17 October 2019, Mr F went on to say:
It is improper for your client to call me and suggest that my firm (or I) acted negligently, if that be her intention, particularly in circumstances when she does not remember me or potentially the encounter. I note Mr Kilalea’s previous request that I briefly meet with your client or send a photo of myself to help her memory. If it be her intention to allege negligence, which in the circumstances is a reasonable inference, your firm should have taken certain steps which in turn would have involved Lawcover and afforded my firm and I [sic] representation. These are serious matters to which by now, should have been made clear, noting that I have not provided an affidavit in this matter.[51]
[51]Ibid.
The Wife argues that the Orders and notations made on 17 October 2019 constituted an inherent waiver of legal professional privilege. Therefore, from that date it was a matter for the Husband to direct any questions towards Mr F and produce the legal practitioner as a witness.
The Husband disagrees with this assertion and says it is misleading because:
(a)Mr F’s file was subpoenaed in its entirety, was used to prepare the Wife’s case including being annexed to her affidavit affirmed on 7 August 2020;
(b)The Wife had indicated on several occasions that “Mr F might be called to give evidence”; and
(c)It was at the Wife’s request that the Court issued the subpoena requesting Mr F attend court and give evidence. On the day of the hearing the Court was advised that the subpoena would not be pressed and as a result the Husband was not afforded the opportunity of calling him as a witness.
This issue was first raised in final written submissions although it is not clear to me what the Wife contends should flow. For example, she may be asserting that I should draw an inference from the Husband’s failure to call Mr F. Alternatively, she may be asking the Court to make an adverse finding about Mr F’s conduct because of his failure to attend or participate in these proceedings. In addition, or in the alternative the issue arises in the context of which party should bear the onus of establishing that the agreement complied with s 90G(1)(b) of the Act.

Recently, in Beroni & Corelli [2021] FamCAFC 9 (“Beroni”) the Full Court considered the failure to call a solicitor in a case concerning the setting aside of a binding financial agreement. That case can be distinguished from the circumstances of this matter. In Beroni, the Wife expressly waived privilege in her communications with the legal practitioner and invited the Husband to call him instead. In Beroni at [82], the Full Court agreed with the trial judge’s finding that the legal practitioner had “refused to co-operate with the wife”.
In this case, the Wife’s legal representatives did not take prompt steps to ensure the attendance of Mr F. Nor did they communicate their expectations to the Husband’s legal representatives. It was not until 24 February 2021 that the Wife requested a subpoena be issued to Mr F to attend and give evidence at the hearing. Given the hearing’s proximity, the Wife asked a Registrar to grant leave for the subpoena to be served by email. The reasons for Mr F’s absence were communicated to the Wife as outlined at above at paragraph 84.
The Husband says he did not take steps to ensure Mr F was in attendance because the Wife indicated that she was doing so. It was not until the day of the trial that the Husband was advised that the Wife was not pressing compliance with the subpoena.
I cannot be satisfied on all of the evidence that Mr F has refused to co-operate.
Due to the circumstances of this case, I am disinclined to draw inferences arising from Mr F’s involvement in these proceedings.
RELEVANT STATUTORY PROVISIONS
Part VIIIA of the Act allows people to enter into financial agreements prior to a marriage to determine how their property will be distributed in the event of their separation.
Specifically, s 90B of the Act provides:
Financial agreements before marriage
(1) If:
(a)people who are contemplating entering into a marriage with each other make a written agreement with respect to any of the matters mentioned in subsection (2); and
(aa) at the time of the making of the agreement, the people are not the spouse parties to any other binding agreement (whether made under this section or section 90C or 90D) with respect to any of those matters; and
(b) the agreement is expressed to be made under this section;
the agreement is a financial agreement. The people may make the financial agreement with one or more other people.
(2) The matters referred to in paragraph (1)(a) are the following:
(a) how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse parties at the time when the agreement is made, or at a later time and before divorce, is to be dealt with;
(b) the maintenance of either of the spouse parties:
(i) during the marriage; or
(ii) after divorce; or
(iii) both during the marriage and after divorce.
(3)A financial agreement made as mentioned in subsection (1) may also contain:
(a) matters incidental or ancillary to those mentioned in subsection (2); and
(b) other matters.
(4) A financial agreement (the new agreement) made as mentioned in subsection (1) may terminate a previous financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement.
(Emphasis in original)
IS THE FINANCIAL AGREEMENT BINDING?
Section 90G of the Act imposes the requirements that must be satisfied in order for a financial agreement to be binding:
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.
Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995.
(1A) A financial agreement is binding on the parties to the agreement if:
(a) the agreement is signed by all parties; and
(b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and
(c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and
(d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and
(e) the agreement has not been terminated and has not been set aside by a court.
(1B) For the purposes of paragraph (1A)(d), a court may make an order declaring that a financial agreement is binding on the parties to the agreement, upon application (the enforcement application ) by a spouse party seeking to enforce the agreement.
(1C) To avoid doubt, section 90KA applies in relation to the enforcement application.
(2) A court may make such orders for the enforcement of a financial agreement that is binding on the parties to the agreement as it thinks necessary.
(Emphasis added)
Ground 1- The Wife did not receive independent legal advice
While the statement signed by each of the lawyers requires them to certify that they were independently instructed and provided independent legal advice, it is not determinative evidence of independent legal advice being provided.[52]
[52]Kaimal & Kaimal [2020] FamCA 971 at [16]-[19] (Alstergren CJ), citing Parker & Parker [2012] FamCAFC 33 at [208]-[209] (Murphy J).
The Wife argues that Mr F was not an independent solicitor because:
(a)She did not know the legal practitioner’s name, nor the purpose of the meeting;
(b)She did not retain the legal practitioner independently, but rather he was retained by the Husband and/or his legal practitioner;
(c)The Wife did not understand that Mr F was her lawyer;
(d)Mr F commenced work on her behalf without being directly instructed by her;
(e)The meetings with Mr F were attended by close friends of the Husband and she was not aware of their role or the reason for their presence; and
(f)The Husband paid Mr F’s fees.
The Husband argues that there is a complete lack of evidence before the Court to support the Wife’s assertion that Mr F failed to provide independent legal advice to the Wife and that he failed to comply with s 90G(1)(b) of the Act.
Conclusions on Ground 1
The Husband seeks to uphold the financial agreement, and therefore assumes the primary burden of proving the binding nature of the financial agreement.[53]
[53]See Scott & Scott (No 3) [2019] FamCA 936 at [36].
There is no dispute that:
(a)the financial agreement was signed by both parties;
(b)there is a signed statement under s 90G(1)(c) of the Act provided by both Mr F (for the Wife) and Claude Harb (for the Husband) stating advice was provided;
(c)a copy of the signed financial agreement was given to the Wife and her legal representative retained a copy;
(d)the financial agreement has not been terminated or set aside.
The Wife submits that the mandatory requirements stipulated by s 90G(1) of the Act had not been met in that she was not provided with independent legal advice.
At Clause 7 of the financial agreement, each party acknowledged that they had received separate independent legal advice from a legal practitioner as to the effect of the financial agreement on the rights of that party, and the advantages and disadvantages of that party in making the agreement. Having regard to the financial agreement, and the signed statement by the legal practitioners annexed to the agreement, I am satisfied that the requirements of s.90G(1)(b) were met.
On that basis I am satisfied that the Husband has discharged the burden of proving compliance with the Act. Based on this finding and per Scott & Scott (No 3) [2019] FamCA 936 (“Scott”) at [39], the evidentiary burden shifts to the Wife to demonstrate some deficiency in the nature of the advice that she received.
It seems likely that Mr Harb referred the Wife to Mr F, perhaps because it was convenient and they worked in proximity to each other. The Wife had two meetings with Mr F. Both the file and invoice were in the Wife’s name. The firm gathered her full details including obtaining a copy of her passport and a mobile telephone number to contact her on.
I accept that the Wife was not given any choice as to her legal adviser or the presence of support people. I also note that the Husband agreed that he paid the Wife’s legal costs (at least indirectly). However these matters on their own do not demonstrate that the advice the Wife received lacked independence.
It is the Wife’s case that the support people who attended with her were not independent because they were close friends of the Husband. The Husband says they were there to support the Wife. Although during cross-examination the Wife contradicted this: [54]
[COUNSEL FOR THE HUSBAND]: There was a provision – do you remember – in the draft about your jewellery and you were not happy with that provision. You asked Mr F [sic] to remove it?
[THE WIFE]: I think that time – he – Mr Ismael’s friends work on behalf of me because I did not talk directly with him much; only the – the signed things.
[54]Transcript (n 6) p.31 lines 25-28.
There is no evidence that either of the support people who attended had any input into the discussions or influenced the Wife or Mr F apart from the Wife’s admission that Mr H might have advocated for her. At its highest the Wife under cross-examination recalled that Mr H and Mr F discussed Islamic law, the mahr and Qur’an and Friday prayer. She said “but most of the time the guy talked to Mr M, not to me”.[55]
[55]Transcript (n 6) p.30 lines 36-37.
In the course of the matter no evidence was led to suggest an improper relationship between both legal practitioners. Nor was evidence led to suggest that either the Husband, his support people or his legal representative attempted to influence Mr F. The correspondence between the legal practitioners is both formal, professional and appropriate.
I find that the Wife had a limited recollection of the circumstances leading up to and including the signing of the financial agreement. Her evidence on contentious issues is therefore not preferred.
I accept the Husband’s evidence that he discussed the financial agreement and meeting with Mr F with the Wife in advance. The file notes made by Mr F indicate that she was aware of the purpose of the meetings. The handwritten notes that appear on the file, as well as the typed file note, indicate that the Wife raised questions, disputed some terms and instructed Mr F to negotiate some matters on her behalf.
In deciding this issue, I am guided by Hoult & Hoult [2013] FamCAFC 109 where the Full Court held at [100] – [101] and [279] that the only enquiry necessary is whether advice was given, and not the content of that advice. I appreciate that some of the circumstances might give the Wife a perception that the advice she received may not have been independent. However, considering the totality of the circumstances, I am satisfied that that the legal advice was independently given.
Ground 2- The Wife did not receive advice about the “effect of the agreement on the rights of that party and about the advantages and disadvantages of making the agreement”
The legal representative for the Wife makes a concession that the Court may be satisfied that the advice given to the Wife by Mr F is evidenced by the contents of the Mr F file, including file notes, which is accepted as being the whole file.[56]
[56]Wife’s Written Submissions (amended) filed 13 April 2021, paragraphs 26-27 (“Wife’s Written Submissions”).
The Wife’s legal representative argue that the file does not contain evidence of the Wife receiving advice on some specific and important matters. They list in the Points of Claim a range of matters that they allege Mr F did not provide advice on.[57] These matters are also set out in the Wife’s written submissions.[58] In summary, the Wife alleges that the legal practitioner failed to advise the Wife:
(a)of her general rights to claim spousal maintenance and that her right would be abrogated if she signed the financial agreement;
(b)of her right to claim a division of the Husband’s property in the event of separation and/or divorce and that her right would be abrogated if she signed the financial agreement;
(c)that clause 9 of the financial agreement is severable and might not operate in the event that the Husband pre-deceased her; and
(d)the advantages and disadvantages, at the time the advice was provided, to the making of the financial agreement.
[57]Wife’s Case Outline Document filed 18 February 2021, p.2, [1(ii)]-[1(iii)].
[58]Wife’s Written Submissions (n 56) paragraph 32.
The Wife referred me to the decision of Aldridge J in Abrum &Abrum [2013] FamCA 897, arguing that the legal practitioner’s failure to advise the Wife on her general right to claim spousal maintenance, or claim a division of property under s 79A of the Act in the event of separation, represented a substantial failure to comply with the Act.
The Wife contends that it was for the Husband to seek to adduce evidence from Mr F, or any other person, and that in the absence of that evidence the advice of the legal practitioner cannot be found to comply with s 90G(1)(b) of the Act.
The Husband argues that the Wife received comprehensive advice evidenced by:
(a)handwritten notes appearing on the draft version of the financial agreement;[59]
(b)the 17 amendments sought by Mr F in his email in 2011;[60]
(c)the file note of 2011;[61]
(d)the negotiations between legal practitioners concerning clause 6 on the division of joint property in the event of the breakdown of marriage (evidenced by the negotiation of a 50/50 split against the Husband’s initial position of a 60/40 split);
(e)the negotiations between legal practitioners concerning the inclusion of jewellery in the schedule of assets and liabilities which resulted in a more favourable position for the Wife; and
(f)the negotiations between legal practitioners concerning the death provisions in clause 9 which resulted in a more favourable position for the Wife.
[59]Exhibit 1, pp.76-85.
[60]Ibid pp.100-101.
[61]Ibid pp.60-61.
Conclusions on Ground 2
As I set out earlier, I am satisfied that the Husband has discharged the burden of proving compliance with the Act. In accordance with Scott, the evidentiary burden shifted to the Wife. Therefore, the Wife’s contention that it was for the Husband to seek to adduce evidence from Mr F (or any other person) cannot stand.
It was for the Wife to demonstrate that she did not receive advice about the effect of the agreement on the rights of that party and about the advantages and disadvantages of making the agreement or that there was some deficiency in the nature of the advice that she received.
The Wife has a very limited recollection of what transpired during her meetings with Mr F. When matters that were evidenced by the contents of the Mr F file were put to her she said: “that’s the problem because no. Nothing discussed. If he discusses like that why would I have signed that paper?”[62]
[62]Transcript (n 6) p.31 lines 7-8.
The Wife’s evidence on the financial agreement was unreliable. She did not call either of the support people and only attempted to subpoena Mr F to attend days prior to the hearing. The only other evidence on the advice given is what has been produced by Mr F.
Mr F had reviewed the first draft and noted it was incomplete before he met with the Wife. He outlined over 17 drafting errors that he sought to have rectified. Over the course of the matter, four versions of the financial agreement were produced, each with amendments sought by him on behalf of, and to the benefit of the Wife.
Handwritten notes and the file note appear to record matters either discussed with the Wife, or at least contemplated by a legal advisor as relevant to the matter. Notably the file note following the first meeting detailed the concerns that he raised with the Wife about the financial agreement and the Wife’s instructions about those concerns:[63]
5. Provision for death – At first she was not concerned about this but when I explained that she will be thrown out onto the street she changed her position. I explained that if Mr Ismael dies, she had no entitled to his property or estate, including the home sh[e] is living in. She may have to return to Country B. How will this work if she has children from him?
[63] Exhibit 1 pp.66-61.
- I explained the meaning of joint and separate property.
- I explained the importance of a provision for death
- I explained the importance of a provision if there are children
-She is reasonably happy to agree to what Mr Ismael proposed but for the death provision, children provision and the gifts.
- We went through the annexures and she now has an understanding of his wealth.
I advised that I would negotiate with the other side and get her back in.
Today
1.I have negotiated with Mr Harb that all joint property whether it be real or personal and regardless of who’s name is born on the title, will be divided equally in the even to divorce [sic]. – She is happy with this amendment.
2. I explained that the Mahr will not be mentioned in the agreement because it is a gift and because it is given prior to marriage.
3. I have explained that the other side has not agreed to an additional provision for children and should they have children the division of property will not change.
4. I explained that the other side agreed to give you the jewellery as a gift. Hence it will be removed from Annexure C.
5. I have explained that the other side has agreed to provide her with one eighth of his estate in the event of death. This means he must make provision in his will to this effect otherwise she is entitled to make a claim.
6. She is also to provide him with one quarter of her estate in the event of her death and make similar provision although I doubt he will be interested.
7. The portions in relation to the deceased estate are in accordance with Islamic Law. I specifically referred to Sura iv (Nisaa) verse 12. She understands and agrees…
(As per the original)
Mr F undertook 2.6 hours of work on behalf of the Wife as confirmed by the Wife’s itemised legal fees, and the email returning the signed financial agreement which referred to the “lengthy negotiations”.[64]
[64] Ibid p.58.
The Husband argued that both the file notes and handwritten notes demonstrate a thorough consideration of the terms of the draft agreement, and that the Wife engaged with and understood the advice by raising questions, disputing terms and putting forward alternative proposals.[65] I agree with this proposition.
[65] Husband’s Case Outline Document p.5, [7(a)(ii)].
The financial agreement did make reference to maintenance generally both at Recital F and Recital G. Recital H also indicates an intention for the financial agreement to be given effect by “any court having jurisdiction to determine financial matters (property and maintenance) in issue…”[66] There was no specific provision made for spousal maintenance in the financial agreement. The Husband argued that because there was no specific provision as to spousal maintenance then this may be interpreted as an intention not to provide for it. He argues:
The agreement was intended to deal with all aspects of property division as between husband and wife and the silence as to specific provisions for spousal maintenance is indicative of no intention to enter into a positive spousal maintenance arrangement whereby one party pays maintenance to the other.[67]
[66] Exhibit 1, p.17.
[67] Husband’s Case Outline (n 65) p.9 at paragraph 30.

Berman J recently considered what constitutes adequate advice for the purposes of s 90G(1)(b) of the Act in the matter of Daily & Daily [2020] FamCA 486 stating at [154]:
I consider that whilst the correctness of the advice may not be a relevant inquiry, if the evidence supported a finding that notwithstanding a certificate, there had either not been any advice given or that it was so cursory or only tangentially related to the agreement, that may well allow a finding that no advice was given.
The Wife asserts that as there is no evidence that Mr F provided advice to her on key aspects of the financial agreement it should lead to a finding that no advice was given. I cannot reach this conclusion.
The Wife had a poor recollection of the events and her recollections were unreliable. I am therefore left to accept the signed statement by Mr F under s 90G of the Act at face value. This statement is supported by the file notes and other records on the Mr F file.
The initial amendments sought by Mr F were appropriate and reflected a comprehensive understanding of the nature of the financial agreement and its purpose. His file notes were clear and demonstrate that the Wife engaged in discussions on a range of issues.
The file note following the execution of the agreement records: “I explained the document to the client and indicated my concerns in relation to a number of issues”.[68] Having regard to the entire Mr F file, I am satisfied that he outlined the advantages and disadvantages to the Wife of entering into the financial agreement at the time the advice was provided.
[68] Exhibit 1 p.60.
I am satisfied by a combination of my findings about what took place in late 2011 that the Wife received the requisite independent legal advice, about the effect of the financial agreement and the advantages and disadvantages to her of making the financial agreement.
SHOULD THE FINANCIAL AGREEMENT BE SET ASIDE?
The Wife contends the financial agreement should be set aside under s 90K(1)(e) of the Act.
Section 90K of the Act provides:
Circumstances in which court may set aside a financial agreement or termination agreement
(1)A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:
(a) the agreement was obtained by fraud (including non-disclosure of a material matter); or
(aa) a party to the agreement entered into the agreement:
(i)for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or
(ii)with reckless disregard of the interests of a creditor or creditors of the party; or
(ab) a party (the agreement party) to the agreement entered into the agreement:
(i) for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship with a spouse party; or
(ii) for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the de facto relationship; or
(iii) with reckless disregard of those interests of that other person; or
(b) the agreement is void, voidable or unenforceable; or
(c) in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or
(d) since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or
(e) in respect of the making of a financial agreement – a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or
(f) a payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or
(g) the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB.
(Emphasis in original)
The Wife argues that the financial agreement is voidable at common law because her execution of the financial agreement was obtained by the Husband’s unconscionable conduct. The unconscionable conduct is said to be constituted because the Wife was at a special disadvantage. This is essentially a submission under s 90K(1)(b) of the Act that the financial agreements is “void, voidable or unenforceable” due to the unconscionable conduct of the Husband.
Pursuant to s 90KA of the Act, in determining whether s 90K(1)(b) and 90K(1)(e) of the Act is satisfied, the ordinary principles of law and equity apply. The equitable principles that apply to unconscionable conduct were well established by the High Court of Australia in Commercial Bank of Australia Ltd v Amadio [1983] HCA 14 (“Amadio”)
In Thorne v Kennedy at [21], the High Court did not consider it necessary to determine whether the test for unconscionable conduct arising under s 90K(1)(b) differed from that under 90K(1)(e).[69] Therefore, the issue of unconscionable conduct pursuant to the “common law”, as submitted by the Wife, and unconscionable conduct pursuant to s 90K(1)(e) will be dealt with together.
[69]See also Pascot & Pascot [2011] FamCA 945 at [296]-[297].
The Wife directed me to Thorne v Kennedy in support of her argument. In that case at [38], unconscionable conduct was found to involve two elements:
A conclusion of unconscionable conduct requires the innocent party to be subject to a special disadvantage ‘which seriously affects the ability of the innocent party to make a judgment as to [the innocent party’s] own best interests’. The other party must also unconscientiously take advantage of that special disadvantage. This has been variously described as requiring ‘victimisation’, ‘unconscientious conduct’, or ‘exploitation’. Before there can be a finding of unconscientious taking of advantage, it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage.
It is the Wife’s case that at the time of signing the financial agreement in 2011, she was subject to a “special disadvantage” which seriously affected her ability to make a judgment as to her own best interests. In Australian Securities and Investments Commission (ASIC) v Kobelt [2019] HCA 18 Nettle and Gordon JJ at [147] confirmed that while it was not possible to identify exhaustively what would amount to a special disadvantage, “the essence of the relevant weakness is that it ‘seriously affects’ the innocent party's ability to safeguard their own interests.”
Ground 3 – Is the financial agreement liable to be set aside because the Husband engaged in unconscionable conduct?
The Wife submits that she was at a “special disadvantage” because:
(a)She was in Australia for only two weeks and on her first visit to Australia;
(b)She had no friends and relatives in Australia;
(c)She had no sophisticated knowledge of legal English;
(d)She was unfamiliar with the nature of financial agreements made under s 90B of the Act;
(e)The Husband had significantly higher wealth than the Wife;
(f)The financial agreement was signed in pressured circumstances namely:
(i)By the Husband pressing for engagement with the Wife, and
(ii)The Husband taking the Wife to a solicitor without informing her that he wanted to enter into a financial agreement with her before marriage;
(g)The Husband taking the financial agreement from the Wife after she had signed it and not providing her with a copy of it prior to their marriage in Country B in late 2011.
The Wife asserts that the Husband was aware of these circumstances and conscientiously took advantage of them in order to enter into a favourable financial agreement.
The Husband in turn relies on the following points in support of his argument that the Wife was not under a “special disadvantage”:
(a)She was a successful business operator in Country B with high level business acumen;
(b)She was well educated;
(c)She was able to communicate in English both socially and in a business capacity;
(d)She owned property in Country B;
(e)She represented her country at international events as a delegate of Country B; and
(f)The Wife had the capacity to disagree with some aspects of the draft agreement and propose alternative provisions.
Conclusion on ground 3
In Thorne v Kennedy at [60] the plurality set out the following factors which “may have prominence” when considering undue influence in the context of a financial agreement:
…(i) whether the agreement was offered on a basis that it was not subject to negotiation; (ii) the emotional circumstances in which the agreement was entered including any explicit or implicit threat to end a marriage or to end an engagement; (iii) whether there was any time for careful reflection; (iv) the nature of the parties' relationship; (v) the relative financial positions of the parties; and (vi) the independent advice that was received and whether there was time to reflect on that advice.
In Thorne v Kennedy at [64] these factors were also considered persuasive in determining whether a party was at a special disadvantage when entering a financial agreement. The Wife while citing Thorne v Kennedy, did not rely on all of these factors. However, I accept that the plurality in Thorne v Kennedy at [43] made clear that the role of the trial judge is to make an evaluative judgment when determining whether these factors have been established and in assessing the extent to which a person was lacking free will.
There are some factual similarities to Thorne v Kennedy in the present matter. The Wife says she was in “holiday mode” and coming from Country B she was unfamiliar with our legal systems and processes. The Husband was in a much stronger financial position to the Wife and she relied upon him for financial support. I accept that the terms of the financial agreement are very favourable to the Husband.
However, there are critical differences.
It was a second marriage for both parties and they had children from previous relationships. They met in person and were not rushing into the marriage. It was not an “all or nothing” situation. The Wife had a successful business in Country B and assets there. At the time the agreement was entered into, it was not too late to return back to Country B and not proceed with the marriage on the terms proposed. The emotional circumstances in which the marriage was entered into was quite different, especially as the marriage ultimately took place in Country B.
The Husband was forthright in his approach to the Wife. He explicitly required the financial agreement to be signed before they married. The agreement was subject to negotiation involving the Wife and she received independent advice about it.
The Wife argued that the financial agreement was signed in pressured circumstances, and implicitly along the lines of Thorne v Kennedy, that there was no time for careful reflection. I found the evidence on this issue confusing and not particularly supportive of the Wife’s case.
It was the Husband’s case that the parties had agreed to marry during telephone calls and before the Wife came to visit him in Australia. He says once she had agreed to the marriage, he wanted her to visit to see whether his family and friends approved of the union. The Wife argued that she did not become engaged to the Husband until sometime during her visit in Australia and that the financial agreement was signed in the shadow of an engagement party in late 2011. She had her trip to Australia extended by one week and suggested she was forced to remain in Australia for this week so that the financial agreement could be signed.
All of the arguments about the “pressured circumstances” raised by the Wife ignore some important factors. Firstly, the parties were not married until late 2011 in Country B. The Wife had at least six weeks opportunity to “cool off” and reconsider her position upon her return. I find that she had both the English capability as well as the contacts to follow anything up with Mr F about the financial agreement if the matter had been of such concern to her.
Furthermore, while the marriage took place in late 2011 the Wife did not immigrate to Australia until 2014. She alleges that from the date of the marriage the Husband treated her poorly including forcing her to have two abortions in Country B before she arrived in Australia[70]. Accepting this to be true, arguably, if she had any regrets about signing the financial agreement she was in a position to take steps to inform herself about that agreement, and to cancel any plans to immigrate to Australia or alternatively to negotiate with the Husband for the revocation of the financial agreement.
[70] Affidavit of Ms Ismael affirmed 15 May 2019, p.8 of Annexure A (“Wife’s Affidavit affirmed 15 May 2019”).
A central argument of the Wife is that she was subject to a “special disadvantage” which seriously affected her ability to make a judgment as to her own best interests. She relies upon Amadio, submitting that she was unable to make a judgment on her own best interests because the Husband had taken an unfair advantage of his superior bargaining power or position.
The Wife was also cross-examined on her level of English. While Country B Language is the native language of Country B, it was put to the Wife that English is the language spoken in business and amongst educated groups. She agreed that speaking English is a status symbol.
Prior to this marriage, the Wife was married to Mr L. As the Wife of a high-ranking army official the Wife undertook many activities locally and with foreign delegates. She worked as a cultural secretary in the N Club. She also acted as the secretary of the O Club and was involved in many skill building exercises for women and children of army families. The Wife gave evidence that she spoke Country B Language to the army wives, not in English. She minimised her involvement in this role to organising activities such as singing, reciting poetry and fashion shows.
The Wife conceded that her son attended the Country P International School, an English school. She said she was “always” involved in attending the school and its activities. However she said all communications with staff members at the school were in Country B Language.
The Husband gave evidence that at the time she visited Australia “Ms Ismael had adequate English to travel to non-Country B Language speaking countries for business purposes as mentioned earlier. She was able to communicate with my daughters and Mr H’s family in English”.[71]
[71]Husband’s Affidavit (n 8) paragraph 23.
He described her English under cross-examination as being “fluent”. When the Wife’s solicitor proposed to him that she did not know what a financial agreement was the Husband responded:
Sir do you understand that she was the wife of a military officer. When I was marrying her she was fluent in English. She was doing documentation in English. Our contract was in English. I have got hundreds of copy of her invoices and she has sent it out – is in English. You’re telling me she didn’t understand this?[72]
[72]Transcript (n 6) p.50 lines 2-6.
The Husband said that the Wife’s spoken English was one of the attractions for him in the union, he said: “This was one of the things I admired about her as I thought she was independent, capable and business minded like myself. I thought she would get along well with my daughters in Australia and would be able to communicate they could not speak Country B Language fluently.”[73]
[73]Husband’s Affidavit (n 8) paragraph 10.
In the present matter, I have found that the Wife’s command of English was not proficient but sufficient to understand the advice given to her and to ask questions where she was unsure. Including for an explanation of the terms of the financial agreement.
However, I also need to consider whether she was nevertheless at a special disadvantage because she did not understand the nature of the legal language being used or the nature of the agreement she entered into.
The Wife was a successful and well respected businesswoman in Country B at the time she entered into the financial agreement.
Her background and business acumen were tested under cross-examination and she gave evidence that:
(a)She also holds educational qualifications. She graduated from Q University in Country B in 2002 with a Bachelors degree, and since coming to Australia has completed courses including qualifying through TAFE as a health care worker.
(b)At the time of entering into the financial agreement she operated a business enterprise which at its peak employed 25 people. She accepted under cross-examination that by Country B standards she would be described as a successful businesswoman.
(c)As part of the day-to-day operations of her business, “Company G” she entered into loan agreements with banks and written contracts (she says with the assistance of her manager and brother).
(d)She was a member of the Country B chamber of commerce and industries and travelled overseas as a member of the Country B delegation to the Global Women’s Summit. She estimated that she had visited between 10 and 12 countries, many of them English speaking.
(e)Her CV was tendered. It was written in English and outlined her extensive experience both as a company secretary and in commerce. A brochure about the “Company G” was also tendered. It was authored by the Wife in English (she says with assistance) and it provides a brief profile of her company.
I find that the Wife was a competent business woman who had experience dealing with contracts and business agreements. The file notes from Mr F indicate that there were several matters that she had asked him to negotiate further on her behalf. For example, Mr F negotiated a 50-50 split for joint property against the Husband’s initial position of a 60-40 split in his favour. He also negotiated in the Wife’s favour concerning the Mahr (dowry), for her jewellery to be removed from consideration and death provisions.
No evidence was led to corroborate the Wife’s case that she did not understand the terms of the financial agreement or that she was hesitant or unwilling to sign the financial agreement.
The Wife had sufficient fluency in English to not require an interpreter. I find that she understood what she was signing. I also find that she was aware of agreements of this nature, and indeed negotiated via her legal representative for improved terms.
The threshold for unconscionable conduct is a high one. In Kakavas v Crown Melbourne Ltd [2013] HCA 25 the High Court suggested at [161] that one needed to prove the existence of a “predatory state of mind” of the party in the stronger position.
I cannot find that the Husband acted with the element of coercion that is required for a finding of unconscionable conduct. He was frank about his intentions. He would not proceed with the marriage unless the Wife signed a financial agreement.
The Wife argued that she felt pressured to sign the financial agreement because:
(a)the Husband took her to the appointment and waited outside;
(b)the Husband had his friend present as a “support person”; and
(c)the Husband removed the financial agreement from her possession after it had been signed.
The Wife deposed in her affidavit that upon leaving Mr F’s office, the Husband “grabbed” the financial agreement out of her hands. This was an important element of her case. If we were to accept that the Husband took the financial agreement from her, an element of special disadvantage might be present.

The Husband denied taking the financial agreement from her. Her recollection about leaving the office is set out above at paragraph 74. During re-examination she recalled the event a little differently: [74]
[SOLICITOR FOR THE WIFE]: What happened to that paper?
[THE WIFE]: The paper – the guy gave it to me.
[SOLICITOR FOR THE WIFE]: Yes?
[THE WIFE]: Yes. And when I come out that door – the next very image at the door, he took me – he took the paper from me.
[SOLICITOR FOR THE WIFE]: Who took the paper?
[THE WIFE]: Mr Ismael took the paper from me.
[74]Transcript (n 6) p.40 lines 33-38.
The Husband gave a different account and denied taking the Wife’s copy of the financial agreement from her.
I am mindful of the following exchange under cross-examination on the issue: [75]
[COUNSEL FOR THE HUSBAND]: You weren’t threatened in any way to sign the agreement, were you?
[THE WIFE]: Threat from who?
[COUNSEL FOR THE HUSBAND]: No one gave you a threat?
[THE WIFE]: No.
[COUNSEL FOR THE HUSBAND]: To harm you?
[THE WIFE]: No? – No.
[COUNSEL FOR THE HUSBAND]: And at the end, after you signed the agreement, Mr F [sic] gave you a copy; didn’t he?
[THE WIFE]: Yes. He gave me a copy; I was carrying a black bag. Yes. After – yes.
[75]Ibid p.37 lines 35-43.
I have already indicated that I am not inclined to draw a negative inference from the presence of support people at the meetings. And even if I accept that the Husband’s conduct of waiting outside in reception and removing the agreement from the Wife made her feel “pressured”, these two elements alone would not amount to a special disadvantage accepting “the essence of the relevant weakness is that it ‘seriously affects’ the innocent party's ability to safeguard their own interests”.[76] Nor can I conclude that that the Husband had a “predatory state of mind” in procuring the Wife’s signature.
[76]Australian Securities and Investments Commission (ASIC) v Kobelt [2019] HCA 18 at [147] (Nettle and Gordon JJ).
While the Wife may have felt disempowered or at a disadvantage in her negotiations about the agreement, there was nothing “special” about that disadvantage at the time the parties signed the financial agreement.
The Wife’s evidence falls short of establishing that the Husband acted in an unconscionable manner. While he may have had a better knowledge of the Australian legal system and as a result, a superior bargaining position, the Wife did not demonstrate that this served to influence her mind or that the Husband took unfair advantage of the situation.
There is insufficient evidence to prove unconscionable conduct on the part of the Husband, and I find that the Wife’s execution of the financial agreement was not procured by unconscionable conduct.
CONCLUSION
I appreciate that from the Wife’s perspective this outcome will be devastating and seem most unfair. The marriage appears to have been a most traumatic experience for her (and her son). She left her home, business, children and country with the reasonable expectation that she would have a better life in Australia with the Husband. From the time of her arrival in Australia she alleges that she was treated as a “servant” to the Husband who financially controlled her. She alleges that the Husband “used to often kick, punch and slap me.”[77] She alleges being treated by the Husband like “a prostitute” and forced to endure sexual assaults.[78]
[77] Wife’s Affidavit affirmed 15 May 2019 (n 70) paragraph 63.
[78] Ibid paragraph 60 and p. 20 of Annexure A.
The physical, sexual, financial and psychological violence endured by the Wife from at least late 2014 are corroborated by her medical records. These allegations were not the subject of cross-examination. Nor were they disputed by the Husband. And they did not need to be. Because in determining whether the financial agreement should be set aside I am required to focus on the circumstances leading up to, and at the time of entering into the agreement. And notwithstanding the family violence that took place after that, the considerations I am required to apply under the law do not extend to the later family violence unless it is indicative of the control that the husband may have had over her. But no evidence was led of this nature.
In light of these reasons and the conclusions reached, I answer the separate questions as follows:
(a)Is the financial agreement binding under s 90G of the Act? Yes
(b)If it is binding, should the financial agreement should be set aside under s 90K of the Act? No
COSTS
Section 117 of the Act sets out that each party shall bear his or her own costs, subject to the considerations in section 117(2) of the Act.
The Husband seeks costs of $42,354.40 against the Wife in the event that she is wholly unsuccessful.
I am aware of the disparity of financial circumstances between the parties. As a result of the declaration, the Husband will preserve his far superior financial position.
I am however required to determine costs in light of the substantive judgment. Although the parties appear from the material filed to be in very different financial positions, if the Husband wishes to pursue that application for costs then he is granted leave to seek a relisting of the matter within 21 days.
For the reasons which precede this conclusion, I propose to make a declaration that the financial agreement pursuant to s 90B of the Act is a binding financial agreement within the meaning of s 90G of the Act.

I certify that the preceding one hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse.
Associate:
Dated: 21 July 2021

File number(s):	PAC 2242 of 2019
Judgment of:	JUDGE BECKHOUSE
Date of judgment:	21 July 2021
Catchwords:	FAMILY LAW – PROPERTY – binding financial agreement –where the Wife seeks to declare not binding or set aside a financial agreement between the parties – whether the Wife was provided with legal advice pursuant to s 90G(1)(b) of the Family Law Act – whether the financial agreement should be set aside on the basis of unconscionable conduct pursuant to s 90K(1)(b) and 90K(1)(e) of the Act and in accordance with Thorne v Kennedy [2017] HCA 49 –where the Wife was provided with necessary legal advice – binding financial agreement valid – where no unconscionable conduct by the Husband- financial agreement not voidable.
Legislation:	Family Law Act 1975 (Cth) ss 90B, 90G, 90K, 90KA, 117
Cases cited:	Abrum & Abrum [2013] FamCA 897 Australian Securities and Investment Commission v Kobelt [2019] HCA 18 Beroni & Corelli [2021] FamCAFC 9 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14 Daily & Daily [2020] FamCA 486 Hoult v Hoult [2013] FamCAFC 109 Kakavas v Crown Melbourne Limited [2013] HCA 25 Kaimal & Kaimal [2020] FamCA 971 Parker & Parker [2012] FamCAFC 33 Pascot & Pascot [2011] FamCA 945 Scott & Scott (No 3) [2019] FamCA 936 Thorne v Kennedy [2017] HCA 49
Number of paragraphs:	185
Date of last submission/s:	4 May 2021
Date of hearing:	4 March 2021
Place:	Parramatta
Solicitor for the Applicant:	Mr Killalea of Kazi & Associates Solicitors & Public Notary
Counsel for the Respondent:	Ms Conte-Mills
Solicitor for the Respondent:	Harb Lawyers

ORDER MADE BY:	JUDGE BECKHOUSE
DATE OF ORDER:	21 JULY 2021

Exhibit Label	Document	Tendered by
H1	CV of Ms Ismael (2 pages)	Respondent Husband
H2	Document titled “Brief on Company G” (2 pages)	Respondent Husband
H3	Email from Mr F to Kazi & Associates and Claude Harb dated 3 March 2021 (3 pages)	Respondent Husband
W1	Document titled “Notice of Proceedings” by Kazi & Associates (20 pages)	Applicant Wife
W2	Document titled “Interim Application to Set Aside financial agreement: Points of Claim revised 4/3/21” (5 pages)	Applicant Wife
H4	Joint Tender Bundle with hand written schedule (made up of the material produced on subpoena by Mr F)	Respondent Husband
1	Whole of the documents produced to the court by Mr F and received by email in Chambers on 27/04/2021 (130 Pages).	Court