FAMILY COURT OF AUSTRALIA
| KAIMAL & KAIMAL | [2020] FamCA 971 |
| FAMILY LAW – PROPERTY – binding financial agreement – where the wife seeks to either 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 it would be unjust and inequitable if the financial agreement was declared not binding on the parties – whether the financial agreement should be set aside on the basis of fraud pursuant to s 90K(1)(a) of the Act – whether the financial agreement is void for uncertainty pursuant to s 90K(1)(b) of the Act – whether the financial agreement should be set aside on the basis of unconscionable conduct pursuant to s 90K(1)(e) of the Act – wife not provided with necessary legal advice – financial agreement void for uncertainty – financial agreement not valid. |
| Family Law Act 1975 (Cth) s 90G and s 90K |
| Abrum & Abrum [2013] FamCA 897 Hoult & Hoult [2013] FamCAFC 109, (2013) 50 Fam LR 260, (2013) FLC 93-546 |
| APPLICANT: | Ms Kaimal |
| RESPONDENT: | Mr Kaimal |
| FILE NUMBER: | SYC | 602 | of | 2020 |
| DATE DELIVERED: | 20 November 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Chief Justice Alstergren |
| HEARING DATE: | 12 and 18 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Barnett |
| SOLICITOR FOR THE APPLICANT: | The Norton Law Group |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE RESPONDENT: | QV Law |
Orders
IT IS DECLARED THAT the financial agreement signed by the husband and the wife on 30 July 2018 is not binding within the meaning of s 90G of the Family Law Act 1975 (Cth).
The parties file any affidavit evidence and an outline of submissions in relation to costs by 4.00pm on Friday 27 November 2020.
The issue of costs be determined on the papers without the need for oral hearing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kaimal & Kaimal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: SYC 602 of 2020
| Ms Kaimal |
Applicant
And
| Mr Kaimal |
Respondent
REASONS FOR JUDGMENT
Introduction
By her Initiating Application filed on 30 January 2020, the wife seeks orders setting aside or declaring non-binding a document signed by the parties on 30 July 2018 entitled “Financial Agreement under Section 90C of the Family Law Act 1975” (“the Financial Agreement”).
The wife contends that the Financial Agreement is not binding pursuant to s 90G of the Family Law Act1975 (Cth) (“the Act”) on the basis that she did not receive independent legal advice as required by s 90G(1)(b) of the Act. Further, it is submitted that pursuant to s 90G(1A)(c) of the Act, the Court could not be satisfied that it would be unjust and inequitable if the Financial Agreement was not binding on the parties.[1]
[1] Outline of Submissions of Ms Kaimal dated 11 August 2020, page 1.
In the alternative, if the Financial Agreement is found to be binding, the wife seeks to have the Financial Agreement set aside on the following grounds:[2]
a)The Financial Agreement is void for uncertainty under s 90K(1)(b) of the Act;
b)The wife’s execution of the Financial Agreement was procured by the unconscionable conduct of the husband under s 90K(1)(e) of the Act; and
c)The wife’s execution of the Financial Agreement was in reliance upon material representations made by the husband as to the value of the asset pool and his portion thereof which were false and known to the husband to be false, satisfying s 90G(1)(a) of the Act.
[2] Outline of Submissions of Ms Kaimal dated 11 August 2020, page 1.
In his Response filed on 6 May 2020, the husband opposes the wife’s application and seeks orders that:[3]
a)The Financial Agreement is declared to be a financial agreement pursuant to s 90C of the Act;
b)The Financial Agreement is binding on the parties pursuant to s 90G(1)(b) of the Act; and
c)The wife’s Initiating Application be dismissed.
[3] Response to Initiating Application of Mr Kaimal signed 6 May 2020, page 4.
Background – The Financial Agreement
The parties married in 1989 and commenced cohabitation that same year. They are not yet divorced. Throughout the relationship, the parties resided in the former matrimonial home with the husband’s parents and siblings.
The date of the parties’ separation is disputed. According to the wife, the parties separated in or around August 2019, when she vacated the former matrimonial home.[4] According to the husband, the parties separated in 2016 and remained living under one roof until 2019.[5]
[4] Updating and Consolidated Affidavit of Ms Kaimal affirmed 12 June 2020, paragraph 3.
[5] Affidavit of Mr Kaimal signed 6 May 2020, paragraph 3.
On 30 July 2018, the parties signed the Financial Agreement which has been reproduced in full in the annexure to these reasons. The Financial Agreement further contains two pages which are both entitled ‘Statement under section 90G of the Family Law Act 1975’, certifying that each party was provided with legal advice as required by s 90G(1)(b) of the Act. One is signed by Mr B, a solicitor, instructed by the wife and dated 30 July 2018, and the other is signed by Mr C, a solicitor, instructed by the husband and dated 30 July 2018.
The events leading up to the execution of the Financial Agreement are disputed. However, the following matters are not contentious:
a)At the time the Financial Agreement was executed, the parties were living under the same roof in the former matrimonial home (“the D Street property”). The husband had ownership of the following two properties:
i)A property on F Street (“the F Street property”) with an estimated value of $750,000; and
ii)1/3rd share of the D Street property, with the remaining 2/3rd share owned by the husband’s parents.
b)In early 2018, the parties had discussions about the wife and their youngest daughter (“the daughter”) obtaining a loan from Westpac to purchase the F Street property from the husband, in equal shares. The wife and the daughter signed the Westpac loan documents in June 2018.[6]
c)The husband’s solicitor, Mr C, prepared the Financial Agreement in early July 2018.[7] The parties both met with Mr C on 27 July 2018 in relation to the Financial Agreement.
d)The wife first met with Mr B on 27 July 2018 in relation to the Financial Agreement.[8]
e)The husband was not present in the office with the wife and Mr B at the meeting on 27 July 2018. However, under cross-examination the husband conceded that, on this occasion, he was waiting in a nearby car park outside of Mr B’s office.[9]
f)The Financial Agreement was signed by both parties the following Monday, 30 July 2018.
[6] Transcript page 25.
[7] Transcript page 77.
[8] Transcript page 23.
[9] Transcript page 78.
The events leading up to the wife’s meeting with Mr B on 27 July 2018 are particularly contentious.
According to the wife, the parties’ meeting on 27 July 2018 with Mr C was the first time she had met with a lawyer in relation to the Financial Agreement. The wife describes the events of that meeting as follows:
It was a last-minute appointment I was forced to attend by [the husband]. I was given no prior notice.[10]
[…]
No one explained what was happening to me. I felt very intimidated and confused. I sat in the office and [the husband’s] lawyer spoke about assets and liabilities. [11]
[…]
[Mr C] then escorted me out of [his] office and walked me down the street to another office.[12]
[10] Updating and Consolidated Affidavit of Ms Kaimal affirmed 12 June 2020, paragraph 39.
[11] Updating and Consolidated Affidavit of Ms Kaimal affirmed 12 June 2020, paragraph 39-40.
[12] Updating and Consolidated Affidavit of Ms Kaimal affirmed 12 June 2020, paragraph 39-40.
The husband deposes that he attended the meeting with the wife and his solicitor, and he recalls Mr C handing the wife a copy of the draft Financial Agreement. According to the Husband, Mr C informed the wife that she required independent legal advice and that there were a number of family lawyers in the area, after which the wife went by herself to Mr B’s office and he did not attend with her in the meeting with Mr B.[13]
[13] Affidavit of Mr Kaimal signed 6 May 2020, paragraph 83.
The issues in dispute
The issues I am required to determine are:
a)Whether the Financial Agreement is binding under s 90G of the Act;
b)If it is binding, whether the Financial Agreement should be set aside under s 90K of the Act.
I will consider these issues in turn.
Is the Financial Agreement binding?
The legislative requirements
Section 90G of the Act imposes the requirements that must be satisfied in order for a financial agreement to be binding:
90G When financial agreements are binding
(1)Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if:
(a)the agreement is signed by all parties; and
(b)before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c)either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca)a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(d)the agreement has not been terminated and has not been set aside by a court.
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).
In this matter, the only requirement in issue under s 90G(1) is whether the wife received the required legal advice pursuant to s 90G(1)(b).
The requirement for legal advice is an important legislative safeguard. An effective binding financial agreement ousts the Court’s jurisdiction to make orders under Part VIII of the Act, allowing parties to deal with their assets without interference from the Court.[14] Accordingly, the legal advice must be real and meaningful to satisfy s 90G(1)(b).
[14]Family Law Act 1975 (Cth) s 71A.
Section 90G(1)(b) evinces an unambiguous legislative requirement that, in order for an executed agreement to be binding, each party to a financial agreement must be given clear, independent legal advice specifically in respect to each of the matters mentioned therein. [15] This is evidenced from its wording “the effect of the agreement on the rights of the party and the advantages and disadvantages to the party of entering into the agreement at the time the advice was provided”.
[15]Parker & Parker [2012] FLC 93-499 at [208] – [209] per Murphy J.
Importantly, s 90G(1)(b) contains a requirement for independent legal advice separately to the requirement of a signed statement of legal advice, which is found in s 90G(1)(c). Accordingly, evidence of the latter cannot have been intended to constitute determinative evidence of the former. If that were the case, the inclusion of a separate provision for each would be redundant.
The Court’s task in this case is to determine whether the wife received legal advice and, if so, whether it meets the requirements of s 90G(1)(b).
It is clear that, in order to be able to advise a party of the advantages and disadvantages of entering into a financial agreement and of how that financial agreement will affect their rights, it is necessary that those advantages, disadvantages and rights are first identified.[16]
[16] See Abrum & Abrum [2013] FamCA 897 at [38] – [43] per Aldridge J.
Dr Barnett, counsel for the wife, referred to the statement of Ryan and Aldridge JJ in Piper v Mueller that “an assessment of whether the provisions of an agreement were fair and reasonable, necessarily involves a consideration of the advantages and disadvantages of those provisions.[17] I concur with that statement.
[17] [2015] FamCAFC 241 at [52].
In the decision of Wallace & Stelzer and Anor [2013] FamCAFC 199, the Full Court at [103] cited with approval the earlier decisions of Logan & Logan [2013] FamCAFC 151 and Hoult & Hoult [2013] FamCAFC 109 (“Hoult”) in which the Full Court held that “the only enquiry necessary is as to whether advice was given, and not as to the content of that advice.”
In the recent decision of this Court Daily & Daily [2020] FamCA 486, Berman J considered whether the wife, in that case, was given adequate advice as to the effect of the financial agreement in question on her rights and the advantages and disadvantages of entering into the agreement in the context of handwritten amendments having been made to the agreement. His Honour stated at [154]:[18]
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.
[18]Daily & Daily [2020] FamCA 486 at [154].
These statements are consistent with the authority of Hoult which both parties relied upon in the case before me. As explained below, I disagree with the interpretation of Hoult advanced by the husband.
Against the discussion above, I now turn to consider whether the legal advice meets the requirements of s 90G(1)(b).
Consideration
This ground turns on the advice that was provided by Mr B who met with the wife on two occasions: 27 July 2018 and 30 July 2018. The only people present in the meeting on 27 July 2018 were the wife and Mr B. The only people present in the meeting on 30 July 2018 were the wife, the daughter and Mr B.
The wife and the daughter gave evidence in relation to the events of these meetings in their affidavit material and at the hearing. Mr B was called by the wife to give evidence on the second day of the hearing. The husband did not oppose Mr B being called as a witness.
According to the wife, at the meeting on 27 July 2018 Mr B read through the Financial Agreement out loud, including the list of assets and liabilities.[19]
[19] Updating and Consolidated Affidavit of Ms Kaimal affirmed 12 June 2020, paragraphs 41 – 42.
According to Mr B, the meeting with the wife on 27 July 2018 lasted approximately 10 minutes and she did not show him the Financial Agreement, however, she indicated that she agreed with its terms and conditions and made a further appointment.[20]
[20] Transcript page 92.
Mr B’s file note dated 27 July 2018 states the following: [21]
[The wife] approached to our office and request us to sign a financial agreement which she has already agreed and drafted with a solicitor. We advise that we can do this if you agree the terms and conditions of the agreement. She agreed & make an appointment on following Monday.
(Emphasis added)
[21] Updating and Consolidated Affidavit of Ms Kaimal affirmed 12 June 2020, “Exhibit A4”; Affidavit of Mr Kaimal signed 7 July 2020, Annexure “A”.
Given that all of the witnesses agreed that no legal advice was given to the wife on 27 July 2018, it is unnecessary to determine whether the Financial Agreement was given to Mr B on that date. Rather, it is the meeting on 30 July 2018 which is critical.
The wife gave evidence that the meeting on 30 July 2018 lasted approximately 30 minutes, Mr B read out the Financial Agreement to her and stated that the date of separation was September 2013 and the parties have no intention of reconciling. [22] The wife then signed the document in Mr B’s presence.
[22] Updating and Consolidated Affidavit of Ms Kaimal affirmed 12 June 2020, paragraph 46; Transcript pages 27-8.
The daughter gave evidence that, at the meeting on 30 July 2018, the solicitor (who I take to be Mr B)[23] read through the terms of the Financial Agreement.[24] The daughter deposes “I observed my mother to look so scared” prior to entering the solicitor’s office on that date.[25]
[23] The daughter gave evidence that she and the wife met with Mr C, the husband’s solicitor, on 30 July 2018. While this was not sought to be corrected by Mr Nguyen under cross-examination, I take it that the daughter’s recollection of meeting with Mr C on this occasion is incorrect, and that she and the wife in fact met with Mr B on 30 July 2018.
[24] Affidavit of Ms Y Kaimal affirmed 11 June 2020, paragraph 19; Transcript page 48.
[25] Affidavit of Ms Y Kaimal affirmed 11 June 2020, paragraph 18.
According to Mr B, the meeting on 30 July 2020 lasted approximately 30 to 40 minutes.[26]
[26] Transcript page 92.
Mr B’s file note dated 30 July 2018 states:[27]
[27] Updating and Consolidated Affidavit of Ms Kaimal, “Exhibit A4”; Affidavit of Mr Kaimal signed 7 July 2020, Annexure “A”.
[The wife] attended to our office with financial agreement to sign. We sit together and discuss as follows:
1)Each & every contents of agreement including assets and liability
2)Ask [the wife] if she understands & agreed the terms and conditions
3)She replied happy with terms & already agreed.
4)Advise [the wife] the effectiveness of the agreement & her right
5)Also advise the advantages & disadvantages of the agreement
6)[The wife] is happy & request me to sign. Then we execute the agreement.
(As per the original with names redacted)
The husband submitted that Mr B’s file notes strengthen the inference that can be drawn from the signed Statement of Legal Advice that the wife received the appropriate legal advice as per s 90G(1)(b).[28] The husband further submitted that:
a)the wife had the capacity to understand the legal documents which she was signing and the implications of signing them in the presence of a solicitor; and
b)the wife had two days over the weekend between her first and second appointment with Mr B to read and consider the terms of the Financial Agreement.[29]
[28] Transcript page 16.
[29] Transcript pages 30-1.
In closing submissions, Mr Nguyen for the husband contended that the requirement under s 90G(1)(b) is satisfied in this case by:[30]
a)Mr B having read out loud to the wife the terms of the agreement during a meeting that lasted between 20 and 40 minutes;
b)The wife indicating to Mr B that she agreed to the terms and conditions of the agreement; and
c)Mr B witnessing the wife’s signature.
[30] Transcript page 101-5
Mr Nguyen submitted that such a finding is in line with the majority decision of Strickland and Ainslie-Wallace JJ in Hoult. Mr Nguyen further contended that for the Court to ‘go behind’ the Statement of Legal Advice and enquire whether the wife was advised in relation to her rights and the advantages and disadvantages of entering into the Financial Agreement, is to read into the legislation “things that are not there”, as a legislative requirement for “discussion of the advantages and disadvantages” is “not there”.[31]
[31] Transcript pages 124-5.
The husband’s reliance on Hoult is misplaced. The evidence of Mr B in this case is distinguishable from that in Hoult in an important respect.
The solicitor for the wife in Hoult testified to having given legal advice in respect to the aspects stated in s 90G(1)(b), notwithstanding her recollection was imperfect and there was no evidence as to the exact content of her advice. By contrast, Mr B’s evidence regarding his meeting with the wife on 30 July 2018 was as follows:[32]
[32] Transcript pages 92-4. This section of the transcript has been amended in these reasons to include words that were omitted in the transcription due to unclear audio experienced during the oral evidence of Mr B, due to the electronic nature of the hearing.
DR BARNETT: And how long was your meeting on 30 July 2018?
MR B: 30 July approximate half an hour to 40 minutes.
DR BARNETT: And do you have that agreement in front of you?
MR B: Yes, I have that agreement. Yes.
DR BARNETT: If you could turn to page 3 of 12?
MR B: Yes.
DR BARNETT: Turning to recital (g) what did you ask Shirley, if anything, regarding the separation?
MR B: Okay, in fact, this agreement she told me she already had read and she just came to me to sign the agreement. And then I read it to her that is the agreement and that is the terms and conditions she agreed and she told me yes, she agreed that is the terms and conditions. And then I asked her if you are happy I can be a witness. And she said, yes, she’s happy and she .....
DR BARNETT: Okay. So does that mean that when I’ve asked you about those – sorry – about what you asked her about the date of separation, you were saying to his Honour you didn’t actually – you didn’t ask her any questions about the detail, like what date they separated?
MR B: No. No, because she hadn’t come to me for that. She just came to me to be a witness of the agreement that she had read.
DR BARNETT: And ?
MR B: And she asked me to read it to her and I read that and she said, yes, everything is okay. She is happy for this.
DR BARNETT: Okay. And so then if we turn to recital (i)?
MR B: What’s that?
DR BARNETT: So letter (i) on that same page?
MR B: Yes.
DR BARNETT: What did you say to her about the binding nature regarding spousal maintenance in this agreement?
MR B: Look, I advised her if she signs the agreement that agreement will be binding for her and her husband, so I advised her of this .....
DR BARNETT: But did you explain to her regarding section 90E of the Family Law Act that it’s unlikely that spousal – this would constitute an agreement under section 90E?
MR B: Yes, I also mentioned that about this and I said to her you can – you can go to any other lawyer and you can lodge this formal application to the court but I was – I was not detailed about this and I don’t have that expertise as well about the entitlement.
DR BARNETT: Okay, so
HIS HONOUR: So what did he just say?
DR BARNETT: He does not have the expertise regarding her entitlement.
HIS HONOUR: Thank you.
DR BARNETT: So then can I take it from your answer, with respect to – just looking at spousal maintenance that you didn’t speak to her in any detail regarding whether or not this agreement would be a binding agreement between her and her husband regarding spousal maintenance or the problems that this agreement might have because of section 90E of the Family Law Act?
MR B: No, I mentioned to her and she was fine that was the binding .....
DR BARNETT: Right?
MR B: But her – I did not mention that .....her entitlement because she didn’t come to me for this. She just come to me to be a witness of this agreement.
DR BARNETT: Right. So did you just say, again, that you did not give any advice regarding her entitlement? Did I hear that correctly?
MR B: Really no, because she came to me and she said that is the agreement she already have it, terms and conditions she is happy and I am not doing the family law in fact and I will just be a witness and explaining the terms and conditions what is written on there.
HIS HONOUR: So I understand then that you were there as a witness and you simply read out the agreement to her and then you witnessed her signature?
MR B: Yes, that’s right. Yes, that’s what she came to me for.
HIS HONOUR: And at that stage you weren’t – you didn’t have expertise to advise her about the various clauses of the agreement?
MR B: No. If she came to me for that I would refuse her because I don’t do that kind of work.
HIS HONOUR: Thank you
MR B: Yes, thank you. Any – any other questions?
DR BARNETT: Yes, I will just be very brief, sir. Can I take it then that you didn’t do any sort of percentage – as in, you didn’t look at the percentages of what each party was going to receive pursuant to the different parts of this agreement?
MR B: No, I read it to her what is written here, I read it to her, but I didn’t mention what is her entitlement, I never advised her about this.
DR BARNETT: Thank you, your Honour. That’s the, I suppose, evidence-in-chief.
There was nothing to suggest that Mr B’s recollection of events was imperfect. Rather, it demonstrated great candour on the part of the witness. It was, in my view, a credible recollection of the content of the legal advice, or rather, what advice was not provided to the wife. For this reason, while the file note dated 30 July 2018 does not accord with the oral evidence of Mr B, I prefer his oral evidence and give little weight to the file note. Mr B’s oral testimony clearly demonstrated that he only saw his role as that of someone reading the document out loud to the wife and witnessing her signature.
I am satisfied by Mr B’s evidence that the purported legal advice was, as put by counsel for the wife, “cursory at best”.[33] As Mr B stated, he did not have the expertise to advise the wife on the matters as required by s 90G(1)(b) and he would have required her to go elsewhere for such advice. I accept that evidence.
[33] Transcript page 13.
I am further fortified in my finding that the wife did not receive the required legal advice by reference to the number of errors in the Financial Agreement. Those errors relate to the F Street property, life insurance policies and the parties’ respective net positions under the Financial Agreement.
The errors relating to the F Street property are as follows:
a)Annexure A lists as an asset of the wife a 100% interest in the F Street property with an agreed estimated value of $750,000 (‘Assets’ Item 1). However, in reality, and as stated in Operative Part 3 of the Financial Agreement, the husband was to transfer his interest in the F Street property to both the wife and the daughter in equal shares. This is confirmed in Westpac Loan Offer documents which name both the wife and the daughter as borrowers.[34]
b)Therefore, there is an inconsistency between Annexure A and Operative Part 3, and the value of the F Street property belonging to the wife which should be recorded, in Annexure A, as half of $750,000, being $375,000.
c)This in turn also decreases the mortgage to Westpac that is listed as a liability of the wife of estimated value of $504,000 (‘Liabilities’ Item 4), by half to $252,000.
[34] Court Book of Ms Kaimal, pages 203 and 215.
The errors relating to life insurance policies are as follows:
a)The interest in the life policy insurance owned by the wife mentioned in Annexure A (‘Assets’ item 8) and Operative Part 1 (ii) is only payable upon the wife’s death, therefore does not constitute an asset.
b)Operative Part 1 (i) refers to the husband also retaining an interest in a ‘life policy’, however there is no corresponding figure in Annexure A.
The errors relating to the parties’ net positions are as follows:
a)According to the dollar figures in Operative Part 1, the husband purportedly retains $232,000 and the wife retains $341,000 of a total net asset pool of $573,000. In percentage terms, this equates to the husband retaining 40.5% and the wife retaining 59.5% of a net asset pool of $573,000.
b)On a net asset pool of $672,500 as stated in Annexure A, the dollar figures in Operative Part 1 equate to the husband retaining 34.5% and the wife retaining 50.7% of the net asset pool.
c)By contrast, on the correct recording of assets and liabilities and a net asset pool of $953,500 as asserted by the wife, the husband retains approximately $735,500 and the wife retains approximately $218,000,[35] which equates to 77% and 23% respectively of the correct net asset pool.
[35] The Transcript at page 117 records the figure of $318,000 being retained by the wife, however this was a calculation error during the hearing and the correct figure is $218,000.
Mr Nguyen for the husband advanced a number of submissions in relation to these errors.[36] He stated that it is the “substance” of the transfers between the parties that is important, and that these are clearly set out in the Financial Agreement by reference to what item of the asset pool each party is to retain. It was submitted that the values stated in Annexure A, and any errors in relation to those values, are “immaterial”.
[36] Transcript pages 17 – 18.
In circumstances where the errors in the Financial Agreement relate to the proportions the parties were each to receive under the agreement (and the Financial Agreement itself was internally inconsistent in those proportions), I am not satisfied that Mr B identified these errors such that he could have, in any event, properly explained them to the wife pursuant to the requirements of s 90G(1)(b).
Accordingly, I conclude that the Financial Agreement is not binding within the meaning s 90G(1).
Although I have found that the requirement for legal advice in s 90G(1)(b) has not been satisfied, the Financial Agreement can nevertheless be declared binding under s 90G(1A)(c) on the basis that it would be unjust and inequitable if the agreement were not binding on the parties.[37]
[37]Hoult & Hoult [2013] FamCAFC 109 at [288] per Strickland & Ainslie-Wallace JJ.
Given the inadequate legal advice provided to the wife under s 90G(1)(b), the importance that is placed on such legal advice by the legislation, and the blatant errors in the Financial Agreement, I consider that it would be unjust and inequitable if I were to declare that the Financial Agreement was binding on the parties.
Accordingly, the Financial Agreement is not binding.
Should the Financial Agreement be Set Aside?
In view of my conclusion that the Financial Agreement is not binding, it is not strictly necessary to analyse the grounds contended by the wife for setting aside the agreement under s 90K of the Act.
Nevertheless, I will briefly address the remaining grounds for completeness.
The wife contends that the Financial Agreement should be set aside on three bases:
a)The Financial Agreement was obtained by fraud and non-disclosure of material matters pursuant to s 90K(1)(a);
b)The Financial Agreement is void for uncertainty pursuant to s 90K(1)(b), given the numerous errors in the Financial Agreement; and/or
c)The Financial Agreement was procured by the unconscionable conduct pursuant to s 90K(1)(e). The wife refers to the “power dynamics” in the relationship which she alleges were such that she was afraid to question or stand up to the husband, his alleged coercive, controlling and violent behaviour throughout the relationship and immediately prior to the signing of the Financial Agreement and the alleged threats of the husband and his insistence that she sign the Financial Agreement.
The husband denies that the Financial Agreement should be set aside for any of these reasons.
Credibility of witnesses
Before I address each of the wife’s arguments, I will make some brief observations about the credibility of the witnesses.
I consider the wife to be a credible witness and her evidence was similar to that provided by Mr B and the daughter. Notwithstanding some difficulties in the technology used, the wife tried to answer the questions asked of her responsibly and truthfully. The husband’s evidence in cross-examination, at least to some degree, also corroborated the wife’s evidence.
The husband’s evidence under cross-examination differed from that deposed to in his affidavit. For example, in his affidavit material, the husband denied all allegations of family violence alleged by the wife.[38] However, under cross-examination the husband made a number of concessions, most importantly that there were “four or five” instances of physical altercations between the parties throughout the relationship.[39] The husband also deposed that the parties entered into a formal rent agreement that the wife pay him rent to reside in the matrimonial home following the execution of the Financial Agreement.[40] However, under cross-examination, the husband accepted that he had in fact arranged the direct debit transfer without the knowledge or consent of the wife or the daughter. This was in circumstances where the wife and the daughter had already transferred the sum of $504,000 to him for the purchase of the F Street property.[41]
[38] Affidavit of Mr Kaimal signed 6 June 2020, paragraphs 9 – 10, Affidavit of Mr Kaimal signed 7 July 2020, paragraph 39.
[39] Transcript page 82.
[40] Affidavit of Mr Kaimal signed 6 June 2020, paragraphs 34 – 35.
[41] Transcript pages 88-9.
Overall, I prefer the husband’s oral evidence to that provided in his affidavit.
Section 90K(1)(a): Fraud and non-disclosure of material matters
Section 90K(1)(a) of the Act provides that a Court may set aside a financial agreement if satisfied that the agreement was obtained by fraud (including non-disclosure of a material matter).
A Court should not lightly make a finding that a party in civil litigation has committed fraud. As such, the wife bears the onus of providing strong, direct evidence to clearly establish that the husband either:
a)Deliberately engaged in fraudulent conduct in relation to the Financial Agreement; and/or
b)Deliberately did not disclose additional interests in properties he held at the time of executing the Financial Agreement.
Non-disclosure of assets
The wife alleges that the husband did not disclose his interests, at the time of entering into the Financial Agreement, in the following properties:[42]
a)G Street;
b)2 and 2A H Street; and
c)D Street.
[42] Updating and Consolidated Affidavit of Ms Kaimal affirmed 12 June 2020, paragraphs 88-92.
The husband denies having any interest in any of the three properties throughout the marriage and at the time of execution of the Financial Agreement, other than as deposed in his affidavit material.[43]
[43] Affidavit of Mr Kaimal signed 7 July 2020, paragraphs 3 – 7.
As evidence of acquiring interest in the H Street and D Street properties following the execution of the Financial Agreement, the husband provided copies of the following documents:
a)The Transfer document and Title search for the properties situated at 2 and 2A H Street from the husband’s parents to the husband, indicating the transfer occurred in March 2019.[44]
b)The Westpac loan agreement which the husband entered into to renovate the H Street and D Street properties, dated 15 March 2019;[45]
c)A Westpac letter to the husband’s solicitor dated 27 March 2019 enclosing bank statements which indicate that the loan over the D Street property was held in three names (the husband and his parents) at the time the Financial Agreement was executed;[46] and
d)Transfer documents indicating that the interest of the husband’s parents in the D Street property was transferred to the husband on 19 September 2019 for consideration of $1.[47]
[44] Affidavit of Mr Kaimal signed 7 July 2020, Exhibit “B”.
[45] Affidavit of Mr Kaimal signed 7 July 2020, Exhibit “C”.
[46] Affidavit of Mr Kaimal signed 7 July 2020, Exhibit “E”.
[47] Affidavit of Mr Kaimal signed 7 July 2020, Exhibit “F”.
The husband denies having an interest in the G Street property throughout the marriage and at the time the Financial Agreement was executed and the wife did not raise any evidence in relation to this property.[48]
[48] Affidavit of Mr Kaimal signed 6 June 2020, paragraph 61.
I am not satisfied on the evidence that the husband had an undisclosed interest in any of the three properties as alleged by the wife at the time of entering into the Financial Agreement. The documentary evidence advanced by the husband demonstrates that he acquired an interest in the H Street and D Street properties after the Financial Agreement was executed. Nothing advanced by the wife causes me to doubt that evidence. As for the G Street property, the wife provided no evidence in support of this asset being held while the parties were married or when the Financial Agreement was signed.
Given the significance of allegations (and findings) of fraud, the wife has not discharged her onus.
Material representations of the husband as to the value of the pool of assets and his portion thereof which were false and known to the husband to be false
The wife relied on the following evidence in support of her contention that the husband is not a credible witness and is a person who is willing to engage in fraud and who therefore engaged in fraud in procuring her signature on the Financial Agreement: [49]
a)The husband’s misrepresentation of the purchase price of the H Street property on the transfer documents, which the husband claims was on the advice of Mr C, in order to reduce stamp duty;[50] and
b)The husband’s acceptance under cross-examination that there were instances of physical violence between the parties, despite denying all allegations of family violence in his affidavit material.
[49] Transcript pages 112-3.
[50]Affidavit of Mr Kaimal signed 7 July 2020, paragraph 3.
The fact that the husband may have made misrepresentations in the past in relation to his purchase of the H Street property including, potentially, on the advice of his solicitor, or that he made false statements in his affidavit material in these proceedings, does not necessarily imply that he knowingly manipulated or misrepresented the values of assets and the asset pool in the Financial Agreement.
The wife is asking the Court to draw an inference based upon previous behaviour of the husband and his solicitor. While such evidence may be probative, the high threshold required by the Briginshaw principle requires more than this.[51]
[51]Briginshaw v Briginshaw (1938) 60 CLR 336.
An allegation of fraud must be proved to the “reasonable satisfaction” of the Court, [52] by clear, cogent, unequivocal evidence.[53] The evidence and allegations advanced by the wife amounts to no more than “inexact proofs, indefinite testimony, or indirect inferences”, which will not suffice.[54]
[52]Ibid 362-3.
[53] Sinclair & Whittaker [2013] FamCAFC 129 at [89], citing Neat Holdings Pty. Limited v. Karajan Holdings Pty. Limited and Ors (1992) 67 ALJR 170, 450.
[54](1938) 60 CLR 336, 362-3.
Evidence from Mr C would have been helpful in this respect. However, absent any evidence of the discussions between the husband and Mr C and the instructions received, the evidence advanced by the wife does not satisfy the Briginshaw threshold for fraud.
Accordingly, the wife’s argument under s 90K(1)(a) fails.
Section 90K(1)(b): Void for uncertainty
The wife asserts, in her Outline of Submissions, that the Financial Agreement is void for uncertainty because the inconsistencies between Operative Parts 1, 2, 3 and Annexure A are such that the common intention of the parties and the true meaning of the Financial Agreement cannot be discerned.[55]
[55] Outline of Submissions of Ms Kaimal dated 11 August 2020, page 8.
The wife set out the contradiction as follows:
a)On one hand, the wife receives more assets than the husband and the entirety of the F Street Property as set out in Operative Part 1 and Annexure A; and
b)On the other hand, the husband receives most of the assets and the parties divest themselves of an interest in the F Street property to the daughter, as set out in Operative Parts 2 and 3.[56]
[56] Ibid.
The wife relied on the Full Court decision in Kostres & Kostres, in particular the following statements:[57]
127.We are of the view that, while common law principles of construction undoubtedly apply and can be used to avoid absurdity, the terms of the agreement must accurately reflect the intention of the parties at the time of the making of the agreement, and be unambiguous. In other words, the meaning to be given to expressions used in the agreement must be clear and their meaning certain…
128.We accept that in determining whether the agreement is valid, enforceable or effective, the general law relating to contracts, as well as principles of equity, are to be applied. That must be done to give effect to the parties’ intentions at the time of the making of the agreement, and in the context of the statute. The legislature has been careful to include strict requirements if a financial agreement is to be binding, including the requirement of independent legal advice. In those circumstances it is clear the legislature envisaged, because of the nature of these agreements and the removal of the Court’s supervisory role, that parties would receive legal advice about the necessity for their intentions to be accurately and clearly reflected in the actual terms of the agreement.
129.While, for the purpose of construing the agreement a court should, as in the context of a commercial agreement, apply an objective test of a reasonable bystander to the construction of an agreement, it cannot give meaning to an agreement whose terms are so imprecise or ambiguous the parties’ intent cannot be discerned. This is particularly so when regard is had to provisions of Part VIIIA in the overall context of the Act.
[57] [2009] FamCAFC 222 at [127] – [129].
I am satisfied that the errors in the Financial Agreement are material, manifest and infect the entirety of the agreement as to what assets and percentage of the property pool each party was to receive. Given the inconsistencies in the terms of the Financial Agreement, it is impossible for the Court to identify the correct intended meaning on the face of the Financial Agreement. There is also no offending provision of the agreement that can be severed to give certainty to the terms.
Accordingly, in the event I had found the Financial Agreement binding, I would have found that the wife is entitled to have the Financial Agreement set aside on the ground of uncertainty under s 90k(1)(b).
Section 90K(1)(e): Unconscionable conduct
Section 90K(1)(e) of the Act provides that the Court may set aside a financial agreement if the Court is satisfied that, in respect of the making of a financial agreement, a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable. In determining whether this section is satisfied, ordinary principles of law and equity relating to unconscionable conduct apply.[58]
[58]Family Law Act 1975 (Cth) s 90KA.
There was no controversy in this case as to the equitable principles of unconscionable conduct as enunciated by the High Court of Australia in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 (“Amadio”) and more recently in Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 (“Kakavas”). These principles have been reiterated by courts on numerous occasions and are succinctly summarised by the plurality in Thorne v Kennedy (2017) 263 CLR 85 (“Thorne v Kennedy”) as involving two elements:[59]
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.
(Citations omitted)
[59]Thorne v Kennedy (2017) 263 CLR 85 at [38].
For the wife’s argument to succeed, it must be the case that, at the time of signing the Financial Agreement on 30 July 2018, she was subject to a “special disadvantage” which seriously affected her ability to make a judgment as to her own best interests, and the husband knowingly and unconscientiously took advantage of that special disadvantage.
Consideration
The wife contends that she was pressured to sign the Westpac loan agreement and the Financial Agreement at the request of her husband, and was at all times under the impression that she was signing documents to secure a financial investment for the daughter.
The wife relies on her evidence of a history of family violence and dominant and controlling behaviour by the husband, as well as the affidavit evidence of the daughter to the same effect, in support of the argument that she signed the Financial Agreement out of fear of her husband.
In relation to signing the Westpac loan agreement, the wife stated, under cross-examination, that she was “pressured” and “forced” by the husband to sign the documents, and although she knew she was signing documents in order to obtain title to the F Street property, she was “confused and lost”.[60]
[60] Transcript pages 28-9.
The wife made similar statements in relation to signing the Financial Agreement on 30 July 2018, adding that she thought there would be “verbal abuse, physical abuse” if she did not sign the Financial Agreement.[61]
[61] Transcript page 30.
The wife submits that the following factors put her at a ‘special disadvantage’:
a)The husband has greater financial and business acumen particularly given his experience of assisting in his parents’ shop in the past, and, further, that he controlled the parties’ finances throughout the relationship.[62] The wife relies upon the affidavit of the daughter in support of her contention that the husband exercised financial control in the family. In that respect, the daughter deposes to complying with requests from her father to provide her payslips and bank statements to him, and to transfer her savings to him in June 2018, because she “felt afraid of him”;[63]
b)The husband’s concession that he signed a bank authorisation for the direct debit of $480 per week in rent demonstrates that the husband would “take things into his own hands”;[64]
c)At the time of entering into the Financial Agreement, the wife had no properties in her name and was therefore in an inferior bargaining position to the husband;[65]
d)At the time of entering into the Financial Agreement, the wife had limited understanding of the effects and implications of the Financial Agreement, and was under the impression that the sole purpose of signing the document was to secure the F Street property for the daughter;[66]
e)The Financial Agreement was poorly drafted by the solicitor for the husband and contained a number of material errors (aforementioned) that were never brought to the wife’s attention prior to signing the agreement;[67]
f)Following her first appointment with Mr B, the wife was berated by the husband for not having signed the Financial Agreement on that date, and was pressured by the husband to return to Mr B and sign the document;[68] and
g)The wife was fearful of the husband. The wife relies upon her affidavit testimony of having called the police in an alleged instance of physical violence in 1997,[69] being admitted to hospital in 2014 to seek protection from the husband,[70] and consulting a psychologist in 2014 in relation to the alleged abuse.[71]
[62] Transcript pages 8 and 114.
[63] Affidavit of Ms Y Kaimal affirmed on 11 June 2020.
[64] Transcript page 113.
[65] Outline of Submissions of Ms Kaimal dated 11 August 2020 at page 13.
[66] Updating and Consolidated Affidavit of Ms Kaimal affirmed 12 June 2020, paragraphs 36, 50-1.
[67] Transcript page 9.
[68] Updating and Consolidated Affidavit of Ms Kaimal affirmed 12 June 2020, paragraph 46.
[69] Transcript page 28; Updating and Consolidated Affidavit of Ms Kaimal affirmed 12 June 2020, paragraph 15.
[70] Updating and Consolidated Affidavit of Ms Kaimal affirmed 12 June 2020, paragraph 6.
[71] Updating and Consolidated Affidavit of Ms Kaimal affirmed 12 June 2020, paragraph 26
The wife asserts that the husband would have been well aware of these circumstances and conscientiously took advantage of her and their daughter in order to obtain a better financial position by way of the Financial Agreement.[72]
[72] Outline of Submissions of Ms Kaimal dated 11 August 2020 at page 13.
The husband in turn relies on the following points in support of his argument that the wife was not under a ‘special disability’, and that he did not unconscientiously procure her signature of the Financial Agreement:
a)There is no evidence of a consistent pattern of family violence perpetrated by the husband;[73]
b)At the time of executing the Financial Agreement, the wife had been residing in Australia for 30 years, worked as an Educator, and was competent in the English language, which indicates she had the capacity to understand the legal documents she was signing and the implications of signing them;[74]
c)The wife understood that the effect of the Westpac loan documents was that she and the daughter would both receive an interest in the F Street property;[75]
d)Under cross-examination, Mr B stated that the wife did not appear at all afraid or nervous during his meeting with the wife on 30 July 2018 when the wife signed the Financial Agreement;[76]
e)There was at least one month between the date upon which the wife signed the Westpac loan agreement and the date on which she signed the Financial Agreement, and the wife had at least 2 days over the weekend between her first and second appointment with Mr B to read and consider the terms of the Financial Agreement;[77] and
f)The evidence of the daughter is biased.[78]
[73] Transcript page 82-3.
[74] Transcript pages 30-1.
[75] Transcript pages 28 – 30.
[76] Transcript Page 96.
[77] Transcript pages 29-30.
[78] Transcript page 110.
Applying the learning from the High Court authorities of Amadio and Thorne v Kennedy on the facts of this case, I find that the wife’s execution of the Financial Agreement was not procured by unconscionable conduct on the part of the husband.
The threshold for unconscionable conduct is a high one.
In Attorney-General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557, Spigelman CJ held that unconscionability “requires a high level of moral obloquy”.[79] In Kakavas, the High Court plurality used the expression “predatory state of mind” being possessed by the party in the stronger position.[80]
[79] (2005) 63 NSWLR 557 at [121].
[80] (2013) 250 CLR 392 at [161].
I accept the wife’s evidence that she was fearful of arguments ensuing if she questioned the husband in relation to the Financial Agreement or refused to sign the Financial Agreement.
However, I consider there to be a key link of coercion missing between the husband’s conduct and the wife signing the Financial Agreement. There was no ultimatum with severe consequences if the Financial Agreement was not signed.
Whilst the wife was at pains to show there was pressure on her to sign the Financial Agreement, the only evidence of pressure imminently close to the event of signing the Financial Agreement was the husband’s admission under cross-examination that he was waiting in a nearby car park outside of Mr B’s office during the wife’s first meeting with Mr B on 27 July 2018 and the conversation between the husband and the wife following that meeting.
Relevantly, there is no evidence that the husband was in any close proximity when the second (and more critical) meeting took place.
The husband’s misleading behaviour in the past and the fear of repercussions (by way of verbal arguments or physical altercations), which I accept the wife legitimately felt, does not establish that the wife was under a special disability in this situation nor that the husband had a ‘predatory state of mind’ in procuring the wife’s signature.
While the wife may have felt disempowered, I am not satisfied that the wife was so fearful and submissive in the relationship that she was labouring under a ‘special disadvantage’ at the time the parties signed the Financial Agreement.
Furthermore, although the Financial Agreement was drafted by the husband’s solicitor, any assertion that the husband may have sought a better bargain for himself rises no higher than speculation. Speculation is not sufficient to establish unconscionable conduct.
Overall, in my view, the evidence is not strong enough to prove unconscionable conduct on the part of the husband.
Conclusion
I am satisfied that the wife did not receive legal advice in relation to the matters set out in s 90G(1)(b) of the Act. Accordingly, I declare that the Financial Agreement signed by the parties on 30 July 2018 is not binding.
Consequently, the Financial Agreement does not bar either of the parties from applying to this Court for property settlement under Part VIII of the Act.
I am also satisfied that even if the Financial Agreement were legally binding, it should nevertheless be set aside under s 90K(1)(b) on the basis of being void for uncertainty.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Alstergren delivered on 20 November 2020.
Associate:
Date: 20 November 2020
ANNEXURE
“FINANCIAL AGREEMENT UNDER SECTION 90C OF THE FAMILY LAW ACT 1975”
RECITALS
A.HUSBAND was born on … 1965 and is aged 49 years. HUSBAND is currently unemployed.
B.WIFE was born on … 1970 and is aged 48. WIFE is employed as an educator.
C.HUSBAND has not been married before and has no children
D.WIFE has not been married before and has no children.
E.HUSBAND and WIFE were married on … 1989.
F.There are 2 children of the marriage: MS Y KAIMAL born …1993 and MS Z KAIMAL born … 1991.
G.HUSBAND and WIFE separated on 4th September 2013 and the marriage had broken down irretrievably on that date. The parties have lived separately and apart since that date although the parties have not yet divorced. In their opinion there is no reasonable likelihood of co-habitation being resumed
H.In order to arrange their property affairs and avoid litigation the parties have agreed to enter into this agreement under the provisions of section 90C of the Family Law Act 1975 to deal with the division of their property, and their financial resources.
I.In the event that spousal maintenance has not been provided for in this agreement it is due to the fact that the parties have considered sections 72, 74 and 75 of the Family Law Act 1975 and agree that in the circumstances neither party needs the other to maintain them.
J.The parties intend the terms of this agreement to be given effect by any court having jurisdiction to determine financial matters (property and maintenance) in issue between HUSBAND and WIFE pursuant to the Family Law Act 1975.
OPERATIVE PART
This agreement will be binding upon the heirs, executors, administrators and assigns of each party.
1.Assets and liabilities and parties net positions
(a)The assets and liabilities of the parties are set out in annexure “A” hereto. The parties confirm that they agree with the estimated values as set out in annexure “A”.
(b)The parties agree that based on the assets and liabilities set out in annexure “A” the accuracy of which the parties confirm, that the net value of the assets that each party will retain as at the date of this agreement will be as follows and that the parties consider based on their circumstances that this is a fair and just distribution of their assets:
(i) HUSBAND: $232,000.00 plus interest in life policy
(ii) WIFE: $341, 000.00 plus interest in life policy
2.Payment
Within 14 days of the date of this agreement (the date), WIFE shall pay to HUSBAND the sum of $504,000.00.
3.Transfer of real property
(a)The real estate situated at F Street, Suburb E in the state of New South Wales and more particularly described as all that parcel of land contained in certificate of title folio identifier … (“the transfer property”), currently registered in the name of HUSBAND shall be transferred by HUSBAND to:
(i) WIFE as to a 50% share;
(ii) MS Y KAIMAL (child of the marriage) as to a 50% share.
(b)Contemporaneously with the signing of this agreement
(i) WIFE shall assume all liability for and indemnify HUSBAND against all rates, taxes and outgoings of or with respect to the transfer property of whatsoever nature and kind current and future.
(c)WIFE transfers to HUSBAND all of the rights title and interest she has in the property at D Street, Suburb E, NSW, more particularly described as all that parcel of land contained in certificate of tile folio identifier … (“D St”), in which land HUSBAND has a one third interest.
4.Chattels
WIFE and HUSBAND shall each retain to the exclusion of the other all household furniture, Jewellery, and all other chattels in their respective possession.
5.Superannuation
Each party retain their superannuation entitlements to the exclusion of the other party.
6.Omnibus
Unless otherwise specified herein and save for the purpose of enforcing any money due under the terms of this agreement:
(a)The parties be solely entitled to the exclusion of the other to all other property, including choses-in-action, in the possession of such party as at the date of the signing of this agreement.
(b)Insurance policies remain the sole property of the owner named thereon;
(c)Bank accounts be retained by the account holder, and any joint accounts be closed and the balance divided equally between the parties;
(d)Subject to this agreement each party be solely liable for an indemnify the other against any liability encumbering any time of property to which that party is hereby entitled pursuant to this agreement; and
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
7.Independent legal advice
That the parties each state and warrant to the other party that as recorded in this agreement and as certified in an annexure to this agreement that before this agreement was signed by him or her, he or she was provided with independent legal advice from a legal practitioner on the following matters:
(a)The effect of the agreement on the rights of that party; and
(b)The advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement.
8.Taxes
The parties agree that they will sign all documents and do all things including the making of consent orders to ensure that the burden of any stamp duty or taxes is minimised and roll over relief when applicable obtained.
9.Claims for provision out of the estate of a deceased party
This clause is severable from the rest of this agreement:
(a)Subject to the approval of the Supreme Court of pursuant to the legislation relating to the release of rights to apply for a provision order, the husband and the wife each releases his or her rights to make an application in relation to the estate of the other pursuant to such legislation;
(b)The husband and the wife each gives that release in consideration of the other terms of this agreement;
(c)The husband and the wife acknowledge that it is to his and her advantage in the light of the terms of this agreement to grant the release;
(d)The husband and the wife acknowledge the terms of this agreement and that they have taken into account the position of the other in the event of the death of the other;
(e)The husband and the wife accept that for the purposes of the Act the provisions of this agreement including this release are fair and reasonable; and
10.
At any time after the execution of this agreement the husband or their wife or their legal representative may request the other party or their legal representative to join in an application to the Supreme Court, at the cost of the one requesting, for the approval of this agreement to relinquish all claims under the Act. If such a request is made, the other covenants to comply with such request and to do all things reasonably necessary to obtain the approval.
NoticesA notice or other communication to a party must be in writing and delivered to that party or that party’s practitioner in one of the following ways:
(a)Delivered personally; or
(b)Posted to their address when it will be treated as having been received on the second business day after posting; or
(c)Faxed to their facsimile number when it will be treated as received when it is transmitted; or
(d)Sent by email to their email address, when it will be treated as received when it enters the recipient’s information system.
11.Governing law and jurisdiction
(a)This agreement is governed by the laws of the Commonwealth of Australia
(b)Each party irrevocably submits to the non-exclusive jurisdiction of the courts of the Commonwealth of Australia.
12.Further assurance
Each party will from time to time do all things, including executing all documents, necessary or desirable to give full effect to this agreement.
ANNEXURE A – Assets and liabilities
Assets
Owner
Agreed estimated value
1. F St Suburb E
(WIFE)
$750,000.00
2. Motor vehicle
(WIFE)
$24,000.00
3. Jewellery
(WIFE)
$10,000.00
4. Superannuation
(HUSBAND)
$60,000.00
5. 67 D Street Suburb E
(HUSBAND 1/3 share)
$400,000.00
6. Superannuation
(WIFE)
$19,000.00
7. Savings St George
(WIFE)
$42,000.00
8. Life policy
(WIFE)
$100,000.00
9.
10.
Total Assets:
$1,405,000.00
Liabilities
Agreed estimated value
1. Mortgage to Westpac on D St
(HUSBAND)
$106,500.00
2. Personal debt
(HUSBAND)
$120,000.00
3. Westpac Credit Card
(HUSBAND)
$2,000.00
4. Mortgage to Westpac on Transfer property
(WIFE)
$504,000.00
5.
6.
Total liabilities:
$732,500.00
Total net assets of HUSBAND and WIFE
$672,500.00
(Extracted from Exhibit A1 to the Updating and Consolidated Affidavit of Ms Kaimal affirmed 12 June 2020)
- AGLC
- Kaimal & Kaimal [2020] FamCA 971
- Case
- [2020] FamCA 971
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the financial agreement met the stringent requirements for validity stipulated by section 90G of the *Family Law Act 1975* (Cth). Specifically, the Court had to consider whether the agreement was properly executed and if the parties had received the necessary independent legal advice prior to signing.
The Court declared that the financial agreement was not binding within the meaning of section 90G of the *Family Law Act 1975* (Cth). While the specific reasoning for this declaration is not detailed in the provided text, the outcome indicates that at least one of the statutory requirements for a binding financial agreement was not satisfied. The Court then ordered the parties to file evidence and submissions regarding costs, with the issue of costs to be determined on the papers.
Orders
Orders of the court
1.
IT IS DECLARED THAT the financial agreement signed by the husband and the wife on 30 July 2018 is not binding within the meaning of s 90G of the Family Law Act 1975 (Cth).
2.
The parties file any affidavit evidence and an outline of submissions in relation to costs by 4.00pm on Friday 27 November 2020.
3.
The issue of costs be determined on the papers without the need for oral hearing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.