Catchwords: FAMILY LAW – Pre-marriage financial agreement – property – maintenance – application to set aside financial agreement – whether a financial agreement – whether agreement void, voidable or unenforceable – allegations of duress withdrawn – allegations of undue influence withdrawn – unconscionable conduct – applicable principles – Thorne v Kennedy (2017) 263 CLR 85 distinguishable – whether applicant at special disadvantage – whether disadvantage seriously impeded applicant’s ability to make decision to enter agreement – whether improper advantage taken – where parties each attended upon independent lawyer and obtained advice – certificates issues by lawyers – forensic onus not discharged – application to set aside agreement refused – whether agreement binding – declare agreement void insofar as it purported to exclude or limit the power of a court to make an order for maintenance – orders permitting applicant to amend application to pursue application for maintenance – orders permitting respondent to amend response to seek order that agreement binding.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
LEUNG & FAN [2020] FCCA 764
Case
[2020] FCCA 764
Decision Date
CaseChat Overview and Summary
In the Family Court of Australia, Judge A Kelly considered an application by the applicant to set aside a pre-marriage financial agreement made in 2009 between the applicant and the respondent. The applicant alleged unconscionable conduct in the formation of the agreement, having withdrawn allegations of duress and undue influence.
The court was required to determine whether the financial agreement was void, voidable, or unenforceable due to unconscionable conduct. Specifically, the court had to assess whether the applicant was under a special disadvantage that seriously impeded her ability to make a decision to enter the agreement, and whether the respondent took improper advantage of such a disadvantage. The court also considered whether the agreement complied with the formal requirements of the *Family Law Act 1975* (Cth), particularly section 90G.
The court reasoned that while the applicant had attended upon independent legal advice and certificates were issued, the forensic onus to prove unconscionable conduct had not been discharged. The court distinguished the present case from *Thorne v Kennedy* (2017) 263 CLR 85, finding that the applicant had not established a special disadvantage that was exploited. However, the court found that the agreement was not binding due to non-compliance with s 90G(1)(c) of the Act, as neither the applicant nor her solicitor received a statement signed by the respondent's solicitor following execution.
Consequently, the court declared that the agreement was void insofar as it purported to exclude or limit the court's power to make maintenance orders. The court also declared the agreement not binding due to the s 90G(1)(c) non-compliance. Orders were made permitting the applicant to amend her application to pursue maintenance and the respondent to amend his response to seek a declaration that the agreement is binding. The costs of the preliminary hearing were reserved.
Orders
Orders of the court
1.
Declare that insofar as cll.17 or 19 of the agreement made between the parties in 2009 (agreement) purport to exclude or limit the power of a court to make an order for maintenance, it is void.
2.
By 4.00pm on 1 May 2020, the applicant file and serve any Third Amended Initiating Application so as to pursue any application for maintenance.
3.
Declare that the agreement is not binding by reason of non-compliance with s.90(1)(c) of the Family Law Act 1975 (Cth) (Act) in that, following execution of the agreement, neither the applicant nor her solicitor was provided a statement signed by the solicitor who had proffered legal advice to the respondent in accordance with s.90(1)(b) of the Act.
4.
By 4.00pm on 15 May 2020, the respondent file and serve any amended Response so as to seek a declaration pursuant to s.90G(1B) of the Act, that the agreement is binding.
5.
Upon the preliminary determination of whether the agreement should be set aside, the application for such declaratory relief be dismissed.