Milavic and Banks (No 2) - [2016] FamCA 884

FAMILY COURT OF AUSTRALIA

MILAVIC & BANKS (NO. 2)

[2016] FamCA 884

FAMILY LAW – PROPERTY – FINANCIAL AGREEMENT – where the de facto husband claims the financial agreement is not binding or if it is binding that it be set aside pursuant to s 90UM of the Family Law Act 1975 (Cth) – where the husband alleges that: he was not given “proper legal advice” in relation to the effect of the agreement; he was under duress when signing the agreement; the wife engaged in unconscionable conduct; and as a result of a material change in circumstances he and a child of the relationship would suffer hardship if the agreement was not set aside – where there are two children of the relationship one of whom was born with autism after the financial agreement was signed – where the de facto wife had significant lottery winnings – finding that the husband was provided with the prescribed independent legal advice – finding that the husband did not enter into the agreement under duress or undue influence – finding that the wife did not engage in unconscionable conduct – finding that there was a material change in circumstance – finding that neither the husband or the child would suffer the requisite hardship if the agreement was not set aside – orders made dismissing the de facto husband’s application.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Elford & Elford [2016] FamCAFC 45
Garden & Gavin (No 2) [2010] FamCAFC 125
Hoult & Hoult (2013) FLC 93-546
Logan & Logan (2013) FLC 93-555
Pascot& Pascot [2011] FamCA 945
Saintclaire & Saintclaire [2015] FamCAFC 245
Zyk and Zyk (1995) FLC 92-644

APPLICANT:

Mr Milavic

RESPONDENT:

Ms Banks

FILE NUMBER:

DGC

212

2007

DATE DELIVERED:

19 October 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

11, 12, 13 & 14 May, 20, 21 & 22 July, and 9, 10, 11, 12 November 2015, 22 March and 1, 2, 3 & 4 August 2016

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Wheeler

SOLICITOR FOR THE RESPONDENT:

Sam Holt

Orders

Paragraph 1 of the de facto husband’s Response (Property/Maintenance) seeking orders pursuant to s 90UM of the Family Law Act 1975 (Cth) setting aside the Financial Agreement signed by the parties on 15 July 2010 be dismissed.
On or before 4.00 pm on 9 November 2016 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the hearing of this matter.
On or before 4.00 pm on 23 November 2016 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to the hearing of this matter.
The question of costs be determined based upon the parties’ written submissions subject to leave being sought to make oral submissions.
All extant applications, save and except for any applications for costs, be otherwise dismissed and the matter be removed from the list of pending cases awaiting 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 Milavic & Banks 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: DGC 242 of 2007

Mr Milavic

Applicant

And

Ms Banks

Respondent

REASONS FOR JUDGMENT

When it started, this case involved two distinctively different issues, the first being how much time the two young children of the relationship should be spending with their father, the de facto husband in this case, and over what time frame their time with him should be increased and secondly whether the binding financial agreement executed by him and the mother, the de facto wife, on 15 July 2010 (“the Agreement”) should be set aside and if so on what basis. For convenience I propose in my reasons to refer to the de facto husband and wife as the husband and wife.
The matter was heard over 10 days between May and November 2015 and on 12 November 2015 judgment was reserved. Shortly thereafter the wife moved residence and there was a dispute between the parties as to which schools the children should attend and as a result of which the parenting proceedings were reopened. The further hearing of the parenting proceedings commenced on 1 August 2016 and on 4 August 2016 orders were made by consent finalising all parenting issues.
The only outstanding issue for determination is the question of whether the Agreement is binding and in the event that it is whether it should be set aside.

Background

The husband was born in 1983 and is now 33 years of age. The wife in this case was born in 1974 and is now 41 years of age. The parties met in January 2005 and commenced cohabitation in July of that year. The wife was 31 years of age and the husband was 23 years of age at the time they commenced living together.
The parties’ first child B was born on in 2006 and is now 10 years of age. The parties separated for the first time in May 2006 a matter of months after the child’s birth. On 3 October 2006 orders were made by consent in the Federal Magistrates Court of Australia at Dandenong (as it then was) which provided for the child to live with the wife and spend time with the husband for two hours each Thursday and Saturday and that the parties have equal shared parental responsibility for the long term care of the child and sole parental responsibility for the day to day care of the child while she is living in their care.
On 23 January 2007 the husband issued an application for contravention alleging breaches by the wife of the orders for him to spend time with the child B between October 2006 and January 2007.
On 15 February 2007 the husband withdrew his application for contravention and he and the wife consented to final orders increasing the time he spent with the child from 12 noon to 3.00 pm each Saturday and from 4.30 pm to 7.00 pm each Thursday and at such other times as agreed by the husband and the wife.
On 14 February 2008 the husband filed an Initiating Application seeking further parenting orders and on 25 March 2008 paragraph 3 of the orders made 15 February 2007 was discharged and further orders were made by consent which provided that the child spend from 5.00 pm Monday until 7.30 am each Tuesday and from 5.00 pm Friday until 3.00 pm Saturday each week and at such other times as agreed with the husband.
In late 2009 whilst the parties were still separated the wife received lottery winnings of approximately $12 million.
In 2010, after a family holiday, the husband and wife reconciled, eventually moving into a property the wife purchased in Suburb K in April 2010.
Although there is a dispute as to how and when the husband became aware of the wife’s lottery winnings it is clear from the recitals to the Agreement that when the husband signed the Agreement on 15 July 2010 he was aware of the wife’s windfall.
The wife was pregnant with their second child C when they signed the Agreement. The younger child was born in 2011. Albeit it took some time the younger child has now been diagnosed as meeting the diagnostic criteria for Autism Spectrum Disorder with speech impairments and significant developmental delays. Dr H in the conclusion of her Psychological Assessment Report described the child as having a moderate level of autism spectrum-related symptoms.
On 31 July 2015 I made orders that the parties attend upon Dr N to be psychiatrically assessed. Although Dr N in his Psychiatric Report dated 5 November 2015 referred to the parties remaining “in flux in regards to the status of their relationship”, that their mutual ambivalence about their relationship “…highlights a level of co-dependency, helplessness and symbiosis” and although the parties continued to holiday as a family until late 2015/early 2016, they had by in or about June 2013 stopped living together in the same residence.
Pursuant to the final parenting orders made by consent on 4 August 2016 the husband and wife have equal shared parental responsibility for the children of the relationship, the children live with the wife and spend time with the husband each alternate weekend from after school on Friday until the commencement of school on Monday, from after school each Wednesday until the commencement of school each Thursday and for half of all school holidays, commencing in 2017.

Material Relied Upon

The husband relied upon the following documents:
·Amended Response filed 1 December 2014;
·his Affidavit filed 20 March 2015;
·his Affidavit filed 1 May 2015;
·his Affidavit filed 6 May 2015;
·his Outline of Case.
The wife relied upon the following documents:
·her Affidavit filed 24 April 2015;
·her Outline of case.
The wife also sought to rely on following Affidavits in relation to parenting matters, some of the evidence therein being also relevant for the purposes of the husband’s application with respect to the Agreement:
·her Affidavit filed 5 January 2015;
·her Affidavit filed 22 July 2013;
·her Affidavit filed 24 January 2014 (in part);
·Affidavit of Ms NN filed 24 April 2015;
·Affidavit of Ms BB filed 27 April 2015;
·Affidavit of Dr H filed 11 May 2015;
·Affidavit of Dr O filed 11 May 2015;
·Affidavit of Ms Q filed 11 May 2015;
·her Affidavit sworn 25 August 2006 in previous proceedings (Exhibit M1);
·her Affidavit sworn 27 September 2006 in previous proceedings (Exhibit M2).
In the parenting proceedings the Independent Children’s Lawyer relied upon the following documents some of which were also relevant to the husband’s application to set aside the Agreement. Those documents were as follows:
·Family report prepared by Ms W dated 15 July 2016;
·Affidavit of Ms F filed 1 July 2016;
·Report prepared by Dr N dated 5 November 2015; and
·Family Report prepared by Ms D dated 24 April 2015.
Each of the parties filed further affidavits and outlines of their respective cases after the case was re-opened.

The Evidence

Both the husband and wife gave limited oral evidence in chief and were cross-examined at length albeit it is fair to say that the cross-examination was focussed primarily on the parenting issues rather than the Agreement and whether it should be set aside. I have also had the benefit of observing the appearance and demeanour of both the husband and the wife throughout what was a lengthy hearing.
The husband who represented himself was generally a good witness albeit I am satisfied that at times he did tend to embellish or exaggerate certain aspects of his evidence in order to advance his case.
I cannot say the same about the wife. The wife presented, as described by Dr N, as “notably histrionic” and “prone to embellishment and exaggeration”. Dr N described her as having “...provided an inconsistent and contradictory account of her relationship with [the husband]”. This is consistent with my observations of her evidence generally. She was argumentative, confrontational and tended to focus on what she wanted to say rather than answer what she was being asked. As described by Dr N the wife “…launched into irrelevant monologues highlighting her wealth, links to named celebrities (e.g Eddie McGuire, Wayne Gardener, Peter Brock, Lindsay Fox, AFL fottballers (sic))” and made reference to her attractiveness to men, evidence which was neither relevant to the issues in dispute nor appropriate. These unusual aspects of the wife’s behaviour were some of the matters I took into account when concluding that the Court would be assisted by expert psychiatric evidence. The wife’s evidence was unconvincing and generally speaking where there is a dispute between her evidence and the husband’s evidence I prefer his evidence.
That being said and for reasons which I will discuss later in these reasons this was not a case which turned to any significant extent on the credit of the parties.

Legislative Provisions in relation to Financial Agreements

Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) makes provision for parties living in a de facto relationship to enter into a financial agreement before during or after the breakdown of that relationship. Section 90UC(1) of the Act provides that an agreement is a Part VIIIAB financial agreement if:
(a)while in a de facto relationship, the parties to the de facto relationship make a written agreement about any of the matters mentioned in subsection (2) in the event of the breakdown of the de facto relationship; and
(b)at the time of the making of the agreement, the parties to the de facto relationship are not the spouse parties to any other Part VIIIAB financial agreement that is binding on them with respect to any of those matters; and
(c)the agreement is expressed to be made under this section;
…
The parties to the de facto relationship may make the Part VIIIAB agreement with one or more other people.
A financial agreement can deal with how all or any of the property or financial resources of one or both of the parties to that agreement at the time the agreement is made or later during the de facto relationship, is to be distributed, the maintenance of the parties and ancillary matters (s 90UC(2) of the Act).
Section 90G(1) of the Act provides that a financial agreement is binding on the parties 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.
Section 90UJ(1A) of the Act provides that a financial agreement is binding even when one or more of paragraphs (b), (c) and (ca) of s 90UJ(1) of the Act have not been satisfied but the Court is satisfied it would be unjust and inequitable if the agreement were not binding and the Court makes a declaration that the agreement is binding on the parties. When an agreement satisfies the requirements of s 90UJ(1) of the Act or the Court declares that the agreement is binding on the parties the provisions of Part VIIIAB of the Act with respect to the financial matters or financial resources which include any entitlement a party may have had pursuant to that part of the Act for property settlement or maintenance do not apply (s 90SA(1) of the Act).

Issues

The basis upon which the husband put his case was not always clear and at times it seemed he did not have a clear understanding of the difference between whether or not the Agreement was binding and the Court’s powers to set that Agreement aside. The focus of the husband’s case also shifted somewhat during the hearing. Doing the best I can based upon both the husband’s Amended Response filed 1 December 2014, his Outline of Case, his Affidavits of evidence in chief and the document he filed on 8 May 2015 described as the Respondent’s Brief Summary of Issues it was his case that:
·the Agreement was not binding as he had not received “proper legal advice” in relation to the effect of the Agreement upon his rights or about the advantages or disadvantages of entering into the Agreement;
·if the Court were satisfied that the Agreement is binding or declares it to be so, that Agreement should in any event be set aside on the grounds that:
(a) he had signed the Agreement under duress; and
(b) the wife had engaged in unconscionable conduct;
·since the making of the Agreement the younger child, who was born some months after the parties entered into the Agreement, has been diagnosed as being on the autism spectrum and as a result both the child and the husband who has caring responsibility for the child will suffer hardship if the Agreement is not set aside.
Although by the conclusion of the case the husband’s case was focussed primarily on the third of these issues I propose to address all three issues.
Counsel for the wife also submitted that the husband in his application had sought to rely upon s 90K of the Act in circumstances where the parties had never been married. Although that is the case I do not consider that the husband’s reference to s 90K of the Act instead of s 90UM of the Act, in circumstances where he is representing himself and the nature of his application is clear, is fatal to his case.

Onus of Proof

It is the wife who in this case seeks to rely upon the Agreement and who accordingly bears the onus of proving the matters prescribed by s 90UG(1), including the provision of legal advice, in order to establish that the Agreement is binding (Hoult & Hoult (2013) FLC 93-546 (“Hoult”)). However as Thackray CJ said in Hoult at paragraph 62 “…once the party seeking to rely upon the agreement produces in evidence the certificate signed by the other party’s solicitor, there is a forensic obligation on the other party to adduce evidence which would disprove, or at least throw into doubt, the inference or conclusion to be drawn from the certificate…”.
As Thackray CJ said in Hoult and a differently constituted Full Court confirmed in Logan & Logan (2013) FLC 93-555, the Court is not required to enquire into the content of the legal advice but just be satisfied that it was given. It is therefore for the husband in this case, the certificate signed by the husband’s solicitor being attached to the Agreement, to meet the forensic burden either disproving or casting doubt upon the inference to be drawn from that certificate, and thereafter leaving the onus of satisfying the Court that that advice was given, as is required, upon the wife.
However it is also the case that although the onus of establishing that the Agreement is binding lies upon the party asserting that to be the case, the onus shifts to the other party, in this case the husband, in circumstances where he is asserting that the Agreement should be set aside on the grounds that he signed the Agreement under duress, the wife’s conduct was unconscionable, or that either he or a child would suffer hardship if the Agreement were not set aside.
The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that in applying that standard and without limiting the matters the court may take into account it must take into account:-
(a)the nature and cause of action or defence;
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.

Is the Financial Agreement Binding?

The Agreement which was annexed to the wife’s Affidavit of evidence in chief filed 24 April 2015 was signed by the parties on 15 July 2010. The recitals to that Agreement included the following that:
·the Agreement was made pursuant to the provisions of s 90UC of the Act;
·the husband and wife having had a previous relationship between 2005 and 2006 commenced a de facto relationship as defined in s 4AA of the Act on or about 19 April 2010;
·the husband was 27 years of age and was engaged in full time employment as a Financial Officer and was able to support himself without an income tested pension, allowance or benefit;
·the wife was 35 years of age, was engaged in home duties and was able to support herself without an income tested pension, allowance or benefit;
·prior to the commencement of the relationship each of the parties had assets and resources held independently of the other party and without contribution from the other party;
·in late 2009, prior to the commencement of their relationship the wife had won a lottery, in the sum of $12,000,000 and that the husband acknowledged that he had made no contribution to and nor any involvement in the lottery win and that he had no claim to any part of the wife’s winnings or any asset or resource acquired by the wife with her winnings;
·the parties acknowledged that neither of them had contributed to the property or resources of the other during the relationship to the date they signed the Agreement and their separate property was set out in Appendix A and B of the Agreement;
·the parties each acknowledged the substantial disparity between their respective incomes and financial resources and that such disparity might be greater in the future and that they had had regard to the possibility that one or both of them might be subject to a change of circumstances such as:
(a)serious illness, injury (including permanent incapacity) or mental incapacity;
(b)the loss of any or all of their separate property;
(c)the significant increase or decrease in the value of any or all of their separate property;
(d)the acquisition of further separate property;
(e)any increase in the amount and net value of the separate property or financial resources of one party relative to the other;
·the husband and wife intended in the event of either irretrievable breakdown or the death of one or other of them to:
(a)define their financial rights and responsibilities to each other;
(b)exclude the operation of Part VIIIAB of the Act;
(c)extinguish any claims which either might have for family provision under Australian legislation, State or Federal in the event of the death of one or other of them.

Significantly for the purposes of the matters I must determine the recitals also included the following:
·that both the husband and the wife acknowledged that they had each received separate independent legal advice from a legal practitioner as to the following:
(a)the effect of the Agreement on that party’s rights;
(b)the advantages and disadvantages of them making this Agreement at the time the advice was provided;
·that both the husband and the wife acknowledged that they had knowledge of the financial circumstances of the other party, that they each relied upon the disclosure contained in the appendices to the Agreement, that each party had afforded the other with the opportunity for further enquiry and investigation as to the current financial position of the other but that neither party wished to make any further enquiry or investigation; and
·that each party was entering into the agreement “freely and willingly and without any pressure from the other party to do so” (emphasis added).
Certificates of Independent Legal Advice signed by the wife’s solicitor Mr Sam Holt and the husband’s solicitor Mr Neill Ogge both dated 15 July 2010 were attached to the Agreement (“the Certificates of Independent Legal Advice”).
The recitals and appendices were incorporated in the terms of the Agreement which included the following provisions:
·that during the relationship the wife was to meet all joint household living expenses;
·that within 14 days of service by the wife upon the husband of a separation declaration in accordance with the provisions of s 90UF of the Act the husband was to vacate the property at Suburb K or such other property in which the parties were residing;
·that both the husband and the wife were to retain their separate property;
·that any real or personal property acquired by the husband and the wife jointly during their relationship was to be divided in the proportions of their respective direct financial contributions with the wife to have first option to acquire the husband’s interest in any jointly acquired property;
·that unless nominated as a beneficiary neither the husband nor the wife was to have any claim against the other’s superannuation entitlements whether acquired or accrued in whole or in part during the relationship; and
·that each of the husband and the wife relinquished any claim they might have to spousal maintenance or property settlement pursuant to the Act.
Not only were the recitals to the Agreement incorporated in the body of the Agreement, there was in addition a clause in the Agreement by which the parties acknowledged and warranted that as recorded in the Certificates of Independent Legal Advice they had each had individual advice from their respective legal advisers in relation to the effect of the Agreement on their rights and the advantages and disadvantages to them of entering into the Agreement.
It is the wife’s case that the Agreement satisfied all the requirements of s 90G of the Act and in particular that a Certificate of Independent Legal Advice is prima facie proof of the fact that the husband was given the requisite independent legal advice.
The husband deposed in his Affidavit filed 20 March 2015 that he first heard about the Agreement in July 2010. At the commencement of his evidence he said that the Affidavit should have read June 2010. There was otherwise no evidence with respect to the issue of what if any legal advice he had received prior to signing the Agreement. In paragraph 7(f) of his Affidavit filed 1 May 2015 in reply to the wife’s Affidavit of evidence in chief filed 31 April 2015, shortly before the commencement of the final hearing, the husband deposed, albeit he said it was in support of his case as to the Agreement being void or unenforceable, as follows:
In respect to Mr Neil Ogge’s advice on the agreement. It was very brief and lacked any in depth explanations of what I could potentially be dealing with if I signed the agreement and we separated. I don’t remember going through anything in detail or any advantages or disadvantages of me entering into the agreement.
He later deposed in that same Affidavit at paragraph 16(a) that he “was not given proper legal advice sufficient enough to understand what [he] was signing and the repercussions of doing so in respect to the contract being void and unenforceable”.
The husband filed a further Affidavit on 6 May 2015 in which he deposed at paragraph 5 that “… The advice was very minimal we breezed through the document and I spoke eye to eye with Mr Ogge for less than an hour. I don’t recall going through any advantages or disadvantages of entering into the agreement with him at all”. The husband also described the advice he received as “very obscure and negligible advice”.
In his Affidavits the husband complained about Mr Ogge’s lack of co-operation when he asked him for information from his file and he had issued a subpoena to Neill Ogge Lawyers filed 15 April 2015 requiring Mr Ogge to produce that file. Neither the wife nor the husband sought to call Mr Ogge as a witness in the case however the husband waived his legal professional privilege over the file notes produced by Mr Ogge on 11 May 2015 pursuant to subpoena and those file notes were tendered by the husband (“the file notes”). Both the husband and counsel for the wife relied upon those file notes in support of their respective cases, albeit not always the same parts of those documents.
The wife also tendered correspondence passing between the husband’s solicitor Mr Ogge and her solicitor Mr Holt which she said contradicted the husband’s case that he knew nothing about the Agreement until June 2010. That correspondence demonstrates and I am satisfied that that was clearly not the case. The first letter is a letter sent to the husband by Mr Holt dated 20 May 2010 advising the husband that the wife wanted a binding financial agreement, enclosing a form of the agreement and asking the husband to take the document to his solicitor to obtain advice.
The next letter is a letter emailed by Mr Ogge the husband’s solicitor to Mr Holt on 10 June 2010 advising Mr Holt that he had been instructed by the husband to provide advice in relation to the agreement drafted by Mr Holt and asking for a copy of the wife’s list of separate property.
Mr Ogge sent a further letter to Mr Holt by email dated 22 June 2010 in which he raised the issue of what might happen if the husband were to be unable to work due to illness or accident and the relationship broke down. Mr Ogge advised Mr Holt that although he had not received instructions from his client he intended to discuss this issue with the husband.
On 23 June 2010 Mr Ogge sent a further email to Mr Holt attaching the husband’s list of assets and liabilities and in which he advised that the husband had “arranged to see me again at 10:30am on 2 July 2010” and that in the mean time the husband would further consider the terms of the agreement and listing what he described as the husband’s “major present concerns”. Those concerns were described by Mr Ogge as follows:
·what happens in the case of his inability to work due to incapacity (see my email to you dated 22 June 2010); and
·clause 7 – he does [not] think that allowing 7 days for him to find alternative accommodation is realistic.
He would like the clause to read:
“….within 7 days (or such other reasonable time as it takes [the husband] to find other suitable accommodation)…”
The final email was the email sent by Mr Ogge to Mr Holt on 2 July 2010 following his attendance with the husband in which he advised that the husband had attended that day to sign the binding financial agreement but that he had been unable to present him with a final draft. He also listed a number of further amendments which were typographical corrections rather than substantive amendments.
The file contained an undated letter from the husband to Mr Ogge in which he wrote as follows:
To Neill,
I would appreciate if you could look over this document for as I am unfamiliar with the process and with some of the sections it entails. When ready if we could book some time so that you could explain any further processes that have to be undertaken. It would be very much appreciated if this could be done ASAP.
Kind Regards
[The husband]
…
Although the letter to Mr Ogge is undated the file notes show that on 11 June 2010 the husband attended a conference with Mr Ogge. According to the file notes that conference went for 30 minutes. Mr Ogge’s handwritten notes of that conference include the following:
…
Have a child together:-
·          a bond – 4 ½ years
·          child will be supported whatever happens
Clearly great financial benefits for U in maintaining the relationship
·          no financial worries as a family;
·[The wife] will pay “any joint household living expenses” (para 8, page 8);
·          U will only have to meet “personal expenditure”;
·          great opportunity to save money.
·          Presumably she’ll buy items for [the husband].
·          Opportunity to acquire joint property – Para 12, Page 11.
·          Signing the Agreement will be good for the relationship – allay [the wife’s]               suspicions
U (a)    “… no claim for maintenance on the estate of the other”
·        Wd not prevent a will challenge if [the husband] excluded from [the wife’s] will
·        What if [the wife] killed in a car crash & [the husband] badly injured?
ADVICE
·The agreement is in [the wife]’s interest in the sense that it seeks to limit [the husband’s] rights.
oExplained to [the husband] that the prima facie position with any property dispute is contribution, however, there are other factors and this agreement seeks to abolish /restrict those rights
[THE HUSBAND]
·          Psychologically it is difficult: [the wife] has all the financial
power.
·          [The husband] wants to feel it is joint enterprise.
GOING FORWARD
·          NAO will attach statements of A & L to the agreement.
·          NAO will send a letter to [the husband].
·          [The husband] will attend here to sign it.
Although Mr Ogge’s notes refer to him sending a letter to the husband there is no letter in evidence before me. It was not part of the husband’s case that he should have but had not received a letter from Mr Ogge.
There is also a handwritten file note of a further appointment between 10.30 and 11.00 am on what appears to be 27 June 2010 in which Mr Ogge records the following:
PRO/S
·          It will increase the level of trust between you.
·          You will be able to accumulate private wealth whilst they are   together.
·          You will enjoy a high standard of living whilst you are together
·          You will enjoy a high standard of living for the rest of your life if                    the relationship endures.
CONS
·No claim on [the wife]’s assets if the relationship dissolves
·          Consequently A reduced standard of living if the relationship fails
·          Not signing will increase the level of distrust between you.
OPTIONS
·          Sign as is +; or ---- In your position I would sign
·          Negotiate the terms ---- What wd happen if [the husband] can’t work & they separated?
+ any reservations – don’t sign.
[The husband] wants
(1)         7 days or such reasonable time as it takes [the husband] to find other suitable accommodation
(2)         Clause covering the accident scenario
NAO explained the scenario where, after 10-15 yrs, the relationship ends & his standard of living is reduced dramatically – Sydney waiter case
[The husband] replied saying, by then, he should have accumulated his own money & he does not want anything belonging to her.
[The husband] is conscious of:-
·          [The wife] paying all expenses; and
·          The child (or children) being looked after.
MOVING F’WD:
·          NAO will send [the husband’s] list to Sam;
·NAO will mention [the husband’s] concerns (1) & (2) (supra) to Sam
·[The husband] will have another read of the agreement & raise any additional concerns with NAO. However, at this stage, [the husband] is more or less happy with the agreement.
·          Appointment for Friday 2 July @ 10.30 am.
Finally there is a handwritten file note of a telephone attendance with the husband on 2 July 2010 in which Mr Ogge records the following:
·          He’s happy with the Agreement apart from the 2 changes he’s asked      for.
·          Ask SH to make the amendments & he’ll come in & sign it.
·          Cost $2K + GST
The Agreement was signed by the husband on 15 July 2010 allowing him a further period of almost two weeks to reconsider his position.
It was not part of the case that the parties had not been provided with a signed statement by their respective legal practitioners to the effect that they had received the requisite independent legal advice. In this case those statements were annexed to the Agreement. Nor was it put that Mr Ogge was not independent. The question in this case is whether before the Agreement was signed Mr Ogge provided the husband with legal advice about the effect of the Agreement upon his rights and about the advantages and disadvantages at that time of the husband entering into that Agreement.
Not only is there a Certificate of Independent Legal Advice annexed to the Agreement attesting to that legal advice having been given in this case there is reference in both the recitals and the body of the Agreement itself as to that being the case. It is also the case that both the recitals to the Agreement and the provisions of the Agreement make clear the effect of that Agreement upon the husband’s rights.
Although as previously discussed I generally prefer the husband’s evidence to that of the wife I do have reservations about his evidence in relation to this issue particularly in circumstances where Mr Ogge’s file notes are in evidence before me and there has been no challenge to the content of those notes.
Although it may be that the husband only spent a total of an hour with Mr Ogge during the two appointments referred to and there is no letter from Mr Ogge to the husband in evidence before me confirming his advice, in my view Mr Ogge’s notes of his attendances upon the husband are consistent with him having provided the husband with advice as to the effect of the Agreement upon his rights and the advantages and disadvantages of the husband entering into the Agreement. It was put to the husband in cross-examination as follows:
[COUNSEL FOR THE WIFE]: And in that meeting, Mr Ogge discussed with you the pros and the cons and the options didn’t he?
[THE HUSBAND]: By his notes there, yeah, it seems like it.
Weighing up all of the evidence which includes the husband’s evidence, the Certificate of Independent Legal Advice annexed to the Agreement, both the recitals to and the provisions of the Agreement itself and Mr Ogge’s file notes I am satisfied on the balance of probabilities that the husband was provided with the prescribed independent legal advice. On that basis I find that the Agreement signed by the husband and the wife on 15 July 2010 is binding within the meaning of s 90G of the Act.

Duress and Unconscionable Conduct

The husband also submitted that he had signed the Agreement under duress and the wife’s undue influence and that the wife had engaged in unconscionable conduct.
Section 90UM(1)(e) of the Act gives the Court power to set aside a financial agreement if it is satisfied that the agreement is void, voidable or unenforceable incorporating both the common law and equitable principles including duress, undue influence and unconscionability as grounds for an agreement to be set aside. Section 90UM(1)(h) also makes specific provision for the setting aside of an agreement when a party to the agreement engaged in unconscionable conduct.
As submitted by counsel for the wife there is some overlap between the concepts of duress, undue influence and unconscionable conduct.
Common law duress entails bodily restraint or fear of bodily harm. The husband does not allege that he signed the Agreement as a result of any bodily restraint or because he feared bodily harm.
Equitable duress requires illegitimate or unlawful pressure, compelling, or at the very least being one of the reasons the husband in this case signed the Agreement he now seeks to set aside. As McHugh J said in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 that pressure can be economic pressure. McHugh J discussing the concept of duress said at page 46 as follows:
In my opinion the overbearing of the will theory of duress should be
rejected. A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather
than take an alternative course of action. The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.
In Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 474 (“Amadio”) Mason J distinguished unconscionable conduct from undue influence as follows:
In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.
The distinction being as described by Deane J in Amadio at page 474 as follows:
Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party. Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so.
The Full Court in Saintclaire & Saintclaire [2015] FamCAFC 245 (“Saintclaire”) discussed the relevant principles with respect to both undue influence and unconscionability. With respect to undue influence they said as follows:
[12] The law distinguishes between “actual undue influence” and “presumed undue influence”. The former arises where “undue influence is proved as a fact”. The husband’s forensic task is there directed to the words and actions said to infect the agreement or transaction: “facts must be proved showing that the transaction was the outcome of such an actual influence over the mind of the alienor that it cannot be considered his free act”.
[13] The suborning of a party’s free will is crucial. Negotiations for any form of agreement or transaction, be they commercial or between marriage partners, are frequently attended by a plethora of different pressures and influences. Plainly enough, not all such pressures and influences will attract the intervention of equity; were it otherwise finalised agreements could never be much more than temporary or provisional.
[14] It is unsurprising, then, that equity requires more to be established than that a party was under pressure or subject to influences in entering into the agreement. What is required is proof of “influence over the mind” of the other party such that their actions in executing the agreement or entering the transaction cannot be viewed as their free and independent act: some “importunity and pressure, to the point at which the plaintiff can no longer exercise an independent will…” is required. By way of contrast, it has been said that “the fact that … choices apparently open are unpalatable does not indicate that [the] will was overborne”.
[15] Presumed undue influence on the other hand does not depend upon proof of facts in respect of the transaction. Rather, its application derives from proof of the nature of the relationship between the parties to the transaction or agreement. In some recognised categories of relationships, all that must be proved is the existence of the relationship itself for undue influence to be presumed, unless rebutted. The relationship of solicitor and client is one such relationship; the relationship of husband and wife is not. Outside of those recognised relationships, including in the case of transactions between husband and wife, more about the relationship must be proved.
[16] What must be proved has been described in various ways including, for example, that a party “is in a position to exercise dominion over [the other party] by reason of the trust and confidence reposed in [the first party]”. In Tulloch (dec’d) v Braybon (No 2), Brereton J undertook an analysis of decisions in which the requisite indicia of the relationship were described, and concluded:
In my opinion, these authorities show that more than mere confidence and reciprocal influence is required to establish a “special relationship of influence” from the existence of which undue influence will be presumed unless rebutted; for a relationship to be brought within the doctrine, it must go beyond one of mere confidence and influence to one involving dominion or ascendancy by one over the will of the other, and correlatively dependence and subjection on the part of the other…
[17] By way of contrast, a presumptive relationship is not raised by “…the mere fact that one party to a transaction who is of full age and apparent competency reposed confidence in, or was subject to the influence of, the other party… [.] Observations which go to that extent are too broad”.
[18] His Honour also observed:
A husband and a wife obviously are vis-a-vis each other in positions of trust and confidence and influence, but one does not ordinarily have over the other such authority as to make such relationships a presumed relationship of influence, nor (without more) a special relationship of influence. It is where the relationship is such that one party is seen or supposed to be in some way beholden, obliged, or disadvantaged in relation to the other, that such relationships are presumed or can be proved, and dominion or ascendancy is at least usually an important factor.
[19] If “particular aspects of a relationship cause undue influence to be inferred”, a presumption is raised which requires rebuttal by the other party. The receipt of independent legal advice is an important consideration in a court assessing if the presumption is rebutted but is not determinative of that issue. What is crucial is establishing that the party is “… ‘emancipated’ from that influence”.
(Footnotes omitted)

With respect to unconscionability the Full Court went on to say as follows:
[20] Equity might set aside a transaction or agreement:
…whenever one party to a transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands.
What is clear is that it is the nature and circumstances of the relationship rather than the existence of some inequality in the bargaining power of the parties to the relationship which determines whether one could, in this case the husband, be considered to be at a special disadvantage.
The husband deposed in his Affidavit of evidence in chief filed 20 March 2015 as follows:
36.      In about early July 2010 I first heard about a financial agreement [the wife] had organised. I refused to sign anything an (sic) kept eluding (sic) to us being together for love not business. It huge (sic) shock to me at the time as it put in doubts in my head about how committed [the wife] was to our relationship if she had a “what if” document surrounding it. This caused a few fights between us where [the wife] would say to me, among other things (and in so many words) if I did not sign it:
(a)       I would never see my son, nor would my family (paternal family).
(b)       She would give our unborn child she was then about three months         pregnant with her sir-name.
(c)       She would arrange for [B] (sic) to have nothing to do with me     or my family (paternal family), and she would change [B].
37.      Communications along these lines from [the wife] to me were made verbally, including in our home, verbally by telephone, and by way of text messages to my old phone. During that week or so [the wife] verbally abused me a number of times. Having regard to all of the above and the fact that [the wife] was pregnant with [C] put me under enormous pressure and I signed the agreement under duress.
38.      I was convinced in my head that she would like she had with [B] make my life a hell to see my kids, and especially now with the money she had she would exhaust her legal and financial ability to do everything possible to make it happen. This was a scary thought for me at the time. So I felt I had no choice.
In his further Affidavit filed 1 May 2015 the husband deposed at paragraph 7(e) as follows:
… I was under enormous duress and undue influence from [the wife] to sign the agreement. She would threaten that I would not see my kids and that I was a scab and a scum if I did not sign it. She has constantly used the kids to get to me throughout our relationship and to make threats. This was a heavily weighing factor in me signing the agreement. I was fearful that she would leave me and I would have to go through all of the heartache and tough times of seeing my children that I encountered after our first separation. As our relationship was one of significant influence this was one of the main reasons for me signing.
Whilst it is for the husband in this case to establish that his will was overborne to an extent which seriously affected his ability “to make a judgment as to his own best interests” (Mason J in Amadio at page 462), or at a special disadvantage in dealing with the wife, if the husband were to establish that he was at a special disadvantage vis a vis the wife from which presumed undue influence might be implied it would be for the wife to rebut that presumption of undue influence that might be inferred from the nature of her relationship with the husband. It would also be for the husband to establish, with respect to unconscionability, that being at a special disadvantage the wife had taken advantage of the husband’s circumstances.
In this case although the wife denied the husband’s allegations, there was only limited cross-examination of the husband in relation to these allegations, it being the wife’s case in essence that the husband’s evidence at its highest did not demonstrate that he was under duress, that there was actual or presumed undue influence or that the wife’s conduct had been unconscionable.
Although it is the husband’s case that he was shocked when the wife mentioned that she wanted him to sign a binding financial agreement, that the wife had told him that neither he nor his family would have anything to do with either the child B or the then unborn child and that she had verbally abused him, all of which put him under enormous pressure and convinced him that the wife, using her superior financial superiority, would exhaust every legal avenue to achieve that end, his evidence lacked particularity with respect to the alleged conversations or abuse and specifically the dates upon which the alleged conversations or abuse occurred. Although it is reasonable to assume that the actions he attributed to the wife were likely to be after she had raised the possibility of entering into a binding financial agreement, it is hard to see how the wife could have responded in any real sense to the husband’s allegations in the absence of particulars.
It would in my view be impossible based upon the husband’s lack of particularity and general assertions to make the necessary findings with respect to his case that he was under duress, undue influence or that the wife’s conduct had been unconscionable.
However even more importantly, even if the husband had sufficiently particularised his claim and the Court did accept his evidence, in my view it is unlikely that that evidence would be sufficient to establish that he was the subject of unlawful or illegitimate pressure, that his will was overborne by the wife such that he did not enter into the Agreement of his own free will, that he was at a “special disadvantage” vis-à-vis the wife or that even if he was at a “special disadvantage” the wife had taken advantage of those circumstances.
Although the husband referred generally to the wife’s superior financial position, in my view it does not follow that because one party has more money than the other that there is the requisite special relationship from which undue influence might be presumed or that the party in the inferior financial position is necessarily at a “special disadvantage”. The husband did not in my view identify a special relationship or special disadvantage or how if it did exist it had rendered him incapable of making a judgement as to whether it would be in his interest to enter into the Agreement with the wife or that the wife had advantage of the circumstances to his detriment.
Not only are the husband’s assertions insufficient to support his claims in my view there is other evidence which points to a contrary conclusion:
·the husband is well educated, in fact I am satisfied he is better educated than the wife;
·according to the recitals to the Agreement the husband was at that time engaged in full time employment as a Financial Officer with Company G;
·the husband first wrote to his solicitor, Mr Ogge on 20 May 2010, and had at least two face to face appointments with Mr Ogge before finally signing the Agreement on 15 July 2010, almost two months after his first letter to Mr Ogge; and
·not only did the husband seek legal advice but as a result of obtaining that advice he sought amendments to the Agreement.
I have already found that the husband received independent legal advice as to the effect of the Agreement upon his rights and the advantages and disadvantages of that Agreement. I am satisfied that the husband, having obtained legal advice, had the time to consider his position and whether he wished to sign the Agreement.
I am also satisfied on the basis of Mr Ogge’s file notes that although the husband complained to Mr Ogge about the wife having all the power and that he wanted to feel that their relationship was a “joint enterprise” and although their bargaining power may have been somewhat uneven on that basis, there is nothing to suggest in those file notes that the wife was placing unlawful or illegitimate pressure, using either her financial superiority or otherwise, upon the husband, that his ability to make a decision was overborne by that pressure or that because of the nature of their relationship he was at a special disadvantage and was unable to adequately reflect upon whether it would be in his best interests to sign the Agreement.
To the contrary the file notes suggest that, although it was the wife who had initiated the Agreement, that was because of her concerns that the husband’s decision to reconcile might have been motivated by her lottery winnings rather than a genuine commitment to the relationship.
Even if the Court accepted that the wife had made threats to the husband that he would not see either the child B or his unborn child if he did not sign the Agreement, the husband had, following he and the wife’s first separation, initiated proceedings and obtained orders for B to spend time with him and she was in fact spending time with him pursuant to those orders prior to the parties’ reconciliation. In my view any threats the wife may have made would in those circumstances be likely to have had little impact upon the husband’s general state of mind or his ability to make a considered decision as to whether he would or would not sign the Agreement.
Although there has been some debate as to whether s 90UM(e) of the Act constitutes a separate doctrine of statutory unconscionability and whether it has a different and perhaps broader meaning than it would be at common law or equity, it is in my view not necessary, given the circumstances of this case and the findings I have made with respect to the husband’s case in relation to the wife’s unconscionable conduct, to consider it as a separate ground.
In all of the circumstances I am not satisfied on the balance of probabilities that the husband entered into the Agreement under duress, that there was any undue influence or that there was any unconscionable behaviour or conduct on the wife’s part.

Material Change in Circumstances and Hardship

The final limb of the husband’s case and which by the end of the case was his primary focus was that there has been a material change relating to the care welfare and development of the younger child, with whom the wife was pregnant when the parties signed the Agreement, as a result of which he, as a parent with caring responsibility, and/or the child would suffer hardship if that Agreement were not set aside (s 90UM(1)(g)).
Pursuant to s 90UM(4) of the Act a person has caring responsibility for a child if:
(a)the person is a parent of the child with whom the child lives; or
(b)a parenting order provides that:
(i)the child is to live with the person; or
(ii)the person has parental responsibility for the child.
The husband is the younger child’s father and pursuant to the orders I made on 4 August 2016 he shares parental responsibility for the child with the wife.
The material change in circumstances upon which the husband relies is that, although when the Agreement was signed the wife was pregnant with the younger child, the parties, and in particular the husband given that it is his case, could not have foreseen that their as yet unborn child would be born with autism.
In Pascot& Pascot [2011] FamCA 945 (“Pascot”) Le Poer Trench J observed that s 79A(1)(d) of the Act (or as the parties in this case were not married s 90SN(1)(d) of the Act), being similarly worded to s 90K(2), might provide some guidance as to whether there has been a material change in circumstances, albeit that the change in circumstances in the case of ss 79A(1)(d) and 90SN(1)(d) needs to be an “exceptional” rather than a “material” change.
Le Poer Trench J having considered the test to be applied pursuant to s 79A(1)(d) of the Act adopted the following test for the purposes of s 90K(1) of the Act. That test, set out at paragraph 354 of Pascot, which would equally apply pursuant to s 90UM of the Act, was as follows:
(a)There must be circumstances that have arisen since the making of the Binding Financial Agreement, being circumstances of a material nature relating to the care, welfare and development of a child of the marriage;
(b)It must be demonstrated that the child or the applicant, if she, or in this case he, has caring responsibility for the child, will suffer hardship if the court does not set the agreement aside;
(c)The court may set the agreement aside if it considers it appropriate and make such orders under s 90K(3) as it deems appropriate.
There is no definition of the term “material” in the Act. Le Poer Trench J in Pascot at paragraph 357 having referred to the definitions of “material” in Butterworths Legal Dictionary concluded that the first element of the test to which he had referred would be “… that a substantial, significant and relevant change has occurred, being circumstances relating to the care, welfare and development of a child…”.
In Pascot at paragraph 359 the “material change” was said to be “significant costs associated with an additional child in terms of time and emotional investment as well as the financial cost that would most certainly affect the care, welfare and development of the children of the relationship.” This was in circumstances where the possibility of a third child had not been the subject of any discussion during the negotiations leading up to the parties entering into the binding financial agreement.
I am satisfied that the fact that since the parties entered into the Agreement the younger child has been diagnosed with autism, adding significantly to what is required of the parties for his care physically and emotionally and to some extent financially, is a material change relating to his care welfare and development.
However, the next element of the test adopted by Le Poer Trench J and in my view the key to this case is whether or not the husband has demonstrated that as a consequence of that material change, either he, as someone who has caring responsibility for the child, or the child will suffer hardship if the Court does not set aside the Agreement.
As with the term “material”, there is no definition of the term “hardship” in the Act. However, Butterworths Encyclopaedic Australian Legal Dictionary defines “hardship” generally as “adverse repercussions, whether mental or physical, ranging from temporary discomfort or inconvenience to some permanent and unalterable evil or misfortune” and, in the context of Family Law by reference to s 44 of the Act, to mean “a substantial detriment”.
In Garden & Gavin (No 2) [2010] FamCAFC 125 the Full Court addressing the hardship test in relation to an application pursuant to s 79A(1)(d) of the Act to set aside orders for property settlement followed the decision of the Full Court in Simpson & Hamlin (1984) FLC 91-576 saying as follows:
[56] As their Honours in Simpson and Hamlin said this conclusion is fortified by the operation of s 81 of the Act. At p 79,659 their Honours said:
The importance of bringing an end to litigation remains an important consideration and the remarks of Mason J remain applicable to para (d) mutatis mutandis . To paraphrase his Honour's remarks: it is not sufficient that it appears that circumstances have arisen of an exceptional nature resulting in hardship to the applicant, the court must consider in the exercise of its discretion whether that hardship is of such a serious nature and results in such inequity that it can only be rectified by the extreme step of setting aside or varying an existing order of the court. We leave aside the question of whether special considerations apply to consent orders.
In summary it is the husband’s case that:
·The child C requires special care and a lot of time and money must be dedicated to his development;
·as he has shared parental responsibility and the child spends time with him it would be difficult for him to look after the child and maintain employment as a result of which he and/or the child would suffer hardship;
·if the Agreement were not to be set aside he would remain in a position where he is financially responsible for two children under an Agreement that does not adequately provide for such a responsibility.
Although it is clear from the evidence that the younger child requires special care I am not satisfied on the balance of probabilities that, as submitted by the husband, a lot of money must be dedicated to his development. Dr H in her Psychological Assessment Report of the child recommended that he have speech therapy to address his speech and language difficulties and psychological intervention to improve his social functioning and manage his behavioural problems. She also said that he needed occupational therapy to address his sensory issues.
Although the evidence suggests that there may not to date have been the necessary supports in place for the child as recommended by Dr H, as a result of the case being reopened following the wife’s move to her farm in rural Victoria in late 2015 and the parties being unable to agree upon which schools the children should attend, a Report was obtained and filed on 1 July 2016 from Ms F, a psychologist with experience in educational and development psychology, with respect to the best schooling options for both children, and in particular for the purposes of the matters I must determine, the younger child’s requirements. Although Ms F was briefly cross-examined that was primarily in relation to which school the older child should attend and when if she were to change schools that should occur. I found Ms F to be a careful and considered witness and I accept her evidence which in any event, in so far as it relates to the younger child, is unchallenged.
It was Ms F’s opinion that the lack of “intensive intervention” in place for the younger child was significantly impacting on his development and future prospects. She noted at page 8 of her Report that “Despite his eligibility, [the wife] and [the husband] have not yet accessed DSS funding, which is available to support interventions for [the child], which we know is vital to optimising outcomes. Access to a strong allied health team can potentially improve consistency between households and support the generalisation of skill development”. It was her recommendation that the child be placed in a Specialist School setting and in particular she recommended Z Specialist School the benefits of which included, based upon her phone consultation with Ms R from Z Specialist School, the following:
·Smaller class sizes (maximum 6 students per class)
·1 teacher and 1-2 education support staff per class
·Access to allied health support (psychology, speech pathology, occupational therapy, physiotherapy, engaged full time)
·Personalised learning Plan
·Hours of Attendance are 9am – 2:45 pm. Recess and lunch are 30 minutes each and government school term dates apply.
(Emphasis added)
Having accepted Ms F’s recommendations the parties consented to an order providing for the child to attend Z Specialist School which I am satisfied will meet most if not all of the special needs identified by Dr H.
In so far as there have been or there is likely to be additional cost as a result of the younger child’s requirements I am also satisfied that it is the wife who has been meeting the lion’s share of the costs of the child’s care, including the fees for his attendance at J Child Care Centre and M Early Learning Centre and although there is no evidence before me with respect to any fees that might be payable at Z Specialist School there is also no dispute that the wife has the financial capacity to continue to meet all of the child’s expenditure if necessary and no evidence to suggest that she would not do so or that the child would do without or be disadvantaged in the event that the husband was unable to make any contribution to those fees. It is also clear from Ms F’s evidence that there would be DSS funding available to meet the child’s needs.

Pursuant to the orders made by consent on 4 August 2016 the younger child will be spending time with the husband each alternate weekend from after school on Friday until the commencement of school on Monday and each Wednesday from after school until the commencement of school on Thursday. The child will also be spending time with the husband during the school holidays. There is no evidence to suggest, particularly in circumstances where the majority of the services and supports the child needs to access will be available through his new school that either the husband or the wife will be required to devote significant time to addressing those needs outside of school hours.
In my view, although the physical care that the younger child requires during the time he is in the husband’s care may be more extensive and intensive than the level of care required for a child who is not autistic, the time the child spends with the husband is limited. Although there was some dispute as to the husband’s current employment and whether he is working part or full time is not totally clear, there is in my view no reason why, irrespective of the fact that the younger child is autistic, the husband could not seek employment including, with some flexibility, full time employment.
It is common ground that although the children have been living primarily with the wife, until relatively recently, she was required to pay child support to the husband. As the time the children spend with the husband has now increased there may well be a reassessment of the parties’ respective child support obligations which will in any event vary in accordance with any changes in their financial circumstances. What is absolutely clear is that albeit the husband will have to support the children whilst they are in his care, subject to any child support he may receive from the wife, even if he is required to pay child support to the wife, he is not and is unlikely to be, as he submits in his Brief Summary of Issues “… financially responsible for two children under an agreement that does not adequately provide for such a responsibility”.
The husband lives in rented accommodation in Suburb T and although these matters were not canvassed in any detail during the hearing before me I am satisfied that the husband would be unlikely, at least for the foreseeable future, to purchase his own home unless the Agreement were to be set aside and the Court were to make orders for property settlement which would give him the capacity to do so. As a result there is always the possibility of the husband having to move in circumstances where the evidence suggests that the younger child may have some difficulty adapting to change. It was the wife’s evidence during the hearing that she had been unable to move to the farm she had purchased in rural Victoria because of the child’s difficulty adapting to that change. Although Ms Q, a teacher at J Child Care Centre deposed that the child did not cope well with change, this was in relation to his routine at school. Further, as the husband submitted in final addresses the reference to change was to “things he deals with in his day-to-day life. He likes specific things and is comfortable with and is used to, and that’s what makes him comfortable”.
The family consultant Ms D, when cross-examined in relation to the impact on the younger child of immediately increasing the time he is spending with the husband, said that she thought that he would cope with appropriate supports. When asked what she meant by appropriate supports she said that both the husband and the wife would benefit from learning strategies “…beneficial for children with autism around change, changes to routine”. It was clear from her evidence that she had presumed that the child was familiar with the husband’s home and when it was put to her that the husband had relocated she acknowledged that the child might need some time to adapt. However she also said that change is inevitable and that it would be in the child’s best interests for both the husband and the wife to get some help around behaviour management strategies to deal with those changes.
There is no evidence to suggest that the younger child did not adapt to either the husband’s change of residence or the wife’s move to the farm in rural Victoria and it follows in my view that it is reasonable to infer the he would cope with other changes, including a further change of residence if that were to occur, with the appropriate supports in place. This is also consistent with the husband’s submission in closing that “… [The child C] is okay is because I’m there. The reason why he feels comfortable is because he’s with his father. I’m one of only two security blankets for him in his life. The other one is his mother”.
In so far as there is hardship caused to the husband, and directly or indirectly to the younger child, because he is in a financially disadvantageous position compared to the wife, that is in my view not a consequence of the fact that the child is autistic and in fact arguably his position would be exactly the same even if the child had not been autistic.
Although I am satisfied that the husband currently has no capacity to purchase his own property, I am not satisfied on the balance of probabilities that either the husband or the younger child would as a result suffer hardship if the Agreement were not to be set aside or that even if they did suffer hardship it would be of such a serious nature or would result in such inequity that it can only be rectified by the “extreme” step of setting aside or varying an existing order of the Court or in this case the Agreement.
Counsel for the wife also referred me to a number of decisions in which the Court had considered the definition of hardship in the context of applications to institute proceedings out of time pursuant to s 44(3) of the Act. In Pascot Le Poer Trench J also considered hardship in that context. Although there are some similarities between the definition of hardship in the context of s 44(3) of the Act and s 90UM of the Act, in that absent the setting aside of the financial agreement the Court cannot entertain an application for property settlement, there is in my view a significant difference between the context of hardship in s 44(3) and s 90UM to the extent that a party having entered into a binding financial agreement has made a conscious decision to contract out of any rights he or she might have to seek orders for a property settlement. That being said, the decisions referred to me by counsel for the wife which addressed the concept of hardship and what it meant in the context of that section are nonetheless instructive in considering whether or not there is hardship in the circumstances of this case.
One of the cases relied upon by counsel for the wife was Pascot in which Le Poer Trench J referred to the decision of the Full Court in Whitford & Whitford (1979) FLC 90-612 where the Full Court, in considering an application for leave to institute proceedings out of time pursuant to s 44(3) said as follows:
The loss of the right to institute proceedings is not the hardship, to which the subsection refers. It is with the consequences of the loss of that right, with which the subsection is concerned. The requirement, that the court must be satisfied that hardship would be caused if leave were not granted, implies that it must be made to appear to the court that the applicant would probably succeed, if the substantive application were heard on the merits. If there is no real probability of success, then the court cannot be satisfied that hardship would be caused if leave were not granted. Further, the matter with which the court is concerned is not whether the applicant or a child is suffering hardship, but the question is whether the applicant or a child would suffer hardship if leave were not granted. If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated, then the court cannot be satisfied that the applicant or a child would suffer hardship if leave were not granted.
…
The husband did not address, other than generally, the question of what if any entitlement he might have if the Court were to set aside the Agreement. Counsel for the wife for her part relied upon the line of cases in relation to a party’s claim to lottery winnings such as the wife’s winnings in this case and in particular to the recent decision of the Full Court in Elford & Elford [2016] FamCAFC 45 (“Elford”) on two bases. Firstly in support of her submission that the husband had not demonstrated that he would suffer any hardship if he were not permitted to make an application for property settlement and secondly in support of her submission that even if the Court were to be satisfied that the husband or the younger child would suffer hardship, that in circumstances where the husband’s claim would in any event be at best of a limited nature, that the Court should not exercise its discretion in the husband’s favour and set aside the Agreement.
The authorities relied upon by counsel for the wife were directed to how the Court should deal with lottery wins during a relationship. In the recent case of Elford the Full Court referring to the decision of the Full Court in Zyk and Zyk (1995) FLC 92-644 said at paragraph 17 as follows:
The Full Court said (at 82,511) that it was preferable to approach the issue as one of “contribution” rather than as a “windfall” because the latter tended to isolate the asset into a special category outside of the traditional approach adopted in s 79 proceedings. The Full Court went on to say (at 82,515):
In our view, the critical question in such cases is - by whom is that contribution made? In the ordinary run of marriages a ticket is purchased by one or other of the parties from money which he or she happens to have at that particular time. That fact should not determine the issue. Where both parties are in receipt of income and where their marriage is predicated upon the basis of each contributing their income towards the joint partnership constituted by their marriage, the purchase of the ticket would be regarded as a purchase from joint funds in the same way as any other purchase within that context and would be treated accordingly…Where one party is working and the other is not the same conclusion would ordinarily apply because that is the mode of partnership selected by the parties…
(Emphasis added)
The Full Court in Elford at paragraph 26 confirming that there was no error of principle by the trial judge, referred to the following passage in the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108:
39. Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the [Family Law Act 1975 (Cth) (“the Act”)] must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law” [citing Hepworth v Hepworth (1963) 110 CLR 309 at 317 per Windeyer J; [1963] HCA 49]. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses” [citing Hepworthv Hepworth (1963) 110 CLR 309 at 317 per Windeyer J. See also Wirth v Wirth [1956] HCA 71; (1956) 98 CLR 228 at 231-232 per Dixon CJ]. The question presented by s 79 is whether those rights and interests should be altered.
The Full Court went on to say in Elford at paragraph 29 as follows:
Consistent with the fundamental principle emphasised by the High Court in Stanford v Stanford (above), and the terms of s 79(2) of the Family Law Act 1975 (Cth) (“the Act”), the case below might have been argued on the basis of an asset by asset approach in which it was contended that the lottery win (or, more broadly, the cash in the term deposit of which it formed part) was property of the husband with respect to which it was not just and equitable to alter existing interests in that property. However no such case was argued or alluded to and we will say no more about it.
As previously referred to the husband did not address this issue in any detail and the evidence as to the husband’s financial circumstances is relatively limited however it is clear based upon Appendix B to the Agreement that at the time the husband entered into that agreement he had assets of approximately $25,000 including superannuation and a motor vehicle loan of $14,000. I am satisfied on the evidence before me that he still has no assets of any substance and that the only so called matrimonial property from which the husband might receive any settlement is property in the name of the wife and which can be traced directly to her lottery win in December 2009. As the wife won that money prior to the parties’ reconciliation, even if the Agreement were to be set aside, all of the property the subject of any application for property settlement is likely in those circumstances to be treated as a contribution by the wife alone and that there may also be in those circumstances an arguable case that it would not be just and equitable to make any orders altering the wife’s interests in that property.
Even if I were to be satisfied that the Agreement should be set aside on other grounds, which I am not, the particular circumstances of this case would likely weigh against the Court exercising its discretion to set aside the Agreement.

Conclusion

Although I do not doubt that the younger child’s autism has come at a significant emotional cost to both the husband and the wife, as well as there being an extra physical burden associated with caring for an autistic child, I am not satisfied on the balance of probabilities that that results, for either the husband or the child, in “hardship of such a serious nature and results in such inequity that it can only be rectified by the extreme step” of setting aside the Agreement or for that matter that setting aside the Agreement would necessarily address any hardship to either the husband or the child as a result of the material change that occurred after the husband and the wife had signed the Agreement.
In all of the circumstances I propose to dismiss the husband’s application to set aside the Agreement.

I certify that the preceding one hundred and twenty one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 19 October 2016.

Associate:

Date: 19 October 2016