NGO & HAN

[2018] FCCA 3806

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGO & HAN [2018] FCCA 3806

Catchwords:
FAMILY LAW – Allegations made about two binding financial agreements made in 2007 and 2009 – wife alleged parties bound by 2009 document – husband disputed this – there was no valid, effective or enforceable contract.

Legislation:

Family Law Act 1975 (Cth)

Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009

Cases cited:

Adame & Adame [2014] FCCA 42
Millington & Millington (2007) FamCA 687
Fevia & Carmel-Fevia (2009) FLC 93-411

Applicant: MR NGO

Respondent: MS HAN

File Number: MLC 9190 of 2009

Judgment of: Judge Curtain

Hearing dates: 13 & 14 August 2018

Date of Last Submission: 14 August 2018

Delivered at: Melbourne

Delivered on: 21 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Howe of Counsel

Solicitors for the Applicant: RRR Lawyers

Counsel for the Respondent: Ms Johnson of Counsel

Solicitors for the Respondent: Verduci Lawyers

ORDERS

1. That it is declared that on the balance of probabilities, there is no binding financial agreement executed by all parties in 2009 and the purported financial agreement annexed at “H-3” to the sworn affidavit of the wife filed 29 May 2018 is not a valid, nor enforceable, nor effective binding financial agreement.

2. That these proceedings be listed on 5 September 2019 as a contested property dispute with an estimated hearing time of two (2) days, with the following trial directions:

   (a)The applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 28 days prior to the trial; and

   (b)The respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the trial; and

   (c)Each party electronically file and serve a Case Outline not later than 7 days prior to the trial.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9190 of 2009

MR NGO

Applicant

And

MS HAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant husband Mr Ngo filed an Amended Initiating Application on 22 March 2018, seeking the following final orders:

   1.An order for leave to proceed for property orders out of time, the parties having divorced on 2^nd January 2010.

   2.A declaration that the undated purported financial agreement annexed as “H-3” (‘The 2009 document’) in the affidavit of the applicant wife sworn on the 29^th May 2017 is not a binding agreement between the parties, as the document only bears the signature of the husband and does not bear the signature of the applicant wife and the Certificate of Independent Legal advice pertaining to the applicant wife is also blank and has not be signed by the solicitor, namely Mr L.

   3.In the event that the 2009 document referred to in paragraph 2 herein is found to be binding between the parties then the said 2009 document be set aside pursuant to Section 90K of the Family Law Act 1975.

   4.A declaration that the purported financial agreement pursuant to Section 90C of the Family Law Act 1975 (‘the 2007’ document) referred to in the preamble D of the 2009 document referred to in Paragraph 2 herein is not binding on the basis that this agreement has not been produced and the agreement has only been referred to in preamble D of the 2009 document referred to in Paragraph 2 herein.

   5.That in the event the court finds that the 2007 document purportedly is held to be binding and valid between the parties then the said 2009 document be set aside pursuant to Section 90K of the Family Law Act 1975.

   6.That the Respondent do all such acts and things and sign all such documents as may be required to effect a sale of the real property situate at and known as Property A in the State of Victoria and more particularly described in Certificate of Title Volume (“the Property A land”), and the proceeds of sale be applied as follows (“the mortgage”):

   (a)Firstly, to pay all costs, commissions and expenses of the sale;

   (b)Secondly, to discharge the mortgage encumbering the property registered to the Bank 1 (mortgage number) (“the mortgage”);

   (c)Thirdly, the balance to be distributed in the following proportions:

   i.50% to the Applicant;

   ii.50% to the Respondent.

   7.Unless otherwise specified in these orders and save for the purposes of enforcing any moneys under these or any subsequent orders:

   (a)Each party be solely entitled to the exclusion of the other to all other property (included choses-in-action) in the possession of such party as at the date of these orders;

   (b)That each party forego any claims they may have to any superannuation or employment benefits belonging to or earned by the other;

   (c)Insurance policies remain in the sole property of the beneficiary named therein;

   (d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

   (e)Any joint tenancy of the parties in any real or personal property is hereby expressly severed.

   8.Such further and/or other orders as this Honourable Court deems appropriate.

2. The respondent wife Ms Han did not file an Amended Response but relied on a Response filed 22 May 2017, seeking the following final orders:

   1.That the Initiating Application filed on 23 December 2016 be dismissed.

   2.Alternatively, that there be no further adjustment of property interests.

   3.That the Applicant forthwith do all things necessary and sign all necessary documents to effect the removal of caveat number from Certificate of Title Volume, being the property at Property A (“the property”).

   4.That the Applicant be and is hereby restrained from lodging any further caveat on the property.

   5.That the Applicant pay the Respondent’s costs of the proceeding.

3. She also relied upon an Application in a Case dated 11 July 2017, which sought the following orders:

   1.That the Initiating Application filed by the Applicant on 23 December 2016 be dismissed pursuant to r 13.04 of the Federal Circuit Court Rules, or alternatively s 118 of the Family Law Act, on the basis that it is frivolous or vexatious.

   2.Alternatively, that the question of the Applicant being granted leave to commence this proceeding out of time pursuant to s 44(3) of the Family Law Act be heard and determined instanter, and that the Applicant not be granted such leave.

   3.That the Applicant pay the Respondent’s costs of this proceeding, including this Application in a Case.

4. Given the confusion of facts and the complexity of the law in this area, I chose to deal with the validity of the purported Binding Financial Agreements as a threshold issue and depending on this judgment, what further proceedings (if any) would follow.

Background

1. There is little common ground in this case. However, the history of the parties appears to be as follows in the next 11 paragraphs.

2. The applicant husband is aged 45 years and was born on [date] 1973 in Vietnam. He was accepted as a refugee to Australia in 1977.

3. The respondent wife is aged 46 years and was born on [date] 1972 in Vietnam. The parties were married on [date] 1993 in Vietnam and the wife came to reside in Australia in the same year.

4. There are three children of the marriage, Ms A now aged 22 years, Ms B aged 19 years and [X] aged 14 years.

5. The applicant husband says in his affidavit filed 20 February, 2018 the parties had an “initial separation” in June, 2005. The respondent wife at 2(b) in her affidavit filed 14 May 2018 says that they separated in 2005 and also said that… “we attempted to live together from [date] 2008 to [date] 2009”... I also note that the wife relies on the alleged financial agreement of 2009 that says in recital D that the parties first separated on or about August, 2004 and at recital F, that they finally separated on 12 June, 2009.

6. The applicant husband says in the above affidavit that they finally separated on 12 June, 2009. This conflicts with the fact that on 12 October 2009 he caused to be filed in this Court an Application for a Divorce which was heard on 1 December, 2009 and the divorce was granted. It became effective a month later. The date of separation set out at page 3 of this Application has only the year, 2005.

7. In his Affidavit referred to above, the applicant husband described the separation in 2005 as “unofficial” and yet relies on it as the separation date for the purpose of the divorce.

8. At paragraph 9 of the same Affidavit, he says the following:

   “9. I filed an Application for Divorce on 12 October 2009, I had engaged [law firm] in Suburb D. I did indicate to my lawyers that we had separated in 2005, and we had continued to live together from time to time up until 2009. I appreciate that my Application for Divorce lists 2005 as the date of separation although 7B states that we only lived together after separation from 6 months in 2005. I believe that I had been coming to the Property B home for the period up until mid-2009 and this is consistent with the Financial Agreement annexed to the Respondent’s Affidavit.”

9. The wife in her Outline of Case filed 10 August, 2018 at the top of page 4, alleges there were two Binding Financial Agreements and further alleges that the terms of both of those financial agreements had been complied with. However, in the running of the case, the wife did not seek to argue that the 2007 agreement was binding on the parties under the Act and relied on the 2009 agreement. She annexed a purported copy of it to her affidavit, affirmed and filed 29 May 2017, which was marked for identification as “H-3”. She said that agreement had been signed by both parties and was enforceable under the Act and should be enforced against them.

10. The husband made little reference to the alleged 2007 Binding Financial Agreement and his case appeared to be that the alleged Binding Financial Agreement dated 2009 (annexed to the wife’s affidavit at “H-3”) did not comply with the requirements of the Act, in particular Part VIIA and was not valid nor binding.

11. No copy of the alleged 2007 agreement was not produced in any form. The copy of the alleged 2009 agreement at “H-3” is undated save for the year 2009, is signed by the husband only and witnessed by his then solicitor. There is no jointly signed 2009 agreement before the Court. The wife sought to convince the Court that it had existed in the past but it is no longer available to be produced to the Court.

12. The Certificate of Independent Legal Advice for the wife is unexecuted and the husband’s is dated 11 September, 2009 and signed by his then solicitor.

The evidence

A. Applicant Husband’s material:

(a)Amended Initiating Application for final orders filed on 22 March, 2018;

(b)Affidavit of the husband filed 20 February, 2018;

(c)Further Affidavit of the husband filed 27 March, 2018;

(d)Affidavit of Mr P filed 14 May,2018; and

(e)A Financial Statement sworn in 2016.

B. Respondent Wife’s material:

(a)Response to Initiating Application filed on 29 May, 2017;

(b)Application in a Case filed 14 July, 2017;

(c)Affidavit of the wife filed 29 May, 2017;

(d)Further Affidavit of the wife filed 23 November, 2017; and

(e)Final Affidavit of the wife filed 14 May, 2018.

Relevant Legislation – Family Law Act 1975

Part VIII

Section 71A

This Part does not apply to certain matters covered by binding financial agreements

(1)This Part does not apply to:

(a)financial matters to which a financial agreement that is binding on the parties to the agreement applies; or

(b)financial resources to which a financial agreement that is binding on the parties to the agreement applies.

(2)Subsection (1) does not apply in relation to proceedings of a kind referred to in paragraph (caa) or (cb) of the definition of matrimonial cause in subsection 4(1).

Section 4

Interpretation

"financial agreement " means an agreement that is a financial agreement under section 90B, 90C or 90D, but does not include an ante-nuptial or post-nuptial settlement to which section 85A applies.

"financial matters " means:

(a)in relation to the parties to a marriage--matters with respect to:

(i)  the maintenance of one of the parties; or

(ii)  the property of those parties or of either of them; or

(iii)  the maintenance of children of the marriage; or

(b)in relation to the parties to a de facto relationship--any or all of the following matters:

(i)  the maintenance of one of the parties;

(ii)  the distribution of the property of the parties or of either of them;

(iii)  the distribution of any other financial resources of the parties or of either of them.

1. The expression “financial resources” is not defined in section 4 of the Act.

Section 90C

Financial agreements during marriage

(1)If:

(a)the parties to a marriage make a written agreement with respect to any of the matters mentioned in subsection (2); and

(aa) at the time of the making of the agreement, the parties to the marriage are not the spouse parties to any other binding agreement (whether made under this section or section 90B or 90D) with respect to any of those matters; and

(b)the agreement is expressed to be made under this section;

the agreement is a financial agreement . The parties to the marriage may make the financial agreement with one or more other people.

(2)The matters referred to in paragraph (1)(a) are the following:

(a)how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse parties at the time when the agreement is made, or at a later time and during the marriage, is to be dealt with;

(b)the maintenance of either of the spouse parties:

(i)    during the marriage; or

(ii)   after divorce; or

(iii)     both during the marriage and after divorce.

(2A)  For the avoidance of doubt, a financial agreement under this section may be made before or after the marriage has broken down.

(3)A financial agreement made as mentioned in subsection (1) may also contain:

(a)matters incidental or ancillary to those mentioned in subsection (2); and

(b)other matters.

(4)A financial agreement (the new agreement ) made as mentioned in subsection (1) may terminate a previous financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement.

Section 90F(2)

Certain provisions in agreements

(2)  To avoid doubt, a provision in an agreement made as mentioned in subsection 90B(1), 90C(1) or 90D(1) that provides for property or financial resources owned by a spouse party to the agreement to continue in the ownership of that party is taken, for the purposes of that section, to be a provision with respect to how the property or financial resources are to be dealt with.

Section 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.

Section 90KA

Validity, enforceability and effect of financial agreements and termination agreements

The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court:

(a)  subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and

(b)  has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court; and

(c)  in addition to, or instead of, making an order or orders under paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court.

Section 44(3B)

Institution of proceedings

(3B)  Despite subsection (3), if, whether before or after the commencement of Schedule 2 to the Family Law Amendment Act 2000:

(a)a divorce order has taken effect or a decree of nullity of marriage has been made; and

(b)a financial agreement between the parties to the marriage has been set aside under section 90K or found to be invalid under section 90KA;

proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) may be instituted:

(c)within the period of 12 months after the later of:

(i)  the date on which the divorce order took effect or the date of the making of the decree of nullity, as the case may be; or

(ii)  the date on which the financial agreement was set aside, or found to be invalid, as the case may be; or

(d)with the leave of the court in which the proceedings are to be instituted;

and not otherwise.

The evidence of the Applicant Husband

1. The applicant relied on affidavits I have referred to earlier and was cross-examined by Counsel for the wife. After being shown exhibit “H-3”, the purported 2009 Binding Financial Agreement, the husband said he did not recognise it but agreed that on the last page it had his signature on it. He said he did not recall signing that page. He said…“I signed a few pieces of paper transferring land and all that but I don’t remember this one”.

2. He said further he did not recall going to his solicitor to finalise his marital affairs and that all he could recall was that the divorce was finalised and that was the end of it.

3. It was put to him that he executed a financial agreement in 2007 and he denied that. He said he had no memory of executing an agreement in 2007. Further, he denied being paid $100,000 in cash by the wife. He went onto agree that they reconciled between [date] 2008 and [date] 2009 and finally separated on 12 June, 2009 when he moved out of the property at Property B. He said that the parties talked about their financial affairs but nothing was resolved and he only went to his lawyers [law firm] to get a divorce…“That’s all I remember”.

4. He said he transferred the property at Property B to the wife. He said he recalled signing the Transfer of Land but not the date and thought that was in 2007.

5. He was consistent in his evidence in saying that he did get a divorce from the wife and he did not believe that any financial settlement arose from that. When questioned again about signing the document he said he did not think he got legal advice about it and… “I don’t remember much at all”.

6. He said he signed the property over at Property B to his wife because she wanted to live there and she did not want him to have any interest in the property and subsequently he said that he did it… “for my family”… “It’s for my kids”.

7. He agreed that each party kept an interest in a separate business and that the list of the assets detailed in the alleged agreement did exist at the time.

8. When cross-examined again about the question of signing the agreement he said he did not remember signing it and that he did sign it, but without getting legal advice about the agreement. He agreed that he saw a Ms M but he alleged it was only for the purpose of the divorce and not for a financial settlement. He was consistent when he said that he did not recall doing any financial agreement. When I clarified with him about whether he got advice from his solicitor he said he could have but did not recall it but he was certain they did not talk about his financial affairs. He thought he signed the document without it being fully explained or read to him. He alleged he did not understand what he was signing. The following was put to him:

   “You know full well that you entered into a binding financial agreement. You went to a solicitor and you signed that, knowing full well what you were signing up to?”

   He answered:

   “No I don’t, I don’t agree.”

9. He said that he and his wife following separation talked a lot about financial matters, that he was never paid $100,000 and in fact he alleged there was an agreement that he would be paid $300,000. He alleged that he helped the wife out post-separation financially and gave her cash every month which he believed was used in part or whole to meet the mortgage repayments. He also went on to allege that he transferred monies regularly into the eldest child’s account and that Ms B was to use it for her benefit and the benefit of the other children.

10. He agreed that he signed two Transfers of Land, one in relation to Property B and the other in relation to the Property A property. It was put to him that a pharmacist witnessed him signing the Transfer and that was in his affidavit. He said he could not remember that. He said he did not know why he signed two Transfers, one in 2009 and one in 2013 save that his wife wanted everything in her name. He further alleged again that ultimately she agreed to pay him $300,000 and by inference this was a factor in transferring these properties to the wife.

11. When yet again he was cross-examined about his signature on the 2009 alleged agreement, he was consistent in that he said whilst the signature was his, he could not remember signing it, he did not think it was a financial agreement and he went to his solicitor for the purposes of a divorce alone. He also said he was only aware of the agreement when his wife produced it during this litigation in early 2017.

12. I then asked the following questions:

    “How do you explain signing it?---Well, all I know is – like I said, I was at – I was at her office - - -

    The solicitor’s, yes?---Yes, at the solicitor’s and we were doing a divorce and that’s– that’s all – at that time I was thinking about was just getting the divorce done.

    But there’s nothing in this document to suggest it’s related to divorce at all?---Yes.

    How do you explain signing something that has got nothing to do with the divorce?---Yes. I just – I don’t know.

    Do you normally sign documents you don’t read?---Well, I – pretty much.”

13. He said that when he attended upon Ms M but could not remember being at her office for 1 to 2 hours and believes he only attended twice. He said he signed the agreement because he… “was happy with getting divorced”.

The evidence of the husband’s former solicitor

1. Ms M, solicitor, was instructed by the husband to act for him in 2009. She gave evidence that she then worked for a firm titled [law firm] and recalled the husband being a client at that time.

2. However, she could not recall what work she did for him and whether it was very extensive. She said she no longer had the file, had not refreshed her memory save for being shown… “in recent times”… annexure “H-3” to the wife’s affidavit being a purported copy of the financial agreement, dated 2009.

3. Ms M then gave evidence that she does not remember going through this agreement with her client. She had no recollection of reading this agreement at all.

4. At best she could only give evidence about her “normal practice” when acting for a client involved in a binding financial agreement. She said that because she witnessed the document she believed she went through that normal process with the husband, but could not recall what she advised him about the agreement.

5. The evidence disclosed that the former solicitor also witnessed a Transfer of Land signed by the husband and signed a Certificate of Independent Legal Advice dated 11 September, 2009.

6. She said she believed she would have sent the signed Transfer and Binding Financial Agreement signed by her client to the wife’s then solicitor.

7. She said further that she did not recall in this case following up with the wife’s solicitor what the progress was with the Binding Financial Agreement and again gave evidence that it was her “normal practice” to be definitely… “chasing it with correspondence”. She said she had no memory of having any explanation why it was no longer being proceeded with.

The evidence of the respondent wife

1. After adopting her affidavits she said she recalled an agreement… “being entered into”… in September, 2009 and her lawyer at that time was a Mr L. She said she did not recall how many times she saw him.

2. She said she saw the solicitor to finalise the property settlement and said it was finalised because she paid the solicitor $1,650 to have him complete and finalise the matter.

3. She said she recalled seeing the alleged Binding Financial Agreement, at annexure “H-3” of her affidavit, at the solicitor’s office when he was doing… “some paperwork for me”. She further recalled signing… “many things”… but could not remember how many documents, but did remember signing the alleged Binding Financial Agreement and then said… “he said that he would send it to the solicitor acting for the other side and for my ex-husband to sign”.

4. This did not sit well with the alleged Binding Financial Agreement annexed to her affidavit which was a purported copy of the document which is only signed by the husband and not the wife.

5. She went on to say she saw her solicitor… “many times and I don’t remember what it for… because there was another agreement, a contract, the previous one, then the later one, so I saw him many times.”

6. She said her solicitor did both the 2007 and 2009 agreements, but she did not have a copy of either, save for that annexed to her affidavit.

7. An interesting exchange occurred during the extensive evidence in chief, as follows:

   “THE INTERPRETER: I saw my husband’s signature in the office.

   MS JOHNSON: Okay. And do you know what you – did you do anything once you saw his signature? Do you recall?

   THE INTERPRETER: When – as I said to you before, when it was explained to me, and then I went – I was asked by him to sign it, which I did. And then because I already signed a first agreement – and so – and when the second agreement, he said that he would send it to ..... to the other side. Yes.

   MS JOHNSON: Okay. So the signature – the – sorry. The document sent to the other side, did that only have your signature on it, or did it have both signatures on it?

   THE INTERPRETER: Only my signature, and then he sent it away. He said – he told me that he would send it.”

8. In an attempt by her barrister to clarify what she just said, she was asked to look at the signature on the copy alleged Binding Financial Agreement at “H-3” and she said:

   “MS JOHNSON: Are you able to tell the court whether you saw a document with your husband’s signature on it in September 2009 or shortly after?

   THE INTERPRETER: Do you mean the first one or the second one?

   MS JOHNSON: Perhaps I will rephrase that. Did you, at – if you can have a look at the signature on that document, please. Now, you’re seeing that today. When is the first time you recall seeing that page of that document?

   THE INTERPRETER: I – in relation – with this document, to be honest, I don’t remember. To be honest, I don’t remember because there were many things. I do not remember.

   HIS HONOUR: You gave that document to your solicitor, did you not?

   THE INTERPRETER: Sorry, your Honour?

   HIS HONOUR: Can you ask her whether she gave that document to her solicitor?

   THE INTERPRETER: It was done by my solicitor. I didn’t give it to my solicitor.

   HIS HONOUR: Where did you get that document from?

   THE INTERPRETER: When – I thought this is all done, the other – that person put a caveat. When caveat was put on my property, I went back to my solicitor.

   HIS HONOUR: Mr L?

   THE INTERPRETER: Yes. And this was given to me by him.

   HIS HONOUR: By Mr L?

   THE INTERPRETER: Yes.”

9. She was then asked to tell the Court of her financial circumstances in 2009 and said that… “I don’t remember because it was a long time ago. But I remember that the income I got from the business, it was enable me (sic) to meet my obligations”.

10. She was subsequently asked whether there were any other assets she could recall she had at the time in 2009 and she said no, apart from the properties, the business and nothing else.

11. In an attempt to better understand her evidence, I asked her whether she owned a motor vehicle in 2009 and said replied she was still using the same vehicle… “a motor vehicle 1”. The difficulty with this evidence is that I note the alleged agreement at “H-3” sets out that at the time she owned a motor vehicle 2 and in fact, the husband had a motor vehicle. Perhaps her solicitor made the error, although he drafted the document more than once.

12. Under cross-examination by the husband’s counsel, she said that the agreement at “H-3” was given to her by her solicitor… “recently”… She was asked whether she requested her solicitor to give her a document that she had signed and she said she was told because he moved office, he could not find the file. It has been misplaced or lost.

13. Further in cross-examination she said she was not given legal advice about whether it was… “a good idea”… to sign the agreement or not. She said her solicitor prepared it and asked her whether she agreed with it, and if she did, for her to sign it.

14. She said that there was a prior financial agreement between the parties in 2007 and at that time they had “no relationship”. She was then asked why she needed a further Binding Financial Agreement in 2009 and she said that the property in Property A had the husband’s… “name on it”. She further said that the property was hers and she did not want him to have any interest in it. I note that she did not explain why Recital (second) H, VI at page 2 of the alleged agreement details that… “the husband and wife recently bought”… the Property A property. That style of expression suggests to me that he made a contribution to the purchase.

The evidence of the wife’s former solicitors

1. Mr L a solicitor of Suburb E was then called. On cross-examination he said that looking at the document at “H-3” he recalled drafting it.

2. The following exchange then took place:

   “MS JOHNSON: Now, do you recall, in the body of that document it refers to a first financial agreement being prepared. I think it might even say it was in 2007. Are you aware or do you recall acting for Ms Han in that period?---No, I’m sorry. I can’t remember. But I’ve noted it says here – but I can’t remember whether I acted for her or not.

   What period do you have a recollection of acting for her?---Recollection – I don’t really have any. But according to the document, it’s 2009.

   So in 2009, do you recall doing some work in relation to that agreement?---Yes, I recall – looking at document, I recall that I drafted this agreement more than once or even more than twice.

   And when you say you drafted it more than twice, what was the – why were there redrafts of it?---There are terms that my client wanted me to amend and I recall that I had to amend at least two or three times.

   Yes. Now, just going back to the 2007 agreement, is it your evidence that although you don’t recall acting for her, that it’s entirely possible that you did?---Yes, I cannot deny or affirm that.

   How long do you normally keep your files for?---Seven years. And after that, what do you do with them?---Shred it and put it in the recycle bin.”

3. Surprisingly he did not have a record of previous clients that he had acted for save for those referred to in his… “tax-return”… but he no longer had that record of the wife nor the file.

4. He said that he had a scan of the Transfer of Land, and Statutory Declaration for a transfer between spouses.

5. He said that there was a note on the front of the scanned document in the PDF file in his handwriting which he said… “we are to await her further instructions until next year. She is waiting for bank and/or building on the land.” He said the date when he made that note could not be read and he did not know the date when the document was saved to the computer.

6. He further said that he could remember amending the agreement but could not say whether it was the request of the other parties’ solicitor. He said also said he could not remember the agreement being executed or even signing the Certificate. He said he could not recall seeing another agreement signed by the wife or her signing any document. At one stage I asked him the following questions:

   “HIS HONOUR: Do you recall seeing another agreement signed by this lady at all?---No. No.

   HIS HONOUR: Look, there’s some things you remember and some things you don’t. This gentleman is trying to do his best, and I appreciate that, and he has no recollection of his client signing it or anything else in relation to her signing any documents, do you. You don’t recall her signing anything?---I don’t recall, sir. No.

   MS JOHNSON: When you prepare binding financial agreements, do you ever do it such that both parties end up with an original copy, if you follow what I’m saying? In other words - - -

   HIS HONOUR: In other words, do you get them to sign the same agreement – the same document?---I recall many years ago where I was advised by a solicitor who is more experienced than I am that I should only have one executed financial agreement and not – and You should have them sign – both sign the same document?---And not two.

   Not parts?---That’s right.

   Not counterparts; yes?---And, therefore, it was my practice then until now that I usually just sign one document rather than sign the parts.

   So when you say “sign one document”, do you mean you get both husband and wife to sign the one?---The one.

   So you get a signature of the husband and the signature of the wife on the one document?---On the one document. Whether - - -

   Not two parts. Not two counterparts?---Not two counterparts.”

7. He went on to say that it was his general practice to send off an unsigned Financial Agreement to the other solicitor and await them to get back to him if they wanted amendments and if not, to return the document executed by their client.

8. He went onto say that his practice in 2009 was as follows:

   “My practice is that I will immediately contact the client and advise the client that I have a signed copy, and I will ask the client to make an arrangement to come in and see me so I can go through with the client again and whether or not there is amendments by the husband, but I will get them to come in and go through that.”

9. He then went on to describe “his general practice” in these matters but he did not know about this particular case. Then the following exchange took place:

   “MS JOHNSON: So does that mean that you don’t simply put away a file without doing the proper checks to make sure a matter has been finalised?---That’s my usual practice.”

10. On re-examination by his counsel he said the following:

    “Could it not be that the further instructions that you were waiting for are encapsulated in the file note that you’ve written on the front of that group of documents?---It – it may. It may.

    It may be, may it not, that the - - -?---That’s right.

    That you got the document back, as you’ve said was your practice. You’ve sent the document off – I’m sorry – to the other solicitor. It has come back signed. You’ve taken instructions from your client, and it may well be that that file note indicates those instructions?---It – it may be. Yes.

    But she has not signed it because she wants to wait for a year for either the bank or the building on the land to take place?---It – it – it may be the case.”

Conclusion

1. There are more questions than answers in this most unusual case. The parties say there are two Binding Financial Agreements. One in 2007, and the other in 2009. No evidence of substance was led about the purported 2007 agreement. I note that the copy of the alleged agreement in annexure “H-3” of the wife’s affidavit at recital D, refers to a “financial agreement” executed by the parties on or about 2007 and yet curiously pursuant to section 90J of the Act there was no reference to or even a hint of a termination agreement in relation to this earlier alleged agreement.

2. It is common ground that neither party has or can produce a Binding Financial Agreement made in 2009 that has been properly and fully executed by both parties. At best, we had annexure “H-3” to the wife’s affidavit which according to her is a valid and enforceable Binding Financial Agreement notwithstanding she has not executed that document.

3. In my view the significant evidence in this case is as follows:

   (a)There was no agreement produced that was signed by all parties;

   (b)Neither parties’ then solicitors could produce their file and so what evidence we have on this topic is very limited;

   (c)The husband’s solicitor only remembered her client and not what work she did for him;

   (d)The husband’s solicitor could not recall reading the agreement at “H-3” nor going through it with her then client;

   (e)The evidence of the wife’s former solicitor was also limited. He said he recalled drafting the agreement but could not recall acting for the wife;

   (f)An important part of his evidence was the note made on the front of the scanned document he retained and it read as follows… “we are to await her further instructions until next year. She is waiting for bank and or building on the land”. The date of that note was unclear but I infer from the evidence that it was on or about 2009 when this document was created;

   (g)In re-examination on this topic, he said he may have got the agreement back from the other solicitor signed by the husband and that the note he made details clear instructions that the wife was not signing the agreement because she wanted to wait for a year for either the bank or the building on the land to take place. The solicitor agreed that may have been the case;

   (h)The husband had no memory of signing the Agreement. His evidence basically was that he used the firm [law firm] to only obtain a divorce; that is all he could remember; and

   (i)The wife’s evidence was equally vague and unhelpful. She said amongst other things, that she signed many documents that she did not really look at. She said she signed the Agreement, (but it only had the husband’s signature). She had a very limited memory of events, and although she argued that a signed Transfer allegedly around 2009 evidences the agreement, however it details the consideration as… “breakdown of a marriage”… and not in compliance with a financial agreement.

1. Soon after the luncheon adjournment on the first day of the hearing of this threshold issue, there was a discussion about the case and the wife’s counsel submitted the following:

   “She is not going to be able to say, “Yes, I went along and I remember this agreement and I signed it.” Her evidence is going to be that she engaged the lawyer, she paid him a certain sum of money because he was doing an agreement, finalising everything and she remembers signing something or signing documents. She doesn’t remember what they were, and that’s all she can say. I mean, English is very much her second language, and that’s really – so it’s really looking at all of the aspects and circumstances around it, something that was done nearly a decade ago, and then suddenly people being asked to produce something. People don’t necessarily have that recall. They will recall the fact that there was some finalisation of everything, but they aren’t going to recall the detail particularly”

2. The major difficulty with the wife’s case in my view is the note made by her then solicitor on the documents he retained in relation to this matter. It is more probable than not that she instructed her then solicitor to put everything… “on hold”… after the deed signed by the husband was returned, and she did not execute the deed nor otherwise seek to proceed with it at that time or subsequently. She possibly paid the $1,650 for costs of her solicitor for his work up to that time when everything was put “on hold”.

3. It is my further view that section 90G(1)(a) is clear in its requirement that there must be an agreement… “signed by all parties”. I note that at page 26,214, Volume 1, CCH Australian Family Law and Practice, that paragraph 32,214 examines the requirement for an original and/or copy agreements and in doing so considers the authorises of Adame & Adame [2014] FCCA 42, Millington & Millington (2007) FamCA 687 and Fevia & Carmel-Fevia (2009) FLC 93-411. It is my view these authorities establish to my satisfaction that there must be at least one original document signed by both parties (notwithstanding the legislation has been refined over time). It matters not whether all original and copy agreements are signed by all parties but there must be at last one original signed by all parties.

4. I note that the Family Law Act 1975 was amended through the Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 and notwithstanding the additional section 90G, both section 90G(1)(a) and section 90G(1A)(a) require the agreement to be signed by all parties.

5. I am further troubled by a possible non-compliance with s.90C(1)(aa) of the Act, which says:

   “90C  Financial agreements during marriage

   (1)If:...

   (aa)    at the time of the making of the agreement, the parties to the marriage are not the spouse parties to any other binding agreement (whether made under this section or section 90B or 90D) with respect to any of those matters;

   …the agreement is a financial agreement…”

6. There was a serious claim that the parties had entered into an earlier financial agreement in 2007 and yet the agreement dated in 2009 at “H-3” does not purport to terminate this earlier agreement as required under Part VIIIA of the Act, although it refers to the earlier agreement at recital D on the first page, and the 2009 document appears to relate to similar “matters”.

7. In all the circumstances I cannot be satisfied that there was an agreement signed by all parties in this case and because of this and other above mentioned reasons, the purported Binding Financial Agreement at “H-3” of the wife’s affidavit in my judgment is not binding on the parties under s.90G and was never valid and it is not enforceable or effective under S.90KA of the Family Law Act, 1975.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Date: 21 December 2018