Omar and Bilal
[2011] FMCAfam 1430
•21 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OMAR & BILAL | [2011] FMCAfam 1430 |
| FAMILY LAW – Property – binding financial agreement set aside – wife illiterate in English – Court not satisfied wife gave informed consent when signing the Deed. |
| Family Law Act 1975, ss.90C, 90G. |
| Black & Black [2008] FamCAFC 7 Senior & Anderson (2010) FamCA 601 Fevia & Carmel-Fevia (2009) FamCA 816 Kostres & Kostres (2009) FamCA FC 222 |
| Applicant: | MS OMAR |
| Respondent: | MR BILAL |
| File Number: | PAC 5680 of 2007 |
| Judgment of: | Henderson FM |
| Hearing dates: | 15, 16 March, 25 July and 28 November 2011 |
| Date of Last Submission: | 28 November 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 21 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Greenaway |
| Solicitors for the Applicant: | Farah Lawyers Solicitors & Barristers |
| Counsel for the Respondent: | Mr Vassili |
| Solicitors for the Respondent: | Vassili Fozzard Lawyers |
ORDERS
That the binding financial agreement entered into between the parties in February 2007 be set aside.
IT IS NOTED that publication of this judgment under the pseudonym Omar & Bilal is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5680 of 2007
| MS OMAR |
Applicant
And
| MR BILAL |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
This is an application brought by the wife seeking to set aside a binding financial agreement (“BFA”) purportedly made pursuant to section 90C of the Family Law Act (“The Act”) dated for the wife 13 February 2007 and for the husband 5 February 2007. The parties were still married at the time the Deed was entered into.
I previously heard the parenting application and delivered a final judgment on 27 August 2009 in respect of the parties’ child [X] born [in] 2005.
The wife’s position was that the Deed was not binding upon her as it failed to fulfil the requirements set out in section 90G of the Act. Her primary assertion was that the Deed could not be binding upon her as she was not provided with independent legal advice that she was able to understand from a legal practitioner about the effect of signing the agreement upon her rights, the advantage and disadvantages of signing the agreement at the time the advice was provided and/or prior to signing the agreement. Thus the wife submitted she could not give her consent, did not make an informed decision and the Deed should be set aside.
The husband’s case is simple. The BFA is enforceable. The husband and wife each received independent legal advice of the effect upon their rights in signing the agreement and the advantages and disadvantages in signing the agreement prior to signing the agreement.
The husband says this is attested to by the certificate of independent legal advice for the wife signed by Samir Benar Dalla, solicitor. The certificate is dated, signed and annexed to the BFA. As such the BFA is valid at law as it complies with the provisions of section 90C of the Act relating to financial agreements made during a marriage.
The documents I read were the wife’s application filed 21 January 2010, her financial statement filed 21 January 2010, and affidavits filed 21 January 2010 and 7 December 2009. The wife tendered no exhibits.
For the husband his response filed 9 June 2010, financial statement of the same date, affidavit of the same date. The husband sought to rely upon a further affidavit filed October 2011, which I did not read in these proceedings as its contents were not relevant to this issue.
The wife was represented by Mr. Greenaway of Counsel throughout the hearing. The husband initially was represented by Mr Tom Reeve, on his own behalf at one point and finally by Mr Vassili on the final day of hearing.
The husband with leave subpoenaed Mr Samir Dalla and Mr B to Court to give evidence. Each was orally examined.
The husband tendered three exhibits:
Husband’s Exhibit 1, the binding financial agreement.
Husband’s Exhibit 2, an historical title search in respect of his property.
Husband’s Exhibit 3, a report the wife made to the police on 6 December 2007, some months after she had signed the binding financial agreement.
The short history of the facts is as follows.
The husband was born [in] 1951 and the wife [in] 1973. They were married [in] 2003 in Lebanon. The wife arrived in Australia nine months after the marriage, on 15 March 2004 and began living with the husband at his home at [omitted].
The parties separated in September 2007 and their marriage was dissolved on 11 January 2008.
Their daughter [X] was born [in] 2005.
The matrimonial home had been purchased by the husband and his former wife. The home was unencumbered at co-habitation and owned by the husband solely. During the marriage some of the husband’s adult children lived with the parties from time to time.
The marriage was tumultuous. The wife alleges the husband assaulted her. The parties physically separated for the first time in September 2006 when the wife and daughter left the home. The wife placed a caveat on the home at that time.
In February 2007, the marriage was still on foot, in that it had not been dissolved and the binding financial agreement was entered into.
The wife moved to [omitted] in June 2007 with the child and the husband and wife resumed cohabitation. Cohabitation lasted for 3 months until about September 2007 when the wife miscarried and the husband left the property.
As this agreement was entered into between the parties during the marriage it falls within the provisions of section 90C of the Act. The relevant law is as set out in section 90G, and it is important that I read this section out:
When financial agreements are binding
(1) Subject to section (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 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 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 90G (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 change in circumstances from time to 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.
Section 90G (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 by a spouse party seeking to enforce the agreement.
A leading authority for my purposes is the decision in Black & Black [2008] FamCAFC 7, which was an appeal from a decision of Justice Benjamin of the Family Court.
In the appeal the Full Court took a strict interpretation approach to the signing of binding financial agreements particularly as this provision of the Act ousts the jurisdiction of the Court in financial matters. The Court upheld the appeal and found contrary to the trial Judge that the financial agreement did not meet the requirements of section 90G (1)(b) of the Act.
Justice Benjamin interpreted the requirements of section 90G as purposive and found that the financial agreement was binding despite certain defects. The Full Court said:
The financial agreement did not meet the requirements of, as it was then 90G(1)(b) in that it failed to include a statement that the parties had received independent legal advice in relation to all matters set out then in 90G(1)(b). A strict interpretative approach and strict compliance requirements should be applied where the legislation ousts the Court’s jurisdiction to make adjustive orders under section 79.
The government of the day concerned about the strict approach the Full Bench inserted section 90G(1A) which allows the Court to hold an agreement binding even if one of the requirements under 90G(1) is not met.
In the decision of his Honour Justice Young in Senior & Anderson (2010) FamCA 601, his Honour states at paragraph 78:
In Black & Black (2008) FLC 93 at 357, the Full Court considered the validity of a financial agreement which failed to include a statement that the parties had received independent legal advice in relation to all matters required by the legislation then operative. The Full Court held strict compliance with the then statutory requirements were required to oust the jurisdiction of the Court to make orders for division of property, pursuant to section 79 of the Act and the Full Court followed the approach of Collier J in J & J [2006] FamCA 442, where his Honour said:
To my mind, the words that appear in section 90G(1), “If and only if”, are words of real significance. They have a meaning. They import a requirement for a level of compliance if the agreement is to be binding that is clearly a standard or level above and beyond what might be described as substantial compliance. Those words “If and only if” make it clear that each of the parties must ensure that that which is required to be contained and dealt with in the agreement and the annexure to it is, in fact, contained appropriately and completely. Compliance must, therefore, be a full compliance satisfying the statutory requirements.
At paragraph 79 his Honour continued;
The decision in Black v Black led to the introduction of the Federal Justice System Amendment (Efficiency Measures) Act 2009, (“the Amending Act”). The effect of the Amending Act upon part VIIA by schedule 5, which amended section 90G in the matter which I hereafter discussed. It was submitted by counsel for the wife that regardless of the amendments, Black & Black is still good law, at least with respect to non-compliance with section 90G.
In the matter before his Honour there had been an error in the certificates, in that the parties’ names had been incorrectly recorded. Counsel for the husband argued that Parliament has made it abundantly clear that it disapproved of the so called strict compliance test and expected this Court to move from adherence thereto and that it had been the intention of Parliament by enacting this legislation to overcome the effect of the Full Court’s decision in Black & Black.
His Honour referred to the Second Reading Speech of the Attorney-General dated 3 December 2008, in relation to the legislative amendment at paragraph 81:
The amendments are being made because the government is concerned about the possible consequences of that decision (Black & Black) on the validity of existing binding financial agreements which may contain technical errors. The Bill amends the Family Law Act to ensure that people who have made an informed decision to enter into one of these agreements cannot later void or get out of the agreement on a mere technicality resulting in Court battles that the agreement was designed to prevent.
This statement squarely points out the contest in this matter. Is the wife’s case raising a mere technicality or does she raise a matter of substance as Mr Greenaway submitted she did which goes to the very heart of what constitutes a binding financial agreement? The key word in this matter is was an informed decision made by the wife when entering into this agreement.
On its face, the BFA complies with the strict technical requirements of the Act. In particular there are certificates given under section 90G of the Act, which set out correctly and properly the names of each of the parties, certifies that the solicitor is a solicitor, has been independently instructed by each party, that this solicitor has provided his client with independent legal advice prior to entering into this Deed as to the effect of this Deed on the rights of the parties and the advantage and disadvantages at the time the advice was provided of making the Deed. The certificate is signed and in his evidence Mr Dalla attested to his preparing and signing the certificate.
The wife has no English and is virtually illiterate in Arabic her native language. I know this as much was made of that fact by the husband in the parenting matter. The Deed is totally in English as is the certificate of independent legal advice. Nowhere in the Deed or in the certificate is there any indication that that the English Deed was translated into Arabic.
The matter has been protracted in finalising the hearing. The hearing initially commenced on 15 and 16 March 2011. An Arabic interpreter was ordered to assist the wife at that hearing.
On 15 and 16 March 2011, the matter was required to be adjourned due to the wife’s evidence under cross-examination which raised issues different to that in her affidavit. To accord the husband procedural fairness and allow him to make further enquires further dates 25 and 26 July 2011 were allocated. Still, the only issue before the Court was the setting aside of the agreement.
I noted in my orders made 16 March 2011 that I was part heard. The husband had been granted leave to issue a subpoena to Mr Dalla to produce his file and for the same to Mr B an interpreter the wife saw at this time. The matter was adjourned for the return of the subpoena, and an Arabic interpreter was ordered to assist the wife.
The matter was part head and leave given to the husband to issue these subpoena as the wife had raised in her cross-examination the legal advice given to her. The husband submitted at the trial I find she had waived her legal professional privilege with Mr Dalla with this evidence. The wife opposed any suggestion she had waived her legal professional privilege when giving answers under cross-examination or in any way whatsoever.
On 15 April 2011, the matter came before me and I adjourned the proceedings to 19 May 2011 for the return of subpoena and with directions for the husband to file an affidavit of his additional evidence by 3 June 2011 and the wife any further evidence by 24 June 2011. I confirmed the part heard dates of 25 and 26 July 2011. The subpoena addressed to Mr Dalla to produce his file was, ultimately, dismissed due to the wife’s claim of legal-professional privilege, which I upheld. Mr B had no file to produce.
On 25 July 2011, the matter could not proceed and was listed on 28 and 29 November 2011 and concluded on 28 November 2011. The husband was granted leave to file an affidavit of Mr S the wife’s brother-in-law, and issue subpoena for personal attendance of Mr Dalla and Mr B. It was noted the wife opposed any evidence being given by Mr Dalla on the basis that this would infringe her legal professional privilege.
I have been referred to many decisions. I have referred to Senior & Anderson (2010) FamCA 601 and Black & Black [2008] FamCAFC 7. I was referred to Fevia & Carmel-Fevia (2009) FamCA 816 and Kostres & Kostres (2009) FamCA FC 222.
Kostres is important to this decision as it is precedent for the position that the effect of the 2008 amendments is to focus on the precision of the substantive agreement rather the procedure by which it was made. For example the Court may still hold a Deed valid even if the independent advice given to a spouse is not provided to the other spouse in circumstances where the advice was actually provided.
There are many inconsistencies, as was properly submitted by each counsel between the parties’ evidence. The wife, for example, was of the view she went once to Mr Dalla’s office and not twice.
However it is clear that she attended Mr Dalla’s office twice. The wife made allegations that she was in some way overborne by the husband and forced into signing this agreement. I do not accept that evidence nor do I intend to make a finding in relation to that issue. It is not necessary for these proceedings.
What I do say is that Mr Bilal, who owned his property for many years prior to him and the wife marrying, acted in accordance with his rights at law in having this Deed prepared. I make no finding other than he acted properly and appropriately towards the wife in this matter and in finding an Arabic speaking solicitor to provide her with independent legal advice.
The question I must be satisfied is answered in the positive is this; at the time of signing and/or prior to signing the Deed, had the wife been informed of the effect of the agreement on her rights and the advantages and disadvantages in making the agreement?
Can I make a positive finding on such a substantive issue, namely that the wife was so informed when the wife has no English, the Deed and certificate are all in English and no translation of the Deed and its effect or consequences for her is evident in a language she can understand.
Counsel for the husband says this is not fatal for the following.
Mr Dalla, a solicitor of some 30 years experience is Arabic speaking albeit with an Egyptian accent the wife speaks Arabic with a Lebanese accent. He and the wife had at least one lengthy meeting of one hour in relation to the effect and consequences of the Deed. He signed the certificate of independent legal advice and I can accept the wife was informed as the Act requires she be when she signed the Deed.
However, the evidence that has caused me the greatest concern is not that which comes from the wife’s affidavit or her assertions. The wife is at best a poor historian and at worst embellishes facts. Her lack of formal education and training having left school at age 7 is perhaps the reason. It is the evidence in the husband’s affidavit of 18 June 2010 commencing at paragraph 60 and the annexures thereto that raise my concerns.
The husband sets out the events that he says led to him finding Mr Dalla, having the Deed prepared and he and the wife entering into that Deed.
The husband says that [Ms Omar] agreed to enter into a binding financial agreement willingly. He says this agreement came about after he and the wife went to the Lands Titles Office and signed documents necessary to remove a caveat the wife had placed on the husband’s property. This all occurs in February 2007. The husband says at paragraph 60:
[Ms Omar] said to [Mr S], in his presence, “[Mr Bilal] and I are going to my solicitors so that I can sign some paperwork for the house. I said to [Mr S], “Do you want to come with us? I think I will have to wait outside while [Ms Omar] speaks to her lawyer.” He said, “Okay, I will come with you.”
[Mr S] could not give evidence. He was in Lebanon. The wife objected to him giving evidence on the telephone and I accepted that objection. I do not see how his evidence would have assisted me in my decision in any event.
At paragraph 61:
[Ms Omar]’s solicitors name is Mr Samir Benars Dalla of Samir’s Multicultural Legal. When we attended the office of Mr Dalla we were greeted and my wife said to me she wanted to deal with him because he spoke Arabic.
The husband said he and his daughter [X] waited in the waiting area when [Ms Omar] went in to speak to Mr Dalla. They were in there for about an hour. I do not accept the husband’s evidence as confirmed by Mr Dalla that at no stage did the husband enter into the office with the wife and her solicitor nor was he privy to any discussions the wife had with Mr Dalla.
Paragraph 65:
After the conference, Mr Dalla and [Ms Omar] came out of the room and Mr Dalla said to [Ms Omar] in my presence, “I am referring you to an interpreter, Mr B in case there is any doubt about the way I have explained it. He will explain it to you in your dialect. It will give you time to think about what you were signing.” The wife said, “I will go.” I said, “I will take you there.” This conversation was entirely in Arabic.
In cross-examination Mr Dalla said he could recall the conversation he had with the wife in the waiting room about referring her to an interpreter. He can recall the wife saying, “I will go.” He did not recall the husband saying, “I will take you there.”
It is an agreed fact that Mr Dalla speaks Arabic with an Egyptian accent. The wife said in her affidavit material and confirmed same in the witness box, she has difficulty always understanding Arabic spoken with an Egyptian accent and given her limited education this is not surprising as her Arabic is of a Lebanese dialect.
The husband then attached to his affidavit two receipts of payment from Samir’s Multicultural Legal Services. Mr Dalla confirmed that these were moneys paid to him by the wife as she was his client. The wife said the husband paid the money as she had no money. That perhaps it not of great import.
The husband said at paragraph 66 of his affidavit, he said to his wife, “That took a bit of time.” She said, “He had to read out to me every single line and explain it all to me.” The Deed had been drawn up by the husband’s lawyer.
The husband said, “Why do we have to go to an interpreter?” The wife said, “I wanted to sign it today, but he said I have to go away and think about it for a while.” He also said that to make it really clear, I have to have it explained again by a registered interpreter so I can think about it”, or words to that effect.
The interpreter came to give evidence. He had no recollection of the wife as a client and no recollection of this event. His evidence was of no assistance.
The first time the wife came to see Mr Dalla is on 8 February 2007 which date was given in oral evidence by Mr Dalla at the hearing. The receipt reads, “Taking instructions for agreement at conference, $200”.
The second receipt, annexure G, tax invoice 0328, is of the most concern. It is dated 13 February 2007. This is the date the wife signed the binding financial agreement. It reads:
Taking instructions, refer to interpreter, re-explain in Arabic effect of agreement.
Under section 90G of the Act an interpreter has no status to explain the legal ramifications of a Deed other than through a solicitor who is present with the client when words are being translated. The translator may be in person or available by some other electronic means. It is the duty of a solicitor giving independent legal advice to explain the legal ramifications of a Deed to a client directly or through the use of a translator. Not the other way around.
A solicitor explaining the ramifications of signing a Deed is matter of substance not mere technical procedure.
This is precisely why paragraph 90G reads:
If and only if before signing the agreement each spouse 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.
It is inconceivable that Mr Dalla believed the wife understood his interpretation of the Deed when he then sent her to an Arabic translator to re-explain in Arabic the effect of the Deed.
It was his duty to ensure that the wife understood his explanation of the effect of the Deed as he is the solicitor. He cannot abrogate this duty to an interpreter. Had the interpreter been at Mr Dalla’s office with the wife and the 3 together had had a meeting for one hour regarding the Deed then my decision may well have been different. I could have found that the wife had been informed of the effect and advantages and disadvantages of the Deed by a solicitor through the use of an interpreter, not as I now find, explained by an interpreter.
I could have made such a finding even in the absence of a certificate of translation because I could have found that the Deed had been explained to her by a solicitor through the use of an interpreter and the lack of a note or certificate of translation to be a matter of procedure and not substance.
It is improper for a lawyer to certify “I informed and gave legal advice to this person,” if that person did not understand due to a language difficulty or some other impairment what was being said to them.
Mr Dalla cannot have been satisfied the wife understood the terms of the agreement, what it was she was signing, the advantages and disadvantages if he sent her to an Arabic interpreter to re-explain the Deed. What was the purpose of so doing if not for the wife to receive in an Arabic language she could understand the effect and consequences of signing the Deed. In that light I can not see how Mr Dalla signed the certificate when he was not present with the interpreter and wife to know what the wife was being told.
This evidence confirms what the wife said that due to her lack of literacy in the Arabic language she did not understand fully Mr Dalla’s Egyptian Arabic and she was sent to an interpreter, who’s Arabic she would be able to understand.
In circumstances where Mr Dalla was not present when the interpreter explained the effect of the Deed to the wife and where no certificate or other document is attached setting out that the document and its effect was explained in a language the wife understood I find there has not been compliance with a cornerstone and a matter of substance required under section 90G of the Act namely I am not satisfied the wife was informed when she signed the agreement.
The whole tenor of the legislation is that when parties are giving away, compromising, affecting legal rights that they must have that consequence explained to them by a legal practitioner. A vital and necessary part of this understanding is that the communication between the solicitor and the client is sufficient for that client to understand the import of what they are signing. The fact that Mr Dalla sent the wife to an interpreter is a clear message to me that he realised the wife did not fully understand what he was saying to her. He abrogated his legal responsibility under section 90G to an interpreter and thus the certificate is of no consequence.
In light of these findings the wife’s application that the agreement be set aside is irresistible.
I declare that the binding financial agreement entered into between the parties in February 2007, signed by the wife on 13 February 2007 and the husband on 5 February 2007 is set aside.
The agreement has no affect at law and nor does it oust the jurisdiction of the Court to alter property interests under section 79 of the Act.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Henderson FM
Date: 21. 12. 2011.
Corrections
1. The word “and” was deleted from between “Egyptian accent” in para.49.
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