Ozar & Khatib
[2022] FedCFamC2F 382
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ozar & Khatib [2022] FedCFamC2F 382
File number(s): DGC 3052 of 2021 Judgment of: JUDGE BURCHARDT Date of judgment: 1 April 2022 Catchwords: FAMILY LAW – Application to set aside binding financial agreement – wife subject to threat to kill and assault – wife wholly disempowered by fear, unemployment and lack of English – husband well aware of wife’s desperation to remain in matrimonial home and taking advantage of it – agreement giving wife tiny fraction of the property pool – agreement voidable because of undue influence, common law unconscionability and statutory unconscionability pursuant to s 90K(1)(e) Family Law Act – agreement to be set aside. Legislation: Family Law Act 1975 (Cth) Cases cited: Thorne & Kennedy [2017] 263 CLR 85 Division: Division 2 Family Law Number of paragraphs: 73 Date of hearing: 18 March 2022 Place: Dandenong Counsel for the Applicant: Mr Moisidis Solicitor for the Applicant: Pentana Stanton Lawyers Counsel for the Respondent: Mr Devries Solicitor for the Respondent: Hutchinson Legal ORDERS
DGC 3052 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS OZAR
Applicant
AND: MR KHATIB
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
1 APRIL 2022
THE COURT ORDERS THAT:
1.The binding financial agreement dated 21 December 2020 be set aside.
2.The matter be listed for final hearing on a date to be fixed for 1 day.
3.The Respondent file and serve an amended response on or before
1 June3 May 2022.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to r 0.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Ozar & Khatib has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
The applicant wife (the parties are divorced but it is still convenient to use the nomenclature) seeks to set aside a binding financial agreement dated 21 December 2020. The net effect of the binding financial agreement was that the wife obtained assets worth approximately $25,000 and the husband obtained assets worth approximately $850,000. Unsurprisingly, he resists the application.
For the reasons that follow, I think the wife's case is absolutely overwhelming and I will indeed set the order aside.
AGREED OR UNCONTROVERSIAL MATTERS
The wife was born in 1993 and her family live in Country B. The husband was born in 1994 and his family live in Country C. They are first cousins. They came to Australia together in 2013 and married in 2013. The date of separation is in issue. The husband says it was in 2019 and the wife says it was in 2020.
They have two children, X, born in 2014, and Y, born in 2018. The children live with the mother and spend very little time with the father.
These basal facts are not the subject of great dispute, but almost everything else is.
THE PARTIES' AFFIDAVITS
In her first affidavit filed 3 August 2021 the wife deposed to the relationship and the dates of marriage and so forth, very much as they are set out above. She deposed to being the victim of significant violence and abuse, including sexual abuse, by the husband during the relationship. She deposed that she was not allowed to go to Country B to see her family until 2018. She deposed to a visit to Country C in 2019 when she was allowed three days with her family and a further visit in 2019 to Country C when, once again, she was allowed to visit her family for three days. They returned to Australia in 2019 but went back in late 2019.
The wife deposed that upon arrival in Country C the husband had indicated an intention to divorce her. This was accompanied by an assault. The children were to stay in Country C and he had removed, according to the wife, their passports and travel documentation. She was eventually able to return to Australia with the help of the Australian Embassy in City D. In the meantime the husband had cancelled her citizenship exam due for January 2020. Both parents returned to Australia but the children remained in Country C.
She deposed that the parties reconciled in April 2020 and went to Country C in 2020 and returned with the children. She alleged that separation took place in August 2020. She indicated that she had told the husband she wanted an Islamic divorce, and as a result of a dispute about the wife's desire to remain in the matrimonial home with the children, she alleged he assaulted her with a plate and was arrested by police. This led to an intervention order. She deposed to ongoing threats and harassment by the husband and involvement on the part of the Department of Fairness, Families and Housing.
She deposed to a Sharia divorce taking place at about the time the binding financial agreement was signed, (which document she did not understand). She deposed to having gone to see a Mr E, solicitor, and that the husband paid for the appointment. Although the narrative is set out in detail, the essence of what the wife put is that she ultimately signed the binding financial agreement because she was desperate to get an Islamic divorce and escape the husband's control, desperate to find somewhere to live (the agreement permitted her to stay in the premises until her youngest son turns 18 in about 16 years' time), and because of ongoing threats by the husband. It is clear from annexure 3 that a family preservation order was made in May 2021 which limited the father's time with Y and X.
The wife deposed that they had no assets at the commencement of the relationship but now own two properties which are not mortgaged and that the husband has been assessed to pay $98 per month child support.
The wife appended as 2 the binding financial agreement. This notes the separation as occurring in June 2019, "When Mr Khatib left the former matrimonial home". It noted the matrimonial home with a value of $515,000 and a mortgage of $84,000. It noted that the wife would remove her caveat against the matrimonial home and that the husband retained the matrimonial home for his sole use and benefit (paragraph 9.1).
Notwithstanding this, the mother was given the sole right to occupy the matrimonial home until either:
(a)she voluntarily elected to vacate;
(b)she remarried; or,
(c)Y turned 18.
The wife was to receive her car and some gold.
The husband's affidavit sworn 23 December 2021 put the date of separation in 2019 when he moved out of the matrimonial home. It noted the divorce order on 24 March 2021. It roundly denied all allegations of violence. Rather surprisingly given the alleged date of separation and his moving out, paragraph 13 reads:
On 31 August 2020, while having breakfast together, we both agreed on the settlement.
I note that it was asserted that the wife had sent a message agreeing to divorce on the conditions, amongst other things, she be repaid her divorce payment of $13,757. I further note that he alleges the mother abandoned her children in Country C.
An affidavit of a Mr F, an interpreter, filed on 4 March 2022, relevantly annexes a translation of a message sent by the wife to the husband on 31 August 2020 at 11.54 am which had various conditions including:
1.The religious divorce occurs before signing any paper (before court divorce and before giving up the house).
2.You continue to pay all the bills for this house I live in with the children.
3.In the future, you do not file any lawsuit for the children's custody.
4.You don't claim any furniture in this house except for the treadmill, the sofas, the display cabinet, the carpet, and your clothes.
5.Mr G receives the deferred dowery 15 million Country B currency before the religious divorce.
6.Call before you come over to see the children or send a message.
7.You can come over to see your children every day.
8.We will live in this house until Y turns 8 [sic] years. You are not to suddenly say I have sold the house, move out and take your children.
A further addition at 1.07 pm said dot point:
*Religious divorce before I sign any paper.
*Ask the lawyer to finish his procedures by the time you finish finding a place.
*I won't even sign the paper, you have a place
The husband's response at 7.22 pm on 31 August 2020 relevantly states:
1.Do you commit to not hurt the children and take good care of them?
2.I have no problem; I am prepared to leave my house for my children to live in. When I find somewhere suitable to live, I will move out. I want to keep the house; I do not want to sell it at all because this house is for my children, they live in it comfortably better than any other place.
3.Do not worry I will not file a lawsuit against you for the children's custody. Anyway, I want the children to remain in Australia (Melbourne) so I can see them, take care of them and they stay close to me.
4.The deferred dowery, the 15 million Country B currency, I will leave them with G. Mr G will give the money when we finalise the legal documents: after that I will divorce you religiously, I want to finish this and correct the mistake of my life. .
An affidavit by a real estate agent, a Mr H, filed 11 March 2022 confirms that a rental for the former matrimonial home at current rates would be $400 a week.
The final affidavit of the wife filed 11 March 2022 appends a first draft of what became the binding financial agreement which did not have the housing retention provisions in it. She sets out in some considerable detail the various alleged breaches of the intervention order, further harassment and threats made by the husband which she says compelled her to sign the agreement. One passage worth noting is at paragraph 37 where she said:
when I stated that he did not want to divorce me, I was discussing the Sharia Divorce (our religious divorce), I wanted to be divorced religiously so I can be free from him, his abuse and ownership of me and my body. But he refused to divorce me until after I signed the agreement. He did only divorce me after the Agreement was signed, in fact on the same day of his signing; and this attachment is evidence of this
The annexure is, indeed, an Islamic divorce from the J Cultural Centre, dated 21 December 2020.
THE POLICE SUBPOENA MATERIAL
Material from Victoria Police shows that on 10 March 2021 the husband was dealt with for contravening a family violence interim intervention order, assault with a weapon, resisting emergency worker on duty, unlawful assault and resisting emergency worker on duty (two charges) and was dealt with without conviction, adjourned for one year and to pay $1000 to the Court fund.
He faces pending charges for a number of contraventions of the interim intervention order and one of stalking.
The LEAP records support the wife’s version of the events of the 30 August 2020 they show that the husband resisted police attempts to arrest him for five to 10 minutes, that he was placed in handcuffs and placed in the back of the police vehicle.
THE SUBMISSIONS MADE AND EVIDENCE GIVEN AT COURT
What follows is taken from my notes
The Evidence of the Wife
Counsel called the wife, who adopted her affidavits and financial statement as true and correct. She also tendered as exhibit A1 a copy of the intervention order made on 25 February 2020.
Under cross-examination the wife confirmed that she was not calling Mr E. She also confirmed she had no documents about any advice she received from him. She confirmed that she first saw her now solicitor Ms K in December 2020. She searched in Google and found Ms K. She is still her lawyer but she was not being called to give evidence. The intervention order was in place when she saw Ms K. She could not remember if she showed it to Ms K. This was not exhibit A1 but another one. That was from March. She clarified that this was from March 2020. She had said she has been separated for three months. She was not aware that the husband had applied for divorce and did not oppose it.
The divorce application had separation as 16 June 2019 but the wife said this was not correct and she challenged that. Exhibit R1 was tendered which is the divorce application and shows an asserted date of separation of 16 June 2019. Counsel asked when she said separation took place and she said 31 August 2020. That was in her two affidavits. It was put that this was not what she had told the Magistrates' Court in February 2020. The wife said that when she was in the Melbourne Magistrates' Court for the intervention order in February they were separated but they went back together on 27 March. The first separation was 8 or 27 November 2019. She was not sure. It was put that this separation was not in her affidavit. She said she did not include all the details because she wanted to summarise the story.
When asked about a document given to the police the wife said Mr Khatib told her they needed to say separation was in 2019 and that there was one date of separation, not two. She gave a statement to the police complaining about the husband. She kept remembering the date. When she went to the police she was not thinking of anything else. She was fearful of Mr Khatib and signed the document as true and correct. Exhibit R2, which is a statement plainly after March 2021, asserts at paragraph 3 a date of separation of 2019.
When asked when she had first decided she wanted a divorce the wife said between June and July 2020. She had not wanted a divorce earlier. It was put that the husband wanted to divorce but she said he wanted to divorce her when he took her to Country C. Counsel put it to her that she did not want to divorce. The wife said she did not want to divorce in Country C because she would have no rights. When asked what papers she had been shown in December 2019 she said she was shown the Country C divorce papers. These were the same as the religious divorce. It was referred to in the binding financial agreement. When asked why she took a different position between the binding financial agreement and 2019, the wife said because in November 2019 they were in Country C. The divorce would not give her any rights.
When asked why it was different in Australia she said it was different because in Country C she did not want to get divorced. She was thinking of getting a solution other than divorce. His aim was divorce in Country C, then to come to Australia. This would make sure she did not have any rights. When it was put that this was her guess she said this is what happened.
Counsel put it that the religious divorce at the time of the binding financial agreement was very important to her and the wife agreed. When pressed she said it was important 90 per cent and non-negotiable. It was valuable to her. It was put that if it had not been a condition of the binding financial agreement she would never have got the divorce. She said she could have got a religious divorce. It would take three months to a year. She made it a condition of the agreement. She agreed that the agreement which was signed was different to earlier versions. The earlier version was in her second affidavit. She agreed it was essential to get a religious divorce. It was important to remain in the former home. Changes were put into the second agreement. She confirmed sending the text on 31 August 2020 already referred to. It is her handwriting and it was a correct translation from Mr F.
When it was put that what she wanted was a divorce before she would sign the agreement she agreed. She said paragraph 8 (living in the house until Y turns 18) was a condition from Mr Khatib but written by her. These were all the things they agreed verbally. She sent it as a text. She wrote it and took a photograph. The last bit was text. She was clear she would not sign until she had the divorce and place to live. It was what they had agreed on orally.
The wife confirmed that the person to be paid the Country B money was the husband of the father's paternal aunty who lived in Adelaide. The wife's answer, I confess, was hard to follow. It appeared to suggest she had been given the money but in some way defrauded of it. It was said to be detailed in the police statement, but unfortunately we only appear to have the first page of it. In the end, it seemed to me that the religious person who divorced the parties gave the wife $13,000 which she said was worth less than the 15 million Country B currency she was owed.
Counsel cross-examined about the translated documents. She confirmed they were both in the same house when she sent her text to the husband. It was put that he was at work but she said he was in the house. She said if she spoke to him he would not listen so she sent it in SMS in the morning at breakfast. After that he hit her and went to work. At 7 pm he replied. They had breakfast at 10 to 11 or 12 o'clock. The children wake at 10 to 10.30.
I should interpolate that this particular passage of the wife's evidence was given with complete conviction and was clearly true.
The wife agreed there had been separation under one roof at some stage. It was put that she had told the police she did not want Mr Khatib charged, she just wanted the divorce and did not want to live with him any more on 31 August 2020, and she confirmed that this was correct. She had claimed he hit her right eye. It was put that on another occasion she said he had hit her on the head. The wife agreed. She had told the police where he hit her, and she made a spontaneous gesture towards her right eye. It was put there was no evidence of injury but she said the police saw it. It was put there were no photographs or any evidence from any doctor and the wife agreed. She agreed that the allegations she made of violence were serious allegations. She had not said anything to Ms K.
It was put that she had no reason not to tell Ms K about the assaults with the plate. The wife responded that if she had told Ms L she would instruct her not to sign and she was desperate to sign the agreement. She just wanted to finish it. She agreed she wanted a religious divorce and to stay in the house. She wanted him to have no claims against the children. She agreed she would have done anything to get those things. She agreed that the adjustments she requested were made. She agreed that the agreement gave rise to and led to the religious divorce which was signed soon after the agreement was made. She agreed that at the time Y was about two years old so they could stay another 16 years. The husband was to pay the mortgage and rates. She had no resources to buy her own house and would struggle to rent. She agreed that there was a benefit and it was put to her that she was saving $20,000 per year.
It was put that she entered the agreement just to get what the agreement gave her. The wife said it was not for her benefit. She entered the agreement so she could stay in the house and not get into the poverty line.
The Evidence of the Husband
The husband adopted his affidavit and financial statement as true and correct. He confirmed that the wife vacated the former matrimonial home six months after the binding financial agreement.
The husband confirmed that X is seven and Y is three and they live with the mother, who has been their primary carer all their lives. He knows she loves them very much. She has a strong desire to be with the children. It was put that she had told him the first agreement did not provide a roof over her head and that of the children. The husband says she said she wanted to stay in the house. It was put the wife said she wanted 50 per cent of the house but he disagreed. He admitted that this was mentioned later on. It was put that he had not agreed, but he said his lawyer was talking on his behalf. He eventually said that he did not agree with the wife's claim.
He agreed that the wife told him she wanted a roof over her head with the children and this was in the agreement. She could stay until Y was 18 or she remarried. He said it was possible she would remarry. When asked if she could stay longer than 16 years he said he told her she can remain forever. He wants the house for his children. The mortgage was $84,000. She needed a roof because she could not buy a home.
It was put that she wanted a religious divorce and that this was a need for her. He said this was no problem. It was put that there could be no divorce unless he agreed or she went to a Shaikh but he disagreed. He knew she wanted the divorce. When it was put that she signed the agreement and he gave her the divorce he said, "Part of what you say is correct". There was a religious divorce on 21 December 2020. He could have given this to her before. This date was given to them by Mr E who did the divorce for them.
He agreed that they had been to Country C in late November 2019 with the wife and children. He came back in December and she stayed with the children for about a month. He agreed that he had said he wanted a divorce in Country C. Counsel put it that she had not agreed but he said she did not have a problem. When it was put that they had not got a divorce in Country C and she would not agree the husband said getting a divorce is not necessarily getting a piece of paper. He said, "I can say she did not agree". He agreed that he had returned to Australia without the wife and the children but denied that he had kept all their passports. He agreed the wife had to go to the Australian Embassy because she did not have a passport but he still denied that he had taken it. When it was put the children could not come back because they had no passports he said she had not brought the kids. He said she had abandoned them.
He agreed that she had issued an intervention order in February 2020. When it was put that the intervention order application said he had tried to force her to sign a divorce he disagreed. He disagreed that he had made a threat to kill. He disagreed he had taken her telephone and travel documents and cancelled her citizenship test. It was put that there was reconciliation after this. He said he was outside the house, going back to the house. He agreed that they had travelled to Country C in July 2020 and brought the children back. It took three days. He agreed that the wife missed the children deeply. She was desperate for the children to come back. He disagreed there was domestic violence throughout. He had not hit her or verbally abused her or sexually abused her. Counsel put it that under his religion women should submit to rule of a man. He said he agreed with part of this but force was incorrect. He denied it was Sharia law. She is not obligated. It is her choice.
It was put that the wife objected to the first draft of the agreement. He said that on the first agreement she wanted the third set of gold. It was put that he always said that he would only grant a religious divorce if she signed the agreement. He said getting the divorce was not necessarily related to this. At times she wanted it but at times she changed her mind. It was put that he had suggested the wife go to Mr E but he said Mr E had nothing to do with divorce. The witness for divorce was Mr M. It was put that he had suggested Mr E to the wife. He said that they knew Mr E from before from another matter.
He said he denied paying the fee for the wife to attend and said he paid a fee for another matter. When Counsel put it that somebody had to pay the husband said, "She could have paid for this". He would have paid it if asked. He could not remember when he paid Mr E. It was a fine dealt with in 2021. He agreed that Mr E reimbursed $500 to him but said this was to do with the fine. When it was put that Mr E was his long term solicitor he denied this. He denied knowing Mr E or dealing with Mr E before 2020 and said they knew each other from the mosque but were not friends or otherwise close.
He agreed there was a dispute on 31 August 2020. They did argue. The fact that he got upset was not from what she wanted. She acted in a way to make him edgy. He denied hitting her with a glass plate to the eye. When it was put that she had called police he said words to the effect that she made inappropriate decisions. He agreed in the end that she telephoned police. He said if it was correct she would never have done this in the morning but not in the evening. Counsel put it to him that the police subpoena material showed he resisted arrest for five to 10 minutes and was handcuffed in the police van and he agreed. This was despite him saying he was calm. It was the first time in his life. He resisted for a reason.
Counsel put it that the police called for backup and that two cars arrived. He did not know how many cars there were but two officers talked to him. He had been charged with contravening the intervention order, assault with a weapon and resisting arrest. It was put that he pleaded guilty and was placed on a good behaviour bond and had to contribute $1000. He said he had disagreed but his lawyer told him he could finalise it. He agreed that he was dealt with without conviction and adjourned for a year and contributed $1000. There was an intervention order at the same time.
He disagreed that he had nonetheless continued to visit the family home. He went there on 19 December 2020. He denied making a threat if the wife did not remove the intervention order. When it was put that he had sent her to Mr E to remove the intervention order he said he had not forced her to.
He agreed he pays $96 per month child support. He agreed that the wife is in receipt of statutory benefits. When it was put that the agreement was very favourable to him he said "to some extent". He agreed that at the time of the wife's first affidavit the asset pool was $875,000. When it was put that she got the car, the gold jewellery and the dowry in a total of approximately $17,000 the husband said, "This calculation you can do". She was going to get money after the divorce. This was a lot of benefit to his kids and his ex-wife.
Final Submissions by Counsel for the Husband
Counsel submitted that the legislation was not designed to stop bargains that might seem unequal. The evidence was clear that the wife wanted the agreement. She was insistent on what she wanted. There was no evidence of duress. What motivated her was the home and the religious divorce and other things. There was no evidence she was forced by the husband. The wife was forced only by the things she wanted and now has buyer's remorse. She has abandoned the property but it is still available. The agreement does not require a result the Court would impose. There was no form of duress by the husband. The wife got advice it was not a good agreement. The matter was adjourned once before by the wife's solicitors and he sought the costs of the adjournment.
Final Submissions by Counsel for the Wife
There is some dispute as to the costs of the adjournment.
Counsel referred to section 90K(1)(b) and (1)(e) of the Family Law Act. The agreement was effected by duress. The children were overseas and the mother was desperate. The father resisted arrest and it took five to 10 minutes of struggle to get him into the divisional van. The police were called when the wife was struck to the head. There were intervention orders between November 2019 and May 2020 and then another one on 31 August 2020. Negotiations about the agreement were underway. There was the threat to kill. This was duress and rendered the agreement voidable or void.
Counsel then referred to undue influence and unconscionable conduct and referred to Thorne v Kennedy [2017] HCA 49. In respect of unconscionable conduct the individual was vulnerable and desperate. Desperation vitiates consent (see Thorne v Kennedy at [30]-[40]). The wife got two per cent of the pool in this case. The Court was invited to look at the parties' backgrounds. The wife was constrained in assessing alternatives. If she was to remarry she is out. She gets $96 per month in child support. The cultural background of the parties was significant. The agreement was of huge benefit to the husband and constituted unconscionable conduct because the wife was in a position of special disadvantage of which the husband had taken advantage. The husband was aware the mother loves the children and wanted a roof over their head. This would be enough on its own. The father also knew the wife desperately wanted a divorce.
THE LEGAL TEST
In Thorne & Kennedy [2017] 263 CLR 85 the High Court dealt with the issues of duress, undue influence and unconscionable conduct in the context of section 90K of the Family Law Act. In that case the Court held that agreements entered into were voidable due to undue influence and due to unconscionable conduct.
It should be noted that the plurality of Kiefel CJ and Bell, Gageler, Keane and Edelman JJ found that it was not necessary for the primary judge in that case to consider common law duress (at [29]) and did not address arguments in favour for or against the conclusion of the New South Wales Court of Appeal that duress at common law required proof of threat and/or unlawful conduct (also at [29]).
The Court noted the difficulties in defining "undue influence" (at [30]). The Court noted at [31]:
In 1836, in a passage which was copied verbatim by Snell thirty years later, Story said that a person can be subjected to undue influence where the effect of factors such as pressure is that the person "has no free will, but stands in vinculis [in chains]".
The Court went on, in effect, to approve that definition.
At [37]-[38] the plurality continued:
There was no controversy on this appeal concerning the principles of unconscionable conduct in equity. Those principles were recently restated by this Court in Kakavas v Crown Melbourne Ltd.
A conclusion of unconscionable conduct requires the innocent party to be subject to a special disadvantage "which seriously affects the ability of the innocent party to make a judgment as to [the innocent party's] own best interests". The other party must also unconscientiously take advantage of that special disadvantage.
At [40] the plurality observed:
Although undue influence and unconscionable conduct will overlap, they have distinct spheres of operation. One difference is that although one way in which the element of special disadvantage for a finding of unconscionable conduct can be established is by a finding of undue influence, there are many other circumstances that can amount to a special disadvantage which would not establish undue influence. A further difference between the doctrines is that although undue influence cases will often arise from the assertion of pressure by the other party which might amount to victimisation or exploitation, this is not always required. In Commercial Bank of Australia Ltd v Amadio, Mason J emphasised the difference between unconscionable conduct and 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."
FINDINGS ABOUT THE FACTS
In this case I have seen both the parties cross-examined, albeit through interpreters. One thing that was instantly obvious during the entirety of the proceeding, including when the parties were in the well of the Court, was the affect of the parties. The wife was overborne, disheartened and sad. The husband was visibly furious.
The wife was an excellent witness who answered the questions put to her directly and, in my view, albeit at times defensively, honestly. The husband was often non-responsive and was, putting the matters shortly, not a witness whom I believed.
Not only was this my impression of the demeanour of the witnesses, but the wife's allegations of violence and overbearing behaviour are fully supported by the complaints made to the police and the police subpoenaed materials.
I have no doubt that the nature of the relationship was as the wife put it. She was abused and threatened, as she said. He threatened to kill her when he put a knife to her throat. He assaulted her with a plate on the occasion of his arrest on 31 August 2020.
The wife's disadvantaged position is immediately obvious from the fact that she was prohibited from visiting her family in Country B save for very short periods even though the parties travelled to Country C, the country next door, on more than one occasion. It is common cause that the wife had to approach the Australian Embassy to get back to Australia. Of course the husband took the children's passports and hers. Of course she refused to sign a divorce application as the husband wished in Country C because she opined, rightly in my view, that she would have no rights in that country both as a non-citizen and as a woman.
The husband's assertion that she deserted the children in Country C is completely contrary even to his own evidence that she was desperate to get them back to Australia and loves them very dearly. It beggars belief that he should make an assertion that she voluntarily left them in another country.
Furthermore, in circumstances where the wife lives in Australia and has little English and entirely straightened financial circumstances, her desperation to have somewhere to live is something of which he was well aware and of which, in my view, he took advantage.
There is some difficulty with some aspects of both parties' evidence as to the date of separation. On the one hand, the wife has acceded to a divorce application and has otherwise given the date as June 2019. By way of contrast however, the husband, who says he moved out in 2019, has then said that they were having breakfast together in August 2020. His message to her on that day plainly shows that he was then living in the house. I accept the wife's explanation as to the anomalies.
In circumstances where the wife was generally disempowered, subject to threats of violence if she did not sign an agreement, and desperate to get out of the relationship by getting a Sharia divorce, the wife was plainly in a position of special disadvantage.
I accept the wife's explanation that she effectively told her solicitors she was determined to sign the agreement because her will was completely overborne and the husband was quite obviously well aware of this. It was a situation he had fomented and produced.
The wife was undoubtedly the victim of undue influence in the sense of being pressured to a point where she felt she had to sign. Equally, she was in the position of special disadvantage because of this pressure and the attendant matters I have described, something of which the husband was well aware and took advantage.
This agreement was quite extraordinarily beneficial to the husband and his failure to acknowledge this is part and parcel of his construct. The fact is that this was an agreement so obviously against the wife's interests, that her decision to sign it can only reasonably be taken to have come from the pressure she was under.
In these circumstances, and leaving aside the question of duress (noting that the common law test for duress would appear to be met by the threats to kill and other violence inflicted upon the wife in any event) this agreement is voidable on the basis of undue influence and common law unconscionability, together with statutory unconscionability pursuant to section 90K(1)(e). I will order the agreement be set aside.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 1 April 2022
0