Warner and Cummings

This matter concerned an application by a de facto husband against his de facto wife. The dispute revolved around the validity of a financial agreement made between the parties under section 90G of the *Family Law Act 1975* (Cth). The application was heard by Judge Neville.

The primary legal issue before the court was whether the de facto husband had discharged the onus of proving that the requirements of section 90G of the *Family Law Act 1975* had been met, specifically concerning the provision of independent legal advice to the de facto wife prior to the execution of the financial agreement. The court was required to determine if a certificate of legal advice, when read in conjunction with a recital in the agreement, constituted sufficient evidence of compliance with the legal advice requirement.

Judge Neville reasoned that a certificate of legal advice, when read with a relevant recital in the financial agreement, should be treated as prima facie evidence that the legal advice component of section 90G(1) had been satisfied. His Honour adopted the principle that such a certificate, in conjunction with the recital, should give rise to an inference or presumption that the requisite advice had been given, thereby passing the evidentiary burden to the other party. The court found that the trial judge had erred by focusing on the specific content of the legal advice, rather than being satisfied that the advice referred to in section 90G(1)(b) had been given. The certificate, read with the recital, was considered a sufficient evidentiary foundation for this finding.

The court ordered that the de facto husband pay the de facto wife the sum of $121,848.25, plus interest, within 28 days. The de facto husband's application was dismissed, and he was ordered to pay the de facto wife's costs unless otherwise agreed within 14 days.