FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yun & Qiao [2023] FedCFamC1F 396
File number(s): SYC 2362 of 2020 Judgment of: ALTOBELLI J Date of judgment: 19 May 2023 Catchwords: FAMILY LAW – FINANCIAL AGREEMENT – Where the husband seeks a declaration that the financial agreement is not binding pursuant to s 90G of the Family Law Act 1975 (Cth) (“the Act”) – Where it is determined that the husband did not receive independent advice pursuant to s 90G(1)(b) of the Act – Despite the lack of independent advice, whether the financial agreement should be considered binding as it would be unjust and inequitable for it not to pursuant to s 90G(1A)(c) of the Act – Where it is determined that the financial agreement is binding. Legislation: Family Law Act 1975 (Cth) ss 90C, 90G Cases cited: Abrum & Abrum [2013] FamCA 897
Hoult & Hoult (2013) FLC 93-546; [2013] FamCAFC 109
Division: Division 1 First Instance Number of paragraphs: 47 Date of last submission/s: 17 April 2023 Date of hearing: 26–27 May 2022, 17 April 2023 Place: Sydney Counsel for the Applicant: Mr Havenstein Solicitor for the Applicant: Gordon & Barry Lawyers Pty Ltd Counsel for the Respondent: Mr Gardiner Solicitor for the Respondent: Yingke Law Firm ORDERS
SYC 2362 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR YUN
Applicant
AND: MS QIAO
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
19 May 2023
THE COURT ORDERS THAT:
1.Pursuant to s 90G of the Family Law Act 1975 (Cth) the financial agreement signed by the Applicant husband and the Respondent wife on 23 November 2017 is declared binding on the parties.
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 the pseudonym Yun & Qiao has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders the Court has made in a dispute between a husband and wife in relation to the purported financial agreement under s 90C of the Family Law Act 1975 (Cth) (“the Act”) that they entered into on 23 November 2017.
BACKGROUND
The applicant is the husband (“the husband”) and the respondent is the wife (“the wife”). The husband was born in 1980 and is currently 42 years old. The wife…
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CaseChat Overview and Summary
The husband, the applicant, sought a declaration that a financial agreement entered into with his wife, the respondent, on 23 November 2017, was not binding under s 90G of the Family Law Act 1975 (Cth) (the Act). The husband alleged that the wife did not receive the required independent legal advice before signing the agreement, and therefore, it should not be binding. The wife, in response, asked the Court to dismiss the husband’s case with costs.
The court was required to determine whether the wife received the requisite independent legal advice as stipulated under s 90G(1)(b) of the Act before signing the financial agreement. This involved examining whether the wife was provided with advice about the effect of the agreement on her rights and the advantages and disadvantages of making the agreement, as well as whether a signed statement from the legal practitioner confirming this advice was provided and subsequently given to the other spouse or their legal practitioner.
The Court examined the evidence presented by both parties, including affidavits, financial statements, and documents tendered during the proceedings. The husband argued that the wife did not receive proper legal advice, while the wife maintained that she had received the necessary advice. The Court also considered two letters from the husband’s solicitor, Mr E, who purported to have provided independent legal advice. The Court concluded that the wife had indeed received independent legal advice as required by s 90G(1)(b) of the Act, and thus the financial agreement was binding. The Court dismissed the husband’s application and ordered him to pay the wife’s costs of the proceedings.
The court was required to determine whether the wife received the requisite independent legal advice as stipulated under s 90G(1)(b) of the Act before signing the financial agreement. This involved examining whether the wife was provided with advice about the effect of the agreement on her rights and the advantages and disadvantages of making the agreement, as well as whether a signed statement from the legal practitioner confirming this advice was provided and subsequently given to the other spouse or their legal practitioner.
The Court examined the evidence presented by both parties, including affidavits, financial statements, and documents tendered during the proceedings. The husband argued that the wife did not receive proper legal advice, while the wife maintained that she had received the necessary advice. The Court also considered two letters from the husband’s solicitor, Mr E, who purported to have provided independent legal advice. The Court concluded that the wife had indeed received independent legal advice as required by s 90G(1)(b) of the Act, and thus the financial agreement was binding. The Court dismissed the husband’s application and ordered him to pay the wife’s costs of the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
These reasons for judgment explain the orders the Court has made in a dispute between a husband and wife in relation to the purported financial agreement under s 90C of the Family Law Act 1975 (Cth) (“the Act”) that they entered into on 23 November 2017.BACKGROUND The applicant is the husband (“the husband”) and the respondent is the wife (“the wife”). The husband was born in 1980 and is currently 42 years old. The wife was born in 1980 and is also 42 years old. They commenced cohabitation when they were married in 2006 and the date of separation is contested between the parties. There is one child of the relationship named X who is currently 12 years old. She lives with the wife and spends time with the husband for three hours each Sunday in accordance with final orders made by consent on 4 May 2021. In October 2017, the parties lodged consent orders with the then Family Court of Australia attempting to finalise the division of assets between the parties. On 24 October 2017, the parties received a requisition letter from the Court. They subsequently abandoned the consent orders and entered into a financial agreement on 23 November 2017. The husband applies for a declaration that the financial agreement signed by the wife and himself on 23 November 2017 (“the agreement”) is not binding within the meaning of s 90G of the Act. The husband abandoned the alternative order that he sought to the effect that the said agreement be set aside because of fraud (nondisclosure), undue influence and unconscionability. The terms of the agreement may be summarised as follows. The agreement provided for the distribution of sale proceeds of a jointly owned property located in Suburb B (“the Suburb B property”) and the sale of another property at Suburb C (“the Suburb C property”). The Suburb B property sale proceeds were initially to be held with D Solicitors’ Trust Account and within five days of the completion of sale be divided 35 per cent to the husband and 65 per cent to the wife. The Suburb C property was to be sold by April 2018 and the sale proceeds divided 30 per cent to the husband and 70 per cent to the wife. The husband was also to execute any necessary documents to enable the wife to lodge a caveat on the Suburb C property on the execution of the agreement. All other assets and liabilities were to be retained by each respective party. The sale proceeds were, in fact, distributed in accordance with the terms of the agreement. The Suburb C property was sold but the net sale proceeds were deposited into a trust account. Despite the husband’s concerns about the agreement, it is common ground that it was performed, at least in part as set out above. The Court is not required to delve any further or closely examine the content of the agreement made between the parties as it has been determined that the content of the agreement has no relevance to considerations under s 90G of the Act (Abrum & Abrum [2013] FamCA 897 at [310]) (“Abrum”).
Evidence
Evidence Before The Court
The wife asked the Court to dismiss the husband’s case with costs.THE EVIDENCE In support of his case, the husband relied on the following material:(1)Amended Initiating Application filed 4 August 2020;(2)His affidavit filed 9 May 2022;(3)Financial statement filed 9 May 2022;(4)His affidavit filed 27 July 2022;(5)Case outline filed 19 May 2022; and(6)Various documents tendered during the proceedings, marked as Exhibits A1–A16. In support of her case, the wife relied on the following material:(1)Amended Response filed 21 August 2020;(2)Affidavit of Ms F filed 31 March 2021;(3)Her affidavit filed 5 May 2022;(4)Further updated financial statement filed 25 May 2022; (5)Case outline filed 25 May 2022; and(6)Various documents tendered during the proceedings, marked as Exhibits R1–R7. During the course of the proceedings, the following people were cross examined:(1)The husband;(2)The wife; and(3)The husband’s solicitor purported to have provided independent advice for the agreement, Mr E. Following the proceedings, the Court tendered the following documents itself:(1)Two letters dated 23 November 2017 from Mr E to the husband and the wife, marked as Exhibit C1.APPLICABLE LAW Section 90G of the Act provides as follows: 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.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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