Zhong & Yao
[2023] FedCFamC1F 626
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zhong & Yao [2023] FedCFamC1F 626
File number(s): SYC 1477 of 2019 Judgment of: ALTOBELLI J Date of judgment: 1 August 2023 Catchwords: FAMILY LAW – BINDING FINANCIAL AGREEMENT – The husband seeks to set aside a binding financial agreement – Where the wife filed no material and did not appear at the hearing – The matter proceeded undefended – Where the agreement has been made under s 90UC of the Family Law Act 1975 (Cth) despite the parties being married – Where the husband lacks evidence to satisfy the Court that he was subjected to unconscionable conduct or undue influence – Where the husband’s application is dismissed. Legislation: Family Law Act 1975 (Cth) ss 90C, 90K, 90UC Cases cited: Bilal & Omar (2015) FLC 93-636; [2015] FamCAFC 30
Birdwood & Gravino [2023] FedCFamC1A 114
Senior & Anderson (2011) FLC 93-470; [2011] FamCAFC 129
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Division: Division 1 First Instance Number of paragraphs: 44 Date of hearing: 10 July 2023 Place: Sydney Counsel for the Applicant: Mr Cairns Solicitor for the Applicant: Jack Rigg Solicitors The Respondent: No appearance ORDERS
SYC 1477 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ZHONG
Applicant
AND: MS YAO
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
1 August 2023
THE COURT ORDERS THAT:
1.The Applicant husband’s application to set aside the binding financial agreement entered into by the parties in July 2017 is dismissed.
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 Zhong & Yao 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 that the Court has made in a dispute between a husband and wife about an agreement that they entered into on 10 July 2017 (“the agreement”).
BACKGROUND
On 30 November 2022, the Deputy Chief Justice set this matter down for hearing before me on 3 July 2023 on the limited issue as to whether a binding financial agreement entered into by the parties in July 2017 should be set aside. His Honour made trial directions (reproduced in the first schedule to these reasons) that would have enabled the applicant husband (“the husband”) and respondent wife (“the wife”) to properly prepare for their case and place all necessary evidence before the Court.
On 7 February 2023, the matter came before me for mention and I made an order, in effect, confirming the listing on 10 July 2023 for hearing on the limited issue as to whether a binding financial agreement entered into by the parties in July 2017 should be set aside.
On both of these occasions the husband appeared in person with the assistance of an interpreter, and the wife was represented by her solicitor Ms Smith.
The wife did not attend before the Court on the day of the hearing. Her email communication with my chambers became the Court’s exhibit C1. In essence, the wife explained that she was representing herself, and was not currently in Sydney because of work commitments. She sought an adjournment. She explained that she was seeking legal advice and legal representation. My associate explained to the wife, by way of return email, that her application for an adjournment had not been granted, but a Microsoft Teams link was provided to her so that she could attend at 10.00 am. The wife did not attend. In circumstances where this matter had been set down for hearing on 30 November 2022, and that listing had been confirmed on 7 February 2023, it is unclear as to why an adjournment should be granted.
The husband appeared with his solicitor and Mr Cairns of counsel, and the Court provided an interpreter. Despite some hesitation from Mr Cairns, mainly related to the state of the husband’s affidavit, he chose to proceed on an undefended basis. That was a forensic choice made on behalf of the husband.
The case outline document provided by the husband’s solicitor on 6 July 2023 explained that the order sought was as follows:
1.That pursuant to section 90K of the Family Law Act 1975, the binding financial agreement between the parties date on or about 10 July 2017 be set aside.
(As per the original)
The issue in dispute was described as “whether a binding financial agreement entered into in July 2017 should be set aside”.
The outline of contentions contained five points as follows:
1.The husband did not receive independent legal advice on the binding financial agreement ("Agreement").
2.Legal advice was not provided to the Husband.
3.Husband was subject to undue influence and unconscionable conduct.
4.The Wife failed to disclose assets at the time the agreement was made.
5.The Agreement was written in English and the father's native language is [Country B language]. The Father was not provided with a translated copy of the Agreement.
The evidence relied on by the husband was his affidavit filed 13 April 2023. His counsel formally moved on the husband’s Second Further Amended Initiating Application filed 4 October 2022 which, at Order 18, sought the following order:
18.That pursuant to section 90K of the Family Law Act 1975, the binding financial agreement between the parties dated on or about 10 July 2017 be set aside.
The following matters of background are gleaned from documents other than the husband’s affidavit which, as will be seen, was minimalistic in nature.
The husband describes himself as a professional and was born in 1975. He describes the wife as a professional born in 1979. They commenced cohabitation in 2009, married in 2011, and separated in April 2017. They divorced in 2019. The husband initially commenced proceedings on 11 March 2019. His application appears to have been amended several times. Parenting and property proceedings are ongoing. Only the issue relating to the agreement was before the Court on this occasion.
UNDEFENDED HEARING
The matter proceeded on an undefended basis. The wife did not attend the hearing. Moreover, the wife did not comply with the orders made by the Deputy Chief Justice on 30 November 2022. Specifically, she appears to have filed no affidavit of evidence in relation to the husband’s application to set aside the agreement. Her document entitled “Points of Defence” filed 21 July 2022 is reproduced in the second schedule to these reasons. It raises issues about rectification that will need to be discussed below, but otherwise denies key points made in the husband’s claim. Other than this document, her only relevant pleading appears to be her Amended Response filed 3 December 2021 in which, at Orders 13 and 14, she seeks the following orders:
13.A declaration that on or about July 2017 the parties entered into a Financial Agreement which is valid, enforceable and binding upon them.
14.As a consequence of the declaration in Order 1, the Amended Application of the Husband filed 4 October 2021 be and is hereby dismissed.
As the wife did not attend the scheduled final hearing of this matter, the Court dismisses Orders 13 and 14 of her Amended Response filed 3 December 2021, and her Points of Defence filed 21 July 2022. The Court records its concern, however, that the Applicant made no reference to the latter document, particularly as it raised an obvious issue about the validity of the agreement. Indeed one wonders whether it was read at all.
EVIDENCE BEFORE THE COURT
The only evidence before the Court thus consisted of the husband’s affidavit filed 13 April 2023, and documents tendered into evidence which became exhibit A1, consisting of documents produced on subpoena by a firm of lawyers, C Lawyers of Suburb D who, according to the husband, purported to provide him independent advice in relation to the agreement.
The husband’s affidavit consisted of seven paragraphs and a number of annexed documents. Counsel at the hearing mentioned to the Court that the participation of his solicitor, and appearance of counsel, was pursuant to a s 102NA order. In effect, counsel was telling the Court that the husband prepared his own affidavit. A forensic choice was made to proceed on this evidence.
In his affidavit the husband purports to incorporate Points of Claim dated 17 June 2022. This document, which presents as a pleading-type document, or possibly as an alternative to a formal pleading, consists of 10 paragraphs which purports to set out the legal basis of his claim. This is a document that was filed on 17 June 2022 in accordance with orders made by a judicial registrar on 20 May 2022 that provides:
3. By not later than 4.00pm on 17 June 2022, the Applicant file and serve:
a.Points of Claim particularising the relief he seeks pursuant to section 90K of the Family Law Act 1975 including the facts and circumstances relied upon, and
b.All evidence upon which he seeks to rely in relation to his claims pursuant to section 90G and section 90K of the Family Law Act.
The document does not set out evidence. It is, nonetheless, the clearest articulation of the legal basis of the husband’s claim to set aside the agreement. Where relevant, reference will be made to specific paragraphs.
In the same orders made by the judicial registrar, the wife was also directed to file a document as follows:
4.Within 28 days of the Applicant’s compliance with Order 2, the Respondent file and serve:
a.Points of Defence including the facts and circumstances relied upon; and
b.All evidence upon which she seeks to rely in relation to the Applicant’s claims pursuant to section 90G and section 90K of the Family Law Act 1975.
The wife complied with this order and filed a document titled “Points of Defence” on 21 July 2022.
In paragraph 4, and doing the best the Court can to understand the husband’s evidence, he seems to contend that notwithstanding an invoice for $550 in his name from a solicitor ostensibly relating to the provision of independent advice in respect of the agreement, he neither engaged the lawyer nor paid the invoice. He contends that the wife paid the invoice. He seems to contend that the document could not be of legal effect as it was not lawfully witnessed.
In paragraph 5, again doing the best the Court can to understand the husband’s contention, he suggests that he was forced to sign the agreement because otherwise he wouldn’t have been able to see or contact his children. He relies on an annexure to the agreement which comprises copies of messages between the parties.
In paragraph 6 he refers to a document which he contends either he, or the wife, or possibly someone else, was forced to sign. He describes it as a transfer, but the annexure seems to be but a fragment or part of a document.
At paragraph 7 he refers to a list of inventories presumably in the agreement itself. He does not annex the financial agreement. Indeed it was not specifically tendered in his case. Fortuitously, perhaps, it is contained within the documents produced on subpoena.
Before discussing the documents actually produced, it is important to refer to a covering letter dated 17 May 2022 in which C Lawyers explain that certain documents were not produced including file notes. A claim for privilege is made. There is nothing in the evidence led on behalf of the husband which explains whether further attempts were made to obtain the file notes. The Court’s records take the matter no further. The Court observes that it is unlikely that any claim for privilege could have been sustained in the circumstances of this case. Firstly, prima facie the documents suggested that the husband was the client and no privilege could stand which could not be waived by him even if that were on a without prejudice basis so far as his claim not to be the client was concerned. Moreover, the privilege could not be maintained in a case where the wife was seeking to uphold the agreement in the face of an argument about lack of independent advice.
Bilal & Omar (2015) FLC 93-636 delves into the issue of whether the wife waived legal professional privilege by claiming that she had not received the requisite advice in order to set aside a binding financial agreement. The Full Court says at [41]–[43]:
41.…For example, the Full Court of the Federal Court in Commissioner of Taxation v Rio Tinto (2006) 151 FCR said:
52.[The] authorities show that, where issue of implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication. (Emphasis added)
42.The Full Court of the Federal Court formulated the question as being whether the party has:
68.… made an assertion as part of his case that puts the contents of the privileged scheduled documents in issue, or necessarily lays them open to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege.
43.By reference to s 122(2) and the principles just discussed, we consider that the circumstances of this case provide a very clear example of the implied waiver of legal professional privilege. The wife’s affidavit deposes, and the solicitor’s certificate attests, that the wife has received advice of a certain kind. In defending the husband’s case, the wife clearly asserted in the witness box a position entirely inconsistent with that. Put simply, the wife put squarely into issue whether the advice required under s 90G had in fact been given.
Amongst the documents produced on subpoena and tendered into evidence is a document described as a deed of financial agreement pursuant to s 90UC of the Family Law Act 1975 (Cth) (“the Act”) which refers to financial agreements during de facto relationships. This is notwithstanding the fact that the parties were in fact married. Indeed, the entire agreement seems to be predicated on the basis that the husband and the wife had never married but were in a de facto relationship between 2008 and 2017. This issue was not raised before the Court in submissions, but was raised by the wife in her Points of Defence. The Court will consider the potential consequences of this after addressing the matters raised in the husband’s case.
Where necessary, the terms of the agreement will be considered below. The Court notes that at page 11 of the agreement there is a s 90G certificate provided by a lawyer from C Lawyers.
APPLICABLE LAW
The husband’s application is brought pursuant to the provisions of s 90K of the Act which states as follows:
Circumstances in which court may set aside a financial agreement or termination agreement
(1) A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:
(a)the agreement was obtained by fraud (including non-disclosure of a material matter); or
(aa) a party to the agreement entered into the agreement:
(i)for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or
(ii)with reckless disregard of the interests of a creditor or creditors of the party; or
(ab)a party (the agreement party ) to the agreement entered into the agreement:
(i)for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship with a spouse party; or
(ii)for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the de facto relationship; or
(iii)with reckless disregard of those interests of that other person; or
(b) the agreement is void, voidable or unenforceable; or
(c) in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or
(d)since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or
(e) in respect of the making of a financial agreement--a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or
(f)a payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or\
(g)the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB.
(1A)For the purposes of paragraph (1)(aa), creditor , in relation to a party to the agreement, includes a person who could reasonably have been foreseen by the party as being reasonably likely to become a creditor of the party.
(2) For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:
(a) the person is a parent of the child with whom the child lives; or
(b) a parenting order provides that:
(i) the child is to live with the person; or
(ii) the person has parental responsibility for the child.
(3)A court may, on an application by a person who was a party to the financial agreement that has been set aside, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons.
(4)An order under subsection (1) or (3) may, after the death of a party to the proceedings in which the order was made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(5)If a party to proceedings under this section dies before the proceedings are completed:
(a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and
(b)if the court is of the opinion:
(i)that it would have exercised its powers under this section if the deceased party had not died; and
(ii) that it is still appropriate to exercise those powers;
the court may make any order that it could have made under subsection (1) or (3); and
(c)an order under paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(6) The court must not make an order under this section if the order would:
(a)result in the acquisition of property from a person otherwise than on just terms; and
(b) be invalid because of paragraph 51(xxxi) of the Constitution.
For this purpose, acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution.
Remarkably no submission was made on behalf of the husband to assist the Court in understanding the precise basis of the husband’s claim to set aside the agreement under this section. Doing the best the Court can, it will rely on the Points of Claim document dated 17 June 2022.
In paragraphs 4.1 and 4.2 of the Points of Claim the husband refers to the inadequacy of the legal advice provided under s 90G(1)(b) of the Act, but the husband’s claim is under s 90K. The Court accepts, however, that if the agreement offends the provisions of s 90G it is unenforceable for the purposes of s 90K(1)(b).
In paragraph 4.3 of the Points of Claim the husband contends that the agreement is otherwise void, voidable or unenforceable because of unconscionable conduct and/or undue influence such that it would be unjust not to set aside the agreement. Thus, s 90K(1)(b) is again invoked.
DISCUSSION
The onus was on the husband to lead proof in both admissible and cogent form in support of his claim. His evidence is contained in his affidavit and the documents on which he relies which were produced on subpoena. The Points of Claim document merely contains assertions, not evidence.
The husband leads no evidence about what advice he did receive. The solicitor who purports to have given him the advice clearly had file notes in respect of which a claim for privilege was made. The flimsy nature of this privilege claim has already been noted. The husband cannot sit back and claim that he received inadequate advice but not put before the Court evidence that was reasonably within his capacity to have done so. It is very difficult to understand what the husband is saying at paragraph 4 of his affidavit. What is clear is that he does not say what advice he was given, and he does not say that he was not given the advice that is referred to in the s 90G certificate annexed to the agreement. His focus seems to be on the contention that the lawyer was in fact paid by the wife.
The husband does not depose, for example, that he either was, or was not, given the advice referred to in s 90G(1)(b) of the Act.
Nothing was said about this in submissions. It is unlikely, the Court notes, that whatever advice the husband received was any less independent just because either the wife paid for that advice, or was even present at the time. And yet these seem to be his main concerns.
In the first sentence of paragraph 5 of his affidavit the husband states:
The mother and her parents were forcing the father to sign these documents, as the consequence that the father would not be able to see or contact the children if the father reject to sign these 4 documents.
That seems to be the high point of his evidence about unconscionable conduct or undue influence. The High Court in Thorne v Kennedy [2017] 263 CLR 85 has defined the applicable principles of undue influence and unconscionability in [30]–[43]. Grant T Riethmuller, Family Law (Thomson Reuters, 7th edition, 2022) provides a useful concise discussion in relation to the High Court’s decision at chapter 32.410 as follows:
However, it is important to note the High Court decision of Thorne & Kennedy, wherein the doctrines of undue influence and unconscionable conduct were considered in the context of financial agreements. In Thorne & Kennedy, the High Court reiterated that ‘unconscionable conduct’ is:
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.
The High Court also stated that ‘undue influence’ occurred where ‘the effect of factors such as pressure is that the person has no free will, but stands in vinculis [in chains].’ The question whether a person’s act is ‘free’ requires a consideration to which the person was constrained in assessing alternatives and deciding between them. The ‘judgmental capacity of the party seeking relief must be “markedly sub-standard” as a result of the effect upon the person’s mind of the will of another.’ Importantly, however, there is no longer any presumption that a relationship between an engaged couple gives ‘rise to a presumption that either person substantially subordinates his or her free will to the other’.
In the context of financial agreements, the High Court held the following factors and considerations were relevant:
In the particular context of pre-nuptial and post-nuptial agreements, some of the factors which may have prominence include the following:
(i)whether the agreement was offered on a basis that it was not subject to negotiation;
(ii)the emotional circumstances in which the agreement was entered including any explicit or implicit threat to end a marriage or to end an engagement;
(iii) whether there was any time for careful reflection;
(iv) the nature of the parties’ relationship;
(v) the relative financial positions of the parties; and
(vi)the independent advice that was received and whether there was time to reflect on that advice.
That a party to the financial agreement was advised not to sign the agreement, but did so anyway, may indicate undue influence upon that party.
(Footnotes omitted)
The vague and unspecific evidence given by the husband does not satisfy the Court that he was subjected to unconscionable conduct or undue influence. Even referring to appendix C of the father’s affidavit does not assist him.
Paragraphs 6 and 7 of his affidavit do not throw any discernible light on the husband’s case before the Court based on s 90K of the Act.
ORDERS MADE
The Court notes that at all relevant times the onus of proof was on the husband to adduce the evidence necessary to prove the case that he ran under s 90K of the Act. He has not met the burden of proof. His evidence is inadequate and unsatisfactory. His application must be, and is, dismissed.
The unfortunate situation which arises, however, is that the agreement entered into and signed by the parties purports to be something that it is not. Doing the best the Court can, the agreement was meant to be one under s 90C of the Act being an agreement during marriage, noting that divorce did not take place until 2019. It is regrettably framed as an agreement under s 90UC of the Act i.e. one entered into during a de facto relationship. Notwithstanding that there is reference to Part VIIIA of the Act, rather than Part VIIAB of the Act. All of these matters were identified by the wife in her Points of Defence, but seemingly ignored by the husband.
This matter proceeded on an undefended basis. The husband was seemingly unaware of this problem, as surprising as that may seem given that he is currently legally represented. In theory, rectification of the agreement is possible: Senior & Anderson (2011) FLC 93-470. Recently, Aldridge J sitting as the Full Court in Birdwood & Gravino [2023] FedCFamC1A 114 expressed concerns as to whether rectification is available at all to correct binding financial agreements at [2]–[16]. I respectfully concur with Aldridge J for the reasons he gives. In any event the wife cannot make this application as she did not participate in the proceedings, no evidence was relied on by her, and her Points of Defence were struck out. In any event the husband, one surmises, would not want rectification of an agreement that he was trying to set aside.
The drafting of the agreement, and the subsequent litigation over it, is beset with difficulty and seeming inattentiveness by the lawyers, including counsel, involved in the case.
Whilst the Court has reservations about the validity and enforceability of the agreement, it feels compelled merely to deal with the application presented before it and to dismiss it for the reasons given above.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 1 August 2023
SCHEDULE ONE
THE COURT ORDERS THAT:
1.The matter is listed for the limited issue as to whether a binding financial agreement entered into by the parties in July 2017 should be set aside before the Honourable Justice Altobelli at 10.00 am, 3 July 2023 with an estimated hearing time of two (2) days.
2. No later than 21 days prior to the trial date, the Applicant file and serve:
a.any Amended Initiating Application setting out with particularity the precise final orders sought;
b. an updated single consolidated trial affidavit;
c. other witness affidavits upon which they intend to rely;
3. No later than 14 days prior to the trial date, the Respondents file and serve:
a.any Amended Response setting out with particularity the precise final orders sought;
b. an updated single consolidated trial affidavit;
c. other witness affidavits upon which they intend to rely;
4. No later than 7 days prior to the trial date:
a.the Applicant file and serve any affidavit(s) in reply addressing only the evidence presented in the Respondent(s)' affidavits.
5.No later than 2 days prior to the trial date, all parties are to file and serve a case outline document in the approved form which shall not, without leave, exceed 5 pages in respect of financial issues and shall include:
a.a list of the material relied upon and a brief chronology listing significant events that are relevant to the issues to be determined by the Court;
b. the issue(s) to be determined in the proceedings;
c.the parties’ contentions as to the findings of fact required for those issues to be determined; and
d.a table listing all of the assets, liabilities and financial resources claimed to be relevant to the dispute, with the values contended for by each party and the main contentions on disputes as to:
i. the assets and liabilities available for division;
ii. the value of items where the value is in dispute;
iii.contributions claimed or contended for and the percentage-based adjustment on contributions contended for;
iv.relevant s 75(2) / 90SF(3) factors and the percentage-based adjustment contended for; and
v.any further factors relevant to determining a 'just and equitable' division of property.
6.Lists of authorities which Counsel intend to cite to the Court during the presentation of any argument, together with copies of any unreported decisions to which it is intended that reference shall be made, should be filed and served not later than two days prior to the hearing.
7.Each party will be permitted to rely on one consolidated trial affidavit and one affidavit in reply (if applicable) only. Reliance on earlier or additional affidavits will not be permitted.
8.All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party.
9. The parties have liberty to issue up to three (3) subpoenas each.
10.The parties have liberty to inspect and photocopy the subpoena material received from C Lawyers per sleeve 10 that include those parts of the file of C Lawyers that relate to their communication with the husband concerning the execution of the binding financial agreement in July 2017.
11.UPON NOTING that the requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in these proceedings on or after 30 November 2022, neither party may cross-examine the other party personally and any cross‑examination must be conducted by a legal practitioner acting on behalf of the other party.
12.Within seven days of the date of these orders, the Applicant complete the “Scheme Application Form” and provide to Legal Aid NSW for the allocation of a legal practitioner.
THE COURT NOTES THAT:
A.Pursuant to s 102NA(1), there is an allegation of family violence between the parties, the Court has made an order that the requirements of subsection (2) are to apply to the cross‑examination.
B. The parties have each been advised by the Court that:
a.pursuant to those requirements, neither party may cross-examine the other party personally;
b.pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
c.as to the availability of the Commonwealth Family Violence and Cross‑Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
d.a copy of these orders will be provided by the Court to Legal Aid NSW, which administers the said scheme.
C.In circumstances where the husband contends as one basis for setting aside the binding financial agreement of July 2017 that he was not in receipt of independent legal advice, he has waived legal professional privilege in respect of the content of the file of his previous solicitors, C Lawyers that goes to that firm’s communications with the husband in respect to the execution of that binding financial agreement.
D.The husband and wife will require the assistance of interpreters in the Country B language at the threshold hearing.
SCHEDULE TWO
POINTS OF DEFENCE
The Respondent responds to the Applicant's Points of Claim document filed 17 June 2022 as follows:
1. Paragraph 1 of the Points of Claim is admitted. The Respondent pleads the Deed of Financial Agreement signed by the parties on 10 July and 4 July 2017 respectively in its entirety.
2. The Respondent further contends that the Deed of Financial Agreement is a Financial
Agreement entered into under section 90C of the Family Law Act 1975 and in particular:
2.1. The Financial Agreement is a written agreement.
2.2. The Financial Agreement deals with the matters mentioned in section 90C(2).
2.3. At the time the Financial Agreement was entered into the parties were not the spouse parties to a binding agreement under section 90B, section 90C or section 90D of the Family Law Act 1975.
2.4. While the Financial Agreement is not expressed to be made under section 90C the Respondent pleads relief by way of Rectification of the Deed of Financial Agreement such that wherever the words "Section 90UC" appear they are replaced with the words "Section 90C".
2 .5. To the extent the Court considers it necessary the Respondent seeks further relief by way of Rectification of paragraph G of the Deed of Financial Agreement such that the references to sections 90UB, 90UC and 90UD are replaced with references to sections 90B, 90C and 90D .
2.6. With respect to the relief sought by way of Rectification the Respondent contends:
2.6.1. The Deed of Financial Agreement is expressed to be made under Part VIIIA of the Family Law Act 1975.
2.6.2. The Deed of Financial Agreement is not expressed to be made under Part VIIIAB of the Family Law Act 1975.
2.6.3. The Applicant admits by way of his Points of Claim that the Financial
Agreement was entered into under section 90C of the Family Law Act 1975.
2.6.4. At the time the Financial Agreement was entered into, the parties were married to one another.
2.6.5. At the time the Financial Agreement was entered into, the parties had separated from one another and there was no likelihood the parties would resume their married life together.
2.6.6. The Court would conclude by reason of these matters the parties intention was to enter into a Financial Agreement under section 90C of the Family LawAct 1975.
3. The Respondent contends that the Financial Agreement is binding for the section 90G and section 71 A of the Family Law Act 1975:
3.1. The Financial Agreement is signed by both parties.
3 .2. Before signing the Financial Agreement, both parties were 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 the advice was provided to that party of making the agreement.
3 .3. Either before or after signing the agreement each party was provided with a signed statement by their legal practitioner stating that the advice just referred to was provided to that party, such statements were annexed to the Financial Agreement.
3.4. A copy of the statement for each party was provided to the other party.
3.5. The agreement has not been terminated or set aside by a Court.
4. The Respondent contends that the Deed of Financial Agreement took effect by no later than 10 July 2017 by operation of section 90DA of the Family Law Act 1975 and pleads the Separation Declarations annexed to the Financial Agreement in their entirety.
5. The Respondent contends that insofar as the Financial Agreement deals with the property of the parties or either of them the Financial Agreement has been complied with in toto.
6. Paragraph 2 of the Points of Claim is admitted.
7. Paragraph 3 of the Points of Claim is admitted.8. Paragraph 4.1 is denied. The Respondent pleads the Certificate of Legal Advice signed by Ms E annexed to the Deed of Financial Agreement in its entirety.
9. Paragraph 4.1.1 is admitted insofar as the certificate of legal advice was provided by Ms E but otherwise denied.
10. Paragraph 4.1.2 is denied.
11. Paragraph 4.1.3 is denied.
12. Paragraph 4.2 is admitted.13. Paragraph 4.2.1 is admitted.
14. Paragraph 4.2.2 is denied.
15. Paragraph 4.2.3 is admitted in so far as the Respondent attended at the Applicant's solicitor's premises prior to the Applicant's conference, but otherwise denied.
16. Paragraph 4.2.4 is denied.
17. Paragraph 4.2.5 is denied.
18. Paragraph 4.3 is denied.
19. Paragraph 4.3.1 is denied.
20. As for paragraph 4.3.2:20 .1. The Respondent denies knowledge of the husband's desires imputed to her.
20.2. The Respondent denies that the children were confined to their room by her or her mother for some years prior to the signing of the Financial Agreement.
20.3. The Respondent denies that the husband was not permitted to have access or contact with the children.
20.4. The Respondent contends during the course of the relationship the Applicant perpetrated family violence against the Respondent and the children. Following separation the Wife facilitated the children spending time with the Applicant each Saturday and Sunday, such time supervised by the Maternal Grandfather and Maternal Grandmother.
21. Paragraph 4.3.3 is denied.
22. As to paragraph 4.3.4 of the points of claim , the Respondent admits a Parenting Plan was one of the documents executed by the parties as part of their settlement in 2017 but otherwise denies the paragraph, in particular that the Respondent required the Applicant to sign it.
23. Paragraph 5 is noted and the Respondent opposes such an Order.
24. Paragraph 6 is admitted. The Respondent contends that the Child Support Agreement is a Binding Child Support Agreement for the purposes of the Child Support (Assessment) Act1989 and pleads the Child Support Agreement in its entirety.
25. Paragraph 7 is admitted.
26. Paragraph 8 is admitted.27. Paragraph 9 is denied.
28. Paragraph 9.1 is denied. The Respondent pleads the Certificate of Legal Advice signed by Ms E annexed to the Child Support Agreement in its entirety.
29. Paragraph 9.1.1 is admitted insofar as the certificate of legal advice was provided by Ms E but otherwise denied.
30. Paragraph 9.1.2 is denied.
31. Paragraph 9.1.3 is denied.32. Paragraph 9.2 is denied.
33. Paragraph 9.2.1 is admitted.
34. Paragraph 9.2.2 is denied.
35. Paragraph 9.2.3 is denied.36. Paragraph 9.2.4 is denied.
37. Paragraph 9.2.5 is denied.
38. Paragraph 9 .2 .6 is noted.
39. Paragraph 9.3 is denied. The Respondent contends relief is not available to the husband on the basis that the agreement is "void, voidable or unenforceable" by operation of section 136 of the Child Support (Assessment) Act 1989
40. Paragraph 9.3.1 is denied
41. Paragraph 9.3.2 is denied. The Respondent repeats the matters pleaded at paragraph 20 above.
42. Paragraph 9.3.3 is denied.
43. As to paragraph 9.3.4 of the points of claim, the Respondent admits a Parenting Plan was one of the documents executed by the parties as part of their settlement in 2017 but otherwise denies the paragraph, in particular that the Respondent required the Applicant to sign it.
44. Paragraph 9.3.5 is denied.
45. The Respondent opposes the relief sought at paragraph 10 of the Points of Claim.
46. Paragraph 10 is not admitted.
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