Saturday, 26 February 2011

Yesterday's achievement: Family Ct grants de facto adoption to lesbian couple: http://ht.ly/43JfW

Friday, 25 February 2011

Bigamist gets nullity

In these days of relatively easy divorce, it is hard to think of anyone committing bigamy. However, a  bigamist recently obtained a nullity order from the Family Court. In the case, Mathus and Pews, the husband remarried in 1986, 3 years after meeting wife number two. The marriage certificate said that he was divorced. That was untrue. The husband married  wife number one in 1975, separated from her in 1979 but only finally divorced her in 1995, 9 years after remarrying.

Justice Dawe, granting the nullity, found that the second marriage was void.

Thursday, 24 February 2011

Family Court: 9 month baby allowed to travel to China

A mother was allowed to take her 9 month old baby to China by the Family Court recently, despite opposition by the father, who feared that the baby would not be returned.

The mother told the court that the baby was travelling to China to be with the maternal grandparents during Chinese New Year.

The Family Court in Gin and Hing followed earlier principles in  Line and Line (1997) about whether to allow children to travel overseas:

(a) The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);

The court found that the mother was an Australian citizen,  her travel papers did not recognise her as a citizen of China, that she had lived in Australia for the last 7 years,  that there was yet to be a property settlement and the mother had offered to put up her share of a $800,000 and $1 million as a bond to ensure her and the baby's return. This was the key factor for the child to be returned.

(b) The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues);

The father said that the mother's parents had come to Australia as business migrants, but had sold their home here and moved back to China, that they were very wealthy and intended for the child not to return. There was no evidence that they would try and prevent the child from returning. 

(c) The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there);

Justice Cronin found that the risk of non-return was low.

(d) Whether the country of travel is a signatory to the Hague convention.

The Hague Convention on the Civil Aspects of International Child Abduction is the prime means to retrieve children from overseas. It is usually a lot easier to get a child back from a country that has signed up to the Hague convention than one that has not. China has not signed the Hague convention.

Wednesday, 23 February 2011

Over $350,000 for lawyers, but on the verge of bankruptcy?

In a recent Family Court case, the husband said that he had no money to pay towards the wife's legal fees, that a "bankruptcy position looms", and did not control several companies, but for some reason those companies had paid over $350,000 to his lawyers towards his legal fees.

The wife, in the case of Iphostrou and Iphostrou, owed almost $200,000 to her lawyers, and asked for $500,000 from the husband for her future costs, to help with her anticipated total legal bill of almost $900,000. The wife did not end up getting her $500,000 but got the next best thing: guaranteed payments and restrictions on the husband's spending on his own costs.

Justice Cronin, in considering the wife's position, noted:

One significant dispute between the parties related to whether the various corporate entities owed the husband money. The wife pointed to a document obtained from the computers of the entities showing that he was owed millions of dollars. The same document but formally completed and lodged for corporation purposes, not only showed that he did not have such an asset but that he owed the corporate entities money. No explanation was given as to why that might be so and no doubt it will be the subject of intense scrutiny and ultimate cross-examination.

Ultimately his Honour said that there needed to be a "level playing field" and ordered that every time money was paid to the husband's solicitors , the same amount had to be paid to the wife's solicitors, in a dramatic version of what is known as a dollar for dollar order.

Tuesday, 22 February 2011

Australian Divorce Blog: Government's national plan to reduce violence against women and children http://ht.ly/40HJv

National plan to reduce violence against women and children: government

National plan to reduce violence against women and children


Joint Media Release

Attorney-General
Hon Robert McClelland MP

Minister for Status of Women
Hon Kate Ellis MP

Tuesday, 15 February 2011

Minister for the Status of Women Kate Ellis and Attorney General Robert
McClelland today announced the endorsement of Commonwealth, State and Territory
Governments of the National Plan to Reduce Violence against Women and their
Children 2010–2022.


The National Plan is a single unified strategy that brings together
government efforts to reduce violence against women.

The National Plan is the first of its kind to focus so strongly on
prevention, including building respectful relationships amongst young people and
working to increase gender equality to stop violence from occurring in the first
place.

Key actions under the National Plan include:

  • Supporting local community action to reduce violence against women
  • Commitment to support the inclusion of respectful relationships education in
    phase three of the Australian Curriculum.
  • Provision of telephone support for frontline workerssuch as allied health,
    child care and paramedics to better assist clients who have experienced
    violence.
  • New programs to stop perpetrators committing acts of violenceand national
    standards for perpetrator programs.
  • Establishing a national Centre of Excellence to evaluate the effectiveness
    of strategies to reduce violence against women.
  • A Personal Safety Survey and National Community Attitudes Survey to track
    the impact of the new action plans every four years.
  • Encouraging young people to develop healthy and respectful relationships
    through the continuation of ‘The Line’ campaign and respectful relationships
    program.
  • The Australian Law Reform Commission (ALRC) inquiry into the impact of
    Commonwealth laws on those experiencing family violence.

Minister Ellis said that the National Plan has been built from an
evidence base of new research and extensive consultation with experts and the
community, and sets out a framework for action over the next 12 years.

“Since April 2009, the Australian Government has committed over $86 million
to initiatives under the National Plan, to improve the lives of women
who have experienced violence and most importantly to stop violence from
occurring,” Ms Ellis said.

“A national 1800 RESPECT Counselling Service for victims of domestic violence
and sexual assault was launched in October 2010. The hotline gives callers
access to professional counsellors around the clock.”

“Work is also
underway on community activities to support the National Plan,
including funding support for sporting codes to establish zero tolerance
programs in local clubs.”

Attorney-General Robert McClelland said that domestic violence and sexual
assault are the most pervasive forms of violence experienced by women in
Australia, with one in three women reported to have experienced physical
violence in Australia since the age of 15.

“It is time for this to change,” Mr McClelland said.

“Protecting children and families from harm is a critical issue for the
Australian, State and Territory Governments.

“Together with our State and Territory colleagues we are determined to back
this commitment with action, and the National Plan sets out our framework for
doing this over the next 12 years.

“Today we send a clear message that violence is totally unacceptable.

“The Government’s work to strengthen family violence laws is an important
part of this process.

“These reforms have overwhelming community support and the Government is
determined to see them implemented.

“The Gillard Government is also working with the States and Territories to
develop a national recognition scheme for domestic and family violence
orders.

“The scheme will include a national database for orders to assist the
enforcement of orders by State and Territory Police.“

Minister Ellis said that under the National Plan the
Australian Government would support a series of projects over the next three
years to improve services for victims of domestic violence.

“We will also fund the Personal Safety Survey and the National Community
Attitudes Survey every four years to track the impact of the National Plan,” Ms
Ellis said.

“We need to develop a clearer picture of the impact
government efforts to reduce violence are actually having in the community.”

Studies commissioned by the Australian Government in 2009 also show that in
addition to the immeasurable emotional and personal impacts of violence, there
is an enormous economic cost. Domestic violence and sexual assault perpetrated
against women costs the nation $13.6 billion each year.

Minister Ellis said that it is the responsibility of all Australians to both
reject and prevent violence.

“The National Plan is underpinned by the belief that involving all
governments and the wider community is pivotal to reducing violence both in the
short and longer term,” Ms Ellis said.

“No government or group can tackle this problem alone - by working together
and challenging the attitudes and behaviours that allow violence to occur, all
Australian Governments are saying a very loud ’no’ to violence.”

The National Plan to Reduce Violence against Women and their Children
2010–2022
is available online at www.fahcsia.gov.au

Contact: Ryan Liddel (McClelland) (02) 6277 7300
Jamila
Rizvi (Ellis) 0438 644 603

Source: Ministerial Media Release

Family Court: "Litigation never brings out the best in people"

Wizened and cynical family lawyers say that there are three versions of what happened: "His. Hers. And the truth."

I don't have such a cynical view. One of the basic tasks of a family lawyer, in my view, is to ensure that the matter is prepared thoroughly. One of the most important parts of this process is to proof witnesses. This means when preparing a statement or affidavit of the witness, or even when sending letters to the other side, to have your wits about you and to test the assertions that are being made by your side as to whether they seem truthful or not. Check. Double check. It also means if necessary checking details against a known source, eg documentary evidence, to see whether the witness is likely to be telling the truth.

Justice Fowler stated in the recent Family Court case of Kirshaw and Trowell:

Litigation never brings out the best in people and in this case it seems that no exception is found.

His Honour also stated about the father and mother, in ways that reminded me about the saying by the wizened family lawyers:


The mother gave evidence in a fashion which did not inspire confidence. Her reluctance to answer the question asked and instead to provide a statement or history unrelated to it continued throughout the giving of her evidence, notwithstanding a warning from the bench that the apparent avoidance of questions would not stand well for her in the assessment which had to be made of her credit.

Her willingness to make any statement which she thought might support the Court’s view of her application for relocation demonstrated a depth of desire in relation to that outcome but again did not inspire confidence that such promises as were made in evidence were likely to be sustained with the same enthusiasm. Her avowal of benefits to the child in the proposed relocation did not, with some exceptions, seem to the Court to be other than the repetition of slogans, such as “the move will advance the best interests of the child” or words to the like effect.

Nevertheless, much of her evidence rang true. I therefore do not make a blanket ruling about her lack of credibility that would dismiss all her evidence. My findings as to credit are reflected in my findings of fact from which it will be apparent as to the evidence I prefer.

The father’s evidence was not free of combative responses and answers to questions which avoided them. However, in this regard he was less committed to the practice than the wife. For example, he admitted errors in his affidavit material on more than one occasion. The father gave evidence that his Italian heritage tended to perhaps make his speech more histrionic as compared to his Anglo-Saxon counterparts. I think that there is some truth in that but it can be but a short step from histrionic articulation to speech which might to some seem intimidating or threatening. His denials were prompt and emphatic and he was not shaken from many of them. I do not, as I am urged to do, take into account the prompt and straightforward nature of his denials as evidence of a lack of credibility, however once again, I make no blanket finding on credit in relation to the father’s evidence except to say that in the Court’s opinion, where it conflicted with that of the mother, it was on many occasions the evidence of the father that the Court preferred.


Monday, 21 February 2011

Family Court: decision as to s.117AB

Section 117AB of the Family Law Act provides that if a party knowingly made a false statement or allegation in the proceedings, the court must make an order against that party. The section has been criticised for being inserted at the instigation of men's rights groups with the intention of preventing women from rightly alleging domestic violence or sexual abuse. Currently there are proposals for the section to be abolished.

It is apparent from the recent case of Abbott and Langdon (Costs) that if there is a finding that a party knowingly made a false statement or allegation in the proceedings, then section 117AB overrides the general discretion on costs under section 117 of the Family Law Act. In other words: evidence of lies in the proceedings, a costs order must be made.

Justice Boland stated the approach to be taken on costs:

  1. The relevant provisions of the Act are s 117, s 117AB and s 117C.
  2. Section 117 provides as follows:
(1)  Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)  If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)  the financial circumstances of each of the parties to the proceedings;
(b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)  such other matters as the court considers relevant.
  1. Section 117AB provides as follows:
(1)  This section applies if:
(a)  proceedings under this Act are brought before a court; and
(b)  the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.
(2)  The court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings.
  1. Section 117AB was introduced into the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). The effect of the provision was discussed by me exercising the appellate jurisdiction of the Court in Child Support Registrar & Kanavos [2010] FamCAFC 244 at, inter alia, paragraphs 68-71 and 78-84 as follows:
    1. Section 117AB was inserted into the Act in 2006 and commenced operation on 1 July 2006.
    2. As there is no test or criteria in the section as to what is required to establish that a false allegation or statement has been made “knowingly” it is appropriate to refer to the Revised Explanatory Memorandum (see s 15AB(2)(e) Acts Interpretation Act 1901(Cth).
    3. Paragraphs 226 and 227 of the Revised Explanatory Memorandum are as follows:
Item 41 inserts a new provision section 117AB after section 117 which is the section that deals with costs. The new provision provides that a court must order a party to pay some or all of the costs of another party, or other parties to the proceedings, where the court is satisfied that that party has knowingly made a false allegation in the proceedings. This provision implements recommendation 10 of the LACA Report. It attempts to address concerns that have been expressed, in particular that allegations of family violence and abuse can be easily made and may be taken into account in family law proceedings. The provision is broader than family violence or abuse allegations and would apply to any false statement knowingly made.
The LACA Report noted that this approach avoids the need for separate criminal proceedings for perjury which may not be appropriate given that parents need to maintain an ongoing parenting relationship. Perjury can also be difficult to establish given it is a criminal process. The provision ensures a message to the courts that a penalty should be imposed at the same time as the court determination rather than relying on the possibility of protracted criminal proceedings at a later date. The penalty does not prevent criminal prosecution in appropriate cases. The court must be satisfied on the balance of the probabilities that a party has knowingly made a false allegation.
  1. On 2 March 2006 when the Family Law Amendment (Shared Parental Responsibility) Bill 2005 was returned to the House of Representatives from the Main Committee, the then Attorney-General, the Honourable P Ruddock said during the debate on proposed amendments to the Bill the following:
The member for Gellibrand also flagged Labor’s concern that the incidence of using costs within the family law jurisdiction risks turning family law into a costs jurisdiction. I suspect that many parties before our courts at the moment would be very surprised to learn that it is not a costly jurisdiction. The question is: who should pay those costs? In cases where proceedings are the result of a party’s disregard of court orders or of false allegations of violence, the government thinks it only just that costs orders should be able to be made where appropriate against the party responsible.(p 25)
...
The bill seeks to address concerns about false allegations and false denials by the inclusion of the new cost provision that applies where a person has knowingly made false allegations or a false statement – and this clearly also covers false denials. This provision implements a committee recommendation. It is appropriate, given the high test that must be satisfied: a person must knowingly make the false statement. In such circumstances criminal penalties could also be applied. (p 46)
...
  1. There is little authority in this Court on the interpretation of what is required to satisfy a court that an allegation has been “knowingly made” for the purposes of s 117AB.
  2. I was referred to the decision of Cronin J in Charles & Charles [2007] FamCA 276. At paragraphs 22 and 23, his Honour explained that s 117(1) must be read as subject to s 117AB. I concur with that view.
  3. At paragraph 24 his Honour discussed the word “knowingly” and said:
“Knowingly” imports a serious subjective element into the question. In respect of many findings of fact as in this case, a trial judge determines which of two versions, sometimes diametrically opposed to one another, he or she believes on the balance of probabilities. Such a finding is not necessarily a statement that one version is patently untrue or that a person is lying; it may simply be that one version is more probable than another. For a court to be satisfied that a person knowingly made a false allegation or statement in the proceedings must mean that a court can be comfortable in finding that the person lied. It would not simply then be a balancing act between two versions. To be satisfied that a lie has been told and to so find requires a careful analysis of two things. The first is that the proffered version of fact is untrue but the second is that it is put knowing it to be untrue. A court must then be cautious about such a finding because of the mandatory consequence. The finding must be elevated above the “probable” level set out in s 140(1) of the Evidence Act 1995 to consider the matters contemplated in s 140(2) of that Act. That is, the Briginshaw test applies. [footnote omitted] (original emphasis)
  1. Thereafter his Honour referred to the use of the word “knowingly” in civil proceedings with particular reference to that word in relation to the tort of deceit as discussed by the High Court in Magill v Magill (2006) 231 ALR 27. His Honour also referred to the Revised Explanatory Memorandum, which I have earlier set out and parts of the Attorney-General’s second reading speech. I have earlier, in these reasons, set out the relevant extracts from Hansard.
  2. I was also referred to the decision of Ryan J in Sharma & Sharma (No 2) [2007] FamCA 425 where her Honour considered, among other matters, whether the new provision, which was introduced as part of the suite of reforms in the Family Law Amendment (Shared Parental Responsibility) Act 2006, amended the otherwise discretionary position the Court exercises in respect of costs under s 117. Her Honour explained that the application of s 117AB is mandatory provided the criteria in s 117AB(1) are satisfied. I also concur with her Honour’s conclusions in respect of s 117AB.
  3. At paragraph 13 of her reasons, Ryan J said:
My finding that some of the wife’s allegations are fabrications introduces the mental element which turns a wrong statement into a deliberate falsehood. This means I am satisfied she knowingly made a false allegation or statement. Again this was a central issue. So that there can be no doubt that the wife adopted her complaints and allegations made to police in these proceedings, at paragraph 112 I find:
“At the close of her case, the mother maintained the veracity of each and every allegation made against the father post 30 April 2004. That is, not only that she has accurately reported the children’s complaints but that the father behaved in the manner described”.
  1. The word “knowingly” is considered in Words and Phrases Judicially Defined (4th Edition, Lexis Nexis Butterworths, 2007) at 1313 with reference to various statutes. While many of the examples cited in this text must be read in the context of the statute under discussion, I think the discussion of the meaning of the word by Kellock JA in Sleight v Stevenson [1943] 4 DLR 433 at 441 is helpful in the facts relevant to this appeal. In dealing with a case under a statute pertaining to insurance, his Honour said “I think ‘knowingly’ in the statute is used in the sense that the applicant is in possession of information that what is in fact stated in the application is untrue or does not disclose the truth” (see also Stroud’s Judicial Dictionary of Words and Phrases 7th Edition, Thomson Sweet Maxwell, 2006, at 1449). In other words, I concur with Ryan J there is a conscious mental element involved in the making of a statement.
  2. Section 117C is also relevant to the issues I am required to determine. It provides as follows:
(1)  This section applies to proceedings under this Act other than the following proceedings:
(a)  proceedings under Part VI;
(b)  proceedings under Division 6, 9 or 13 of Part VII;
(c)  proceedings to enforce a decree or injunction made under Division 6, 9 or 13 of Part VII.
(2)  If:
(a)  a party to proceedings to which this section applies makes an offer to the other party to the proceedings to settle the proceedings; and
(b)  the offer is made in accordance with any applicable Rules of Court;
the fact that the offer has been made, or the terms of the offer, must not be disclosed to the court in which the proceedings are being heard except for the purposes of the consideration by the court of whether it should make an order as to costs under subsection 117(2) and the terms of any such order.
(3)  A judge of the court is not disqualified from sitting in the proceedings only because the fact that an offer has been made is, contrary to subsection (2), disclosed to the court.
  1. Before commencing my discussion, it is important that I refer to the general principles which govern the broad discretion to award costs under s 117. Those principles are clearly explained in Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311 at 315-316 as follows:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”.

Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs. (footnote omitted)
  1. The “broad brush” approach to the question of costs is well recognised (see Browne v Green (2002) FLC 93- 115; Robinson & Higginbotham (1991) FLC 92-209 per Nygh J at 78,417).

Family Court orders father not to spend time with child due to violence and alcohol abuse

The Family Court recently ordered that the mother have sole parental responsibility for a child, J, aged 4, and that the father shall not spend time with the child or communicate with the child. Justice Ryan in Franka and Gratham did so after setting out the appalling conduct of the father:
  1. The father met with the family consultant on 11 August 2010. Within two weeks, [his new partner] Ms L complained to police the father breached an Apprehended Violence Order previously made for her protection and on 26 August 2010 he was refused bail after she complained he assaulted her. The point being, there was more to the father’s relationship with Ms L than revealed by him. In addition, more recent evidence of alcohol abuse and violence by the father than the mother, family consultant or Court knew about. I do not know why the father withheld this information from the Court and his failure to give full and frank disclosure is troubling.
  2. In any event, it is appropriate to record the father’s court history convictions. These are set out below:
    • In February 2000 the father was convicted of driving with mid-range PCA. He was placed on a s 558 recognisance for 12 months, disqualified from driving for six months;
    • In March 2000 he was convicted of using an unregistered vehicle on a road, using an uninsured motor vehicle and driving on road while licence suspended. In relation to these he was fined and on the latter disqualified for 12 months. A second charge of driving on road whilst licence suspended was dismissed pursuant to s 556A;
    • In 2004 he was convicted of two counts of assault occasioning actual bodily harm in relation to which he was fined and placed on a s 9 bond for 12 months;
    • In 2007 he was convicted of destroying or damaging property, in relation to which he was fined and ordered to pay approximately $700 compensation;
    • In November 2007 he was convicted of two counts of stalking – intimidate in relation to which he was fined and placed on a 12 month s 9 bond;
    • In November 2007 he was convicted of two counts of common assault in relation to which he was fined, placed on a 15 month s 9 bond subject to supervision by probation and parole;
    • In 2009 he was convicted of mid-range PCA in relation to which the father was placed on a 12 month s 9 bond subject to conditions, including supervision by a probation and parole, fined and disqualified from driving for nine months commencing from 21 February 2009;
    • In June 2010 he was convicted of drive with mid-range PCA in relation to which he was sentenced to a term of imprisonment for seven months which was suspended upon him entering into a s 12 bond for seven months. He was disqualified from driving for two years. The father lodged a severity appeal which was dismissed in July 2010;
    • In August 2010 he was convicted of two counts of common assault in relation to which he received a 12 month suspended sentence upon entering an s 12 bond for the same period to be supervised by probation and parole.
  3. In the lead up to the final stage hearing the Court encouraged the father to undertake a therapeutic program designed for perpetrators of family violence. The father failed to participate in the program. In relation to his PCA and a number of other convictions, it was recommended the father complete drug and alcohol rehabilitation, which he has not done. Sadly, it would appear unlikely the type of therapeutic intervention which might moderate the risks to the child of exposure to alcohol abuse and family violence are steps the father is unlikely to take.
  4. The family consultant observed the child with the mother and her husband. These observations are recorded at par 8 and par 9 which are set out below:
    1. [The child] excitedly ran into the playroom and explored the sand tray and the puppets. [The mother] asked him to sit with her at the table and play a puzzle. [The child] engaged very well in play with his mother and their rapport was excellent. [The mother] demonstrated her skills in directing, encouraging and affirming [the child]’s verbal and physical contributions to the activities. [The child] was very excited about building with the large foam blocks and laughed and enjoyed the play with a ball and lay on the floor with his mother. [The child] was very demonstrative and spontaneous in play and appeared very confident with his mother. The communication and interaction between [the child] and his mother displayed a strong and secure attachment as well as a familiarity in playful and fun activities together.
    2. Later [the mother]’s partner, [Mr V] entered the room and [the child] engaged easily in play with him and the communication appeared relaxed and familiar.
  5. In relation to his mother, the child told the family consultant he liked “walking and dancing and watching TV with mum and I have heaps of toys. I like mum the most of all.” The mother described her relationship with the child as loving and fun. She outlined her views about her parental responsibility for the child, which demonstrate her sound understanding of the child’s needs and a commitment to ensure these are met to the highest level within her gift. I am strongly satisfied the child has a happy and loving relationship with his mother, which is full of meaning and to his benefit.
  6. The family consultant observed the child with the father. These observations are set out at par 10 and par 11, which observations are set out below:
    1. [The child] was later told his father was in the waiting room and could come into the playroom and [the child] ran out to meet his father and then ran back excitedly to the playroom with [the father]. [The child] went straight to the sand tray to play. [The father] asked if he wanted to play ball and [the child] told him he did not want to play but his father told him he would like to play. [The father] commented that [B] was at school today and had been playing with ‘Nan and Poppy’ and had gone on an excursion.
    2. Both [the child] and his father then sat on the floor together and engaged very well in building with the foam blocks and [the child] was very focussed on the activity that was well developed by his father. [The child] was very excited and pleased with the play and asked his father to help him build and [the father] joined in creative play with him. [The child] moved on to play with the dolls house and his father sat on the floor with him and they both focussed on imaginative play with the doll’s furniture. [The child] sat close to his father and the communication was relaxed and task focussed. [The child] displayed familiar rapport with his father and [the father] displayed an ability to direct and encourage playful interaction. They later drew on the whiteboard and the verbal and physical engagement indicated a confident and relaxed ability to enjoy play together.
  7. The child told the family consultant he liked being with his father because “I like playing with [B] and his toys and my friends.” He added “[B] is my best friend and I love mum and dad.”
  8. Prior to separation the child had virtually no relationship with the father. There is no dispute the mother was primarily responsible for the child’s care from birth. Because of the father’s behaviour, she did her best to protect the child from him and, thus, there was little one on one contact between the child and father. The child did not have further contact with the father until May 2008, when fortnightly supervised visits at the Contact Centre commenced. The father regularly spent time with the child in accordance with these orders. Supervision ended in December 2009, from when the father continued fortnightly visits with the child, with the time increased to five hours each alternate Sunday. This ended in early August 2010 when the father stopped spending time with the child. Although for a period following the father was in gaol, he did not seek to resume contact with the child upon his release.
  9. From the child’s perspective, the father has been an erratic presence in his life, with inexplicable periods in which he effectively disappeared. Such time as the child has spent with him was, initially, in a safe setting. Although from December 2009 the time was unsupervised, this was quite limited and thus the extent of the risk to which the child was exposed was moderated. Thus, in carefully constructed circumstances the child has been able to develop a friendly relationship with his father, which has not been contaminated by substance abuse or family violence.
  10. In her affidavit, the mother gave detailed evidence of serious family violence and abuse directed to her during their relationship by the father, some of which has already been discussed. This evidence was not challenged and is accepted. Also his harassment of her after they separated. She deposes to the father’s aggression towards his elder child B, which on occasion resulted in physical abuse. On one occasion after the father hit B, the child developed a large bruise on the back of his head. On another occasion, the father threw B on the ground, which resulted in the child suffering a bleeding nose. It is unnecessary to recite the complete detail of the mother’s evidence in relation to the father’s treatment of B, but sufficient to observe the father demonstrated a pattern of verbally abusive, intolerant and on occasion troubling physical mistreatment of the child. The father has had little opportunity to behave towards the subject child in the same manner. However, the evidence given by the mother about his treatment of his elder son establishes a clear risk the father may behave towards this child in the same manner.
  11. So as to give a flavour about the type of violence the mother said she experienced from the father the following incidents are noted:
    1. In or about the end of 2005, when I was 8 months pregnant with [the child], [the father] demanded sex form me. I did not want to do this at the time due to being heavily pregnant. [The father] said to me words to the effect of “Why do you not want to have sex with me? Don’t you love me, you don’t want to have sex with me because you’re fucking someone else”. He then pushed me against the wall and bent me over and forced me to have sex. [The father] said to me words to the effect of “If you go to the Police I’ll kill you and if I can’t find you, I’ll find your sister and kill her all I have to do is wrap myself in cling wrap so I won’t get your blood on me and I’ll dump your body in the bush. If you dad rings I’ll tell him you’ve left and I haven’t seen you for ages.” [The father] then said to me words to the effect of “The bush is a big place, [the mother]. People go missing in the bush all the time”. As a result of his threats towards me I was terrified of him. I was even too scared to park my car outside or anywhere near the Police station in case he thought I was talking to the Police about him.
...
  1. [The father] has also punched me in the head and hit me over the head with beer bottles. Most of the time when [the father] got violent he would try to strangle me by grabbing me around the throat.
...
  1. In or about January 2007 [the Father], [the child] and I were driving home from [a local] river. He asked me to pull over to the ATM. I pulled into the nearest Commonwealth ATM. [The father] got angry and said to me words to the effect of “I didn’t want to go here. I wanted to go to the one at [R]”. I said to him words to the effect of “We’re here now, just go here”. [The father] said to me words to the effect of “oh you’re a fucking mole”. [The father] then walked around to my window and threw the can at my window and it smashed the window all over me. I got out of the car to check on [the child] and then [the father] came up behind me and hit me with the can he was holding. I blacked out and fell over. When I woke up I was on the ground. A stranger came over to me and said words to the effect of “Are you all right?” [The father] started yelling at the stranger so he walked off. After I came to, [the father] made me drive home even though I did not want to as I felt really sick. I drove to [the father]’s parent’s house because I was scared that I would pass out again and there would be nobody to look after [the child]. When we go to [the father]’s parent’s home I got [the child] out of the car and handed [the child] to [the paternal grandmother] and said to her words to the effect of “Can you hold him, [the father]’s angry”. [The father] walked up behind me and pushed me. I turned around and then he grabbed me around the throat and tried to strangle me and he pushed me against the fridge. I could not breathe. I started to get dizzy and [the paternal grandfather] then intervened and pushed [the father] off me and said to him words to the effect of “Fuck off, don’t bring your shit into my house”. [The father] then left. I had bruises around my throat. That was the only time that [the father] had left marks on me that other people could see. Usually he would hit me around the head.
  2. More recently, COPS records recorded an incident between the father and Ms L, which occurred on 29 May 2010. The COPS record records Ms L told police the father arrived at her home at about 8.00 pm that day. An argument developed about their relationship during which Ms L asked the father to leave her home. He refused. When she repeated her request, she said the father walked up to her and pushed her with both his hands in her chest. She fell and, while she was on the ground, the father kicked her. A short time later it is alleged he grabbed a knife from the kitchen and held it to his own throat. The father threatened to kill himself if Ms L made him leave. She ran to a neighbour for help and contacted police. When police arrived they observed she was very upset and too afraid to be by herself in her own home. Police noted her injuries and were concerned when she refused to make a statement or permit photographs to be taken. Appropriately, police obtained an urgent Apprehended Violence Order for Ms L’s protection from the father.
  3. Notwithstanding the Apprehended Violence Order, the father and Ms L continued their relationship. The COPS records record another incident of violence at 12.15 am on 21 August 2010. Earlier that evening the father and Ms L had been out for dinner where they consumed a number of alcoholic drinks. Not long after they returned to Ms L’s home an argument developed. Ms L told police that while she was sitting on a lounge, the father punched her four or five times to the face. When she tried to use her mobile telephone, the father smashed it. She ordered him to leave and he responded by threatening to kill her mother, children and others to whom she was close. Ms L picked up a child’s car seat and threw it at the father. The car seat hit him in the face. He then punched her three times in the face, which caused her left eye to close, gave her a bleeding nose and gums. Ms L said she was only able to escape after she picked up a knife. She went to her neighbours and telephoned police.
  4. It was not entirely clear what then occurred. There is no doubt the father was arrested and refused bail on 26 August 2010. It would appear he was charged with malicious damage, common assault, possibly also assault occasioning actual bodily harm and breach Apprehended Violence Order. Unfortunately, the police records are not sufficiently up to date in regards to these recorded matters. The Court was informed by the father’s solicitor the father claimed he was acquitted on all matters. Irrespective of this, the evidence demonstrates recent family violence by the father when affected by alcohol.
  5. Clearly, had the child been in the father’s care on either of the occasions referred to in the COPS records which involve Ms L, the child would have been at serious risk of harm. The situations were clearly out of control and dangerous.
  6. The evidence strongly indicates a current, high level risk to the child of exposure to family violence by the father. This type of behaviour is emotionally and psychologically damaging and renders the father an unsatisfactory role model.
  7. I was troubled by the mother’s notion that the Court should make provision for ongoing contact between the child and father, albeit in a supervised setting. She had been cautiously optimistic that the father’s protestations he no longer abused alcohol and family violence was a thing of the past, could be accepted at face value. Thus, in the carefully contained environment in which the child’s relationship with the father had developed, she saw benefit to the child in being able to maintain a relationship the child had shown he enjoyed. In other words, potentially this was a valuable relationship which enhanced the child’s sense of identity.
  8. While the mother’s optimism is to her credit, I believe it is misplaced. In my view, until the father has demonstrated he has engaged in significant therapeutic intervention which focuses upon the perpetration by him of family violence as well as alcohol abuse, he is unable to establish a meaningful and healthy relationship with the child. The child has not missed spending time with the father and, the father’s, in effect, disappearance from the child’s life since August 2010, from the child’s perspective, has been unremarkable. It would be a triumph of hope over experience, to re-establish even supervised visits for the child with the father until he has made the types of lifestyle changes to which I have made reference. Re-establishing the child’s relationship with the father before then is more likely to perplex the child because, the evidence indicates unless the father makes major lifestyle changes he will remain a poor role model and is unable to maintain an appropriately healthy relationship with his son.
  9. Irrespective of whether the child has an ongoing relationship with the father, the mother will maintain his relationship with B. She is in contact with B’s mother and they agree the brothers will continue to see each other at a frequency agreed between them.
  10. It is my hope the father will make the lifestyle changes he needs to make, not only for his own sake, but also for the child’s. Unless he does so, it is not in the child’s best interests to spend time or communicate with him. I am conscious this also means the child will lose contact with his parental grandparents and extended paternal family. Also, the prospect of future litigation is higher on this approach compared to orders for supervised visits which would automatically be discharged if the father failed to attend or there was more violence or alcohol related events. Notwithstanding these factors the child’s best interests would not be served by the reestablishment of visits with a parent who thus far has demonstrated serious parenting deficits.
  11. The mother will have sole parental responsibility. It would be untenable to require her to communicate with the father and involve him in major decisions about the child. It is too high a risk he may be abusive towards her and, in circumstances where the father will not be spending time with the child, he will not have the type of information about the child which would make his input into these types of decisions constructive.

Family Court: a pasting dished out to lawyers

The Family Court has as its lot the duty to deal with some of the ugliest family law cases. These are cases when allegations of the sexual abuse of a child are raised, and are dealt with in a special list, called the Magellan list.

Family lawyers like me in Magellan cases try to get their hands on as many documents as possible, which will shed some light on whether or not there is some truth to the allegations of sexual abuse. The way we get our hands on documents is typically to have the Family Court issue subpoenas to produce documents. These are sent to people who might have documents that might help: for example child welfare services, police and doctors.

These documents often are the key to the case. To properly prepare a Magellan case, it is essential to issue subpoenas well in advance, inspect the documents and understand them, make further inquiries as a result of the subpoenaed documents (which might entail getting more subpoenas issued), and then once the documents have been obtained, get the documents sorted out as to the most important ones. These can then be bundled up and given to the judge and all the parties. Usually in a Magellan case the independent children's lawyer attends to this job.

Evidence in Family Court cases is usually given by sworn statements called affidavits. These are usually filed well in advance of the trial so that there isn't a trial by ambush, and time isn't wasted at trial having to respond to them.

It is vital in all Family Court cases that before the trial that a case outline is prepared. This document sets out what you want, why you want it and a timeline of significant events, called a chronology. These documents are vital. Judges make orders for these documents to be filed and served. Some judges don't allow trials to start if case outlines haven't been done on time.

The parties in the recent Family Court case of Exelmans and Sully were very lucky indeed that their trial started. There were a series of things that ought to have been done which hadn't been. Justice Bennett set out what went wrong in the trial preparation. All the parties were at fault:

The subpoenaed documents

Both counsel said that they proposed to rely on subpoenaed material. Whilst there is no obligation to prepare a tender bundle or court book, it is usually the most expedient way to introduce documents into evidence so that they are available contemporaneously to a witness, the Court and the practitioners/ parties. It also provides the practitioners with notice of documents to be relied upon by other parties. In this case, the independent children’s lawyer could have coordinated the production of a court book of subpoenaed documents upon which the parties proposed to rely on and/or tender. She did not do so. Nearly a day was lost whilst all parties, including the father, looked through bundles of documents which had been produced to the Court on subpoena well prior to the start of the trial[5]. Counsel for the independent children’s lawyer said that some documents were in her brief. That is indicative of the independent children’s lawyer having seen them prior to the commencement of the trial but does not assist much in the presentation of the case.

In order to expedite the matter, my Court officer arranged for the documents to be made available to the parties for inspection at 8.30 a.m. on the second day of the hearing and the Court copied the court books for the parties. These are matters which parties and practitioners should have attended to well before the commencement of the trial. I am critical of the practitioners for not having done so. Counsel for the mother did not take the opportunity to look at subpoenaed materials early on the second day. By the afternoon of the second day, she said that she had still not read all of the documents. The father’s conduct did not delay the trial in any respect.

The mother's affidavit

The mother’s affidavit of evidence in chief was not filed until the commencement of the trial. The father did not complain and there was no objection from the independent children’s lawyer. However, faced with such non-compliance, the independent children’s lawyer should have had the matter listed ahead of the sittings for remedial action. 

The case outlines

No party had prepared a case outline at the commencement of the trial, in spite of directions that they do so. On the second day, counsel for the independent children’s lawyer filed a case outline of sorts[6] but it was not particularly helpful. No party prepared a comprehensive or useful chronology. 


The Magellan list

The Magellan list is a judge managed, highly resourced list dedicated to the determination, as expeditiously as possible, of cases involving recent allegations of sexual abuse of children and serious physical abuse of children. Financial constraints affecting many litigants and the Court do not impact on this case. Cases in this list will be allocated an independent children’s lawyer and assistance will not be capped to litigants who are eligible for legal aid. However, litigants and particularly the profession who represent them, are expected to play their part in complying with directions, attending to the inspection of relevant documents and understanding the evidence in the case before the trial commences. The practitioners in this case did not equip themselves well and consequently it took longer to hear than should have been the case.

Sunday, 20 February 2011

Family Court: BFA legal changes binding

The Family Court has upheld the constitutional validity of changes to the Family Law Act which affect binding financial agreements. It did so in a case where the husband wanted to ensure that the financial agreement he and his wife had signed just before marriage in 2005 was not binding, so that he would not have to pay his wife in excess of $3 million from his $16 million fortune.

Justice Benjamin, in the recent case of Wallace and Stelzer, was asked to decide if the financial agreement were binding, and that the changes to the Family Law Act were invalid.

If the changes had been invalid, then the effect of a Full Court of the Family Court decision of Black and Black would have applied. That decision, ironically enough an appeal from Justice Benjamin, stated in effect that if there were any defect in the form of a financial agreement such that there had not been strict compliance with the requirements of the Family Law Act, then the agreement was not binding. The Full Court in Black and Black had rejected Justice Benjamin's view that substantial compliance was sufficient.

The changes to the Family Law Act effective from 1 January 2010 changed the rules so that in effect substantial compliance was sufficient.

The problem with the agreement, identified by the husband, was that it was signed (albeit at his request) only a few days before marriage. He and his then partner had been in a de facto relationship for 7 years. The husband had paid out several million dollars to his previous wife on property settlement, and was the driving force to ensure that a binding financial agreement was entered into.

The husband originally proposed to pay the wife just over $1 million if the marriage broke down, to increase over time. The wife rejected that, the parties settling on just over $3 million if the marriage broke down in the first 4 years. After about 2 years of marriage the parties separated permanently.

The husband contended that his solicitor was negligent in allowing the deal to proceed.

Financial agreement are required to have certificates signed by the lawyers attached to them. In 2004, the form of the certificate changed. Although the solicitors originally intended to sign the 2004 certificates, somehow the certificates signed by them were the wrong ones: pre-2004. This meant that technically the agreement was not binding. If Black and Black were the law, then there was a chance that the agreement might be set aside. Under the 2010 changes, the agreement would likely be binding.

The husband's arguments

1. The agreement was not binding.


The parties were required before signing the agreement to have obtained legal advice. The judge found that this had happened. His Honour stated:

  1. In Ruane v Bachmann-Ruane & Anor [2009] FamCA 1101, Cronin J discussed the need to obtain legal advice on entering a financial agreement. This is seen in the context of the provisions of s 90G which were prior to the 2010 amendments. In that case his Honour said:-[68]
In addition, the plain reading of s 90G is for the parties to obtain legal advice. It does not follow that the advice has to be accepted or followed nor for that matter, for the advice to be correct. The purpose of the provision is to ensure the parties understand not only the rearrangement of property and financial resources but also that rights are being affected. Those rights include exclusion of access to the courts and subject to certain exceptions.
  1. That approach was adopted by Strickland J in Parker v Parker [2010] FamCA 664 (3 August 2010). In his reasons, Cronin J approved reasoning of Coates FM in Murphy v Murphy [2009] FMCAfam 270 where his Honour determined a legal practitioner meant a person entitled to practice in the jurisdiction. It is clear to me that the purpose of the legislation is to ensure that a legal practitioner must be licensed and entitled to practice in a state or territory in the Commonwealth of Australia. That legal practitioner does not need to be a specialist and was intended to come from the broad church of legal practitioners as I said in Black & Black (supra). I am satisfied that both practitioners were licensed legal practitioners in the state of New South Wales.
  2. I take judicial notice that legal practitioners from the states and territories of the Commonwealth of Australia are licensed. To obtain such a licence legal practitioners need to undertake years of academic study and practical legal training both in an academic sense and in a practical sense. Legal practitioners are generally required to undertake compulsory professional education each year and are governed by rules and codes of professional standards. Those codes of standards are managed by law societies, bar associations and legal services commissioners. In addition legal practitioners are required to have compulsory professional indemnity insurance.
  3. As I indicated earlier, it is not a matter for this Court to investigate or inquire as to the adequacy or otherwise of the legal advice provided to the parties. If that legal advice was lacking in any particular way, the parties each have their rights against their legal practitioner. I repeat, that this comment is not to be regarded as a criticism of either legal practitioner.
  1. The evidence of Mr Samews [ the husband's solicitor] was that he provided some advice and he provided a certificate which asserted the advice that was provided. More importantly each of the parties made the following written warranties in the Agreement:-[69]
    1. Each party has sought, obtained and given due consideration to individual and independent advice from a separate qualified legal practitioner and prior to executing this agreement as to the matters including but not limited to:
(i) the effect of this Agreement on the rights of each party to apply for property and maintenance orders under provisions of the Act as amended and otherwise to seek relief in law under equity.
(ii) the advantages and disadvantages at the time the advice was provided, for each party to enter into this agreement.
  1. That was an assertion made by each party to the other and each party is entitled to rely on the assertion by the other party.
  2. Whilst the certificates were not those required under the 2004 amendments, they provided statements by each of the solicitors that they advised their respective clients independently of the other party and before each client signed the Agreement as to the following matters:-
    1. The effect of the financial agreement on the rights of that client
    2. Whether or not at the time it was to the advantage, financially or otherwise, of such client to make the Agreement
    3. Whether or not, at that time, it was prudent for the client to make that Agreement, and
    4. Whether or not at that time in the light of such circumstances as were at the time reasonably foreseeable, the provisions of the Agreement were fair and reasonable.
  3. Each of the parties was entitled to rely upon those assertions and having regard to the evidence of each of the solicitors.
His Honour stated: 
  1. It is clear that at the time the Agreement was executed its terms and provisions were well known to the husband and in his conscious thought. At that time he believed that he was bound by it. Subsequent to September 2005 and after separation the husband was advised that the certificate attached to the Agreement was incorrect in form and he decided to challenge the agreement.
  2. I am satisfied that the husband received independent advice from a qualified legal practitioner prior to executing the Agreement as to matters including but not limited to:-
    • (a) the effect of the Agreement on the rights of each party to apply for property and maintenance orders under the provisions of the Act and otherwise to seek relief at law and in equity;
    • (b) the advantages and disadvantages at the time the advice was provided, for each party to enter into the Agreement.
  3. I am satisfied that the husband initially required that the Agreement be executed prior to his marriage to the wife and in time the wife adopted a similar view. The husband was a man of significant wealth and in his evidence he acknowledged his concern about what he perceived as his financial difficulties he had with his former wife after the breakdown of his first marriage.
  4. I am satisfied that the husband understood the nature and effect of the Agreement. The husband was experienced in business and matters of finance and had legal advice. I am not satisfied that there was any material misrepresentation made to the husband about the purpose and effect of the Agreement. The husband clearly knew that the Agreement was intended to be a binding financial agreement under the Act which would set out the rights of the parties in the event of divorce. The Agreement was drafted at his instigation.
  5. The wife ought not to be criticised for endeavouring to advance her position as much as possible having regard to the commitments she had made to the relationship and the length of time the relationship had existed. Any alleged representations made by the wife were unremarkable in the context of a medium to long relationship. The representations in about July, August and September 2005, were as asserted by the wife and did not engender, in the husband’s mind, a false atmosphere of crisis.
  6. The husband claims that he was infatuated by the wife and that he was emotionally or pathologically dependent upon her. I think not, this was a couple who had been together for about seven years in mid 2005 and whose relationship was under some pressure. These adults worked out their then difficulties and made a change (i.e. their wedding) which they both believed would enable the relationship to continue into the future. The husband was worried about the financial impact of that decision and required the wife to enter into a financial agreement (which in itself is evidence of him exercising a free will). The wife had been out of paid employment for many years and was likewise concerned about her financial future. These two mature adults did precisely what the legislature recommended when it enabled binding financial agreements in 2000, that is, the parties carefully and thoughtfully considered what should happen in the event of their relationship breaking down. They did so with the benefit of legal advice. The husband was capable of applying independent thought. Whilst the Agreement was signed shortly before the wedding, it was not signed in an atmosphere of crisis or threat.
  7. The wife’s evidence, which I accept, is that the husband indicated to her that he would not marry her unless she signed an agreement. 
Section 90G of the Family Law Act

This section sets out the technical requirements of  financial agreements. The section was added to the Family Law Act in 2000, changed in 2004 and changed (including retrospectively) in 2010.

Item 8A of the 2010 changes provided:
8A Transitional—agreements made on or after 14 January 2004 and before commencement
(1) Sub items (2) and (3) apply in relation to a financial agreement made on or after 14 January 2004 and before the commencement of this item.
(2) Paragraph 90G(1)(b) of the Family Law Act 1975, as in force during that period, is also taken to be satisfied in relation to a spouse in relation to the agreement if, before signing the agreement, the spouse party was provided with independent legal advice from a legal practitioner about:
(a) the effect of the agreement on the rights of that party; and
(b) whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; and
(c) whether or not, at that time, it was prudent for that party to make the agreement; and
(d) whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable.
(3) Paragraph 90G(1)(c) of the Family Law Act 1975, as inserted by this Act, applies in relation to the agreement as if the reference in that paragraph to the advice referred to in paragraph (b) included a reference to the advice referred to in sub-item (2) of this item.

Senior Counsel for the Attorney-General submitted:

Transitional Item 8A seeks to remedy the situation where the advice provided to one party or both parties to an agreement made after the commencement of the 2004 Amendments, but before 4 January 2010, was in the terms required by the 2000 Act (see para 8 above), rather than that required by the 2004 Amendments (see para 9 above). That is, in addition to item 8, item 8A(2) is intended 'also' to operate to 'validate' agreements made during this period where advice was provided.


In other words, where solicitors had used the 2000 certificate after the 2004 changes but before 2010, then that should be OK.

Justice Benjamin stated:

Despite item 8(6), item 8A(3) appears to apply s 90G(1)(c) (but not s 90G(1)(ca)) as amended by the 2010 Amendments retrospectively. This creates a further difficulty as it suggests that a requirement is imposed which did not apply at the time an agreement was entered, namely that a statement be provided by solicitors to their clients, either before or after the agreement was signed. Extrinsic materials can be used in certain circumstances to interpret provisions,[21] but cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is 'reasonably open'.[22] Nevertheless, in appropriate circumstances, courts may consider the underlying purpose and context of legislation (see s 15AA of the Acts Interpretation Act 1901), to construe provisions so as to avoid absurd, incongruous, capricious or irrational consequences.[23] The purpose of the 2010 Amendments was to 'relax certain technical requirements ... for financial agreements to be binding'.[24] It would directly contradict this purpose to retrospectively impose new requirements. To the extent that item 8A(3) can be read so as to impose an additional requirement for a binding agreement which did not apply at the time the agreement was made, the Attorney-General submits that this was not the Parliament's intention and that the provisions should not be interpreted to produce such an incongruous result.
Three potential ways that the agreement could have effect under section 90G

The first way- s 90G(1) and Item 8

His Honour stated: 

  1. It was argued by both senior counsel for the Attorney-General and for the wife that the agreement would be binding if:-
    1. It was signed by all parties.
    2. 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
    3. The agreement has not been terminated and has not been set aside by a court.
  2. Obviously there needs to be evidence of those matters. Having regard to my findings particularly in respect of the evidence of the wife, the husband (including my concerns about his evidence on the advice with which he was provided) and the evidence of the legal practitioners, I am satisfied that the Agreement was signed by all parties, and that 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. I am satisfied that the Agreement has not been terminated and/or has not been set aside by a court. The provisions of s 90K have been satisfied in terms of this Agreement and I determine that it is a financial agreement, binding under the provisions of the Act.
The second potential way the Agreement can have effect under part VIIIA of the Act
  1. It was submitted by senior counsel for the Attorney-General that the second alternative is that the Court’s jurisdiction under s 90G(1A) [the 2010 changes] could be enlivened if the requirements in s 90G(1)(b) (set out above) had not been met. In those circumstances, in enforcement proceedings, it would be open to a court to declare the Agreement to be binding on the parties under s 90G(1A) if it is satisfied that it would be an unjust and inequitable if the Agreement were not binding. Such an agreement would be binding if :-
(a) It was signed by the parties; and
(b) The requirements in s 90G(1)(b) were not met.
(c) The Court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding the changes to the circumstances from the time the Agreement was made).
(d) The Court makes an appropriate order; and
(e) The agreement has not been terminated and has not been set aside by a court.
  1. If I am incorrect in terms of the first potential way the Agreement could have effect, then this section is available to me.
  2. In the factual circumstances of this case it would be unjust and inequitable if the Agreement was not binding on the spouse parties to the Agreement. The parties had made an agreement after about seven years of cohabitation, which agreement was their mature and considered approach to their respective finances and in light of legal advice. The incorrect certificate was a clerical oversight and in fact a correct certificate was included in the first draft. The whole thrust of the legislation was to ensure that parties had independent legal advice, and in this case they did.
  3. I would have made an order under s 90G(1A) if not for the finding and determination made earlier.
The third potential way in which the Agreement can have effect under Part VIIIA of the Act
  1. Transitional Provision 8A only applies to agreements made after 14 January 2004 and before 4 February 2010, which is of course the period in which the Agreement was made. Item 8A applies according to its terms and for the Agreement to be binding having regard to that provision the Agreement needs to:
    1. Be signed by all parties
    2. By operation of item 8A(2), before signing it, the spouse parties were provided with independent legal advice from a legal practitioner about:
      • (a) the effect of the agreement on the rights of that party; and
      • (b) whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; and
      • (c) whether or not, at that time, it was prudent for that party to make the agreement; and
      • (d) whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable.
    3. By operation of item 8A(3) if it applies, either before or after signing it, each spouse party was provided with a signed statement by a legal practitioner stating that the advice referred to in the paragraph above was provided to that party (whether or not the statement is annexed to the agreement); and
    4. The agreement had not been terminated and had not been set aside by a court.
  2. Senior counsel for the Attorney-General observed that there were some difficulties in terms of the construction with item 8A in particular regarding the phrase ‘as enforced during that period’ and the word ‘also’. The Supplementary Explanatory Memorandum stated that the item[26]:-
...which will provide for additional circumstances in which a financial and termination agreement made on or after 14 January 2004 and before commencement of item 8A will bind the parties to the agreement. Amendments to the Family Law Act 1975 which commenced on that date changed the matters about which spouses had to obtain prior independent legal advice for the agreement to bind them. Some legal practitioners continued to rely on old precedents relating to the provisions of the Act as they stood before 14 January 2004 for agreements made for some time after that date. Sub-items 8A(2), 8A(3), 8A(5) and 8A(6) will provide that the agreement binds the spouses if the prior independent legal advice obtained by one or both spouses was about matters on which advice was required under the Act to be obtained before 14 January 2004.
  1. Senior counsel for the Attorney-General submitted that there were a number of possible constructions of item 8A(3) which seems, on the face of it, to impose an additional requirement. This flies in the face of item 8A(6) which removes the requirement that there be a signed statement by a legal practitioner.
  2. Item 8A(3) is difficult to interpret. One possible interpretation is that it does add back that requirement. However, senior counsel for the Attorney-General submitted this cannot be right as it does not make sense. Having regard to the submissions of senior counsel for the Attorney-General I accept that item 8A(3) does not reintroduce the requirement and I accept his submissions that:-[27]
Despite item 8(6), item 8A(3) appears to apply s 90G(1)(c) (but not s 90G(1)(ca)) as amended by the 2010 Amendments retrospectively. This creates a further difficulty as it suggests that a requirement is imposed which did not apply at the time an agreement was entered, namely that a statement be provided by solicitors to their clients, either before or after the agreement was signed. Extrinsic materials can be used in certain circumstances to interpret provisions,[28] but cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is 'reasonably open'.[29] Nevertheless, in appropriate circumstances, courts may consider the underlying purpose and context of legislation (see s 15AA of the Acts Interpretation Act 1901), to construe provisions so as to avoid absurd, incongruous, capricious or irrational consequences.[30] The purpose of the 2010 Amendments was to 'relax certain technical requirements ... for financial agreements to be binding'.[31] It would directly contradict this purpose to retrospectively impose new requirements. To the extent that item 8A(3) can be read so as to impose an additional requirement for a binding agreement which did not apply at the time the agreement was made, the Attorney-General submits that this was not the Parliament's intention and that the provisions should not be interpreted to produce such an incongruous result.
The Attorney-General therefore submits that item 8A has the effect that an agreement made after 14 January 2004 but before 4 January 2010, will be binding if, before signing the agreement, the parties were provided with advice in terms of s 90G(1)(b) as inserted by item 2 of the 2010 Amendments, or were provided with advice in terms of item 8A(2).
Having regard to the submissions by senior counsel for the Attorney-General in respect to these provisions, I am satisfied that the Agreement is one to which item 8A applies and that as such the parties were provided with advice in terms of s 90G(1)(b) [as inserted by item 2 of the 2010 Amendments] and I am satisfied that each of the parties was provided with advice in terms of item 8A.
The first Constitutional argument

His Honour held:

The 2010 Amendments do not interfere with the judicial process itself, nor effect a 'usurpation of judicial power' as found in Liyanage v The Queen.[39] These legal proceedings are not mentioned in the 2010 Amendments. The purpose and effect of the 2010 Amendments is to establish a revised general legal regime concerning agreements, binding on all relevant persons including the Applicant (husband), but not directed at him. The Amendments are not the equivalent of a bill of attainder nor a bill of pains and penalties. Part VIIIA has always provided the criteria for an agreement, and for a court to resolve disputes as to whether the criteria have been met. Adjustment of the criteria is not interfering with the judicial process itself. Further, the 2010 Amendments provided a court with a new broad discretion under the new s 90G(1A)....

I am not satisfied that this is an interference with the judicial power asserted on behalf of the husband. It is certainly an adjustment to the underlying rights of the parties but it does not in any way interfere with the Court’s ability to determine the proceedings that are before it. The 2010 amendments contain broad discretion which is contrary to that in Liyanage’s case (supra). Therefore the legislation does not tell the Court how to deal with a particular matter and how to deal with particular parties. I therefore reject that argument and accept and adopt the submissions made on behalf of the Attorney-General and the wife in that regard.
The second Constitutional Argument

His Honour stated:

  1. The second Constitutional argument was described by senior counsel for the husband as ‘not the strongest part of their argument’ or similar. I agree with that analysis.
  2. The husband submitted that the effect of the amendments was that there had been an acquisition of property on other than just terms, which was inconsistent with s 51(xxxi) of the Constitution. There appear to be two foundations upon which this is claimed. The first is that the husband’s right to have the Agreement treated as not binding was the husband’s right in itself or by reason of the additional liability the husband would have if the Agreement was binding. It was suggested that both of these were property which had been acquired.
  3. Section 51(xxxi) of the Constitution provides that the Parliament has powers to make laws in respect to:-
The acquisition of property on just terms from any state or person for a purpose in respect of which the parliament has power to make laws.
  1. It was agreed that generally, a Commonwealth law that gives rise to an acquisition of property will be invalid unless it provides just terms for the persons from whom the property is acquired. It was not an issue that the concept of ‘property’ in s 51(xxxi) of the Constitution ‘is not to be confined pedantically... to some specific estate or interest in land recognised in law or in equity ... but ... that it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property.’[43] It is also established that property ‘as used in s 51(xxxi) of the Constitution extends to ‘every species of valuable right and interest’.[44] The High Court has described property for the purpose of s 51(xxxi) as ‘a bundle of rights’ or ‘a legally endorsed concentration of power over things and resources’.[45] Senior counsel for the Attorney-General asserted:-[46]
The legal position that an Agreement which does not comply with s 90G is not binding on the parties to the Agreement is not 'property', an 'interest' or a 'right' in this sense.
The liability which arises under the Agreement, however, could be property in this sense. The Applicant (husband) argues that apart from the 2010 Amendments, he would not have been bound by the Agreement, and therefore, the effect of the 2010 Amendments is to impose a liability that did not otherwise exist. It is argued that the imposition of this liability by the 2010 Amendments is an acquisition of property because it confers a benefit, equivalent to the liability, upon the wife.[47]
This argument ignores the fact that both the husband and wife intended to be bound by the Agreement. The husband intended to enter into the Agreement, and intended that it be binding. If the Agreement was however invalid, the 2010 Amendments may merely remedy this technical deficiency, and give effect to the parties' intentions.
The 2010 Amendments do not create a completely new liability without reference to the parties' intentions. The true source of the husband's liability is his agreement with the wife, and the subsequent execution of the Agreement. The 2010 Amendments merely give effect to that Agreement. Accordingly, there has been no 'acquisition' on other than just terms because the parties intended and agreed this to be the position.[48]
If, contrary to these arguments, there is any doubt that the 2010 Amendments did acquire property on other than just terms, the Attorney-General makes the following submissions as to why they do not infringe s 51(xxxi) of the Constitution.
  1. Essentially this is not an acquisition of property. The liability of the husband arises from his agreement. He agreed to pay the money to the wife and he himself is the source of the liability. Senior counsel for the husband submitted that “all the legislation had done was to give statutory force to the Agreement” and referred me to a decision of Stephen J in Trade Practices Commission and Another v Tooth & Co Limited and Another (1979) 142 CLR at 416 where his Honour said the following:-
... it is now well established that pl.(xiii) contemplates “acquisition by the method of requisition” not by “the method of agreement”. ...
  1. Senior counsel said the fact was that the husband had agreed to pay the money. He went on to say “whatever the effect under the Family Law Act, whether that was a binding agreement under the Family Law Act which ousts the jurisdiction or not, in terms of the underlying constitutional argument being required to meet that obligation can’t be an acquisition of property on other than just terms, because it’s a liability which he had incurred of his own volition and was not forced on him by requisition”.[49]
  2. The second submission regarding s 51 (xxxi) relates to s 51(xxii) which manifests the contrary intention excluding s 51(xxxi). Mason CJ noted in Mutual Pools v Staff Pty Ltd[50] that s 51(xxxi) is a constitutional guarantee and operates to abstract power from other provisions of the Constitution conferring power, however, subject to those other provisions manifesting a contrary intention. His Honour noted by way of example that the laws providing for the free sequestration of property of a bankrupt and forfeiture of prohibited imports or proceeds of crime, the application of enemy property or reparations and the imposition of taxation are not fairly characterised as laws for the acquisition of property. Submissions by senior counsel for the Attorney-General, which I accept, were:-
In Mutual Pools & Staff Pty. Ltd. v The Commonwealth,[51] Mason CJ noted that s 51(xxxi) is a constitutional guarantee and operates to abstract power from other provisions of the Constitution conferring power, however, subject to those other provisions manifesting a contrary intention. His Honour noted by way of example that laws providing for the sequestration of the property of a bankrupt, the forfeiture of prohibited imports or the proceeds of crime, the application of enemy property as war reparations and the imposition of taxation are not fairly characterised as laws for the acquisition of property. In Nintendo Co Ltd v Centronics Systems Pty. Ltd.,[52] Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ accepted Mason CJ's reasoning in Mutual Pools, and noted that the copyrights power under s 51(xviii) manifested (in limited circumstances) a contrary intention which excluded the operation of s 51(xxxi).
The power of the Court to alter the property interests of parties subject to its jurisdiction under Parts VIII and VIIIA of the Family Law Act is a valid enactment under the constitutional power conferred upon the Commonwealth Parliament by s 51(xxi) of the Constitution, with respect to marriage, and s 51(xxii) with respect to divorce and matrimonial causes. The marriage and divorce powers of the Commonwealth contemplate that the Parliament will determine how property of parties to the marriage will be dealt with on dissolution of the marriage. They contemplate that the Commonwealth may provide when agreements between the parties to the marriage can deal with matters relating to their property, and can confer upon the judiciary a power to adjust property interests upon the dissolution of a marriage depending on the existence of such an agreement. Any law about when such an agreement operates necessarily involves matters concerning the rights of the parties to that agreement, and to any property which is the subject of the agreement. Insofar as they support such laws about when there can be such an agreement, the marriage and divorce powers manifest a 'contrary intention' in this respect in the sense described in Mutual Pools and Nintendo ousting the application of s 51(xxxi)....
The third submission was that agreements are inherently susceptible to legislative variation. In that regard the submissions made by senior counsel for the Attorney -General were:-[54]
The jurisdiction of the Court respecting adjustment of property as between spouses is well known. Under former marriage legislation (e.g. Matrimonial Causes Act 1959), parties could not by agreement oust the jurisdiction of the Court. Part VIII of the Family Law Act previously reflected this traditional position.
The ability to have binding financial agreements which oust the jurisdiction of the courts was conferred by Part VIIIA of the Family Law Act in 2000. It is a right that exists exclusively by force of the statute.[55] It is correct that not all modifications of statutory rights are removed from the scope of s 51(xxxi).[56] Mining interests are a statutory right which can be property for this purpose.[57] But where the statutory rights are of a nature which renders them liable to variation, such a variation is not subject to s 51(xxxi). It is the nature of the rights which determine this.[58]
...
  1. The fourth submission was in respect of the adjustment of competing rights, claims and obligations which senior counsel for the Attorney-General made the following submissions:-[61]
It was observed in Mutual Pools,[62] and decided in Nintendo,[63] that a law 'which is not directed towards the acquisition of property as such, but which is concerned with the adjustment of competing rights, claims or obligations of persons in a particular relationship or area of activity, does not attract the operation of s 51(xxxi)'.
As noted by the Full Court of the Family Court in B v B:[64]
The underlying philosophy that had guided the courts in enunciating that principle was seen to place too many restrictions on the right of parties to arrange their affairs as they saw fit. The compromise reached by the legislature was to permit the parties to oust the court's jurisdiction to make adjustive orders but only if certain stringent requirements were met. [Emphasis added.]
  1. The 2010 Amendments were not directed towards the acquisition of property as such. They were concerned with the adjustment of competing rights of parties to a marriage on dissolution of that marriage. The 2010 Amendments reflect a further adjustment to the compromise reached by the Parliament as to when people should be allowed to arrange their affairs and deal with rights on dissolution as they see fit in an agreement, and when they should not, and the jurisdiction of the courts to make adjustive orders.
  2. Part of the complaint made on behalf of the husband was that he had the right to make a claim for negligence against his solicitor. In that regard, senior counsel for the Attorney-General submitted:-[65]
The Applicant frames part of his argument that the 2010 Amendments effect an acquisition of property on other than just terms on the basis that they conferred a benefit in favour of the negligent solicitors who drafted the Agreement and provided the certificates annexed to it.[66]
The 2010 Amendments have no effect on whether the solicitors acted negligently, and the ability to sue for such negligence.
The 2010 Amendments may affect the loss flowing from any negligence, but this cannot amount to an acquisition of property requiring the provision of just terms.
The husband relies on Georgiadis v Australian and Overseas Telecommunications Corporation[67] in support of the argument that the Commonwealth has, by the 2010 amendments, destroyed a cause of action, amounting to an acquisition of property. The relevant provision at issue in Georgiadis, s 44(1) of the Compensation (Commonwealth Employees) Act 1971, provided that subject to some limited exceptions, 'an action or other proceeding for damages does not lie against the Commonwealth ... in respect of an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth ... would, but for this subsection, be liable ...'. There is nothing in the 2010 Amendments which similarly extinguishes any cause of action for negligence against solicitors.
  1. Senior counsel for the wife supported and adopted the submissions of senior counsel for the Attorney-General. In respect of the complaint by the husband as to the loss of his legal rights against his solicitor, senior counsel for the wife observed that the right was not terminated but that the quantum of the claim, if any, changed. As for the husband, his claim was that his solicitors had given him no advice or defective advice. If that were correct, that action still remains.
  2. There was much discussion during submissions about whether the Agreement was void or voidable, including comments made by me.
  3. It is clear that that is not the question to be determined by the Court. In determining a financial agreement using the term void and voidable is misleading. These are statutory agreements. The role of a court in respect of these agreements is to determine whether the agreements are binding (and therefore enforceable). Section 90G(1B) empowers a court to make declarations as to the binding nature of an agreement. An agreement may be set aside pursuant to s 90K. The use of the terms ‘void and voidable’ are not helpful.
  4. I am satisfied that the 2010 amendments are a valid exercise of the legislative powers of the Federal Parliament and as such are enforceable as part of the Act. 
Rectification

His Honour stated:

  1. Whilst it is perhaps a moot point, senior counsel for the wife argued the question of equitable rectification, which was not argued before the Full Court in Black v. Black (supra).
  2. Senior counsel for the wife argued that in the event that the 2010 amendments were ultra vires the power of the Commonwealth or alternatively in the event that the Agreement was otherwise not binding pursuant to the provisions of the Act that it was open for me to rectify the Agreement pursuant to equitable principles having regard to s 90K.
  3. The factual platform in relation to that was that the parties and their solicitors had intended (and in reality initially prepared) a certificate which complied with the 2004 amendments. The evidence of the wife’s solicitor, which I have accepted, is that he thought he was signing the 2004 certificate not the 2000 certificate. I have made findings in relation to this and also in relation to Mr Samews earlier in these reasons. It was argued by counsel for the wife that the Court had power to do so.
  4. Senior counsel for the husband submitted it was not possible to rectify the certificate, firstly because it was not a document of the parties (it was a document signed by the solicitor) and you cannot rectify a document for a third party.
  5. The rectification was not changing a document between third parties it was simply reflecting what the parties and their solicitors had clearly intended the document to read that is, the 2004 certificate.
  6. Having regard to the facts in this case, had it have been necessary (which it is not) I would have rectified the Agreement, the certificate being part of that Agreement. 
  1. Included in the submission was that the Agreement was obtained under pressure from the wife upon the husband on the basis of a wedding soon after a period of separation and that representations were made as to marriage, children and togetherness which were never fulfilled in the light of the subsequent events.
  2. Before addressing these issues the Court needs to reiterate or set out relevant findings of fact. In doing so the Court must have regard to the circumstances at the time that the agreement was negotiated and entered into. In that respect the Court can have regard to subsequent facts insofar as they establish the state of mind of the parties at and around the time they entered into the agreement.
  3. The parties had been in a bona fide de facto relationship for a period in excess of seven years prior to the date of the Agreement and prior to their marriage.
  4. The parties agreed to marry in late July 2005. The marriage took place in October 2005, days after the parties finalised their financial agreement. The husband asserts that the cohabitation was for a much lesser period on the basis that the parties lived in different houses particularly between 2002 and 2005. The evidence of the parties was that prior to that time they also had some different houses. I prefer the evidence of the wife, that is, that the parties lived together most weekends at M but that the wife travelled to Sydney from time to time to stay with the husband in the W accommodation.
  5. The husband tendered in evidence a schedule showing the respective parties’ telephone records which he asserted was an indication as to the time the parties spent together. I generally accept that record although it has to be seen in the context that the parties had weekends away, may not have always rung each other and had at least one three week holiday overseas.
  6. The wife did spend time at W and to a large extent I accept her evidence that she was the homemaker and housekeeper in that property as well as at M. As I said earlier, in many ways her contributions were greater having regard to the need to maintain and manage two properties instead of one. I have had regard to that in terms of the questions of contribution referred to later.
  7. The husband asserts that the Agreement was an “ink on the tuxedo” type agreement in that he barely had time to reflect upon its terms and the overall consequences. He says that the parties had separated for about three weeks in June/July 2005 and upon their reconciliation the wife requested marriage and later requested a financial agreement. The husband claims that there was fraud, duress and unconscionability.
  8. The husband’s evidence, as I have referred to earlier, is problematic in a number of ways. The husband expressed a desire at least six months and possibly twelve months before their marriage that he wanted a financial agreement. It is significant that the financial agreement includes a notation to that effect.[71]
  9. I am satisfied that it was not the case that the husband was infatuated to the loss of sensibility. Nor was it the case that he was lured into the Agreement by the wife’s use of intimate relations. Even if I had accepted the husband’s evidence that the intimate relations between the parties diminished substantially after their marriage (which I do not), I would not have concluded that that was indicative of fraud, unconscionable conduct or undue influence. It would not seem to be unusual in human behaviour, that intimacy may wax and wane throughout a relationship. The husband may not be the first of his gender to complain that intimacy diminished after marriage. That change, by itself, does not necessarily lead to a conclusion of fraud or unconscionable behaviour on the part of a wife.
  10. The wife was cross examined in relation to intimacy on the parties’ honeymoon after their marriage. Again, I am not satisfied that this is a factual basis for the relief sought for the claims made on behalf of the husband.
  11. There was an issue of fact in relation to the parties not sharing a bedroom and I have dealt with that issue earlier in these reasons.
  12. The husband says that the wife had set her mind to achieving a half interest in the H home. His counsel refers to various parts of the wife’s evidence in support of this. I find that the wife was looking to find financial security in terms of the Agreement. However, I am equally satisfied that the husband had in the previous years needed to pay his first wife in excess of $6 million and was looking to ensure that this second marriage did not create the burden of litigation and unknown outcomes. The husband’s evidence in relation to this part of his claim seems to have arisen in recent times. In that regard, I accept the submissions of senior counsel for the wife. The husband’s main reason for entering into the Agreement, according to the husband, at least at earlier times, was as a consequence of his desire to avoid a court case and similar ‘messy’ property issues as was the case with his first marriage.
  13. In about July 2005 the parties’ relationship was under strain, and I have made findings in that regard in that the wife continued to live in their respective homes and she continued to attend, on some occasions, the W apartment to tidy and clean. I prefer the evidence of the wife on that issue. I am satisfied that once the parties resolved those relationship issues the parties immediately agreed to marry. That is not indicative of fraud, duress and unconscionability. It is simply a normal factor of medium to long term relationships.
  14. Senior counsel for the husband said that the husband and wife had discussed buying a modest home for the wife in the M area. The wife’s evidence was that there was some in passing comment in that regard. I prefer the wife’s evidence in that respect.
  15. The husband asserts that the wife promised to love him and have his children and they did not have children. There are some issues of fact as to what the wife said and what the wife didn’t say. I am satisfied that the parties had discussions about children but I am not satisfied that the discussions about children were such as to be indicative of fraud, duress or unconscionability.
  16. Senior counsel for the husband asserted that the wife set her mind to marry the husband solely for the purpose of obtaining a half interest in the H property, of value of about $3.25 million.
  17. I do not accept that the husband was induced by the wife to enter into the Agreement or the marriage. The husband had wanted a financial agreement and had instructed his legal practitioner to prepare that agreement. He did that because of the events surrounding his property settlement with his former wife. He wanted both the agreement and the marriage, and he was successful in those endeavours.
  18. The husband asserts that the wife set up the arrangements and made false promises of love and a desire for children. The wife’s behaviour was not indicative of fraud, it was indicative of a prudent person seeking legal advice conscious of her own needs. I do not accept that it was a pre-determined attempt to obtain one half of the H property.
  19. Senior counsel for the husband submitted that it was sufficient evidence to make probable the husband’s version. I do not agree.
  20. The Agreement, sensibly, had provisions in it in the event that the marriage was to end in the short to medium term or in the medium to longer term. I am conscious of the evidence of the witnesses supporting the husband’s case. I am not satisfied that that evidence establishes the basis for the equitable relief sought by the husband. Some of the evidence is taken out of context and a number of witnesses are strongly aligned to the husband.
  21. I do not accept the husband’s assertions that the wife’s discussions about children and love were representations which were made in the context of fraud, duress or unconscionable conduct. They were simply the discussions that couples in close relationships have from time to time...