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Financial agreements – That the wife was advised against signing the BFA, but did so anyway, may be an “indicium of undue influence” as held in Thorne v Kennedy [2021] FamCAFC 9

In Beroni & Corelli [2021] FamCAFC 9 (10 February 2021) the Full Court (Strickland, Aldridge & Kent JJ) heard the husband’s appeal from Tree J’s decision in Corelli & Beroni [2019] FamCA 911 (summarised at our archived case notes – “Financial agreements” under “Unconscionable conduct”) where a hairdresser’s testimony corroborated the wife’s case that she was not proficient in English when she signed a Part VIIIAB financial agreement, the Court setting it aside for unconscionability and undue influence.

The agreement was signed a few months before the wife was granted a spouse visa in July 2011. While the agreement and advice provided to the wife was in English, the Court accepted that the wife did not understand the nature of what she signed; the content of the agreement; nor the advice provided to her, despite the wife having not called evidence from her then solicitor (although the solicitor’s file had been subpoenaed).

The Full Court said (from [31]):

“It is the husband’s contention that, having had explained to her the essential nature of the BFA, in circumstances where the wife’s solicitor advised her against signing the BFA but she rejected that advice, the wife acted on her own free will. The husband asserts that where independent advice has been given, and understood, as to the advantages and disadvantages of a transaction, a claim for actual undue influence should fail …

( … )

[35] Although the primary judge was not satisfied the wife was unaware of the essential nature of the BFA … his Honour found … that the wife did not ‘have any real understanding … as to the sort of value of claim which she would be giving up’. Indeed, nowhere in the evidence, whether in the wife’s solicitors’ file note or otherwise, was there evidence of an explanation of the advantages and disadvantages of entering into the BFA provided to the wife by her solicitor. Given the 30 minute duration of the meeting along with the wife’s lack of proficiency in English, any explanation given to the wife would have been wholly inadequate for her to understand the advantages and disadvantages of signing the BFA.

[36] As the wife submits, and as was found by the primary judge … the fact that the wife was advised against signing the BFA, but did so anyway, may be an ‘indicium of undue influence’ as was held to be the case by the plurality in Thorne v Kennedy [ed. full citation: Thorne v Kennedy [2021] FamCAFC 9] … We agree with this submission.

( … )

[41] As to the husband’s submission that [undue influence] … cannot overcome the effect of the wife’s solicitor’s advice being given, understood, and acted upon, the wife contends that this is misconceived in at least three aspects, namely:

(a) The finding … was that ‘some very rudimentary explanation of the BFA was given to her in English’, not that proper and sufficient advice was either given or understood;

(b) The advice given by the solicitor for the wife was not acted upon, but was acted against; and

(c) Reliance by the husband on the ‘advice’ overlooks the proposition in Thorne v Kennedy … that the wife’s insistence to sign the BFA against the advice can be an indicium of undue influence.

[42] We agree with that contention.

( … )

[64] … Counsel for the wife correctly asserts that it is one thing for the wife to have had an understanding of the effect of the BFA not radically different from its actual effect … but it is a very different thing for a person to have sufficient knowledge and understanding adequately to protect their own interests …

( … )

[78] As to undue influence, it is submitted that absent evidence from the wife’s solicitor which disavowed what was in his certificate and file note, the evidence did not support that the wife’s will was overborne in signing the agreement. Further, the husband contends that absent the solicitor’s evidence, there was no basis for the primary judge’s findings … about the solicitor’s ‘rudimentary’ explanation … The husband similarly makes the same argument in respect to unconscionability, namely, that the wife’s solicitor could not have completed the certificate and file note in good conscience if this had presented to him as a case where the wife was in a position of special disadvantage.

( … )

[81] It was plainly open to his Honour to accept, as he did, the evidence of the wife given in cross-examination as to the circumstances in which she executed the BFA, and the absence of evidence from the solicitor could not prevent that outcome.

[82] … The wife expressly waived privilege in her communications with the solicitor, and invited the husband to call him instead. However, if this ground is about making the findings adverse to the wife’s solicitor without him being called upon to answer, the point is plainly wrong. There is no authority which says that a court cannot make adverse findings about the conduct of a solicitor, when that solicitor fails to give evidence. In any event, it cannot be overlooked that the solicitor here refused to cooperate with the wife. The wife issued a subpoena to the solicitor to give evidence, but he refused to cooperate. He must clearly have been on notice of the nature of the issue to which his evidence was relevant, yet he declined the opportunity to be heard before adverse findings were made.

[83] Finally, it cannot be held against the wife that she failed to call a witness in circumstances where she could not proof them, or know their evidence (Payne v Parker [1976] 1 NSWLR 191 at 197). A party is not obliged to call a witness who will not cooperate.”

The husband’s appeal was dismissed and he was ordered to pay the wife’s costs of $82,275.36.

 

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Children – Father’s loss of confidence in family report writer insufficient to support his application to appoint a new expert

Property – Husband appointed co-director of corporate trustee but failed in his application for removal of the wife as director

Evidence – Section 102NA of the Family Law Act (protections from certain cross-examinations) not invoked despite husband’s breach of a former family violence order – Allegations of violence made by both parties