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The Proceedings:







DELIVERED: Ex tempore  

FILE NO/S:5791 of 2022 



Respondent The Family Court of Western Australia has allowed the publication of their judgment under the name “Evans and Goodwin” in accordance with section 243(8)(g) of the Family Court Act 1997 (WA). 

Please note that the document may undergo a review process to correct any minor errors or to update the orders made in accordance with Rule 312(b) of the Family Court Rules 2021 (WA) and Rule 311 of the Family Court Rules 2012 (WA), respectively. Please visit this link to refer to the Court’s document

Parties Signed a Financial Agreement, but is it Binding?

A comprehensive context

The parties signed a financial agreement on 17 May 2010, but the applicant is now seeking a declaration that the agreement is not binding because the certificates of independent legal advice attached to it do not comply with section 205ZS(1)(c).

Certificates of Independent Legal Advice

The certificates of independent legal advice stated that each party’s lawyer provided advice on two matters: the effect of the agreement on the parties’ rights to apply for an order under the provisions of the Family Court Act 1997 (as amended), and otherwise at law and in equity, and whether it was financially or otherwise advantageous for the party to enter into the agreement at the time.

Section 205ZS(1) at the Time of Signing

Section 205ZS(1) was in effect at the time the parties signed the agreement, which outlined the requirements for a certificate of independent legal advice to be valid. Therefore, it is necessary to assess the validity of the certificates in question against the requirements of this section.

Sheila Dass of KDK Family Law has recently been successful following an Interim Argument and Judgment relating to a client who sought to relocate with her two children from Perth to another State. 

What is a Binding Financial Agreement?

A binding financial agreement is a written agreement made between two parties in a de facto or marital relationship in Western Australia. The agreement outlines how their property and financial resources will be divided in the event of separation or divorce. This agreement is legally binding, meaning that it can be enforced in court if necessary. To be binding, the agreement must comply with certain requirements set out in the Family Court Act 1997 (WA), including both parties receiving independent legal advice and providing a signed certificate to confirm this advice was received. It’s important to note that a binding financial agreement is different from a consent order, which is a court order made by a judge after both parties have reached an agreement about the division of their assets.

Issue to Determine:

As per procedural orders made on 8 September 2022 and by consent on 9 September 2022, the Court was required to determine an issue “separately and prior to the balance of the proceedings.” The issue was set out in paragraph 1 of the applicant’s final orders sought in the Form 1 Application filed 21 July 2022 and paragraphs 1, 2, and 3 of the respondent’s Form 1A Response filed on 6 September 2022.

The results of it

The Family Court of Western Australia made a ruling in the Evans and Goodwin case, [2022] FCWA 259, which addressed a dispute between a former couple who sought a declaration on whether their financial agreement was binding or not.

The Court ruled that the financial agreement was not binding because the certificates of independent legal advice that the parties had signed did not comply with section 205ZS(1)(c) of the Family Court Act 1997.

Although the agreement contained a statement indicating that both parties understood its effect on their rights under the Act, it did not specify whether it was advantageous for them to sign it. This omission meant that the Court could not declare the agreement binding. The ruling reminds parties to comply with statutory requirements when entering into financial agreements and serves as a cautionary tale about the importance of properly drafted legal advice certificates.

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