In-Depth Analysis of Authentic Judgment: Binding Financial Agreement Execution Dispute — Can a purported 2009 agreement bind parties under s 90G of the Family Law Act 1975 (Cth) when only the Applicant signed and the Respondent’s legal advice certificate was left unexecuted?

Based on the authentic Australian judicial case Ngo & Han [2018] FCCA 3806, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing:Federal Circuit Court of Australia (at Melbourne).

Presiding Judge:Judge Curtain.

Cause of Action

Family law proceedings in which the Court determined, as a threshold issue, whether a purported financial agreement said to have been made in 2009 was valid, enforceable, and effective as a binding financial agreement under the Family Law Act 1975 (Cth). The threshold determination controlled whether subsequent property proceedings would proceed and on what footing, including an application to seek property orders after divorce.

Judgment DateDelivered on 21 December 2018.

Core Keywords

Keyword 1: Authentic Judgment Case
Keyword 2: Binding Financial Agreement
Keyword 3: s 90G signature requirement
Keyword 4: independent legal advice certificate
Keyword 5: missing original document and proof of execution
Keyword 6: threshold issue and pathway to property proceedings after divorce

Background

This was not a conventional fight about who should receive what share of property. The real contest was more fundamental: whether the parties had ever finished the legal act that would lock their property positions in place.

The parties had been married for many years and had three children. Their separation history was confused and contested. Some years after divorce, a dispute flared about property and the past. The Respondent asserted that the parties had already resolved their financial affairs through binding financial agreements made years earlier, including an agreement said to have been made in 2009. The Applicant disputed that any such binding arrangement existed in a form recognised by the Family Law Act, and maintained that the alleged 2009 document was not properly executed and could not do the legal work the Respondent claimed for it.

The Court approached the matter as a threshold question because, if a binding financial agreement applied, the ordinary pathway for property adjustment would be blocked or constrained. If no binding agreement existed, the litigation would move on to the next stage on a different legal footing.

Core Disputes and Claims

The core dispute was not simply whether the parties once intended to settle. The Court was required to determine, with precision, whether the alleged 2009 document had ever become a binding financial agreement within the meaning of the Family Law Act 1975 (Cth), having regard to the signature and independent legal advice requirements, and whether the document could be enforced as a matter of contract law principles.

The competing positions can be framed as follows.

The Applicant’s essential claims and relief sought included:

1. A declaration that the undated purported financial agreement relied upon by the Respondent, described as a 2009 document annexed to the Respondent’s affidavit, was not binding because it was not signed by all parties and the Respondent’s certificate of independent legal advice was unexecuted.

2. In the alternative, if the Court found the 2009 document binding, an order setting it aside under the statutory power to set aside binding financial agreements.

3. A declaration that an earlier agreement said to have been made in 2007 was not binding, particularly given it was not produced and was only referenced within the alleged 2009 document.

4. Consequential property relief and steps directed to dealing with identified real property, noting that further orders would depend on the threshold outcome.

The Respondent’s essential position and relief sought, in substance, was:

1. That the Applicant’s proceeding should be dismissed, or that there should be no further adjustment of property interests, on the basis that the parties’ financial arrangements had already been concluded through financial agreements.

2. That the Court should accept that the 2009 agreement existed, was binding, and had been complied with, so that the Applicant should not be permitted to re-open property issues years after divorce.

The Court’s task, therefore, was to cut through the fog of imperfect memory and missing files and determine whether the law recognised what the Respondent asserted existed.

Chapter 2: Origin of the Case

The relationship background mattered because it formed the setting for the documents said to have been created, and for the later disputes about what was done, what was agreed, and what was left unfinished.

The parties were born in Vietnam and married in Vietnam in 1993. The Respondent moved to Australia that year. Three children were born to the marriage. As is common in long relationships, property and finances were intertwined: homes, business interests, day-to-day household obligations, and the practical reality of caring for children. When a relationship breaks down, those practical realities often become legal questions, and legal questions often turn on whether a document was truly completed, not merely drafted.

The separation history was contested. The Applicant described an initial separation in 2005. The Respondent also referred to separation in 2005 but asserted there was a period of attempted cohabitation again between 2008 and 2009. The alleged 2009 agreement itself contained recitals that placed the initial separation earlier and stated a later final separation date. At a human level, this inconsistency is familiar: people remember the emotional ending, the logistical ending, and the legal ending as if they were one event, when they are often several events spread across years.

A divorce application was filed in 2009 and a divorce order took effect in early 2010. But divorce does not automatically settle property. Property settlement can be resolved by consent orders, by litigation, or by a binding financial agreement. In this case, the Respondent contended that binding financial agreements did the settling years earlier. The Applicant contended that no binding agreement ever came into existence in the form required by statute.

The conflict emerged sharply later when property issues re-surfaced. A caveat was lodged over property, prompting the Respondent to return to a solicitor and obtain paperwork said to demonstrate the prior agreement. The alleged 2009 agreement, however, was not presented as a neat, fully executed instrument held in a safe place. Instead, what was produced was a copy bearing only the Applicant’s signature, with the Respondent’s legal advice certificate left unsigned.

From there, the dispute became a forensic reconstruction exercise. The Court was not simply listening to two people disagree about the past; it had to decide whether the objective evidence met a statutory standard designed to prevent informal, half-finished arrangements from being treated as binding financial agreements that exclude the Court’s usual powers.

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

The Applicant relied on affidavit material and cross-examination evidence directed to a clear proposition: the document relied upon by the Respondent did not comply with the mandatory statutory requirements to be binding, and the surrounding evidence did not support the conclusion that a fully executed binding financial agreement had ever existed.

Key elements included:

1. The purported 2009 financial agreement relied upon by the Respondent existed only as a copy that was undated except for the year, signed by the Applicant only, and accompanied by an unexecuted certificate of independent legal advice for the Respondent.

2. The Applicant’s evidence in cross-examination was that he did not recognise the document as an agreement he knowingly entered into as a binding financial agreement, that he did not recall signing it, and that his engagement of lawyers in 2009 was for divorce rather than for a completed financial settlement.

3. The Applicant denied the existence of a separate binding financial agreement in 2007, denied receiving a cash payment alleged by the Respondent, and asserted that discussions about finances did not crystallise into an agreement that met the statutory form.

4. The Applicant accepted he signed transfers of land, including transfers relating to real property, but did not accept that these transfers proved a binding financial agreement existed. Transfers can occur for many reasons, and their legal character depends on the instrument and context.

The Applicant’s case, in effect, treated the alleged 2009 document as a draft or incomplete instrument: something that may have been prepared, perhaps even partially executed by one party, but not completed in the way the statute requires before it can have binding legal effect.

Respondent’s Main Evidence and Arguments

The Respondent’s evidence was directed to proving that the parties did enter into financial agreements, that the 2009 agreement was real and effective, and that it should be recognised as binding despite the absence of a copy signed by both parties in the material before the Court.

Key elements included:

1. The Respondent asserted that an agreement was entered into in 2009 and that she signed it. She also asserted that the agreement had been prepared by her solicitor and that she paid legal costs for the work, which she relied upon as a practical indicator that a settlement was being finalised.

2. The Respondent produced the purported 2009 agreement as an annexure to affidavit material. That document, however, did not bear her signature.

3. The Respondent relied on the existence of property transfers and the broader narrative of finalisation of marital affairs as support for the proposition that the agreement must have existed in a completed form at some point, even if it could not now be produced.

4. The Respondent’s case was necessarily shaped by the passage of time and by missing solicitor files. The Respondent’s counsel acknowledged, in substance, that the Respondent’s memory for detailed execution events would be limited and that the Court should look to surrounding circumstances.

The Respondent’s difficulty was that her argument asked the Court to treat an incomplete-looking document as if it had once been complete, without being able to produce a fully executed version, and in the face of evidence pointing to the possibility that completion never occurred.

Core Dispute Points

The Court had to resolve several connected factual and legal questions:

1. Proof of execution: Was there, on the balance of probabilities, a binding financial agreement made in 2009 that was signed by all parties, even if the signed original could not now be produced?

2. Statutory compliance: Could a document that, in the form before the Court, was signed by only one party and had an unexecuted certificate for the other party satisfy the requirements of s 90G of the Family Law Act 1975 (Cth)?

3. Weight and reliability: How should the Court assess evidence where both parties and both former solicitors had incomplete recall, and where the solicitors’ files had been destroyed or lost?

4. Contract principle overlay: Under s 90KA, validity, enforceability, and effect are determined according to principles of law and equity applicable to contracts and purported contracts. Did the evidence support that a concluded bargain existed?

5. The 2007 reference problem: The alleged 2009 document referred to an earlier financial agreement in 2007. How did the absence of the 2007 agreement and the lack of any termination instrument affect the assessment of the 2009 document’s status and coherence within the statutory framework?

These questions were not abstract. They went to the central policy of the binding financial agreement scheme: binding agreements are permitted, but only if strict preconditions are met so that parties are not bound by casual, unclear, or half-executed arrangements.

Chapter 4: Statements in Affidavits

Affidavits are the architecture of fact in family law proceedings, especially when events occurred many years earlier. An affidavit is not merely a story; it is a structured set of asserted facts sworn or affirmed to be true, designed to be tested in cross-examination.

In this case, the affidavits performed two competing functions.

First, each party used affidavit material to frame the timeline of separation and reconciliation. Even small differences in timeline can become large differences in legal framing, because timing can affect limitation issues, the plausibility of alleged agreements, and the likelihood of recall.

Second, each party used affidavit material to characterise the purpose of legal work in 2009. The Applicant’s affidavit position was aligned to divorce as the main objective, with no finalised property settlement agreement. The Respondent’s affidavit position was aligned to financial settlement being finalised through solicitors, with the existence of an agreement implied by the work done and payments made.

A revealing feature was how each party spoke about documents.

The Applicant’s affidavit position and testimony treated the alleged 2009 agreement as something he did not recall as an agreement, even while accepting the signature looked like his. This is a common litigation posture where a party accepts an objective mark but denies the subjective intention or understanding. It forces the Court to consider whether the legal regime turns on subjective understanding or objective completion of statutory steps. In the binding financial agreement context, the statute demands objective completion.

The Respondent’s affidavit position asserted she signed the agreement, yet the produced copy had no such signature. That dissonance meant the affidavit narrative could not carry the case unless the surrounding evidence filled the gap.

The strategic intent behind the Judge’s procedural approach was apparent: the Court treated the validity of the purported binding financial agreement as a threshold issue because it would determine whether the matter should proceed as a contested property dispute or be constrained by a binding agreement. This procedural choice reduced wasted cost and avoided a full property hearing on a potentially false premise.

Affidavit evidence was therefore not the end of the story. It was the starting platform for cross-examination that would expose whether the affidavit narratives were consistent with objective documents and with the best available evidence from former solicitors.

Chapter 5: Court Orders

Prior to final determination of the threshold issue, the Court managed the proceedings in a way designed to focus the parties on the decisive questions.

Key procedural arrangements and directions included:

1. The Court’s decision to treat the validity of the purported binding financial agreement as a threshold issue before embarking upon any broader contested property dispute.

2. The making of directions in aid of the progression of the matter, including the filing and service of affidavits relied upon by each party and the requirement for each party to file a case outline prior to the listed hearing date for subsequent proceedings.

3. The listing of the matter for further hearing as a contested property dispute, subject to the threshold outcome, with an estimated hearing time and structured steps for evidence and case preparation.

These procedural steps reflect a practical judicial principle: resolve the gatekeeping question first. If the gate is closed by a binding agreement, the pathway changes. If the gate is open, the litigation proceeds on the ordinary property adjustment track.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing was a forensic exercise in reconstruction. The Court did not have the comfort of complete files. It had to work with fragments: a copy of a purported agreement, incomplete certificates, transfer documents, and human memory tested under cross-examination.

The cross-examination of the Applicant was directed at a blunt point: the signature on the purported 2009 agreement appeared to be his. If it was his, why was he denying the agreement?

The Applicant’s answers were consistent in a way that mattered. He did not attempt to give an elaborate alternative story. Instead, he maintained that he did not recall signing that agreement, that he believed his dealings with lawyers were about divorce rather than financial settlement, and that he commonly signed documents without reading them closely. That evidence did not prove the agreement existed. It did something else: it highlighted how unsafe it would be to treat a one-signed document as binding without strict statutory safeguards.

The Respondent’s cross-examination revealed a different problem: internal inconsistency. The Respondent asserted she signed the agreement, yet in evidence she also described a process where a document bearing only her signature was sent away to the other side to be signed, and later she accepted she did not remember the relevant page when shown it. The Court was faced with evidence that shifted between confidence and uncertainty, and between mutually inconsistent versions of what happened at the solicitor’s office.

The former solicitors’ evidence did not provide a missing link. Each had limited recall. The Applicant’s former solicitor could not remember reading through the agreement with her client and could only speak to usual practice. The Respondent’s former solicitor recalled drafting the agreement multiple times, described his usual practice of having both parties sign the one document rather than counterparts, and accepted that he had no recollection of the Respondent signing it or of signing the Respondent’s certificate.

The most striking objective item was a file note retained by the Respondent’s former solicitor in relation to scanned documents. The note recorded, in substance, that further instructions were to be awaited until the next year and that the Respondent was waiting for bank and or building on the land. That note mattered because it provided an alternative explanation for why no fully executed agreement existed: the process was paused, and execution may never have been completed.

The hearing therefore had a clear narrative shape. The Respondent attempted to prove a past completed agreement that could not be produced. The Applicant attacked the existence of completion and relied on the statute’s insistence on signatures by all parties.

In that setting, the Court’s reasoning aligned with a simple but powerful idea: a binding financial agreement is not like a casual promise scribbled on paper. It is more like a safe that only locks when every required key has been used. If one key is missing, the safe does not lock, no matter how much one party wishes it had.

Judicial Original Quotation Principle: Determinative Exchange and Why It Mattered

The Applicant’s evidence included admissions that, while uncomfortable, explained why strict statutory formalities exist in this area:

“How do you explain signing something that has got nothing to do with the divorce? — Yes. I just — I don’t know.
Do you normally sign documents you don’t read? — Well, I — pretty much.”

This exchange was determinative not because it proved the agreement existed, but because it demonstrated the risk profile the statute is designed to manage. If parties can be bound by incomplete documents based on uncertain recollection, then the protective scheme in s 90G would be undermined. The Court’s task was to apply the statutory gatekeeping requirements, not to rescue an alleged agreement from evidentiary uncertainty.

Chapter 7: Final Judgment of the Court

The Court made orders declaring that, on the balance of probabilities, there was no binding financial agreement executed by all parties in 2009 and that the purported financial agreement annexed to the Respondent’s affidavit was not valid, enforceable, or effective as a binding financial agreement.

The proceedings were then listed for a contested property dispute on a later date with an estimated hearing time, and trial directions were made requiring each party to file and serve any further affidavits within specified timeframes and to file and serve a case outline prior to the trial.

The Court also noted that publication of the judgment under a pseudonym was approved pursuant to the relevant statutory provision restricting publication in family law matters.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This decision is a concentrated example of why binding financial agreements are both powerful and perilous.

They are powerful because, when properly made, they can exclude the Court’s ordinary powers to adjust property interests. In practical terms, they can function as a private ordering mechanism: a couple can decide, in advance or at separation, what will happen with property and maintenance.

They are perilous because the consequences are significant, and therefore the law insists on strict entry conditions. Those conditions are not bureaucratic decoration. They are the legal safety rails that keep parties from being bound by documents that were not truly completed, not properly advised, or not clearly agreed.

In this case, the Court confronted a scenario that often appears in practice but rarely appears so starkly in a written judgment: both parties claimed a binding financial agreement existed, yet neither could produce a fully executed version, both solicitors’ files were missing, and both parties’ recollection was imperfect. The Respondent asked the Court to bridge the gap with inference. The Court declined to do so where the statute required objective completion.

The jurisprudential value lies in the Court’s disciplined insistence that statutory conditions do not dissolve in the face of missing paperwork. The decision reinforces that the scheme is formal by design, and that formal requirements are especially decisive where the evidence is foggy.

This matters for three audiences:

1. For the public, it shows that a document is not legally binding merely because it is titled an agreement or because one party signed it.

2. For practitioners, it is a warning about execution discipline, file retention, and the evidentiary burden when the other side later disputes existence.

3. For judicial officers and legal peers, it demonstrates structured reasoning where statute, evidence, and contract principles converge.

Reference to Comparable Authorities

The Court referred to authorities including Adame & Adame [2014] FCCA 42, Millington & Millington (2007) FamCA 687, and Fevia & Carmel-Fevia (2009) FLC 93-411 in connection with the proposition that, despite legislative refinement over time, there must be at least one original document signed by both parties for the signature requirement to be satisfied. The decision uses these authorities to confirm that the Court is not free to treat partial execution as equivalent to full execution for the purposes of s 90G, and that the binding effect is not achieved by a collection of separate, unsigned, or counterpart fragments unless the statutory requirement of signatures by all parties is met in at least one executed instrument.

Judgment Points

1. The Court treated the validity of the alleged 2009 agreement as a threshold issue, recognising that it would control whether and how property proceedings could move forward.

2. The Court identified the signature requirement in s 90G(1)(a) and s 90G(1A)(a) as central and non-negotiable: the agreement must be signed by all parties.

3. The Court assessed credibility and reliability in a way tailored to the problem: rather than demanding perfect recollection, it looked for objective anchors. Where objective anchors were absent, the Court did not replace them with speculation.

4. The Court assigned significant weight to the Respondent’s former solicitor’s file note indicating the matter was on hold pending future instructions, because it provided a plausible and evidence-based explanation for the absence of an executed agreement.

5. The Court identified an additional structural problem: the alleged 2009 agreement referred to an earlier agreement said to have been made in 2007 but did not purport to terminate it, raising questions about compliance with the statutory scheme governing multiple agreements dealing with the same matters.

6. The Court determined that, in these circumstances, the purported agreement was not binding, and therefore could not exclude further proceedings concerning property, subject to procedural and limitation issues to be managed in the next stage.

Legal Basis

The statutory framework applied by the Court included the following key provisions and concepts.

1. Financial agreements during marriage: s 90C of the Family Law Act 1975 (Cth) provides for written agreements dealing with property and maintenance during marriage, including agreements made before or after breakdown.

2. When financial agreements are binding: s 90G sets out when a financial agreement is binding. The structure of s 90G is critical:

• The agreement must be signed by all parties.
• Each party must receive independent legal advice about the effect of the agreement and the advantages and disadvantages of making it at the time the advice is provided.
• Each party must receive a signed statement from the legal practitioner confirming the advice was provided, and a copy of that statement must be given to the other party or their legal practitioner.

• The agreement must not have been terminated or set aside.

  The statute also contains a mechanism allowing the Court, in certain circumstances, to declare an agreement binding even if some advice-related requirements were not satisfied, but that mechanism still requires the agreement to be signed by all parties and requires a Court order declaring it binding.

1. Validity, enforceability, and effect: s 90KA directs that questions of validity, enforceability, and effect are determined according to principles of law and equity applicable to contracts and purported contracts, and gives the Court powers akin to those available in contract proceedings.

2. Multiple agreements and coherence: s 90C includes a condition directed to preventing parties from having multiple binding agreements dealing with the same matters at the same time. Where an alleged later agreement is said to exist alongside an earlier agreement, questions arise as to whether the statutory preconditions for making the later agreement were met and whether the earlier agreement was properly terminated.

3. Procedural consequences: where an agreement is found invalid, limitation and leave provisions relating to property proceedings after divorce become practically relevant to the next stage, including provisions permitting proceedings within a specified period after a divorce order takes effect or after an agreement is set aside or found invalid, and permitting leave in appropriate circumstances.

The legal core is therefore clear: a binding financial agreement is a creature of statute, and it becomes binding only if statutory preconditions are satisfied, especially the requirement that all parties sign the agreement.

Evidence Chain

The Court’s conclusion can be understood through an evidence-driven chain of reasoning in which each link supports the final determination.

To make the reasoning operational for readers, the following are eight in-depth victory points that explain how law and evidence combined to determine the outcome.

Victory Point 1: The absence of any produced agreement signed by all parties broke the statutory chain at the first step

The central objective fact was simple: the document relied upon as the 2009 agreement, in the form before the Court, bore only the Applicant’s signature and did not bear the Respondent’s signature. The statute requires that the agreement be signed by all parties. The Court treated this as a foundational requirement, not a technicality that can be waived by inference.

This is the legal equivalent of a bridge missing its central span. You can stand at one end and believe the other end exists, but the law asks whether there is a continuous structure capable of carrying legal weight. Without signatures by all parties on at least one executed instrument, the structure is not continuous.

Victory Point 2: The Respondent’s unexecuted certificate of independent legal advice reinforced incompleteness rather than curing it

The Respondent’s certificate of independent legal advice was blank and not signed. While the statutory scheme includes mechanisms for dealing with some forms of non-compliance relating to advice, the absence of the certificate in the produced materials supported the inference that execution was incomplete and that the agreement was not finalised as a binding instrument.

In practical terms, a binding financial agreement is not merely about mutual intention; it is about proof that both parties were independently advised and that the agreement was executed under a protective framework. Where the certificate is unexecuted and the agreement is unsigned by one party, the evidentiary pattern points away from completion.

Victory Point 3: Missing solicitor files did not shift the burden from proof to assumption

Both former solicitors could not produce their files. One file was lost; another was destroyed after the usual retention period. This created evidentiary difficulty, but it did not reverse the legal burden. The party asserting a binding agreement must still prove it exists and is binding.

The Court accepted that imperfect recordkeeping is a practical reality, especially many years after the event. However, the Court did not treat missing files as permission to fill gaps with speculation. Instead, it carefully weighed what the available evidence did show.

Victory Point 4: The former solicitors’ limited recollection meant usual practice evidence could not replace proof of execution

The Applicant’s former solicitor had no recollection of going through the agreement with the Applicant and could only refer to usual practice. The Respondent’s former solicitor recalled drafting the agreement multiple times but did not recall execution and did not recall the Respondent signing it or the relevant certificate being signed.

Usual practice evidence can support an inference when it aligns with other objective evidence. Here, usual practice evidence did not align with a produced executed agreement. It therefore could not substitute for the missing fact of execution by both parties.

Victory Point 5: The Respondent’s evidence contained internal inconsistency that reduced its probative value on the decisive point

The Respondent asserted she signed the agreement, yet also described a process in which only her signature was on the document when it was sent away, and later stated she did not remember seeing the relevant page when shown it. The Court was not required to label this as dishonesty. It was sufficient that the evidence did not provide reliable proof that a fully executed agreement existed.

Where the decisive point is execution, and the party’s account of execution shifts, the Court is entitled to prefer objective evidence and contemporaneous records over uncertain recollection.

Victory Point 6: The Respondent’s former solicitor’s file note provided a coherent alternative explanation: the matter was put on hold and never completed

A key objective anchor was the file note recorded on scanned documents retained by the Respondent’s former solicitor: further instructions were to be awaited until the next year, and the Respondent was waiting for bank and or building on the land.

This note mattered because it explained the pattern of incompleteness. If the agreement was drafted, amended, signed by one party, and then paused at the Respondent’s instruction, the absence of her signature and the absence of a completed certificate become expected, not mysterious.

The Court treated this as a highly significant piece of evidence because it was a contemporaneous professional record pointing to non-execution by the Respondent, consistent with the absence of her signature in the produced copy.

Victory Point 7: Transfers of land did not prove a binding financial agreement existed, especially where the transfer documentation spoke in a different legal language

The parties engaged in transfers of land. The Respondent sought to treat these transfers as confirmation that a binding agreement existed. The Court was not persuaded that transfers, without more, proved a binding financial agreement, particularly where the transfer documentation referred to consideration expressed in terms consistent with breakdown of a marriage rather than compliance with a binding financial agreement.

The legal point is straightforward. A property transfer is an act. It may be motivated by an agreement, but it may also be motivated by pressure, practical arrangements for children, or informal understandings. A binding financial agreement, in contrast, is a statutory instrument with defined entry conditions. One does not automatically prove the other.

Victory Point 8: The 2007 agreement reference created structural uncertainty and raised statutory coherence concerns

The alleged 2009 document referred to an earlier financial agreement said to have been made in 2007. No copy of the 2007 agreement was produced. The alleged 2009 document did not purport to terminate the earlier agreement. The Court identified this as troubling because the statutory scheme contemplates the relationship between agreements and termination.

Even if the execution hurdle were overcome, a later agreement dealing with the same matters can trigger statutory questions about whether the parties were spouse parties to another binding agreement at the time of making the later agreement, and whether the later agreement properly terminated the earlier agreement.

The Court therefore had more than one reason to decline the Respondent’s invitation to treat the alleged 2009 document as binding. The signature failure was decisive, but it was not the only defect in the overall evidentiary and statutory landscape.

Judicial Original Quotation

The Court’s ratio on the decisive statutory condition was expressed in direct terms:

“Section 90G(1)(a) is clear in its requirement that there must be an agreement ‘signed by all parties’ … there must be at least one original document signed by both parties … It matters not whether all original and copy agreements are signed by all parties but there must be at least one original signed by all parties.”

This statement was determinative because it anchored the analysis to a bright-line statutory requirement. Once the Court found it could not be satisfied that an agreement signed by all parties existed, the legal conclusion followed: the purported agreement could not be binding under s 90G and therefore could not be valid, enforceable, or effective as a binding financial agreement.

The Court also identified a further statutory coherence concern:

“I am further troubled by a possible non-compliance with s 90C(1)(aa) … at the time of the making of the agreement, the parties … are not the spouse parties to any other binding agreement …”

This mattered because it demonstrated the Court did not treat the case as a single-issue technical failure. The Court assessed the agreement within the broader statutory architecture, where multiple agreements, termination, and consistency of the scheme can affect whether an asserted agreement is capable of being recognised as a valid statutory instrument at all.

Analysis of the Losing Party’s Failure

The Respondent’s failure was not merely a failure of memory. It was a failure to prove the existence of a legally binding instrument in circumstances where the statute insists on proof of formal steps.

The losing pathway can be summarised in five connected reasons.

1. The Respondent could not produce a version of the alleged 2009 agreement signed by both parties. The Court could not find, on the balance of probabilities, that such a signed original existed or had been executed.

2. The produced materials carried the hallmarks of incompletion: only one signature and an unexecuted certificate of independent legal advice for the Respondent. These were not minor irregularities; they were core indicators that the statutory prerequisites were not satisfied.

3. The Respondent’s evidence about signing was inconsistent and vague in crucial respects. The Court did not have reliable evidence that she signed the instrument that the Applicant signed, or that a single executed agreement existed.

4. The Respondent’s reliance on surrounding circumstances, such as payment of legal fees and the occurrence of property transfers, did not bridge the statutory execution gap. Those circumstances could show intention to settle or steps towards settlement, but they did not prove completion.

5. The file note evidence from the Respondent’s former solicitor provided a persuasive alternative explanation that undermined the Respondent’s case: the agreement process was put on hold at the Respondent’s direction, meaning the instrument was never executed by her. That objective record was inconsistent with the proposition that a fully executed binding agreement existed but was merely lost.

For practitioners, the lesson is sharp: where the statutory threshold is strict, a party who cannot produce an executed instrument must have compelling objective evidence to prove execution. Without it, the Court will not treat a partially executed draft as binding, particularly where the evidence points to non-execution.

Key to Victory

The Applicant succeeded because his position aligned with the statute and the objective evidence.

The most critical evidence and arguments that supported the Applicant’s success were:

1. The produced purported agreement lacked the Respondent’s signature, directly engaging s 90G’s requirement that the agreement be signed by all parties.

2. The Respondent’s certificate of independent legal advice was unexecuted, reinforcing the conclusion that the process was incomplete.

3. The Respondent’s former solicitor’s retained note indicated that the matter was on hold pending further instructions, providing a plausible, contemporaneous explanation for why execution was not completed.

4. The Applicant’s consistent testimony that he did not understand the document as a binding financial agreement, while not itself decisive, supported the Court’s caution against inferring a binding agreement from incomplete material.

5. The broader coherence issues, including reference to an alleged earlier agreement without demonstrated termination, supported the Court’s careful statutory analysis rather than acceptance of an asserted binding instrument.

In short, the Applicant’s case won because it did not ask the Court to guess. It asked the Court to apply the statute to the evidence that actually existed.

Implications

1. A document can feel final in a relationship and still be legally unfinished. In law, what counts is not whether a couple believed they were done, but whether the legal steps were actually completed in a way the statute recognises.

2. If you are relying on an agreement to protect your future, treat execution like locking the front door. Drafting is choosing the door. Signing by all parties and completing advice requirements is turning the key. Until the key turns, you are not protected.

3. Memory fades, but paperwork endures. If you want legal certainty, keep executed originals in a secure place and ensure both parties and both lawyers have complete copies. The later cost of not doing so can be far greater than the upfront effort.

4. If you are in dispute, focus on objective anchors: signed documents, certificates, contemporaneous solicitor notes, and clear timelines. Courts decide on evidence, not on the strength of your belief about what happened.

5. Do not confuse practical steps, like transferring property, with legal conclusions, like having a binding financial agreement. Practical acts can occur for many reasons. A binding agreement is a defined legal instrument with strict entry conditions.

Warm but realistic empowerment follows from this: you do not need to be a lawyer to protect yourself, but you do need to respect that legal certainty is built from completed steps, not from intentions alone.

Q&A Session

Question 1: If one party signed the financial agreement and the other did not, can it still be binding because they both acted as if it applied?

A court tends to focus first on statutory prerequisites. For binding financial agreements under the Family Law Act 1975 (Cth), the signature requirement is foundational. Conduct may support other legal arguments in some contexts, but where the statute requires a signed agreement by all parties, acting as if it applied is generally not a substitute for execution. In this case, the Court treated the absence of a fully signed instrument as fatal to binding effect.

Question 2: What if the signed original existed but was later lost — can a party prove it existed and was signed?

Yes, a party may attempt to prove the contents and execution of a lost document through admissible evidence, including secondary evidence. However, the evidentiary burden can be demanding. Courts will look for reliable objective proof: solicitor file notes, correspondence confirming execution and exchange, contemporaneous signed statements, and consistent evidence from legal practitioners. Where those anchors are missing or point the other way, the Court may not be satisfied on the balance of probabilities that a fully executed agreement existed.

Question 3: Why did the Court care about a possible earlier 2007 agreement if the main question was the 2009 document?

Because the statutory scheme treats binding financial agreements as part of an organised structure. If there was already a binding agreement dealing with the same matters, the making of a later agreement can raise statutory coherence issues, including whether the later agreement was made consistently with statutory preconditions and whether the earlier agreement was properly terminated. Even where the signature issue is decisive, such coherence concerns can reinforce the conclusion that the asserted later agreement should not be treated as binding.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype

Matrimonial property and financial agreement dispute — validity of purported Binding Financial Agreement under Part VIIIA of the Family Law Act 1975 (Cth), treated as a threshold issue before property proceedings.

Judgment Nature Definition

Final judgment on a threshold question declaring the alleged 2009 binding financial agreement not valid, enforceable, or effective, with consequential directions listing the matter for a contested property dispute.

2. Self-examination of Core Statutory Elements

This section provides reference-only legal test standards commonly engaged in family law disputes. These standards must be applied cautiously to the specific facts of any case and may be affected by jurisdiction, amendments, and judicial interpretation.

① De Facto Relationships & Matrimonial Property & Parenting Matters (Family Law)

Core Test: Existence of De Facto Relationship — s 4AA

When a court considers whether a person is in a de facto relationship, the inquiry tends to involve a multi-factor assessment. No single factor is necessarily determinative, and the overall evaluation depends on the totality of circumstances. Factors commonly examined include:

1. Duration of the relationship: whether the relationship endured for at least two years, noting that shorter periods may still qualify if statutory exceptions apply.

2. Nature and extent of common residence: whether the parties lived together, the stability of that arrangement, and whether co-residence was continuous or intermittent.

3. Whether a sexual relationship exists or existed: the presence or absence of intimacy may be relevant but is not decisive on its own.

4. Degree of financial dependence or interdependence: whether one party relied on the other financially, whether finances were shared, or whether there were support arrangements.

5. Ownership, use and acquisition of property: whether property was held jointly or separately, how assets were acquired, and how property was used in practice.

6. Degree of mutual commitment to a shared life: whether the relationship operated as a shared life arrangement rather than a casual association, including plans and mutual responsibilities.

7. The care and support of children: whether the parties cared for children together and the nature of parental responsibilities.

8. Reputation and public aspects of the relationship: whether family, friends, and the community perceived the parties as a couple.

9. Any other relevant matter: courts may consider additional contextual factors that illuminate the character of the relationship in a realistic way.

These factors are included for completeness. In Ngo & Han [2018] FCCA 3806, the relationship was a marriage, and the binding financial agreement provisions for spouses were central.

Property Settlement: The Four-Step Process

In matrimonial property matters, courts commonly approach property adjustment through a structured methodology. While the precise articulation may vary, a widely used framework involves:

Step 1: Identification and Valuation
Identify the net asset pool. This typically involves identifying all assets, liabilities, and superannuation interests, and valuing them. Disputes often arise about hidden assets, undervaluation, and whether certain interests are property or financial resources.

Step 2: Assessment of Contributions
Assess contributions of each party across the relationship timeline, including:
– Financial contributions: initial contributions, income, inheritances, and payments towards assets.
– Non-financial contributions: labour, renovations, business effort, and management.
– Contributions to the welfare of the family: homemaking and parenting contributions.

Step 3: Adjustment for Future Needs
Consider whether an adjustment is appropriate having regard to factors commonly considered under s 75(2) in matrimonial matters, including age, health, income earning capacity, care of children, and any disparity likely to persist.

Step 4: Just and Equitable
Conduct an overall check that the proposed orders are just and equitable in all the circumstances. This functions as a final fairness and coherence review.

In a case involving a binding financial agreement, these steps may be displaced or constrained if a binding agreement applies, because the agreement can exclude or limit the Court’s ordinary property adjustment powers.

Parenting Matters: s 60CC Considerations

Where parenting issues arise, the best interests of the child are central. A commonly applied structure involves:

Primary considerations:
1. The benefit to the child of having a meaningful relationship with both parents.
2. The need to protect the child from physical or psychological harm, including exposure to abuse, neglect, or family violence. Protection from harm is given greater weight.

Additional considerations can include:
– The views expressed by the child, taking account of maturity and understanding.
– The capacity of each parent to provide for the child’s needs, including emotional and practical needs.
– The practical difficulty and expense of the child spending time with and communicating with a parent.
– The likely effect of changes in the child’s circumstances.

In Ngo & Han [2018] FCCA 3806, the published reasons focused on the financial agreement threshold issue rather than parenting determination, but these standards remain relevant to family law practice generally.

3. Equitable Remedies and Alternative Claims

Where statutory pathways are blocked, incomplete, or uncertain, parties sometimes explore equitable doctrines and alternative common law principles. The availability of such doctrines depends on the facts, admissible evidence, and the interaction with statutory schemes.

Promissory or Proprietary Estoppel

Key questions include:

1. Was there a clear and unequivocal promise or representation about property or financial outcomes, such as an assurance that one party would receive ownership or an interest?

2. Did the other party act in reliance on that promise, and was the reliance detrimental, such as spending significant funds on improvements, forgoing employment, or changing living arrangements?

3. Would it be unconscionable for the promisor to depart from the promise, having regard to the overall circumstances?

If established, estoppel may support relief designed to prevent unconscionable departure from induced expectations. It does not automatically replicate the outcome of a binding financial agreement and will be shaped by proportionality and fairness.

Unjust Enrichment and Constructive Trust

Key questions include:

1. Did one party receive a benefit at the expense of the other, such as money, labour, or improvement of property?

2. Is it against conscience for the benefited party to retain the benefit without compensating the other?

3. Is there a principled basis for restitution or for recognition of a beneficial interest in property?

A constructive trust may be argued where contributions and circumstances make it unconscionable for legal title to be treated as the full measure of entitlement. These claims can be complex and evidence-heavy, and outcomes can be uncertain.

Procedural Fairness as a Practical Analogy in Family Litigation

Although procedural fairness is a public law concept, family litigation also involves fair process requirements: proper disclosure, opportunity to respond, and compliance with directions. Where a party relies on missing documents, the evidentiary fairness of allowing assertions without proof becomes a live issue, and courts may be cautious about granting outcomes based on speculative reconstruction.

4. Access Thresholds and Exceptional Circumstances

Family law contains hard thresholds and exception channels that parties should understand as part of litigation awareness.

Regular Thresholds

1. Property proceedings after divorce tend to be subject to a time limit, commonly 12 months after a divorce order takes effect, unless leave is granted.

2. Binding financial agreements tend to be binding only if statutory requirements are satisfied, including signature by all parties and independent legal advice steps, subject to specific statutory mechanisms.

3. De facto property proceedings tend to involve threshold questions about whether a relationship qualifies under statutory definitions and whether jurisdictional requirements are met.

Exceptional Channels

1. Matrimonial property out of time: Leave may be granted where a party establishes appropriate grounds, often involving hardship considerations and the interests of justice, though outcomes are fact-specific and not automatic.

2. De facto relationship under two years: An exemption may be available pursuant to s 90SB where there is a child of the relationship, or where substantial contributions were made and serious injustice would result if orders were not made, or other statutory grounds apply.

3. Evidence loss and reconstruction: Courts may accept secondary evidence of a document’s existence and contents where proper foundations are laid, but the risk profile tends to be higher where proof depends on uncertain recollection without objective support.

Suggestion: Do not abandon a potential claim solely because you appear not to meet a standard time or condition. Carefully compare your circumstances against available exceptions and evidence pathways, as they may be decisive. At the same time, avoid assuming an exception will apply, because the decision remains discretionary and fact-driven.

5. Guidelines for Judicial and Legal Citation

Citation Angle

This authority is commonly relevant in submissions or advice involving:

1. The strictness of the signature requirement for binding financial agreements under s 90G.
2. Proof problems where an alleged executed agreement cannot be produced.
3. The evidentiary value of solicitor file notes and the limits of usual practice evidence.
4. The interaction between multiple alleged agreements and statutory coherence concerns.

Citation Method

As positive support:
Where your matter involves a purported binding financial agreement that cannot be produced in fully executed form, or where only one party’s signature appears, this authority can support a submission that the Court should require proof of a signed agreement by all parties and should not infer binding effect from incomplete documents and uncertain recollection.

As a distinguishing reference:
If an opposing party cites this authority against you, distinguishing features may include the existence of a complete executed original, reliable contemporaneous correspondence confirming exchange and execution, properly executed certificates, or other objective evidence establishing the statutory prerequisites.

Anonymisation Rule

When discussing the parties’ positions in professional writing, use procedural titles such as Applicant and Respondent rather than party names, consistent with the protective approach commonly adopted in family law publication practice.

Conclusion

The core lesson of this case is that binding financial agreements are legally powerful only when they are legally complete. When the statute demands signatures by all parties and protective legal advice steps, a court will not treat a partially executed document as a binding instrument merely because it was drafted, discussed, or believed to exist.

Golden Sentence: True self-protection stems from early understanding and careful completion of legal rules, because in court, intentions matter less than proof.

Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit Court of Australia (Ngo & Han [2018] FCCA 3806), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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