Foreign lawyer is not a lawyer for the purposes of a BFA: Federal Magistrates Court

The Federal Magistrates Court had to recently consider in Murphy and Murphy the wife’s application to set aside a binding financial agreement because the certificate required to be signed by the lawyer for the wife as to legal advice was signed by a Manila lawyer, Daniel P. Liangco. Mr Liangco was a Filipino lawyer and was not an Australian lawyer.

Federal Magistrate Coates had no difficulty in setting aside the agreement.

His Honour stated:

While in some cases there actually needs to be a special meaning applied to
words in an act, to imply that the words legal practitioner would apply to a
lawyer such as Daniel B Liangco would be a construction which is unreasonable or
precious and a return to interpretations of acts resulting in a ludicrous
outcome. Such an outcome is not apparent here. The rights of people are at issue
here and so it follows that the s.90.G
words legal practitioner are not superfluous, they mean and can only mean a
person qualified or defined within the terms of the Judiciary
Act 1903 as a legal practitioner, qualified to practise in the Australian
federal jurisdiction.

In my opinion the certificate is a notice to the other party
and is a vital component of the financial agreement. Only after it is held to conform to the section, can it be relied on for what it states on its face. It is open to challenge for not complying with s.90G.

The husband set out to surround himself with a protective
regime for his property if the marriage failed by obtaining advice in the
jurisdiction which he himself would invoke if there was an issue.

He presented the wife with the form of agreement and as he was entitled
to do allegedly said he would not marry her if she did not sign it. He now says
he is entitled to rely on the agreement and on her acts in relation to the
execution of that agreement.

It can hardly be the case that the husband can rely on fraud or
unconscionability or estoppel in this matter as he knew the circumstances in
which the wife went to obtain legal advice in Angeles City, Philippines. He knew
the circumstances because he accompanied her to the front door. He knew the
circumstances and he accepted the document she handed to him.

He received advice from a solicitor of the Supreme Court of Queensland.
He had notice from the wife’s part of the agreement that she received advice
from a lawyer of the Angeles City Court of Philippines. Before being handed that
certificate containing the notice, he had given the wife legal advice, that
these agreements were enforceable in Australia but at no time, knowing she was a
foreigner, did he advise her to seek legal advice while in Australia and before
marriage. The husband created the circumstances which saw the document signed in
the Philippines and in those circumstances he cannot rely on fraud or
unconscionability to defeat the wife’s application.

On the facts here, the legal practitioner referred to in s.90G is a
legal practitioner holding a relevant practicing certificate for the Australian
federal jurisdiction. Sub-section 90G(1)(b) and (c) then have functionality and
the husband, when observing the status of the legal practitioner signing the
certificate, was on notice that there was non-compliance with the section as a
whole.

If the application of the Judiciary Act to the Family Law Act is wrongly based, that does not escape the fact that legal advice is advice about the law and that must be with regard to the law of a particular jurisdiction. Under s.90G, legal advice is given contemplating an agreement made within the framework of the Family Law Act 1975. The advice referred to in section 90G is about rights determinable in the jurisdiction which created the section under the Family Law Act, which is the Australian federal jurisdiction and this was strengthened as the agreement stated the jurisdiction, being that of the Commonwealth and Queensland. Advice about rights are justiciable within the jurisdiction which adjudicates on those rights. No other purpose appears on the face of the legislation or by inference in the agreement, in my view, than for advice to be given by a legal practitioner who could practice in the jurisdiction. It appears then that the purpose of the section is to ensure that a certificate is provided by a legal practitioner qualified to practise in the Australian federal jurisdiction. Section 90G is to be read with the other sections pertaining to such agreements and those sections clearly contemplate that relevant disputes may be brought into court. It would be illogical that a person could call themselves a legal practitioner, but with no qualification to practice in the Australian federal jurisdiction and give the certificate required, because the rights are legal rights recognised and governed within the Australian federal jurisdiction.

I could not take judicial notice of a claim, as submitted, that many
Australians might go overseas and execute such agreement in the same manner.
Although I am aware that in the light of the decision of Black and Black, the
Federal Government has indicated that the Federal Justice System Amendment
(Efficiency Measures Bill (No 1) 2008 is amending provisions to allow for
substantial compliance in relation to such agreements, this matter falls outside
the issue of substantial compliance because there has not been any compliance with the section. Even if the wife knew what the discussion was about as the husband claims – which is hearsay or opinion evidence – it cannot be said that there had been substantial compliance so that she would or could make a decision on an informed basis as to her legal rights. That is a situation to which the
husband contributed.

I think it is less a case of fraud and unconscionable conduct and more
a case of the husband’s lack of proper planning where he contributed to the
circumstances as to where the wife received “legal” advice, signed and then
produced a certificate, out of jurisdiction, supporting the financial agreement.
On the same basis the husband cannot rely on some form of estoppel operating to
prevent the agreement being set aside. The evidence is that he planned the steps
to be taken. He perhaps did not seek advice on the qualifications of the legal
practitioner who could sign the certificate. I could not imagine that had that
been asked, even out of an abundance of caution, a legal practitioner in
Australia would have advised that the certificate be signed by a legal
practitioner qualified for practice in Australia. Both parties under the Act are
entitled to come to an agreement which results in the “extreme asset protection”
for one party, as counsel for the wife put it, if that is an informed decision,
the purpose of compliance with s.90G.

The result of the husband’s haste then is an agreement which pursuant
to s.90K(1)(b) is void, voidable or unenforceable. In stating that, I think the
agreement was actually void, that is, it never effectively existed because the
wife’s certificate did not comply with the requirements of s.90G. (emphasis
added)