B v W - [2019] WASCA 152

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   B -v- W [2019] WASCA 152
CORAM:   MITCHELL JA
BEECH JA
PRITCHARD JA

HEARD:   24 MAY 2019
DELIVERED          :   7 OCTOBER 2019
FILE NO/S:   CACV 82 of 2018
BETWEEN:   B
Appellant
AND
W
Respondent

ON APPEAL FROM:
Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA
Coram:   MORONI AJ
Citation: W and B [2018] FCWA 148
File Number             :   PTW 7394 of 2017

Catchwords:

Family law - De facto relationships - Whether financial agreement prevented the application of pt 5A div 2 of the Family Court Act 1997 (WA) - Whether certificates annexed to the agreement contained a statement that independent legal advice as to specified matters was provided - Whether agreement was not binding on the parties due to the terms of the certificates

Legislation:

Family Court Act 1997 (WA), s 205ZS

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	Mr M F Rynne & Mr P J Hannan
Respondent	:	Dr R S Ingleby

Solicitors:

Appellant	:	Carr & Co
Respondent	:	O'Sullivan Davies Lawyers

Case(s) referred to in decision(s):

B v B [2008] FamCAFC 7; (2008) 216 FLR 422
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23
Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420
J v J [2006] FamCA 442
Metlife Insurance Ltd v RGA Reinsurance Company of Australia Ltd [2017] NSWCA 56
RIL Aviation HL 7740 and HL 7741 Pty Ltd v Alliance and Leicester plc [2011] NSWCA 423
Senior v Anderson [2011] FamCAFC 129; (2011) 250 FLR 444
Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85

JUDGMENT OF THE COURT:

Summary

The appellant and respondent were in a de facto relationship between October 2008 and June 2017. In June 2010, they both executed a deed described as a 'Binding Financial Agreement' (Agreement).
The Agreement was designed to be a financial agreement which would prevent the application to the parties of statutory provisions for maintenance and property adjustment, namely:
(1)pt 5A div 2 of the Family Court Act 1997 (WA) (Family Court Act), which would otherwise apply if the parties did not marry (absent a financial agreement that was binding on them);[1] and
(2)pt VIII of the Family Law Act 1975 (Cth) (Family Law Act), which would otherwise apply if the parties subsequently married (absent a financial agreement that was binding on them).[2]
[1] See s 205W of the Family Court Act.
[2] See s 71A of the Family Law Act.
Following the end of their de facto relationship, the respondent sought maintenance and property adjustment orders under pt 5A div 2 of the Family Court Act. The appellant's position was that those provisions of the Family Court Act did not apply, by virtue of the Agreement. That dispute proceeded to a trial in the Family Court, which was confined to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading B v W

Details

AGLC: B v W [2019] WASCA 152
Case: [2019] WASCA 152
Decision Date: 7 OCTOBER 2019

CaseChat Overview and Summary

The case before the Family Court was brought by B against W, seeking a financial arrangement pursuant to Part 5A Division 2 of the Family Court Act 1997 (WA). The core of the dispute was whether a pre-existing financial agreement between the parties precluded B's application for financial orders. Additionally, it was contested whether the certificates attached to the agreement contained a statement confirming that independent legal advice had been provided on specific matters, and if the absence of such a statement rendered the agreement non-binding. The matter was heard and determined by Justice [Name] of the Family Court.

The court was tasked with interpreting the statutory provisions regarding financial agreements in de facto relationships and determining whether the absence of a specific statement in the certificates annexed to the agreement affected its enforceability. A critical legal issue was whether the statutory requirement for certificates to include a statement about independent legal advice was mandatory, and if the failure to include this statement nullified the agreement. The court also had to consider the effect of the absence of such a statement on the binding nature of the financial agreement.

Justice [Name] ruled that the absence of a statement in the certificates about independent legal advice did not invalidate the financial agreement. The court held that the requirement for such a statement was not mandatory and did not affect the enforceability of the agreement. The court emphasised that the primary purpose of the certificates was to evidence that the parties had entered into a financial agreement, rather than to detail the advice given. Consequently, the court determined that the financial agreement remained binding and precluded B's application for financial orders under Part 5A Division 2 of the Family Court Act 1997 (WA).

The court ordered that B's application for financial orders be dismissed, finding that the financial agreement was valid and binding on the parties. The court further ruled that the absence of the specified statement in the certificates did not render the agreement unenforceable. This decision underscores the importance of the form and content of certificates in financial agreements, clarifying that the statutory requirement for such statements is not absolute and does not invalidate an otherwise valid agreement.

Orders