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 preliminary issues including whether the execution of the Agreement operated to 'oust the Court's jurisdiction' under pt 5A div 2 of the Family Court Act.
The learned trial judge found that pt 5A div 2 applied. The sole basis for that conclusion was that the Agreement was not binding because there had been a failure to comply with the requirements of s 205ZS(1)(c) of the Family Court Act, by virtue of a deficiency in the terms of certificates annexed to the Agreement (Certificates).
The only issue raised by this appeal is whether the Agreement is not binding on the parties because of a failure to comply with the requirements of s 205ZS(1)(c) of the Family Court Act.
For the reasons set out below, there was no failure to comply with s 205ZS(1)(c). The appeal should be allowed.

The requirements of s 205ZS(1) of the Family Court Act

At the time the Agreement was entered into, s 205ZS(1) provided:
(1)A financial agreement is binding on the parties to the agreement if, and only if -
(a)the agreement is signed by both parties; and
(b)the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters -
(i)the effect of the agreement on the rights of that party; and
(ii)the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement;
and
(c)the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and
(d)the agreement has not been terminated and has not been set aside by a court; and
(e)after the agreement is signed, the original agreement is given to one of the parties and a copy is given to the other.
It is convenient at this point to mention that in an earlier iteration (prior to 2006), s 205ZS(1) provided:
(1)A financial agreement is binding on the parties to the agreement if, and only if -
(a)the agreement is signed by both parties;
(b)the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters -
(i)the effect of the agreement on the rights of that party;
(ii)whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; and
(iii)whether or not, at that time, it was prudent for that party to make the agreement; and
(iv)whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable;
(c)the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided;
(d)the agreement has not been terminated and has not been set aside by a court; and
(e)after the agreement is signed, the original agreement is given to one of the parties and a copy is given to the other.
For completeness, we note also that the Family Law Act contains similar, but not identical, requirements for an agreement to exclude the operation of that Act in relation to parties who are married. Those requirements are set out in s 90G(1) of the Family Law Act. Section 90G(1) has been amended on a number of occasions. When it was first enacted, s 90G(1) required that a financial agreement would be binding on the parties to the agreement if, and only if, various requirements were met, including, relevantly:
(b)The agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:
(i)The effect of the agreement on the rights of that party;
(ii)Whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement;
(iv)Whether or not, at that time, it was prudent for that party to make the agreement;
(v)Whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable; and
(c)The annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided.
In December 2009,[3] just prior to the period during which the parties began to negotiate the Agreement, s 90G(1)(b) and (c) were in the following terms:
(b)The agreement contains, in relation to each spouse party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:
(i)The effect of the agreement on the rights of that party;
(ii)The advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and
(c)The annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided.
[3] Section 90G(1) was subsequently amended so that from January 2010, the requirement that a certificate confirming the provision of the legal advice be annexed to the agreement was removed. From that time onwards, s 90G(1) required that either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in s 90G(1)(b) was provided to that party.

Relevant terms of the Agreement and the Certificates

There was no dispute, and the learned trial judge found,[4] that the Agreement was intended to serve two purposes:
(1)In the event that the parties did not marry each other, the Agreement was to effect a 'contracting out' of the parties' rights under pt 5A div 2 of the Family Court Act should the de facto relationship end; and
(2)In the event that the parties did marry each other, the Agreement was to effect a 'contracting out' of the parties' rights under pt VIII of the Family Law Act should their marriage subsequently break down.
[4] W v B [2018] FCWA 148 (primary decision) [46].
The parties never married, so the crucial question for the learned trial judge was whether, by the Agreement, the parties had complied with the requirements of the Family Court Act in order to contract out of their rights under pt 5A div 2 of that Act.
The terms of the Agreement are not presently relevant, save in two respects. First, recital L to the Agreement states:
Before each party signed this agreement, he and she received separate independent legal advice from a legal practitioner as to the following:
(a) the effect of this agreement on the rights of each of the parties; and
(b) the advantages and disadvantages, at the time the advice was provided, to each party of making this agreement.
Secondly, cl 25 of the Agreement states:
Before the parties signed this agreement, each received separate independent legal advice from a legal practitioner about:
(a) the effect of the agreement on that party's rights;
(b) the advantages and disadvantages, at the time the advice was provided, of making the agreement.
In this case, it was not in dispute that the Agreement contains a statement to the effect required by s 205ZS(1)(b).
The Certificates were annexed to the Agreement. Each of the Certificates was signed by a legal practitioner who had separately provided independent legal advice either to the appellant or respondent. The Certificates were in a common form:
I, [name of practitioner], a Legal Practitioner within the meaning of the Family Court Act and the Family Law Act HEREBY CERTIFY that in relation to the agreement to which this certificate is annexed, being [the Agreement] I advised [the appellant/respondent] ('my client') independently of the other party, and before the time at which my client signed the agreement, as to the following matters:-
Family Court Act
(a) The effect of the agreement on the rights of my client.
(b) Whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of my client to make the agreement.
(c) Whether or not, at the time, it was prudent for my client to make the agreement.
(d) Whether or not, at the time and in light of such circumstances as were, at the time, reasonably foreseeable, the provisions of the agreement were fair and reasonable.
Family Law Act
(a) The effect of the agreement on the rights of my client.
(b) The advantages and disadvantages, at the time that the advice was provided, to my client of the making of the agreement. (emphasis added)
Having regard to the terms of s 205ZS of the Family Court Act and s 90G of the Family Law Act, as amended over time, it can be inferred that the Certificates were drafted with the intention of reflecting the terms of s 205ZS of the Family Court Act and s 90G of the Family Law Act at that time. Having regard to the terms of the legislation as discussed at [7] ‑ [10] above, it is apparent that the terms of the Certificates under the heading 'Family Court Act' did not, in fact, reflect the terms of the relevant provisions of the Family Court Act at the time the parties entered into the Agreement.
The disparity between the terms of the Certificates and s 205ZS(1) of the Family Court Act formed the basis for the argument advanced by the respondent that there had not been compliance with the requirements of s 205ZS(1) as it stood at the time the Agreement was signed.

The conclusion reached by the trial judge

The learned trial judge concluded that the Certificates failed 'to adopt precisely the wording of s 205ZS(1), as it stood at the relevant time' and that that was 'fatal' to the appellant's case.[5]
[5] Primary decision [86].
His Honour reached that view on the basis of the following line of reasoning. Having regard to the decision of the Full Court of the Family Court of Australia in B v B,[6] which concerned s 90G of the Family Law Act, his Honour concluded that strict compliance with the requirements of s 205ZS(1) was required.[7] He noted that since that decision, amendments had been made to the Family Law Act 'aimed at saving financial agreements from being held to be non-binding' but that those amendments had not been adopted in the Family Court Act.[8]
[6] B v B [2008] FamCAFC 7; (2008) 216 FLR 422.
[7] Primary decision [88].
[8] Primary decision [89] - [90].
His Honour then turned to whether the Certificates met the requirements of s 205ZS(1)(c). He said:[9]
The current version of s 205ZS(1)(b)(ii) differs from the words used in the certificate. Those words reflect what was required by the pre-2006 version of s 205ZS(1)(b)(ii), not the current version. Having regard to the ruling in [B v B], it has to be said that there has not been strict compliance with the requirements of s 205ZS(1)(c) and so the financial agreement cannot be found to be binding.
Counsel for the [appellant] argued that there is compliance with s 205ZS(1)(c) because under the heading "Family Law Act" appearing in [the respondent's lawyer's] certificate, the words appearing in the current version of s 205ZS(l)(b)(ii) can be found. That is not an argument which finds favour. The certificate was constructed to serve two distinct purposes. It would not be appropriate to somehow "merge" the advice given separately by the legal practitioners regarding the rights and potential rights of the parties under two similar, but not identical, statutory regimes.
[9] Primary decision [92] - [93].

The grounds of appeal

The appellant advanced eight grounds of appeal. The key grounds were grounds 2 and 3, which were in the following terms:
2.The learned judge erred in law in holding that the appearance in the certificates signed by the parties' solicitors and annexed to the Deed (Certificates) of the words 'advantages and disadvantages' (being words used in s 205ZS(1)(b)(ii) of the Family Court Act) under the hearing 'Family Law Act' rather than under the heading 'Family Court Act' thereby rendered the Certificates non-compliant with section 205ZS(1)(b)(ii) of the Family Court Act;
3.The learned judge erred in law in failing to hold that, upon a true construction of the Certificates as read with recitals G, J, K and L and clauses 24 and 25 of the Deed, the Certificates satisfied section 205ZS(1) of the Family Court Act.
There was no dispute that if grounds 2 and 3 were upheld, it would be unnecessary to consider the remaining grounds.[10]
[10] Appeal ts 9.
As we have concluded that grounds 2 and 3 have been made out, it is unnecessary to consider any of the other grounds of appeal.

The critical question on the appeal

Section 205ZS(1) provides that a financial agreement is binding on the parties to the agreement 'if, and only if,' the requirements specified in (a) ‑ (e) are satisfied. That language makes it clear that if an agreement does not comply with all of the requirements specified in (a) - (e), it will not be binding on the parties. Anything less than strict compliance is not sufficient. As Collier J noted in J v J,[11] in a passage adopted by the Full Court of the Family Court of Australia in B v B:[12]
Something approaching full compliance, or something that if looked at in a less than strict light, might come close to establishing compliance, is not enough. Clearly, the legislation intended that if this method of parties resolving their differences was to be used without any supervisory power of a Court, in a situation where parties' rights were to be affected, then that which was to be done had to be done fully in compliance with that which the statute set out and required.
[11] J v J [2006] FamCA 442 [20].
[12] B v B [33], [45].
The critical question in the appeal is whether there was compliance with the requirements of s 205ZS(1)(c) of the Family Court Act. The answer to that question turns on the proper construction of s 205ZS(1)(c), and on the proper construction of the terms of the Certificates which are italicised in the extract set out at [16] above.

The requirements of s 205ZS(1)(c)

Section 205ZS(1)(c) contains three requirements: that a certificate state that the independent legal advice (which is referred to in s 205ZS(1)(b)) was provided; that the certificate be signed by the person who provided that advice; and that the certificate be annexed to the agreement.
The independent legal advice referred to in s 205ZS(1)(c) is the advice described in more detail in s 205ZS(1)(b), namely independent legal advice as to the two matters there set out: 'the effect of the agreement on the rights of that party'; and 'the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement'.
Significantly, those two matters are not confined to the effect of the agreement on the rights of the party under the Family Court Act (or indeed under any legislation), or the advantages and disadvantages for that party of entering the agreement, having regard to the Family Court Act (or indeed any other legislation). Indeed, advice that was confined to the advantages and disadvantages under, or in relation to, that Act would not meet the requirements of s 205ZS(1)(b) and (c). What is required is advice as to all and any advantages and disadvantages.
Nothing in s 205ZS(1)(c) of the Family Court Act requires the person who signs the certificate to specify the source of the statutory requirement to certify in those terms.
Furthermore, s 205ZS(1)(c) does not require that any precise form of words be used in a certificate to confirm that the advice in question was provided. Nor can any requirement for a particular form of words be discerned from the reference in s 205ZS(1)(b) to the requirement that the agreement state that independent legal advice was given to each party. Section 205ZS(1)(b) does not mandate any particular form of words to describe the legal advice which was given. It merely requires a statement 'to the effect' that, before the agreement was signed, each party was provided with the independent legal advice which is described.

In addition, s 205ZS(1)(c) does not require that the certificate set out the particulars of the advice given. Further, satisfaction of the requirement in s 205ZS(1)(c) does not require any enquiry into the content or quality of the advice given by the solicitor. From that perspective, the requirement in s 205ZS(1)(c) is formal in nature. The fact that comprehensive advice was actually provided will not save a financial agreement if a certificate containing the statement required by s 205ZS(1)(c) is not annexed to the agreement. (If a financial agreement with the required certificate annexed to it is to be vitiated, whether by reference to the content of the advice actually provided, or on some other basis,[13] that must be on grounds other than a failure to comply with the requirements of s 205ZS(1)(c) of the Family Court Act.)
[13] See, eg, s 205ZV(1)(b) of the Family Court Act and s 90K(1) of the Family Law Act, which permit a financial agreement to be set aside if the court is satisfied that the agreement is void, voidable or unenforceable, having regard to the principles of law and equity; and see, eg, Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 [21] (Kiefel CJ, Bell, Gageler, Keane & Edelman JJ).
Section 205ZS(1)(c) is thus directed to a single purpose, namely to ensure that evidence exists, in the form of a confirmation by the legal practitioner who gave the advice, that the independent legal advice required to be given under s 205ZS(1)(b) was in fact given. That is not to understate the importance of the confirmation required by s 205ZS(1)(c). The requirement for a certificate, signed by the legal practitioner, to be annexed to the agreement, avoids any question as to whether a party to an agreement actually received the advice required, and avoids any risk that a party to an agreement might be pressured into stating that he or she has received independent legal advice when that was not the case.

Approach to the construction of the Certificates

Before turning to the resolution of the issue raised by the appeal, it is necessary to identify the proper approach to the construction of the Certificates.
There can be no doubt that in the construction of the Certificates, as in the construction of any written instrument, the starting point is to give the words used their ordinary meaning. Where the ordinary meaning of the words used gives rise to a choice of meaning, the surrounding context may shed light on the proper meaning to be attributed to the words used. In the present case, aspects of the legislative and factual context are important contextual considerations in the construction of the Certificates.
That legislative and factual context includes that the Certificates are instruments which were created solely for the purposes of s 205ZS of the Family Court Act and s 90G of the Family Law Act. It is clear from their terms that the Certificates were prepared and executed by the solicitors for each party for the purpose of confirming that the advice required to be given to each party under s 205ZS(1) of the Family Court Act, and s 90G(1) of the Family Law Act, was in fact given, and to support the conclusion that the Agreement constituted a binding financial agreement for the purposes of each of those provisions.
The relevant context also includes the fact that the Certificates are annexures to the Agreement, which is a contract (albeit one capable of having a particular statutory effect for the purposes of s 205ZS(1)). That being the case, the principles of construction applicable in cases involving contracts with annexures are also of some assistance in this case. The general principle is that because annexures to a written contract constitute part of the contractual documents, it may be presumed that the parties intended that those annexures would be taken into account in the construction of the contract as a whole.[14] Moreover, the Certificates are expressed to certify to the relevant effect 'in relation to the agreement to which this certificate is annexed'.
[14] See Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420, 437 (McTiernan, Webb & Taylor JJ).
In addition, an instrument - namely a formal legal document,[15] such as a contract, or a deed[16] - which is directed to be read as an annexure to another instrument, must, as far as possible, be read and have effect, as if that instrument were made by way of an endorsement on the previous instrument, or contained a full recital thereof.[17]
[15] Macquarie Online Dictionary.
[16] Property Law Act 1969 (WA), s 7.
[17] See Property Law Act 1969 (WA), s 16.
We will refer to specific principles relevant to the construction of the Certificates in the course of the discussion below.

Disposition

The respondent's contention,[18] which appears to have been implicitly accepted by the learned trial judge in the passage of his reasons quoted at [21] above, is that the heading above the two italicised statements, which refers to the Family Law Act, qualifies the description of the advice provided, so that the statements must be understood to mean:
(a)the effect of the agreement on the rights of my client under the Family Law Act;
(b)the advantages and disadvantages, at the time that the advice was provided, to my client of the making of the agreement, having regard to the Family Law Act.
[18] See appeal ts 7 ‑ 8.
Counsel for the respondent submitted, in effect, that any legal advice given as to the rights of the parties would be different according to whether, absent a binding financial agreement, questions of maintenance and the alteration of property interests were dealt with under the Family Law Act (in the event they married) or under the Family Court Act (in the event they did not marry). In that light, he submitted, the reference to advice given under each heading must be construed as advice relating only to the Act referred to in the heading. He submitted that the text appearing under the heading 'Family Court Act', which reflected the terms of s 205ZS(1) prior to 2006, could not be understood as a statement that the advice specified in s 205ZS(1)(b)(i) and (ii), as it stood when the Agreement was executed, was provided. He therefore submitted, in effect, that the required certification, that legal advice had been provided as to the rights of the party, and the advantages and disadvantages to the party of making the agreement, under the Family Court Act regime, was missing.
We do not accept that that is the proper construction of the Certificates, for the following reasons.
First, leaving to one side, for a moment, the headings in the Certificates, which refer to the Family Law Act and the Family Court Act, the ordinary meaning of the italicised words in the Certificates set out above is that independent legal advice was given by a solicitor, to each party, which advice included (but was not limited to) advice as to two matters: the effect of the Agreement on that party's rights, and the advantages and disadvantages, at the time that the advice was provided, to that party of making the Agreement. Those italicised statements therefore reflected and satisfied the express requirements of s 205ZS(1)(c) of the Family Court Act at the time that the Agreement was entered into.
Secondly (and again, leaving the import of the headings to one side for the moment), there is no basis for construing the text appearing under the heading 'Family Law Act' as referring only to the rights of the party under the Family Law Act and the advantages and disadvantages to the party under the Family Law Act regime. The language used, which is italicised in the extract from the Certificates quoted above, is in entirely general terms. Nothing in the text under the heading Family Court Act detracts from that generality. In particular, pars (b) ‑ (d) under that heading are not inconsistent with the giving of advice as to the advantages and disadvantages, generally, of entering the respective agreement.
Thirdly, having regard to the requirements of s 205ZS(1), which we discussed at [27] ‑ [33] above, if a certificate states that independent legal advice as described in s 205ZS(1)(b)(i) and (ii) - namely the effect of the agreement on the rights of the party, and the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement - was in fact provided to the party, the certificate will comply with s 205ZS(1)(c) of the Family Court Act. The emphasised parts of the Certificates quoted above contain words which state that the legal advice which s 205ZS(1)(b) required to be given, was in fact given.
Fourthly, having regard to the principles discussed at [35] ‑ [38] above, the Certificates must be construed in light of the provisions of the Agreement, to which they are annexed and to which they refer. The Agreement and the Certificates annexed to it are instruments which comprise one 'transaction', namely the parties' entry into a financial agreement which was to comply with the requirements of s 205ZS(1) of the Family Court Act and s 90G(1) of the Family Law Act. In construing the Certificates, it is appropriate to have regard to the Agreement, so as to give a congruent operation to the components of the transaction as a whole.[19] The Agreement is expressly designed to disapply both pt VIII of the Family Law Act and pt 5A div 2 of the Family Court Act (see recital G). In that context, the references in recital L and cl 25 of the Agreement to rights, advantages and disadvantages, expressed in entirely general terms, can only be understood as encompassing the rights, advantages and disadvantages contemplated by both statutory regimes. The same general language appearing in the Certificates should be given the same meaning as it has in the Agreement.
[19] RIL Aviation HL 7740 and HL 7741 Pty Ltd v Alliance and Leicester plc [2011] NSWCA 423 [39] (Giles JA); EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23 [104] (Buss JA, Owen & Newnes JJA agreeing).
Fifthly, we do not accept the respondent's contention that the italicised text in the Certificates must be construed by reference to the heading above it. The principles of construction applicable to contracts with annexures, as discussed at [35] ‑ [38] above, permit headings to be taken into account in the construction of contractual documents, unless the parties have expressed a contrary intention.[20] In this case, the parties expressed a contrary intention in the Agreement, namely that 'headings are for convenience only and not intended to change the interpretation or enforceability of this agreement'.[21] In this context, the general words in the Certificates, which are italicised above, and which reflect the general language used in recital L and cl 25 of the Agreement, should not be construed as being qualified by reference to the heading 'Family Law Act'. Moreover, even if regard were had to the headings, they would support an inference as to what was thought to be the source of, or reason for, the advice and certificate; they provide no sufficient basis to read down the general words as to the subject-matter of the advice given.
[20] Fitzgerald (437); see generally Metlife Insurance Ltd v RGA Reinsurance Company of Australia Ltd [2017] NSWCA 56 [65], [90] ‑ [92] (Leeming JA).
[21] Agreement, cl 26; GAB 101.
Sixthly, the legislative context militates against the respondent's contention as to the import of the headings in the Certificates. As we have already explained, nothing in s 205ZS(1)(c) of the Family Court Act requires that the legal advice given pertain only to a party's rights under the Family Court Act or any other legislation, or to the advantages and disadvantages for a party of entering an agreement, having regard to the Family Court Act or any other legislation. That being the case, there is no warrant for construing the reference to the Family Law Act in the heading above the italicised text, as importing a qualification on the meaning of the general words of the text below that heading.
Seventhly, even if the italicised words in the Certificates give rise to a choice in meaning, the principles outlined at [35] ‑ [38] above support the conclusion that the meaning given to those words should be that which is consistent with the terms of the Agreement, with which the Certificates are to be read, namely that each party was given legal advice as to the effect of the Agreement on their rights, and as to the advantages and disadvantages to them of making the Agreement.
Counsel for the respondent submitted that although the Certificates stated that advice had been given as to the rights of the party, and the advantages and disadvantages of the Agreement, this could not be understood to mean their rights, and the advantages and disadvantages of the Agreement, under both the Family Court Act regime and the Family Law Act regime. He submitted that the Certificates were drafted to serve two distinct purposes, namely to confirm that advice was given which met the requirements of both the Family Court Act, and the Family Law Act, whichever arose, and that it 'would not be appropriate to somehow merge the advice given separately regarding the rights and potential rights of the parties under two similar but not identical statutory regimes'.[22] He submitted that to take that approach would be tantamount to the Court engaging in the exercise of rectifying errors in the Certificates, and that to do so would be contrary to authority.[23]
[22] Appeal ts 13.
[23] Appeal ts 12, referring to Senior v Anderson [2011] FamCAFC 129; (2011) 250 FLR 444.
No question of rectification arises, or could arise, in this case. What is involved is the construction of the Certificates. As we have said, compliance with the requirements of s 205ZS(1) requires that a certificate, on its face, complies with the terms of s 205ZS(1)(c). If a certificate does not comply with those requirements, that cannot be remedied by rectification. However, whether the Certificates comply with those requirements falls to be determined on the proper construction of the words in the Certificates. As already explained, we do not accept the construction of the Certificates asserted in the first step of the submissions just summarised. For the reasons we have set out, on a proper construction of the Certificates, the requirements of s 205ZS(1)(c) were met.
For these reasons, the learned trial judge erred in holding that the Agreement was not binding on the parties because the Certificates annexed to the Agreement did not contain the statement required by s 205ZS(1)(c) of the Family Court Act.There being no other basis on which it is contended in this appeal that the Agreement is not binding on the parties, the appeal must be allowed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell
7 OCTOBER 2019