Bilal & Omar
[2015] FamCAFC 30
•27 February 2015
FAMILY COURT OF AUSTRALIA
| BILAL & OMAR | [2015] FamCAFC 30 |
| FAMILY LAW – APPEAL – BINDING FINANCIAL AGREEMENT – WAIVER OF LEGAL PROFESSIONAL PRIVILEGE – Where the trial judge held a financial agreement entered into by the parties in 2007 was not binding – Where the trial judge determined that the advice given to the wife did not comply with s 90G(1)(b) of the Family Law Act 1975 (Cth) because she had not understood the advice as her solicitor spoke a different Arabic dialect – Where the trial judge also found reference to an interpreter did not fulfil the s 90G(1)(b) requirement – Where the trial judge refused to grant the husband access to the wife’s solicitor’s file (or records) and also refused to allow the wife’s solicitor to give evidence on the basis of a finding that the wife’s claim of legal professional privilege should be upheld because she had not intentionally waived it – Where the wife had given evidence of what she had been told by her solicitor – Where, on appeal, the husband argued that the trial judge applied the wrong test for waiver of privilege – Where the Full Court found that the trial judge had applied the wrong test and held that the test is one of inconsistency with the maintenance of privilege rather than the subjective intention to maintain privilege – Where the Full Court also found that the wife’s evidence as to whether advice was given was contradictory – Where the husband also argued that the trial judge failed to take into account a relevant consideration, being the wife’s credibility – Where the Full Court also found merit in this complaint – Appeal allowed – Remitted for rehearing – Costs certificates granted. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Federal Proceedings (Costs Act) 1981 (Cth) |
| Commissioner of Taxation v Rio Tinto (2006) 151 FCR Lenova & Lenova (Costs) [2001] FamCAFC 141 Mann v Carnell (1999) 201 CLR 1 Wallace & Stelzer and Anor [2013] FamCAFC 199 |
| APPELLANT: | Mr Bilal |
| RESPONDENT: | Ms Omar |
| FILE NUMBER: | PAC | 5680 | of | 2007 |
| APPEAL NUMBER: | EA | 7 | of | 2012 |
| DATE DELIVERED: | 27 February 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Murphy and Loughnan JJ |
| HEARING DATE: | 1 October 2013 and 25 February 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 December 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1430 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hatzistergos |
| SOLICITOR FOR THE APPELLANT: | Michael Vassili Barristers & Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Greenaway |
| SOLICITOR FOR THE RESPONDENT: | Farrah Lawyers |
Orders
(1)The appeal be allowed.
(2)The order made on 21 December 2011 by Federal Magistrate Henderson (as she then was) be set aside.
(3)The proceedings be remitted to the Federal Circuit Court for rehearing by a judge other than Judge Henderson.
(4)The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect to the costs incurred by the appellant in relation to the appeal.
(5)The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect to the costs incurred by the respondent in relation to the appeal.
(6)The Court grants to the appellant and to the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the re-hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bilal & Omar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 7 of 2012
File Number: PAC 5680 of 2007
| Mr Bilal |
Appellant
And
| Ms Omar |
Respondent
REASONS FOR JUDGMENT
In February 2007, the appellant husband and the respondent wife entered an agreement pursuant to s 90C of the Family Law Act1975 (Cth) (“the Act”). The agreement purported to comply with the provisions of s 90G of the Act and, as a result, to be binding so as to preclude either party applying to the Court seeking an alteration of interests in their property (s 71A of the Act).
The wife applied to the Federal Magistrates Court (as it then was) for an order setting aside the agreement. On 21 December 2011, Henderson FM (as her Honour then was) made that order. From that order the husband appeals.
One of the three grounds of appeal rests on her Honour’s treatment of an argument by the husband that the wife had waived legal professional privilege. Her Honour rejected that argument. The second ground is affected by the same issue, albeit that it is framed differently. A third challenge to her Honour’s order is based on an assertion that her Honour erred by “failing to address the [wife’s] lack of credibility”. It, too, overlaps with the other grounds.
The issue of privilege and its asserted waiver was central to her Honour’s decision because it pertained to the central question of whether the advice required by s 90G(1)(b) of the Act was given to the wife and, in turn, because her Honour’s determination that it was not underpinned her Honour’s ultimate order.
For the reasons which follow, we are of the view that all of those challenges have merit and that the appeal should be allowed.
The s 90G Requirements
Relevant 2009 amendments to s 90G of the Act came into effect on 4 January 2010. The amendments applied to the agreement in this case. Section 90G as it applied to this agreement provides:
(1) Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if:
(a) the agreement is signed by all parties; and
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c) 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 paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca)a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(d) the agreement has not been terminated and has not been set aside by a court.
The 2009 amendments, and more particularly the transitional provisions applicable to them, have caused significant confusion. Subsequent to the hearing of this appeal this Court (differently constituted to the present) decided Wallace & Stelzer & Anor [2013] FamCAFC 199. An application for special leave to appeal to the High Court of Australia from that decision was dismissed with that Court holding that “there is no reason to doubt the correctness of the conclusions reached by [this Court]”. As a consequence, the statements of this Court in Wallace can now be taken as authoritative as to the effect of the transitional provisions.
It was uncontroversial before her Honour, and is uncontroversial before us, that ss 90G(1)(a) and (d) were complied with. The relevant effect of the transitional provisions and the decision in Wallace renders compliance with s 90G(1)(c) and (ca) unnecessary for the instant agreement. (See Wallace at [72] and the discussion preceding same).
The issue before her Honour was, then, whether s 90G(1)(b) had been complied with: that is, had advice of the required kind been given to, relevantly, the wife by the required person before she signed the agreement. However, as Wallace had not been decided when her Honour heard the proceedings below, her Honour apprehended that it was also necessary to establish ss 90G(1)(c) and (ca) had been complied with.
Circumstances Leading to the Agreement
The parties’ relationship and marriage commenced in Lebanon. When the parties commenced their cohabitation in Australia in 2004, some nine months after their marriage, they lived in a home owned by the husband in his sole name. The parties’ only child was born in September 2005.
The parties separated initially about 12 months after that event. They signed the instant agreement in February 2007, resumed cohabitation shortly thereafter and separated finally about seven months later in September 2007.
Her Honour found:
34.On its face, the BFA complies with the strict technical requirements of the Act. In particular there are certificates given under section 90G of the Act, which set out correctly and properly the names of each of the parties, certifies that the solicitor is a solicitor, has been independently instructed by each party, that this solicitor has provided his client with independent legal advice prior to entering into this Deed as to the effect of this Deed on the rights of the parties and the advantage and disadvantages at the time the advice was provided of making the Deed. The certificate is signed and in his evidence [the wife’s solicitor] attested to his preparing and signing the certificate.
35.The wife has no English and is virtually illiterate in Arabic her native language. I know this as much was made of that fact by the husband in the parenting matter. The Deed is totally in English as is the certificate of independent legal advice. Nowhere in the Deed or in the certificate is there any indication that that the English Deed was translated into Arabic.
The husband subpoenaed the file of the wife’s certifying solicitor. Her Honour held (at [40]) that “[t]he subpoena addressed to [the wife’s solicitor] to produce his file was, ultimately, dismissed due to the wife’s claim of legal-professional privilege”.
No direction was made that the wife file any form of pleading. So much is unfortunate; in a context of some legislative complexity, the precise basis upon which the wife sought to set aside the agreement was not particularised adequately and must be gleaned from her affidavit.
At least some of what was deposed to by the wife could be thought to raise squarely the issue of whether she signed the agreement under duress or whether those same circumstances might otherwise vitiate the agreement on contractual or equitable grounds. (s 90K; Wife’s affidavit of evidence in chief [27] – [30]). We were told that the wife did not seek to make out any such case below. In any event, her Honour found, at [45] that “[t]he wife made allegations that she was in some way overborne by the husband and forced into signing this agreement. I do not accept that evidence nor do I intend to make a finding in relation to that issue. It is not necessary for these proceedings”. No challenge is addressed to that finding.
The Primary Judge’s Findings
The matters which her Honour considered germane to the wife’s case, and ultimately its success, emerge from both the transcript and the reasons.
As to the former, her Honour said at the very commencement of the proceedings:
HER HONOUR: Now, in order for an agreement to be binding – I just cannot see on the face of it, Mr Reeve, I don’t – I’m not going to need to hear too much from you, Mr Greenaway, I don’t think. I can’t see on the face of it, Mr Reeve how this agreement complies with s 90G(b): [the sub-paragraph was quoted by her Honour]
How does this agreement possibly comply with that section, let alone all the other issues about the agreement, when a plank, a significant plank of your clients case in the parenting matters was that this is a woman who is illiterate in English, both the written and spoken word, and almost illiterate in Arabic, because she left school when she was about seven or eight, and one of your clients planks in his parenting application was therefore the child should live with him and spend limited time with the mother.
(Transcript of proceedings, 15 March 2011, p 2)
Her Honour said in the reasons:
47.The question I must be satisfied is answered in the positive is this; at the time of signing and/or prior to signing the Deed, had the wife been informed of the effect of the agreement on her rights and the advantages and disadvantages in making the agreement?
48.Can I make a positive finding on such a substantive issue, namely that the wife was so informed when the wife has no English, the Deed and certificate are all in English and no translation of the Deed and its effect or consequences for her is evident in a language she can understand.
…
58.It is an agreed fact that [the wife’s solicitor] speaks Arabic with an Egyptian accent. The wife said in her affidavit material and confirmed same in the witness box, she has difficulty always understanding Arabic spoken with an Egyptian accent and given her limited education this is not surprising as her Arabic is of a Lebanese dialect.
Her Honour went on to find:
74.The whole tenor of the legislation is that when parties are giving away, compromising, affecting legal rights that they must have that consequence explained to them by a legal practitioner. A vital and necessary part of this understanding is that the communication between the solicitor and the client is sufficient for that client to understand the import of what they are signing. The fact that [the wife’s solicitor] sent the wife to an interpreter is a clear message to me that he realised the wife did not fully understand what he was saying to her. He abrogated his legal responsibility under section 90G to an interpreter and thus the certificate is of no consequence.
It is demonstrably clear from the judgment that her Honour’s decision was reached on the basis that:
·The wife did not understand the form of Arabic spoken (with an Egyptian accent or dialect) by the wife’s solicitor.
·Thus she could not have received legal advice from the solicitor in accordance with s 90G(1)(b) of the Act.
·Reference to an interpreter to explain the agreement in a language she understood did not fulfil the requirement of the Act because the interpreter was not present when the advice was being given and could not have interpreted the advice from the legal practitioner.
The recitation of s 90G(1)(b) at [67] lends force to the apparent reliance by her Honour upon that sub-paragraph as the basis upon which the agreement should be set aside. (See further in that respect [63] – [69] of the reasons.)
The issue of the provision of a certificate (s 90G(1)(c)) also appears to have been relevant to her Honour’s ultimate judgment. That her Honour considered it relevant must, of course, be understood by reference to the fact that Wallace had not been decided when her Honour heard these proceedings.
As we have said, the decision in Wallace renders the latter finding unnecessary; compliance with that sub-paragraph is not required in order for the agreement to be binding.
The Wife’s Advice and Legal Professional Privilege
Grounds 1 and 2 relied upon by the appellant husband are in these terms:
1.That the Federal Magistrate erred by failing to understand or properly apply the test for waiver of legal professional privilege in concluding that there had been no such waiver by the respondent.
2.That the Federal Magistrate erred in finding that the respondent had not understood the advice, when this was not reasonably open on the evidence and was not the respondent’s case.
The precise error asserted in the second ground of appeal is not immediately clear from its terms. As argued, the contentions made in respect of it overlap ground 1. In essence, the argument is that her Honour directed her attention to whether such advice as was given to the wife by her solicitor was understood by the wife whereas the wife’s evidence, and ultimately case, was that no advice was received. As will be seen, we consider there is merit in that argument emerging from our discussion of ground 1.
The husband’s case before her Honour was, in summary, that the wife had seen a solicitor who spoke Arabic (but with an Egyptian accent or, perhaps, dialect) on two occasions; that she had seen an interpreter with the agreement between those two occasions; and, subsequently, the wife’s solicitor had certified that he had given the wife the appropriate advice. The husband’s contention was that this was sufficient to allow the Court to find the advice required by s 90G(1)(b) had been provided.
It is important to understand that her Honour’s basis for finding non-compliance with s 90G(1)(b) was not that advice of the type required hadn’t been given, but that such advice as was given was not understood:
68.It is inconceivable that [the wife’s solicitor] believed the wife understood his interpretation of the Deed when he then sent her to an Arabic translator to re-explain in Arabic the effect of the Deed.
…
71.It is improper for a lawyer to certify “I informed and gave legal advice to this person,” if that person did not understand due to a language difficulty or some other impairment what was being said to them. [The wife’s solicitor] cannot have been satisfied the wife understood the terms of the agreement, what it was she was signing, the advantages and disadvantages if he sent her to an Arabic interpreter to re-explain the Deed. What was the purpose of so doing if not for the wife to receive in an Arabic language she could understand the effect and consequences of signing the Deed. In that light I can not see how [the wife’s solicitor] signed the certificate when he was not present with the interpreter and wife to know what the wife was being told.
72.This evidence confirms what the wife said that due to her lack of literacy in the Arabic language she did not understand fully [her solicitor’s] Egyptian Arabic and she was sent to an interpreter, who’s Arabic she would be able to understand.
Yet, the wife’s evidence was, ultimately, that no advice had been given. In her affidavit, the wife deposes that “the solicitor gave me an explanation in Arabic”. However, as her cross-examination progressed, she resiled completely from that evidence. For example, the wife said of that paragraph in her affidavit “It’s all false. It’s all mistaken” and that the solicitor “… didn’t talk much about it. He just asked me to sign and that was it”. Later the wife said that the solicitor “… did not explain anything”. (Transcript of proceedings, 15 March 2011, pages 42 – 44).
The wife was given multiple opportunities to clarify her evidence in that respect. All resulted in her suggesting that, in effect, she received no advice from the solicitor and that he simply told her “to sign”.
The proceedings before her Honour were adjourned a number of times, including for the purpose of allowing a subpoena to issue for the wife’s solicitor to produce his file. During the course of those proceedings the husband, who at that time was representing himself, said to her Honour on 15 April 2011:
[MR BILAL]: Like, [the wife] has already given evidence – sorry, without objection in cross-examination about the contents of the conference, that she admits she had with [her solicitor], and further where she has in her own affidavit volunteered [a] version of what occurred during the conference, which is like, it’s been already dealt with, but it is in your hand, your Honour and I hope justice will be done.
(Transcript of proceedings, 15 April 2011, p 10)
When, on 19 May, the matter returned to her Honour, the wife’s solicitor produced his file. Her Honour refused the husband’s application to inspect the file. On that occasion, the husband (then continuing to represent himself) asserted specifically that the wife had “ … waived that privilege when she was on cross-examination and in her affidavit, in the lengthy time she has mentioned what happened…”. Her Honour responded that “[t]hat is a whole different ball game. This is [the wife’s solicitor’s] file and he has got that privilege. The wife has not waived that privilege. She might, she hasn’t yet, she has not waived the privilege”. (Transcript of proceedings, 19 May, 2011, p 4).
It should be observed that her Honour wrongly attributes the privilege as that of the solicitor in one of the two comments quoted above. We accept that this was an infelicity of expression; when read as a whole it is plain that her Honour was aware that the privilege was that of the wife not that of her solicitor.
Subsequently, on the final day of the hearing before her Honour, when the husband was represented by counsel, the topic of the wife’s privilege was again raised at which time the wife’s counsel indicated that the wife did not consent to its waiver. Her Honour did not give written reasons for upholding the wife’s claim, and her reasons must therefore be gleaned from the transcript. Her Honour there makes it plain that she “accepts 100 per cent … that [the wife] is protecting every aspect of her legal privilege in this case”.
In an apparent reference to the fact that the husband was unable to inspect the wife’s solicitor’s file and to the fact that, although the solicitor was called as a witness, questioning of him would, as a result of upholding the privilege, be circumscribed, her Honour said:
HER HONOUR: So what you can do is very circumscribed. Perhaps that is unfair but that is how I read the Act, the legislation on legal professional privilege. That may be – you may think you’re being, you know, compromised and short-circuited, and your defence or your position, and that may be right as a consequence of what I regard as the operation of the law. It’s the protection of legal professional privilege. That’s why the document needs to be perfect on its face so that you don’t run into these difficulties. It’s one of the very reasons why the legislation is as it is, I suspect.
(Transcript of proceedings, 28 November 2011, p 24)
Important to the principles governing waiver of legal professional privilege about to be discussed, the following exchange occurred between her Honour and counsel for the wife:
HER HONOUR: So the only way of privilege you can rely upon, as I see it, Mr Vassili, is that which you say comes from this witness in cross-examination.
MR VASSILI: Yes.
HER HONOUR: That does not fulfil, as I see it, the test that is required in a waiver of privilege which is that there must be an understanding of what you’re doing, a conscious waiver of the privilege, either by instructions given or actions or conduct, not answering cross-examination through an interpreter to a defence raised by the husband on the very issue. I see that many, many steps away from the waiver of privilege and I do not see this has in any way a waiver to privilege, and that will be the finding I will make; and it will fall or rise on that as the case unfolds. (Emphasis added)
(Transcript of proceedings, 28 November 2011, pp 35 to 36)
In the only substantive reference to this issue in the reasons, her Honour said:
39.The matter was part head [sic] and leave given to the husband to issue these subpoena as the wife had raised in her cross-examination the legal advice given to her. The husband submitted at the trial I find she had waived her legal professional privilege with [her solicitor] with this evidence. The wife opposed any suggestion she had waived her legal professional privilege when giving answers under cross-examination or in any way whatsoever. (Emphasis added).
Plainly evident in both the transcript exchange and in that passage from her Honour’s reasons is what her Honour perceives as the necessity for conscious decision on the part of the holder of the privilege in order for there to be a waiver of it.
With great respect to her Honour, that view is erroneous.
In Mann v Carnell (1999) 201 CLR 1, it was made clear that the subjective intention of the holder of the privilege does not determine whether the privilege is impliedly waived. Rather, it is the inconsistency between maintenance of the confidentiality which the privilege protects and conduct which is inconsistent with the maintenance of that confidentiality. (See, in particular, at [28] – [29] per Gleeson CJ, Gaudron, Gummow and Callinan JJ).
The decision in that case prompted an amendment to s 122(2) of the Evidence Act 1995 (Cth) which sought to make clear that the privilege is lost by reference to “… the behaviour of the holder of the privilege, as opposed to the intention of the holder of the privilege.” (Explanatory Memorandum to the Evidence Act Amendment Bill 2008 (Cth) at [178]). As a result of the amendment, the section now provides:
(2)Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
Contrary to the importance apparently attached by her Honour to the fact that the relevant evidence of the wife emerged in cross-examination in defence of the husband’s claim, that circumstance is irrelevant. For example, the Full Court of the Federal Court in Commissioner of Taxation v Rio Tinto (2006) 151 FCR said:
52.[The] authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made and assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication. (Emphasis added)
The Full Court of the Federal Court formulated the question as being whether the party has:
68.… made an assertion as part of his case that puts the contents of the privileged scheduled documents in issue, or necessarily lays them open to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege.
By reference to s 122(2) and the principles just discussed, we consider that the circumstances of this case provide a very clear example of the implied waiver of legal professional privilege. The wife’s affidavit deposes, and the solicitor’s certificate attests, that the wife has received advice of a certain kind. In defending the husband’s case, the wife clearly asserted in the witness box a position entirely inconsistent with that. Put simply, the wife put squarely into issue whether the advice required under s 90G had in fact been given.
The matters referred to by her Honour relating to the wife’s understanding of the agreement and her language and educational difficulties may well have been relevant to other issues (including, it might be said, issues not raised before her Honour which may have impugned the agreement itself). However, with respect to her Honour, none are relevant to the issue of inconsistency that lies at the heart of the decision to be made pursuant to s 122(2) of the Evidence Act.
It will be clear, then, that we agree with the first limb of the written submissions on behalf of the appellant which asserts that the trial judge erred in failing to adopt the appropriate test for waiver of privilege, namely inconsistency.
Error of law is established. That error is essential to the evidence upon which central findings are made ultimately. The appeal must succeed.
The Failure to Address the Wife’s Credibility
Ground 3 does not seek to challenge specific findings as to the wife’s credibility. Rather, what is asserted is a failure to consider at all what is asserted to be an established lack of credibility on the part of the wife.
Thus, inferentially at least, the asserted appealable error is a failure to take account of relevant considerations. Where the asserted relevant consideration is the essential credibility of a party, it should be expected that it can be established that the findings as to credibility were compelling (as distinct from an equally-open different finding) and that those findings are material to the result ultimately reached (or, which it is contended, should have been reached).
As has been seen, her Honour focussed upon the wife’s solicitor sending her to a translator as a basis for deciding that the s 90G(1)(b) advice had not been given as required by the section. Because of that, and her apparently consequential finding (at [50]) that the wife’s solicitor had “abrogated his legal responsibility under s 90G to an interpreter”, her Honour did not dwell in any detail on the credibility of the parties.
We agree with the submission made on behalf of the appellant husband that, ultimately, her Honour did not make any findings as to the credibility of the wife which her Honour related to the decision her Honour reached ultimately.
Yet, even allowing for the approach which her Honour took, the evidence given called for findings to be made in respect of the credibility or truthfulness of the wife’s evidence. As some examples:
· The wife asserted that she did not understand the “Egyptian Arabic” spoken by her solicitor. Yet, she not only said in cross-examination that she watched and enjoyed films made in Egypt with that dialect, she admitted that she had “no problem at all” in “communicating in Arabic with people who are from an Egyptian background”. (Transcript of proceedings, 15 March 2011, p 21);
· In her affidavit the wife deposed that the husband was present when her solicitor explained the agreement in Arabic and exerted pressure upon her to sign. In cross-examination, the wife admitted, ultimately, that he was not there. (Transcript of proceedings, 15 March 2011, pp 34 – 41);
· The wife deposed that, when she saw her solicitor, not only was the husband present but that the solicitor “gave [her] an explanation in Arabic”. In cross-examination she admitted that evidence was false; (Transcript of proceedings, 15 March 2011, pp 40 – 41);
· The husband’s unimpugned evidence was that the husband was not present during the conference and that the wife and her solicitor met for about an hour. In cross-examination, the wife said that the meeting was “Just in seconds time, the solicitor came to the door and said, ‘Sign on this; sign on this’…” with her husband outside “screaming” at her to sign the document. Later, the wife conceded that the meeting with her solicitor may have been for “half an hour” but agreed that her account of the conversation would have taken “about a minute” and that the balance of the time was spent with the solicitor “ … sorting the paper. He was photocopying another copy for him, and he – he fixed everything, and he asked me to sign”. (Transcript of proceedings, 15 March 2011, p 34, 36).
During the course of the hearing her Honour was, it seems, alive to the significant inconsistencies between the wife’s affidavit evidence and that which emerged during cross-examination. For example, her Honour said to counsel for the wife: “ … Well, you might be right, but one of the factors that’s weighing on my mind in this decision is the inconsistency between your client’s oral evidence under cross-examination and that contained in her affidavit”. (Transcript of proceedings, 16 March 2011, p 96)
Those matters should be seen in combination with her Honour’s finding, contrary to the evidence of the wife, that she went to her solicitor’s office twice and not once (at [44] – [45]) and, in respect of the wife’s evidence more generally, that “the evidence that has caused me the greatest concern is not that which comes from the wife’s affidavit or her assertions. The wife is at best a poor historian and at worst embellishes facts…”. In addition, and by way of contrast, her Honour found that:
46.… [the husband] acted in accordance with his rights at law in having this Deed prepared. I make no finding other than he acted properly and appropriately towards the wife in this matter and in finding an Arabic speaking solicitor to provide her with independent legal advice.
We agree with the submission by counsel for the husband before us that adverse credit findings in respect of the wife about matters central to her Honour’s ultimate determination were, on the evidence, irresistible.
In order to arrive at the conclusions which she did, her Honour needed to attach significant weight to the evidence of the wife. It is, with respect, not clear how her Honour could have done so in light of the matters affecting her evidence and its credibility. Those matters were, in turn, central to her Honour’s determination as to whether advice was given as s 90G(1)(b) demands.
We consequently find merit in Ground 3.
Conclusion
There is merit in all three grounds of appeal.
The appeal will be allowed and the matter will be remitted for hearing before a judge of the Federal Circuit Court, other than Judge Henderson.
Costs
Section 117 of the Act provides that each party is to bear his or her own costs, but a costs order may be made if the Court is of the opinion there are circumstances that justify an order (s 117(2)). The factors relevant to the exercise of that discretion are set out in s 117(2A).
The primary submission of the husband was that if the appeal was allowed the wife should pay his costs. Alternatively he sought an order pursuant to the Federal Proceedings (Costs Act) 1981 (Cth) (“the Costs Act”).
Accepting that if the appeal succeeded on the basis that there was an error of law, costs would not normally be visited upon the other party, counsel for the husband submitted that two factors are particularly important in the present case. The first is the inconsistent manner in which the wife conducted her case. The second is that in relation to the privilege issue, the wife had contributed to the error by steadfastly refusing to waive privilege.
We do not consider the latter matter is relevant pursuant to s 117(2A). There was no issue that the wife was entitled to claim privilege; that is, no question arose as to whether the claim was specious or ill founded. Rather a decision was required as to whether the wife had impliedly waived privilege. The answer to that required answering a question of law which, as we have found, her Honour did erroneously. We cannot see how that should be attributed to the wife (s 117(2A)(c)).
Counsel for the wife submitted that in the circumstances of the wife’s modest income from a single parent pension and primary responsibility for the child, the Court should not award costs. The financial circumstances of the wife are an important factor although not, of course, necessarily determinative. (See, for example, Lenova & Lenova (Costs) [2001] FamCAFC 141) The wife has been wholly unsuccessful in her opposition to the appeal. An important factor, as counsel for the husband properly acknowledged, is the error of law lying at the heart of the appeal and its success.
Weighing all of the considerations which we consider relevant, we do not consider it appropriate to make any order for costs.
There being no order as to costs, we consider that the same factors to which we have referred justify the issuing of certificates pursuant to the Costs Act for the appeal and re-hearing.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Murphy and Loughnan JJ) delivered on 27 February 2015.
Associate:
Date: 27 February 2015
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