Connery & Sims
[2025] FedCFamC1A 34
•6 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Connery & Sims [2025] FedCFamC1A 34
Appeal from: Connery & Sims [2024] FedCFamC2F 1019 Appeal number: NAA 214 of 2024 File number: SYC 921 of 2022 Judgment of: CHRISTIE J Date of judgment: 6 March 2025 Catchwords: FAMILY LAW – APPEAL – BINDING FINANCIAL AGREEMENT – Where appellant appeals from a determination that the financial agreement entered between appellant and respondent was not binding and enforceable – Where appellant previously acted for respondent in parenting proceedings against former partner – Where primary judge found appellant did not receive independent advice because financial agreement was prepared by law firm that previously acted for respondent – Where law firm had ceased to advise respondent at the time financial agreement was signed – Where respondent had separate legal presentation for purposes of financial agreement – Where primary judge erred in finding that a former client is owed a fiduciary duty – No fiduciary duty apart from confidentiality is owed to a former client – Appeal allowed.
FAMILY LAW – APPEAL – PARENTING – Where primary judge refused to allow an application to change child’s surname – Where appellant alleges primary judge erred in exercise of her discretion – It was within primary judge’s discretion to refuse name change application – Where appellant alleges primary judge made irrelevant findings not open on the evidence – Primary judge squarely addressed the evidence and recounted uncontroversial facts – Appeal dismissed.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence in parenting appeal – Unnecessary to address application to adduce further evidence where appeal is dismissed on parenting grounds.
Legislation: Family Law Act 1975 (Cth) Pt VIIIAB, ss 93A, 90UJ(1)(b) and 90UJ(1A)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35 and s 36
Federal Proceedings (Costs) Act 1981 (Cth) s 9
Cases cited: Abrum & Abrum [2013] FamCA 897
Bachman & Donohoe [2021] FedCFamC1F 240
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Hoult& Hoult (2013) FLC 93-546; [2013] FamCAFC 109
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Number of paragraphs: 75 Date of hearing: 21 November 2024 and 28 February 2025 Place: Sydney Counsel for the Appellant: Mr Sulan SC with Mr Hord Solicitor for the Appellant: Barkus Doolan Winning Counsel for the Respondent: Mr Eardley (28 February 2025) Solicitor for the Respondent: Litigant in person (21 November 2024), King & York Lawyers (28 February 2025) Counsel for the Independent Children's Lawyer: Ms Cotter-Moroz Solicitor for the Independent Children's Lawyer: Mason Mia & Associates - Solicitors & Advocates ORDERS
NAA 214 of 2024
SYC 921 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CONNERY
Appellant
AND: MR SIMS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
6 MARCH 2025
THE COURT ORDERS THAT:
1.Order 31 of the orders of 2 August 2024 (as amended on 8 August 2024) is set aside.
2.The Application in an Appeal filed 7 November 2024 is dismissed.
3.The Application in an Appeal filed 27 November 2024 is allowed.
4.Leave is granted to rely on the Amended Notice of Appeal.
5.Leave is granted to rely on submissions dated 25 November 2024.
6.The Court declares that the Financial Agreement entered into by the parties on 13 June 2018 is binding on the parties.
7.Appeal NAA 214 of 2024 is otherwise dismissed.
8.The appellant be granted a costs certificate under s 9(1) of the Federal Proceedings (Costs) Act 1981 (Cth) because in the opinion of the Court it would be appropriate for the Attorney-General to authorise payment under the Family Law Act 1975 (Cth) to the appellant in respect of costs incurred by the appellant in relation to the appeal.
9.The Independent Children Lawyer’s application for costs is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Connery & Simms has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an appeal from a judge of the Federal Circuit and Family Court of Australia (Division 2) made on 2 August 2024 (subsequently amended on 8 August 2024).
The appeal concerns two distinct issues:
(a)The primary judge’s determination that a financial agreement entered into by the appellant and respondent on 13 June 2018 should not be binding; and
(b)The primary judge’s refusal of an application by the appellant mother to change the surname of the parties’ child.
For the reasons which follow, I propose to allow the appeal in respect of the financial agreement and dismiss the appeal as it relates to the child’s surname.
FIRST APPLICATION IN AN APPEAL
The appellant sought leave to adduce further evidence on the appeal by way of an Application in an Appeal filed 7 November 2024 and supported by an affidavit of the appellant of the same date. No Response was filed by the respondent who appeared at the appeal on his own behalf.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“Federal Circuit and Family Court of Australia Act”) gives this Court an unfettered discretion to admit further evidence on appeal.
The exercise of the discretion is guided by principles which have been drawn from the extensive case law (predominantly relating to the predecessor of s 36 of the Federal Circuit and Family Court of Australia Act, s 93A of the Family Law Act 1975 (Cth) (“the Act”). The first relevant principle is that the “discretion that s 93A(2) confers on the Full Court to receive further evidence on an appeal exists to serve the demands of justice” (Hsiao v Fazarri (2020) 270 CLR 588 at [43] (citing CDJ v VAJ (1998) 197 CLR 172 at [111])).
In CDJ v VAJ (1998) 197 CLR 172 the High Court outlined the following in the judgment of McHugh, Gummow and Callinan JJ:
[114] No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
[116]The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
…
[148]… The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
I accept that the evidence sought to be adduced could not have been adduced at trial because it deals with matters which have arisen since. I consider it is relevant here that the evidence which the appellant seeks to lead could not be characterised as non-controversial or not subject to dispute or challenge.
The appellant did not seek to read the evidence to establish error but to contribute to the body of evidence available if the appeal court was minded to re-exercise.
Since the appeal in respect of the parenting orders will be dismissed it follows that the Application in an Appeal will be also dismissed.
SECOND APPLICATION IN AN APPEAL
On 27 November 2024, following judgment being reserved, the appellant filed a second Application in an Appeal. That application sought leave to reopen to amend the relief sought if the appeal were to succeed. I directed that the Respondent file any Response, affidavit and submissions related to the Application in an Appeal by 10 December 2024 after which time determination of that application would be reserved to chambers.
The respondent did not comply with the direction to file a Response but consistent with the orders which I made on 27 November 2024 sought an oral hearing of the Application in an Appeal. The matter was listed for oral hearing on 11 February 2025. The parties both agreed to adjournment of that date and the matter proceeded on 28 February 2025.
The Application in an Appeal sought leave to file an Amended Notice of Appeal and a short outline of submissions.
The first proposed amendment seeks to abandon the appeal as it relates to paragraph 33 of the primary judges’ order of 2 August 2024 (amended 8 August 2024).
The second proposed amendment is to the relief sought in the appeal.
On the hearing of the appeal on 21 November 2024 senior counsel who appeared on behalf of the appellant when asked about the relief sought confirmed that all that was necessary from his client’s perspective was an order that Order 31 (and 33) be set aside.
Upon reflection the appellant has determined that the answer which was provided at the oral hearing of the appeal is not the position which they wished to adopt – and in effect seeks, if the appeal is successful that this court effectively re-exercise the jurisdiction by the making of a declaration that the financial agreement entered into between the parties on 13 June 2018 is binding. The respondent did not file a Response, affidavit material or submissions but provided notice that he sought an oral hearing.
Notwithstanding the fact that the matter was only listed for oral hearing of the Application in an Appeal the respondent appeared on the adjourned date by counsel and consented to the Application in an Appeal about which he made no submissions. His counsel effectively sought, orally, and by way of written submissions filed on behalf of the respondent to reopen the submissions on behalf of the respondent. Counsel for the appellant quite properly indicated he could meet them and accordingly, in order to provide the respondent (who had until this point in the appeal appeared on his own behalf) with a further opportunity to be heard, I allowed respondent’s counsel leave to rely on the written submissions and each party then made brief oral submissions.
Given there was no opposition to this course I will grant leave to the appellant to rely on an Amended Notice of Appeal and supplementary submissions.
THE TRIAL
Financial matters
At the conclusion of the trial the primary judge made the following order from which the appeal lies:
31.Pursuant to s.90UJ(1)(b) of the Family Law Act 1975 (“the Act”), the agreement entered into by the parties on 13 June 2018 is not binding.
…
In effect, the appeal is against the orders which permitted the respondent to commence proceedings under Part VIIIAB of the Act for adjustment in property interests at the conclusion of a de facto relationship.
The appellant contended that the agreement entered into between the parties ousted the jurisdiction of the court. The respondent argued that the agreement should be set aside because the appellant had not received independent legal advice, or be declared void, voidable or unenforceable because there had been a fraudulent failure to disclose on the part of the appellant, or in the alternative because the respondent was subject to undue influence from the appellant, or that the appellant had engaged in unconscionable conduct and the appellant had subjected the respondent to duress at the time of execution of the agreement.
The appellant said that even if the court were to find that she had not had independent legal advice it would be unjust and inequitable if the agreement were not binding.
It was not in issue that the appellant is and was a solicitor and had drafted the financial agreement.
The solicitor who signed the appellant’s certificate of independent legal advice was an employed solicitor at the firm where the appellant was the principal. The appellant had acted for the respondent in parenting proceedings with his former partner while an employed solicitor and then for a period after she established her own practice. She ceased acting for him when they commenced a relationship. He had his own lawyer in respect of the financial agreement.
The primary judge found that the legal advice received by the appellant was not independent because:
(a)A prior fiduciary relationship between the firm and respondent in respect of unrelated proceedings rendered the firm unable to provide independent legal advice (at [338]);
(b)The relationship of employer/employee meant that the solicitor who signed the certificate was unable to give independent legal advice (at [340]); and
(c)The quality of the legal advice suggests that it was not independent (at [354]).
The primary judge dismissed the appellant’s submission that the provisions of s 90UJ(1A) of the Act ought to apply in the event that she was not satisfied that the appellant had received independent legal advice. In so doing the primary judge said that the appellant was required to demonstrate more than theoretical injustice or inequity (at [357]).
The primary judge did not find that the respondent had established fraud, unconscionable conduct or undue influence or duress. There is no cross-appeal.
Parenting matters
The appeal in the parenting aspect of the matter relates to the dismissal of the appellant’s application to change the child’s surname from that of the respondent to a hyphenated name which would include the appellant’s new surname.
The primary judge found that the evidence did not support such an order as being in the best interests of the child.
THE APPEAL
The appeal grounds are discrete – two relating to parenting matters and the other three to financial matters. I propose to deal with the parenting grounds first.
Parenting
The refusal of the appellant’s application to change the child’s surname was an exercise of the discretion conferred on the primary judge to make a parenting order (or refuse to make a parenting order). It is therefore useful to have in mind the principles which govern appeals from discretionary judgments. It is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) must be established. There, the majority of the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
It is also useful to restate the principles discussed by Brennan J in Norbis v Norbis (1986) 161 CLR 513, at 540:
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
With the above principles in mind, I turn to the grounds. Grounds 4 and 5 overlap and were dealt with together in the appellant’s Summary of Argument and I propose to do so here.
Ground 4
The Primary Judge erred in the exercise of her discretion in relation to the Appellant’s application to change the name of the child in that she did not take into consideration the matters which she was required to and took into account irrelevant matters, namely:
a. the likely longevity of the Mother’s current relationship, and
b. that a hyphenated name of five syllables was “unwieldy”, and
c. the inclusion of the name “[Connery]” in the child’s surname was not in her best interests as she had “no biological connection” with that surname.
Ground 5
The primary judge made findings in respect of the issue of the child’s surname that were irrelevant and, in any event, not open on the evidence.
Ground 4 asserts a failure to take into account matters which the primary judge “was required to” take into account. Articulated this way, it appears as though the appellant is asserting that there was a mandatory consideration or considerations which the primary judge ignored. No submissions advanced this contention and I do not propose to consider it further.
The appellant’s Summary of Argument at [34] complains that the primary judge “dismissed” evidence about the potential positive benefit to the child of sharing a surname with future siblings. The primary judge considered the evidence. The fact that the primary judge made an order different from the one for which the appellant contended is not conclusive of the primary judge having failed to consider the evidence. She plainly did.
The ground also asserts that the primary judge took into account three irrelevant factors (a complaint which is repeated in ground 5 together with the assertion that the judge’s findings were not open on the evidence).
Likely longevity of the appellant’s new relationship
The primary judge did not find that the appellant’s relationship with Mr Connery would end. Her Honour had recounted the uncontroversial history of the appellant’s own surname changes. Her birth name was Jansone. She changed her surname when she married her first husband and again when she married her second husband. The primary judge recited the uncontroversial history of the appellant’s de facto relationships including to the respondent – during which a child was born who was given the respondent’s surname. Following those facts the primary judge said “there must be some doubt that the mother’s current marriage will last” until X is 18 (at [309]). It could not be said that the conclusion was unavailable no matter how firmly the appellant may wish that the prognostication is wrong. It follows that the primary judge was concerned about the implication of such a situation on further potential name changes for the appellant and/or the child and the implications of either or both for the child’s identity.
The hyphenated name is unwieldy
The primary judge said “[t]he hyphenated name proposed by the mother is particularly unwieldy. It is five syllables long” (at [312]).
Apart from asserting that the primary judge was “wrong” it is not clear why the appellant cavils with the primary judge’s conclusion that this lengthy surname of multiple syllables is unwieldy. If that had been the sole basis for the primary judge’s conclusion then other grounds of appeal may have presented but the primary judge’s acknowledgment that the proposed hyphenated name was unwieldy for this small child does not appear objectively unavailable and in error.
No biological connection
As previously indicated, the appellant has had three different surnames. Her current surname is not the one she was given at birth but belongs to her husband and was adopted by her in recent times. The primary judge’s comment is no more than a shorthand way of reflecting those uncontentious matters.
Material errors of fact
At the hearing of the appeal senior counsel for the appellant focused on the impact of asserted material errors in [310] and [312] which read:
[310]Even if the mother’s relationship with [Mr Connery] did last throughout [X’s] childhood, there is the issue raised by the family consultant about identity formation. It is fundamentally important for [X’s] proper psychological development that she knows who she is, and that requires her to have her father’s family name, rather than [Mr Connery’s]. The mother’s arguments about [X] feeling part of the [Connery] family unit pale into insignificance compared with [X’s] basic psychological needs.
(Emphasis added)
…
[312]The idea of a hyphenated name was a fall-back position for the mother. It was not supported by the father, the independent children’s lawyer or the family consultant. The hyphenated name proposed by the mother is particularly unwieldy. It is five syllables long. While a hyphenated family name would provide some connection to the father, and [X’s] actual biological makeup, it also includes a family name to which she has no biological connection.
(Emphasis added)
It was said that the underlined passage in [310] failed to acknowledge that a hyphenated name would include the respondent’s name and the underlined passage in [312] was incorrect.
Counsel for the Independent Children’s Lawyer (“ICL”) submitted that it was necessary to approach the reasons for judgment holistically rather than focus on individual phrases which, absent context, assume greater potential significance. The trial commenced on 30 October 2023. At the commencement of the hearing the appellant’s relief sought an order (which was filed 16 October 2023) that the child’s surname be changed from that of the respondent to the name that she assumed on her marriage to Mr Connery two days prior. On the third day of the trial the appellant’s Amended Minute of Order was made an exhibit (exhibit 20). It was that document which amended the relief which the appellant sought to seek a hyphenated surname for the child.
The appellant had not proposed a name change at the time of the interviews with the Family Consultant so the evidence of the Family Consultant’s position about a name change arose from her oral evidence. The witness said (at [236]):
I don’t agree with the hyphenated name, given what I know about the short-term nature of the relationship. You know, that could be a – a potential possibility for the mother to seek in the future, but I think for now, in terms of [X’s] relationship with her father and, you know, should that further develop into a – into a close relationship – and I think for now it just needs to remain the same as what it is, for identity formation purposes.
(Emphasis added)
The Family Consultant was not supportive of a name change. The fact that she acknowledged that it may be appropriate in the future is not “support” for the making of an order.
The ICL did not seek an order that would have the effect of changing the child’s surname (see exhibit 28). The ICL made submissions on the final day of the hearing. Counsel said:
[COUNSEL]: With respect to the name change, I just want to check something, if I may, your Honour. I understand it to be a hyphenated name that’s proposed by the mother. Ideally, for the purposes of identification, given that [X] is going to have – or, at least, on the ICLs proposal and certainly on the mother’s proposal – a very limited time with her father, as much identification as she can have to her father – her biological father would be to [X’s] benefit.
Having said that, again, the same arguments with respect to the household within which she lives, the people within which she – form her family on a day-to-day basis – it is possible that it will cause for [X] some confusion. She’s very young. And it may be that your Honour is attracted to the notion of a hyphenated surname. That’s all I want to say on that, your Honour.
HER HONOUR: So, sorry, are you supporting it or not?
COUNSEL: I’m just – I’m saying that there are benefits to the child of having an identity with her father, and there are also benefits to [X] within the household of having identity with her mother and her new partner – her new husband – and that a hyphenated name, [Sims-Connery], may adequately address both those concerns, your Honour.
(Emphasis added) (Transcript dated 28 March 2024, p.69, lines 14–33)
I do not regard the concessions that there are potential benefits to a name change to be sufficient to ground the conclusion that the ICL supported the name change. The ICL is obliged to consider the advantages and disadvantages of the proposal through the best interest lens and her closing submissions discharged that obligation.
It follows that I do not accept that the observations in [310] and [312] when read in the context of the judgment as a whole are in error. Even if error had been established the observations are not material. It follows that I do not find that either ground 4 or 5 have merit and I propose to dismiss the appeal against the parenting order.
Financial agreement
Ground One
The primary judge erred in finding that the Binding Financial Agreement entered in to by the parties on 13 June 2018 (“the BFA”) was not binding in that her Honour wrongly held that the advice provided to the Appellant was not independent and in particular;
Failed to appreciate and give due consideration to the uncontroversial fact that a solicitor had given a certificate of independent advice to the Appellant;
Misunderstood and misapplied the test for independence in the giving of advice, including conflating the concept of giving advice with taking instructions; and
Made findings as to the quality and tone of the advice which were irrelevant and in any event not open on the evidence and which gave rise to the erroneous determination that the advice given to the Appellant was not independent in the sense required under s 90 UJ (1) Family Law Act 1975.
The appellant submits that the primary judge did not give appropriate consideration to the certificate of independent legal advice.
The appellant had (correctly) submitted that the certificate of independent legal advice was prima facie evidence of compliance with s 90UJ(1)(b) of the Act. The primary judge recorded that submission in the reasons at [327].
In Hoult& Hoult (2013) FLC 93-546 their Honours said (at [62]):
… once the party seeking to rely upon the agreement produces in evidence the certificate signed by the other party’s solicitor, there is a forensic obligation on the other party to adduce evidence which would disprove, or at least throw into doubt, the inference or conclusion to be drawn from the certificate …
In this case, I could not be satisfied that the primary judge failed to appreciate the significance of the certificate. The error lay in the primary judge’s approach to the evidence upon which the respondent relied to “throw into doubt, the inference or conclusion to be drawn from the certificate.”
The first error identified by the appellant relates to what the appellant has termed the “test for independence”.
The primary judge found that the legal advice provided to the appellant was not independent because the firm who employed the lawyer who signed the certificate had previously acted for the respondent in unrelated proceedings. The primary judge found that the retainer between the appellant and respondent had ended years prior to the negotiations for and execution of the financial agreement. The primary judge found that the independence of the lawyer was impugned by the existence of a fiduciary duty owed by the firm to the respondent.
The only mentions of “fiduciary duty” at trial were in the respondent’s submissions about undue influence and unconscionable conduct; including the respondent’s curious submission set out at [385] of her Honour’s Reasons:
… [t]he husband was entirely unaware of the conflict of interests arising from the wife’s position as his solicitor, and the fiduciary obligations arising therein. As is expected between a solicitor and client, it is respectfully submitted that the husband was trusting the wife in her capacity as solicitor acting in his best interests, and the wife’s opportune drafting of the financial agreement sought to advance her own interests notwithstanding her fiduciary obligation, and the obligation to avoid conflicts of interests which arose during the course of the parties entering into the financial agreement.
Against that background the primary judge, in apparent reliance upon the dicta in Bachman & Donohoe [2021] FedCFamC1F 240, found at [338]:
… the fact that [B Firm] had ceased to act for the husband prior to the BFA being signed is not sufficient to save the BFA. [B Firm], having a fiduciary relationship with the husband as a former client, was not able to give independent legal advice to a person he was opposed to, namely, the wife, in the context of the preparation of a BFA.
As the appellant submits, the primary judge mistakenly concluded that a former client was owed a fiduciary duty. No fiduciary duty apart from confidentiality is owed to a former client. This error was compounded by the conclusion that the existence of this fiduciary duty would give rise to a conflict of interest which in turn would impugn the independence of the advice being given to the appellant.
The primary judge also found that the nature of the employment relationship between the solicitor who provided the certificate to the appellant and the appellant, namely employee/employer, undermined the independence of the legal advice. The question of the meaning to be attached to the expression “independent” is to be drawn from its context. In this context, the intention of the legislature is that each party shall receive legal advice which is independent of the other party.
It must also be noted that the solicitor provided the certificate of independent legal advice as an incident of her professional responsibilities and a finding that such advice was not, as the certificate asserts, independent, is a serious matter and not one which was available on the evidence in this case.
Finally, the primary judge purported to assess the quality of the advice, as recorded in file notes which came into evidence. It is well-settled that it is not the role of the Court to retrospectively assess the quality of the legal advice provided in fulfilment of the requirements of the certificate. An analysis of the quality of the advice as an aid to the finding of lack of independence was neither warranted nor appropriate.
In order to reach a conclusion about the independence or otherwise of the legal advice which had been provided was not a complex exercise and the primary judge need have been satisfied of only two matters:
(a)Was the solicitor who signed the certificate independent of the respondent?
(b)Did the solicitor have an interest in the subject matter about which she was advising (the no profit/no conflict rule)?
The primary judge took a more far-reaching view of what was intended by the expression “independent” and in that regard fell into error.
Ground 2
The primary judge erred in law in finding that a failure by the Wife to obtain independent legal advice pursuant to s 90UJ(1) Family Law Act 1975 was a basis for the Respondent to have the BFA set aside in circumstance where the Appellant sought to enforce the BFA .
I accept that in order for an agreement to be binding on the parties each of the parties must receive independent legal advice. That is the effect of the words “if, and only if” in s 90UJ(1)(b) of the Act. For the reasons discussed above, I accept that the primary judge was in error when she concluded that the appellant had not received independent legal advice. Since I have found merit in ground 1 it is not necessary, to determine this appeal, that I consider a scenario where one party seeks to rely on the fact that the other party did not receive independent legal advice as a basis to set aside a financial agreement.
Ground 3
The primary judge erred in the exercise of her discretion to refuse to declare the BFA binding under s 90 UJ (1A) in that she failed to take into account that the Appellant’s position was that she wished for the agreement to be binding and that it would be unjust and inequitable if the BFA was not declared to be binding in circumstances where a measure protective of the Appellant’s interests was the only respect in which it was contended (wrongly) that the BFA did not comply with s 90 UJ (1) (b).
The appellant had argued that even if the court were to find that the appellant had not received independent legal advice then the agreement would nonetheless be found to be binding on the parties by operation of s 90UJ(1A) of the Act.
I have found that the appellant did receive independent legal advice and on that basis the appeal may be allowed and this ground is of less moment. However, lest I be wrong about my approach to ground one I will set out the basis upon which I have concluded that the primary judge’s approach to s 90UJ(1A) was in error.
The applicable law was the subject of discussion in Abrum & Abrum [2013] FamCA 897 at [78]–[79], where Aldridge J stated:
[78]The court must be satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in the circumstances from the time the agreement was made).
[79]What are the relevant factors to be taken into account? Some of them were identified by Strickland and Ainslie-Wallace JJ in Hoult & Hoult [2013] FamCAFC 109:
307.We have referred to the fact that his Honour in paragraph 57 provided a range of factors that it would be appropriate to consider when exercising the discretion. The only factor that we would suggest is not available is the last one, but if there is to be a list of the factors identified we would prefer the following, all of which are to be found in his Honour’s reasons:
•The terms of the section, the nature of a financial agreement as a creature of the Act, and the place of Part VIIIA within the overall scheme of the Act.
•The nature and extent of the non-compliance with the requirements of s 90G(1).
•The facts and circumstances surrounding the making of the agreement including, in particular, if one of the parties has complied with all of the mandatory requirements necessary to render the agreement binding.
•How the parties have acted subsequently in relation to the agreement (bearing in mind that changes in circumstances cannot be considered).
…
309.… [It] is suggested that “[a]lthough the Act now undoubtedly allows parties to enter into bad or grossly unfair bargains it is perfectly consistent for the legislation to permit consideration of the fairness of the bargain (judged to the date of execution) in cases where the safeguards in s 90G(1) have not been met”.
310.Again with the greatest of respect to his Honour we fail to see how that can be. The point of the legislation is to allow the parties to decide what bargain they will strike, and provided the agreement complies with the requirement of s 90G(1) they are bound by what they agree upon. Significantly, in reaching agreement, there is no requirement that they meet any of the considerations contained in s 79 of the Act, and they can literally make the worst bargain possible, but still be bound by it. Thus, again, rhetorically, how can the fairness of the bargain be an enquiry that the court can make when it is seized of a matter under s 90G(1A)? Furthermore, it is not the case that to fail to consider the fairness or injustice of the bargain does not mean that the “discretion is exercised in a vacuum”. The factors set out in paragraph 307 above will be those that are addressed.
The appellant had submitted, as discussed above (under ground 2), that it would be unusual for the court to intervene to set aside an agreement (or declare it void, voidable or unenforceable) on the sole basis that the person who seeks to retain the benefit of the agreement was not provided with independent legal advice. This was a factor relevant to the consideration of s 90UJ(1A) and the primary judge seems to have disregarded it as only theoretical: see [357].
CONCLUSIONS
The appeal against order 31 will be allowed.
The appeal against the refusal to change the child’s name will be dismissed.
RE-EXERCISE
I am conscious that the respondent was originally self-represented but did retain counsel to appear when the matter was relisted on the appellant’s application.
The appeal has been allowed on the basis that the requirements of s 90UJ(1) were satisfied. While the primary judge considered each of the other bases upon which the respondent contended that the financial agreement should be set aside she did not accept that any of them were established and made order 32. There was no cross-appeal or notice of contention. It follows that I am in as good a position as another judge to make the declaration that the appellant sought at trial, namely, that the financial agreement is binding and I propose to do so. I do not consider it is necessary to disturb order 32.
COSTS
The appeal against the orders which relate to the financial agreement has succeeded. The appellant sought, in that event, that I grant a costs certificate in respect of the appeal. I propose to do so.
Section 9(1) of the Federal Proceedings (Costs) Act 1981 (Cth) provides that the Court may make an order in favour of the appellant where the appeal has succeeded on a question of law and each party bears his or her own costs. That is the position here.
The appeal against the refusal to make an order in the parenting matter has been dismissed. The ICL sought a costs order but made no submissions in support of the making of such an order. I decline to order costs.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 6 March 2025
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