EVANS and GOODWIN

[2022] FCWA 259

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: EVANS and GOODWIN [2022] FCWA 259

CORAM: BERRY J

HEARD: 6 DECEMBER 2022

DELIVERED : Ex tempore

FILE NO/S: 5791 of 2022

BETWEEN: MS EVANS

Applicant

AND

MR GOODWIN

Respondent

Catchwords:

FINANCIAL PROCEEDINGS - Where each party to proceedings seeks a declaration in relation to a financial agreement as to whether it is binding or not - Where the Court considers the financial agreement is not binding - Turns on its own facts

Legislation:

Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr Worth
Respondent	:	Mr Ashdown

Solicitors:

Applicant	:	KDK Family Law
Respondent	:	Rebus Legal

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

B v W (2019) 60 Fam LR 136

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Evans and Goodwin has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

This copy of the Court’s Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2012 (WA).

BERRY J:

1Further to procedural orders made on 8 September 2022 and by consent on 9 September 2022, the Court is required to determine an issue "separately and prior to the balance of the proceedings". According to the consent orders made on 9 September 2022, the issue is set out in paragraph 1 of the applicant’s final orders sought in the Form 1 Application filed 21 July 2022 and paragraphs 1, 2 and 3 of the respondent’s Form 1A Response filed on 6 September 2022.

2In the circumstances of this case, the Court is entitled to make a determination of the declarations sought in paragraph 1 of the orders sought in the Form 1 Application and paragraph 1 of the orders sought in the Form 1A Response pursuant to:

(a)section 244(1) of the Family Court Act 1997 and Rule 164 and Rule 165 of the Family Court Rules 2021, or

(b)section 205ZW of the Family Court Act 1997.

3For the reasons which follow, the Court will make the declaration sought by the applicant in the following terms:

There be a declaration under section 205ZW of the Family Court Act 1997 that the financial agreement between the applicant and the respondent dated 17 May 2010 (the agreement) is not binding for the purposes of section 205ZS(1).

4Correspondingly, for the reasons which follow, the Court will dismiss the respondent’s application for a declaration that the financial agreement is binding.

5In considering these reasons the Court has carefully considered the written and oral submissions of each party, however does not find it necessary to address all of the points made by Counsel to determine the issue in dispute.

Background

6The parties signed a financial agreement on 17 May 2010 (the agreement). The basis of the applicant’s application for a declaration that the agreement is not binding is that:

The certificates of independent legal advice annexed to the agreement do not comply with section 205ZS(1)(c).

7Each certificate of independent legal advice provides that each party’s lawyer provided that party with advice as to the following "mater" [sic]:

1.The effect of the Agreement on the rights of the parties to apply for an order under the provisions of the Family Court Act 1997 (as amended), and otherwise at law and in equity.

2.Whether or not at that time it was to the advantage, financially or otherwise, for [him/her] to enter into the Agreement.

8At the time the agreement was signed by the parties, section 205ZS(1) was in the following terms:

(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.

9The independent legal advice referred to in section 205ZS(1)(c) is the advice described in section 205ZS(1(b).[1]

Discussion and disposition

[1] B v W (2019) 60 Fam LR 136, [27] – [29], [33].

10The Court finds that paragraph 1 of each certificate of independent legal advice satisfies the requirement contained in section 205ZS(1)(b)(i).

11However, the Court finds that paragraph 2 of each certificate of independent legal advice does not satisfy the requirement contained in section 205ZS(1)(b)(ii). The Court finds a material difference exists in meaning between the certificate’s words and the statutory requirement in this respect.[2]

[2] Ibid, [45], [51].

12The Court accepts the written submissions of the applicant on this point, as follows:

14. The language used in the certificates speaks to an overall assessment of advantage, when what the legislation required was for the certificates to certify that advice was provided as to the advantages and disadvantages. Put simply, the certificates needed to certify that advice had been provided as to those matters, and not a general assessment of advantage.

15. The use of the words "whether or not" at the commencement of paragraph 2 in each certificate do not cure the failure to certify that advice was provided as to "disadvantages", because:

(a) It cannot be assumed that a party who was advised that an agreement was not to their advantage, was also advised about the disadvantages of entering into the agreement; and

(b) Advice that an agreement is not to a party’s advantage, is not the same as advice that an agreement is, or aspects of it are, to a party’s disadvantage.

16. To illustrate the problem, a person who is advised that an agreement is not to their advantage, without receiving advice as to disadvantages, may form the view that the agreement is of neutral impact.

17. Further, although a legal practitioner may form the view that an agreement is, overall and on balance, to the advantage of their client, their client may form a different view if properly advised about the specific disadvantages of the agreement.

13Consequently, because each certificate of independent legal advice does not comply with the requirement contained in section 205ZS(1)(c) the agreement is not binding.[3]

Proposed orders

[3] Ibid, [25].

14For these reasons there will be the following orders:

1There be a declaration under section 205ZW of the Family Court Act 1997 that the financial agreement between the applicant and the respondent dated 17 May 2010 is not binding for the purposes of section 205ZS(1).

2Paragraph 1 of the final orders sought in the Form 1A response filed 6 September 2022 is dismissed.

15The Court will hear from the parties about the terms of any other orders sought including procedural orders to progress the matter.

These reasons are the reasons for decision I delivered on 6 December 2019, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

DC

Associate

6 DECEMBER 2022