Hoult and Hoult
[2012] FamCA 367
•22 May 2012
FAMILY COURT OF AUSTRALIA
| HOULT & HOULT | [2012] FamCA 367 |
| FAMILY LAW – BINDING FINANCIAL AGREEMENT – where the s 90B financial agreement entered into by the spouse parties was found to be not binding within the meaning of s 90G – where the parties provided submissions with respect to the application, if any, of s 90G(1A)(c) – whether it would be unjust and inequitable if the agreement were not binding on the spouse parties – consideration of Senior & Anderson (2011) FLC 93-470 and Parker & Parker [2012] FamCAFC 33 – where it would be unjust and inequitable if the spouse parties were not bound by the financial agreement. |
| Acts Interpretation Act 1901 (Cth) Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth) |
| Commonwealth v Verwayen (1990) 170 CLR 394 Holland & Holland (1982) FLC 91-242 Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Supplementary Explanatory Memorandum, Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008. |
| APPLICANT: | mr hoult |
| RESPONDENT: | ms hoult |
| FILE NUMBER: | BRC | 3036 | of | 2011 |
| DATE DELIVERED: | 22 May 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 19 April 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Galloway |
| SOLICITOR FOR THE APPLICANT: | Peter Sheehy Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Page SC |
| SOLICITOR FOR THE RESPONDENT: | Herbert Geer |
Orders
IT IS DECLARED THAT
Within the meaning of s 90G(1A)(c) of the Family Law Act 1975 (Cth) it would be unjust and inequitable if the financial agreement entered into between MS HOULT and MR HOULD pursuant to s 90B of the Act was not binding on them, they being the spouse parties to it.
Pursuant to s 90G(1B) of the said Act, the said financial agreement is binding on the said parties to it.
IT IS NOTED that publication of this judgment under the pseudonym Hoult & Hoult is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 3036 of 2011
| Mr Hoult |
Applicant
And
| Ms Hoult |
Respondent
REASONS FOR JUDGMENT
On 22 December 2011 I made orders and delivered reasons in an Application by the wife in respect of a financial agreement executed by her and the husband in December 2004 in contemplation of their marriage which took place on 17 December 2004. An Order was made that the financial agreement be declared not binding within the meaning of s 90G of the Family Law Act 1975 (Cth) (“the Act”).
At the end of the hearing to which those orders and reasons relate[1] (which I will call “the first hearing”) and consequent upon submissions by the parties, I made procedural orders so as to afford the parties the opportunity to file further material if desired and submissions specifically relating to s 90G(1A) and (1B). It is accepted that those subsections potentially apply to the circumstances of this case.
[1] Hoult and Hoult [2011] FamCA 1023, 22 December 2011.
Those procedural orders contemplated the hearing of the husband’s application that the provisions of s 90G(1A) applied so as to render the agreement binding by reason of the Court being satisfied that it would be unjust and inequitable if it were not binding. The wife contends to the contrary.
These reasons relate to that application. These reasons should be read with the reasons and orders made in the first hearing.
Section 90G(1A) – Terms and Application
The Terms of the Section
The initial decision in this case was given subsequent to the decision of the Full Court in Senior & Anderson[2] (“Senior”) but prior to the subsequent decision of the Full Court in Parker & Parker[3] (“Parker”). I hold to the views expressed in those cases as to the “consolidated form” of s 90G of the Act outlined in my separate judgments in each of those two decisions and counsel for each of the parties accept that the form of the section outlined by me in Parker[4] is that which applies to this case.
[2] Senior & Anderson (2011) FLC 93-470.
[3] Parker & Parker [2012] FamCAFC 33.
[4] Parker & Parker [2012] FamCAFC 33 at [169].
Application of the Section
Section 90G prescribes mandatory requirements, failure to comply with any of which has the effect of the financial agreement not being “binding”. That, in turn, has the effect that the agreement’s provisions do not exclude the operation of Part VIII of the Act (to the extent that those matters are dealt with in the financial agreement).[5]
[5] Section 71A, Family Law Act 1975 (Cth).
But, the Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth) (the “Efficiency Measures Act”) introduced, relevantly, a remedial section into Part VIIIA relieving against that consequence: s 90G(1A). The Supplementary Explanatory Memorandum to that legislation provides that the relevant amendments:
… enable a court to declare, in enforcement proceedings, that a financial or termination agreement is binding in spite of a failure to meet some of the technical requirements if the court is satisfied that it would be unjust and inequitable if the agreement did not bind the spouse parties (disregarding any change in circumstances from the time the agreement was made).[6]
[6] Supplementary Explanatory Memorandum, Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 at [14] (quoted by Coleman J in Parker & Parker [2012] FamCAFC 33 at [6]).
Despite the reference there to “some of the technical requirements” of s 90G, it should be observed that neither this term nor any term like it, is contained within s 90G(1A). I hold to the view that I expressed in Parker that:
Section 90G(1A) requires the Court to be satisfied that its preconditions have been satisfied. If so, the Court is required to inquire into the facts and circumstances surrounding the agreement so as to arrive at a conclusion as to whether those facts and circumstances justify the Court exercising the discretion inherent in paragraph (c) of the section. In doing so, the Court should not fetter that discretion by implying restrictions – whether as to “technicality” or otherwise – not apparent in the terms of the section.[7]
[7] Parker & Parker [2012] FamCAF 33 at [236]. Note: I was in dissent in Parker, but, in my respectful view, neither Coleman nor May JJ expresses a view directly on this point. Nothing said in Senior & Anderson (2011) FLC 93-470 is to the contrary.
In addition, I hold to the following views which were also expressed in Parker:
The plain words of s 90G(1A)(c) evidence a clear meaning. They envisage a broad discretion vested in the Court in circumstances where the pre-conditions to the exercise of that discretion prescribed otherwise in s 90G(1A)(a) to (e) are established. Once that discretion is enlivened, nothing within the section suggests, in terms, any restriction on the matters that might inform it.
If in fact the trial judge has sought to limit the discretion by attributing to it a restriction that it is limited to “technical” non-compliance, then, in my view, an error of law is established …[8]
[8] Parker & Parker [2012] FamCAFC 33 at [231] and [232]. See above note which is equally applicable to this passage.
Whilst accepting that proposition as a matter of principle, counsel for the wife, Mr Page SC, advances an argument a central plank of which is that, here, the circumstance which rendered the agreement not binding was, as I found, a complete failure in the giving of the advice by a legal practitioner required by the section. It is to that argument that I will first turn.
Before doing so, however, it is necessary to record that it is accepted by each of the parties, and I accordingly formally find, that the pre-conditions for the application of s 90G(1A) are otherwise met:
·The agreement in question is signed by all parties;
·Pursuant to my finding, paragraph 90G(1)(b) is not satisfied;
·The agreement has not been terminated and has not been set aside by a Court.
That being so, the only issue to be determined in these proceedings is whether this Court should 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 circumstances from the time the agreement was made).”[9]
[9] Section 90G(1A)(c), Family Law Act 1975 (Cth).
It is accepted that s 90G(1A)(c) envisages the exercise of a discretion by this Court. The ambit of that discretion and the meaning of “unjust and inequitable” are the subjects of competing submissions.
The Parameters of the S 90G(1A) Discretion?
The Mandatory Requirements of s 90G
In examining the argument advanced by Mr Page to which I have just referred, I again turn to what I said in Parker and, again, confirm for the purposes of these Reasons, that I hold to the view that:
The terms of s 90G(1) do not discriminate between its requirements. For the purposes of that section no requirement is more or less important or essential than any other. But, equally, the legislature did not see fit in the Efficiency Measures Act to amend the requirement that an agreement is binding “if an only if” s 90G(1)’s requirements are met. Those words form part of a section the satisfaction of which excludes the Court from a Part VIII role. A finding that one of the s 90G(1) matters has not been complied with in a manner found as a fact to be important, must, in turn, be an important factor in the exercise of the discretion.
That is by no means the same thing as saying that a failure to comply with a s 90G(1) requirement is decisive in the exercise of that discretion. If it was, s 90G(1A) would, as Coleman J in my respectful view correctly points out, have limited, if any, operation. But, in my view, there is a significant distinction between, on the one hand, advice (or any other s 90G(1) requirement) being decisive and, on the other hand, that matter being a factor – indeed, a significant factor – in the exercise of discretion. In my view, his Honour accorded it the latter role and not the former.[10]
[10] Parker & Parker [2012] FamCAFC 33 at [238] - [239]. Emphasis in the original. Again, although I was in dissent, nothing said by Coleman or May JJ in Parker, as it respectfully seems to me, runs contrary to the propositions there expressed.
Plainly, my finding of fact in the earlier part of these proceedings that there was a complete failure by the wife’s legal practitioner to provide the advice which the section requires,[11] is important as my reasons (and the result) plainly indicate. As I said in Parker, it seems to me that this failure is a significant factor in the exercise of the discretion in s 90G(1A) and I accept the submissions made by Mr Page on behalf of the wife in that regard.
[11] Hoult & Hoult [2011] FamCA 1023 at [100] - [101].
In that respect, Mr Page goes on to argue that the giving of advice assumes particular importance because it is fundamental to the legislature’s mandatory requirements for what makes an agreement binding, with the important consequence that the Court’s Part VIII role is excluded to the extent that those matters are dealt with in the agreement. That fundamental requirement must, it is argued, be fundamental to the exercise of the discretion.
But, again as I said in Parker, it is one thing to accord compliance with s 90G importance, but quite another to accord it decisive importance. It may be decisive on the facts of a particular case, but that consequence must, in my view, depend upon a consideration of the evidence relating to all of the matters that should otherwise inform the broad discretion. Again, it seems to me important that, as enacted, the section envisages the exercise of a broad discretion unfettered not only by reference to “technical” failures to comply, but also unfettered by any other qualification.
Put another way, it seems to me that the structure of the section, and the place of Part VIIIA within the Act, demands that the nature and extent of non-compliance with s 90G(1)’s requirements must be given importance just as importance must be given to the plain legislative intent that parties should, absent vitiating factors known to equity and the common law,[12] be held to their bargain.
[12] Rendered applicable by s 90KA, Family Law Act 1975 (Cth).
Other Findings in the First Case and Background Facts
The finding as to advice made in the earlier part of these proceedings just referred to sits with other findings earlier made that are relevant to submissions made here.
In particular, it is important to note that findings were made as to earlier drafts of the agreement ultimately entered into between the parties including, in one case, an earlier draft being ripped up by the wife and being stuck together again by her. Significantly for present purposes, I found:
The husband said he had discussed this draft with the wife “along with at least three other drafts”. The wife denies having seen the document before. She denied placing it in the cupboard. I reject each such denial by her. Consistent with my earlier findings, I consider that the wife’s evidence was shaped with a view to the desired outcome in these proceedings.[13]
[13] Hoult & Hoult [2011] FamCA 1023 at [146].
The thrust of the findings made by me is to the effect that I accept that there were discussions about the drafts and input from the wife in respect of them. Ultimately, I found:
I accept the husband’s evidence that he and the wife went thoroughly through a number of drafts of the agreement, all of which bore a substantial resemblance to the final, purportedly binding, version in the months leading up to the signing of the final agreement. In particular, I accept the husband’s evidence that he went through the penultimate version of the agreement “paragraph by paragraph” with the wife, two weeks before she signed the final version (which was substantially the same as the preceding draft, minus the schedules).[14]
[14] Hoult & Hoult [2011] FamCA 1023 at [151].
It should, however, be noted that I also found:
… there is no evidence from the husband (whose evidence, in those respects I have otherwise accepted) that the earlier drafts were accompanied by any discussion of the mooted agreement being in substitution of rights nor is there any suggestion that, at that time, the wife was offered, or sought, independent advice as to what her rights might be if the mooted draft was formalised. The evidence is that the agreement, in its purportedly binding form, and the opportunity for advice in respect of that document, did not occur until nine days prior to the wedding overseas, with all that attended it, and occurred the day before the wife was to depart Australia.[15]
[15] Hoult & Hoult [2011] FamCA 1023 at [161]. Emphasis in original.
There is little doubt on the evidence before me that, in the absence of a financial agreement pursuant to s 90B of the Act, the marriage would not have taken place. I accept that this was a circumstance known to both parties.
One of the particular difficulties in the application of this subsection is that, as here, the Court is asked to assess injustice and inequity, if any, some years after the parties have entered the agreement which, at that time, they each intended to govern their future financial relationship to the extent provided for in the agreement. Each of the parties received the signed certificate required by the section (which, in terms, certifies to the giving of advice).
Each of the parties here was, then, in receipt of a document which, as far as each of them was concerned, was compliant with s 90G. Nothing occurred to disabuse them of that until, in this case, correspondence from the wife’s solicitors consequent upon the parties’ first separation which occurred about four years subsequent to the signing of the agreement.
It is significant to note that, here, the agreement’s terms provided for the wife to receive material benefits during the course of the relationship. That is, benefits to her did not accrue only upon separation. It is an accepted fact in these proceedings that the wife received benefits pursuant to the agreement during the course of the relationship in accordance with its terms.
Here, there is no suggestion that the husband (and his lawyers) did not comply with all of the mandatory requirements necessary to make the agreement binding. Insofar as he was aware the wife, too, had so complied and there was nothing on the face of the agreement to suggest otherwise. Prima facie, then, the husband was – at least until the parties’ first separation in 2008 – entitled to, and plainly did, act on the basis that the agreement was fully effective and binding within the meaning of the Act. So, too, did the wife.
A Liberal Construction
No specific criteria provided within the section, or otherwise within the Act, guide or govern the ambit of the discretion inherent to s 90G(1A)(c). Yet, in my view, 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, must each and all be relevant to the exercise of the discretion.
In Parker, I respectfully agreed with the judgment of Coleman J to the effect that the terms of s 90G(1B) do not require specific or formal “enforcement proceedings”.[16] Neither party argues to the contrary in this case. In arriving at that conclusion Coleman J discusses the section under consideration as beneficial or remedial legislation. Those matters can be seen to be equally applicable, specifically, to the remedy at the heart of s 90G(1A)(c). Counsel for the husband, Mr Galloway, argues as much and I accept that submission. Indeed counsel for the wife does not appear to challenge it.
[16] Parker & Parker [2012] FamCAFC 33 at [7]ff.
This (remedial) section must also, in my view, be seen within the broader context of what Part VIIIA was designed to achieve, particularly by comparison with the statutory regime which it replaced. The previous regime required Court intervention and approval before an agreement could exclude the Court’s Part VIII role.[17] Moreover, Court approval would not be given unless the Court had material upon which it could determine if the agreement was “proper”[18]. Significantly, that material, and the court’s inquiry, was undertaken by reference to s 79 and its ultimate requirement that any settlement of property should effect justice and equity.[19]
[17] Section 87(1) to (4), Family Law Act 1975 (Cth). Or, indeed, if the agreement was to be “enforceable at all” (s 87(2)).
[18] Section 87(3), Family Law Act 1975 (Cth).
[19] See eg, Lind & Lind (1980) FLC 90-858; Stewart & Stewart (1980) FLC 96-892; Suters & Suters (1983) FLC 91-365.
By way of (stark) contrast, the regime contemplated by Part VIIIA sees parties having the freedom to enter binding agreements without reference to what might be “just and equitable” within the meaning of s 79 of the Act. That is, binding agreements might be informed by the parties idiosyncratic notions or perceptions of what is, or is not, just and equitable or otherwise appropriate for them. Vitiating elements aside, the parties are perfectly free to make “a bad bargain” (in s 79 terms). Importantly, any such agreement can be “binding” within the meaning of s 90G and, by reason of so being, can exclude Part VIII of the Act without reference to a court and without reference to what a court might consider is a “just and equitable” settlement within the meaning of s 79.
These matter must, in my view, be important in the determination of whether it is “unjust and inequitable” to hold parties to an agreement that is otherwise not binding within the meaning of s 90G. That is, the underlying intention of the parliament, evident in Part VIIIA is an important aspect of the s 90G(1A)(c) discretion.
The Terms of the Parties’ Bargain – The Relevance of “Just and Equitable”
It will have been noted that the phrase used within s 90G(1A)(c) is “unjust and inequitable”. The phrase used in s 79 is “just and equitable”. The similarity is manifest and Mr Galloway, counsel for the husband, concedes that ordinary principles of statutory interpretation would suggest that when an expression is used in a specific context in different parts of legislation but is undefined, it might be thought to bear the same meaning.
It is argued, however, that the two (different) expressions have different meanings, each referrable to their own context. It is submitted that the expression as used in s 90G(1A)(c) is “not to be taken by reference to s 79(2).
Counsel for the husband also argues that the meaning of that expression is “not to be taken by reference to s 79(2) where under a different part of the Act, a property settlement order is required to be just and equitable”. It is argued that:
i. There is no internal reference in s 90G(1A) to s 79(2);
ii.Section 90KA has application to questions pertaining to the validity, enforceability and the effect of financial agreements; and
iii.There does not need to be closer definition or wider reference for the provision to have meaning.
As used in s 79, the expression “just and equitable” is used to describe the result to which the Court must strive having applied a number of specific statutory matters. By way of contrast, no such specific statutory matters inform the expression in s 90G(1A)(c) save (as is submitted by counsel for the wife) that the terms of s 90G(1) give context to it as, too, does the nature of financial agreements and their place within the legislation.
I accept that the expression used in s 90G(1A) ought be distinguished from the expression used in s 79. It should also be accepted, as it seems to me, that because parties can, in a financial agreement, agree to determine their future rights by reference to their own criteria and principles, distinct from the s 79 criteria and principles, that has a bearing on what might be perceived as “unjust and inequitable” within the meaning of the section. Yet, it nevertheless seems to me that in the exercise of the s 90G(1A) discretion, the “justice and equity” of the bargain, or, perhaps, its inherent “fairness” referenced to ordinary notions of that term, cannot be wholly irrelevant to the exercise of the s 90G(1A) discretion.
During argument, I used the example of a 40 year marriage with no unusual or unique features, with a financial agreement which provided that upon breakdown the wife was to receive 4% and the husband 96%. Whilst accepting that other factors – indeed many other factors – may well be relevant to the exercise of the discretion (for example when the agreement was made relative to the breakdown of the marriage and what each of the parties had done in the intervening period etc) it seems to me that if the terms of such an agreement fall completely outside the realms of what a court might consider just and equitable, or what ordinary notions of fairness would call manifestly unfair, that cannot be an irrelevant consideration to the exercise of a discretion framed in injustice and inequity which, if exercised, would see parties being bound to a non-compliant agreement.
In other words, it seems to me that the content of the bargain reached between the parties, in all of the circumstances of their particular marriage and its breakdown, must have some relevance if the inquiry is into “injustice and inequity”.
Counsel for the wife points out that such an interpretation has echoes in differing contexts under the Act, citing, for example, Holland & Holland[20].
[20] Holland & Holland (1982) FLC 91-242. See, in that respect Supplementary Written Submissions on Behalf of Applicant Wife, filed 10 October 2011, [5] and [6].
However, equally clearly, in my view, the questions required to be asked by s 90G to properly inform the discretion inherent within s 90G(1A)(c), cannot be seen as the substitution of a financial result that the Court considers just and equitable under the guise of answering a different question pursuant to a different section.
Here, counsel for the husband argues that the terms of the parties’ agreement are important in two particular respects. First, it is pointed out that the agreement confers benefits upon the wife not only in the event of the parties’ separation but also during the course of the relationship. Examples include a requirement for the husband to purchase a new or second-hand motor vehicle each four years, to pay all running costs and, in addition, the provision of a monthly sum of $1200 provided income earned by the wife from personal exertion does not exceed $20,000.[21] The agreement also provides for the payment of a lump sum of $100,000 after a period of five years of marriage.
[21] For example, Clause 6.2, Financial Agreement dated 17 December 2004.
Secondly, counsel for the husband argues that the terms of the agreement are important to the exercise of the discretion because the agreement was “affirmed”, using the word in its contractual sense, on three separate occasions. Counsel contends that additional force is given to this consideration by reason of the provisions of s 90KA of the Act[22].
[22] Note, in that respect, s 90G(1C), Family Law Act 1975 (Cth).
It is contended that the parties’ agreement was first affirmed because of the finding that the parties did in fact marry as the agreement contemplated and the wife did in fact receive the benefits provided for by the agreement consequent upon that marriage. Upon the first separation of the parties in 2008, reliance was placed upon the agreement by the wife and the wife sought to receive benefits pursuant to it. That is said to constitute the second “affirmation”. In that regard reference is made to correspondence appearing as Exhibit 1 to the husband’s most recent affidavit.
On 20 August 2008 at a time when the parties had separated, the wife’s solicitors (who have continued to act for her since) advised that the wife intended to “seek to overturn the agreement” and to seek relief pursuant to Part VIII of the Act”. The letter went on, however, to seek payments to the wife’s bank account pursuant to the terms of the agreement to which reference has earlier been made.
Subsequently, the parties reconciled and continued to arrange their affairs in a manner, it is argued, consistent with the terms of the agreement applicable during the currency of their relationship. That is said to be the third occasion on which the agreement was affirmed.
Thus, it is argued, the wife was “alive to the terms of the agreement” and, indeed, had plainly received advice in respect of it in 2008. The argument proceeds that the wife then continued in the relationship in the knowledge of the terms of the agreement and having received advice about it – in short, as submitted, to “live out the agreement” – knowing that it might impact upon her.
Application of Equitable Principles
Counsel for the husband argues that the principles emanating from decisions of the High Court such as Commonwealth v Verwayen[23] or Walton Stores (Interstate) Ltd v Maher[24] are applicable here. Counsel argues, by reference to s 90KA of the Act, that a finding ought to be made that the wife is estopped from avoiding the terms of the agreement.
[23] Commonwealth v Verwayen (1990) 170 CLR 394.
[24] Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.
In my view it is neither necessary nor desirable to make a specific finding as to whether an estoppel is created on the facts of this case or, indeed, about the role of estoppel, if any, upon a consideration of s 90G(1A)(c). Arguments arise in respect of the interpretation of s 90KA of the Act and the potential for it, and the principles it encompasses, to impact upon s 90G(1A)(c). The application of estoppel of the type described in the cases earlier referred to (and, perhaps, waiver), do not in my view sit easily in the context of a prospective marriage. The notion of acting to one’s detriment is only one of the numerous matters that would need to be considered in that, and similar, contexts.
However, I accept the submission that where parties have acted in reliance upon an agreement – particularly an agreement signed many years before – in the belief that the agreement would determine their future rights and have ordered their affairs accordingly, and where the latent defect, as it were, in that assumption, could not be known to them, might all be matters properly considered in the exercise of the discretion.
Conclusion
It is submitted by Mr Page SC on behalf of the wife that the real argument and “the real issue” in respect of the exercise of the discretion is “whether the wife should be statute barred”.
With respect, I am not persuaded that this is in fact the true question. Rather, in my view, the question inherent in the exercise of the s 90G(1A)(c) discretion is whether, in the particular facts and circumstances of this case, it is unjust or inequitable for the parties to have their Part VIII rights excluded to the extent dealt with in the agreement by being held to what they bargained for.
The structure of Part VIIIA of the Act, and s 90G itself, suggests that the preservation of the parties’ bargain into which the parties freely entered is to be given significant weight. For example, s 90G(1)(c) uses the negative; the paragraph does not require the Court to be satisfied that it would be unjust and inequitable if the agreement was binding but rather if it is not binding..
It is important to observe that, whilst s 90G(1) demands a number of requirements, it is only one of those (that the agreement be signed by all parties) that precludes the agreement ultimately being held binding notwithstanding failure to meet the other mandatory requirements.
As earlier observed, despite reference to “mere technicality” in the Explanatory Memorandum, no such wording or notion finds its way into the section. With reference to the argument advanced on behalf of the wife, whilst the receipt of advice might, as contended, be considered fundamentally important, it is not accorded the same role in s 90G(1A) as signatures on the agreement by all parties; advice is but one of a number of matters, the failure of which can result in the exercise of the discretion.
Yet, it seems to me that it cannot simply be the facts and circumstances surrounding the formation of the agreement that inform the discretion. As an example, if it were so, there would no necessity to disregard any change of circumstance as the paragraph requires, because they would be irrelevant in any event.
It seems to me that the enquiry required of s 90G(1A)(c) is a wide-ranging one that might include considerations such as:
·The facts and circumstances surrounding the particular s 90G requirement not being met;
·What the parties themselves said and did, if anything, so as to render the agreement not binding;
· The circumstances within which the parties bargain was concluded;
·The length of time between the signing of the agreement and the decision as to whether the parties are to be held to it;
·What the parties said and did in reliance upon the agreement being binding subsequent to the signing of the agreement;
·Whether the terms of the bargain itself offend ordinary notions of fairness or plainly fall markedly outside any reasonable broad assessment of the s 79 discretion;
The relevant s 90G(1) requirement not complied with in this case is the giving of the advice which the section requires. This is an important matter and I accord it significant weight. This requirement is fundamental to the free and informed consent that should attend the bargain. I also give that aspect significant weight. But, I also give weight in that respect, to my findings that the agreement was not vitiated by fraud, undue influence or unconscionable conduct.
I found in the first hearing that the wife was an active participant in negotiations that led to earlier drafts of the agreement and in discussions by which a bargain was struck. The bargain was satisfactory to both the husband and the wife at the time it was struck. Proper weight should be given to holding the parties to their bargain and to the importance that the legislature attaches thereto evident in the section in addition to, the place of Part VIIIA in the Act and its role in replacing, relevantly, s 87 agreements. These, too, are important considerations.
An attack on the agreement was mooted in 2008 (noting that at the same time at which the future attack was mooted, the wife, through her solicitors sought to receive some of the very benefits it conferred). The first suggestion that the agreement would be attacked came some four years after it was signed and a decision is being made here about injustice and inequity some seven years or more after it was signed. Both parties acted upon the terms of the agreement until the point at which it was attacked.
Whilst I pass no judgment or comment upon how the terms of the agreement might compare to any s 79 orders (or orders for maintenance) made by the Court, I do not consider that the terms of the agreement offend, on their face, ordinary notions of fairness or the broad ambit of justice and equity in s 79 terms. It seems to me very significant that the wife received material benefits pursuant to the terms of the agreement subsequent to it being signed by both parties and during the course of the relationship.
Neither the husband nor his solicitor contributed to, or was complicit in, any failure to comply with the requirements of s 90G. Indeed, my findings in the first case are redolent of him seeking to ensure that the wife received advice of the type required by the section. There is nothing on the face of the agreement, nor is there any suggestion by the wife or any solicitor acting for her prior to 2008, that should have suggested to the husband either that the agreement was not binding or that he should not act upon it in accordance with its terms. He did in fact act upon it according to its terms (whether or not that was to his “detriment”).
I have sought to carefully consider and weigh each and all of those matters. On balance, it seems to me that the Court should find that it is unjust and inequitable if the financial agreement between the parties was not binding on the spouse parties to the agreement.
I order accordingly
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 22 May 2012.
Associate:
Date: 22 May 2012
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