Johanson & Johanson
[2022] FedCFamC1A 74
•20 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Johanson & Johanson [2022] FedCFamC1A 74
Appeal from: Johanson & Johanson [2021] FamCA 609 Appeal number(s): NAA 13 of 2021 File number(s): BRC 6694 of 2017 Judgment of: ALDRIDGE, BENNETT & HOWARD JJ Date of judgment: 20 May 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal against orders dismissing an application to have a financial agreement declared non-binding – Where the appellant contended that he was not provided with the independent legal advice required by s 90G of the Family Law Act 1975 (Cth) – Where the primary judge found that the appellant had received the requisite independent legal advice and declared that the financial agreement was binding – Challenges against findings of fact of primary judge – No error established – Appeal dismissed – Appellant to pay respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 90G, 90KA Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Fewster & Drake (2016) FLC 93-745; [2016] FamCAFC 214
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hoult & Hoult (2013) FLC 93-546; [2013] FamCAFC 109
Johanson & Johanson [2018] FamCA 355
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Logan & Logan (2013) FLC 93-555; [2013] FamCAFC 151
Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Saintclaire & Saintclaire (2015) FLC 93-684; [2015] FamCAFC 245
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 60 Date of hearing: 30 March 2022 Place: Brisbane (via video link) Counsel for the Appellant: Mr Coulsen Solicitor for the Appellant: Morgan Mac Lawyers Counsel for the Respondent: Mr Linklater-Steele Solicitor for the Respondent: Naughton McCarthy Family Lawyers ORDERS
NAA 13 of 2021
BRC 6694 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR JOHANSON
Appellant
AND: MS JOHANSON
Respondent
ORDER MADE BY:
ALDRIDGE, BENNETT & HOWARD JJ
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs of the appeal fixed in the sum of $19,553.33.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Johanson & Johanson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, BENNETT & HOWARD JJ:
INTRODUCTION
By Notice of Appeal filed 14 September 2021, Mr Johanson (“the husband”) appeals against orders made on 19 August 2021 by a judge of the Family Court of Australia (as this Court was then known) dismissing the husband’s application seeking a declaration that a financial agreement entered into between the parties dated 22 January 2014 (“the financial agreement”) was not binding. The primary judge also made a declaration that the financial agreement was binding upon the parties.
The husband contends that the primary judge erred in finding that the husband received “independent legal advice” before he signed the agreement (Ground 1).
The husband maintains (in Ground 2) that the primary judge “failed to properly consider” certain evidence and the husband says (in Ground 3) that the primary judge “failed to give adequate reasons” as to why he preferred the evidence of Mr N (the husband’s former solicitor) ahead of the husband’s own evidence.
Ground 4 contained in the Notice of Appeal maintains that the primary judge erred in making the declaration as to the binding nature of the financial agreement.
For the reasons which follow, we have determined that the husband’s appeal ought to be dismissed.
The parties are no longer married. The husband has remarried; but it is convenient to use the terms “husband” and “wife” in the same manner adopted by the primary judge.
BACKGROUND
It is necessary to set out some of the relevant facts to give context to this appeal. These facts are extracted largely from the primary judge’s reasons. None of these facts is controversial.
The parties married in September 1989 and separated on a final basis in February 2013. A divorce order was made in the Federal Circuit Court of Australia (as it was then known) on 7 May 2014 and the order became absolute on 8 June 2014.
Each of the parties instructed lawyers shortly after separation. The parties negotiated for many months from May 2013 until the signing of the financial agreement on 22 January 2014. Sometimes the parties negotiated personally – without their lawyers. Sometimes the lawyers were engaged to conduct the negotiations.
The financial agreement provided (inter alia) for a division of the parties’ property and superannuation assets, as well as ongoing spousal maintenance to be paid by the husband to the wife. This maintenance was to be paid in the sum of $130,000 per annum in monthly instalments of $10,833 until the husband reached the age of 64 (which would not occur until May 2026). There was a clause allowing for this payment to be reduced should the husband’s income, net of tax, fall below $260,000 in a financial year prior to him turning 64 years of age.
The financial agreement also provided that the husband was to continue paying the premiums on a life insurance policy to which the wife was the beneficiary until he attained 64 years of age.
The financial agreement came into effect on 22 January 2014 and the husband commenced making the spousal maintenance and other payments in accordance with his obligations under the agreement. In November 2016 the husband ceased the payment of the premiums for the life insurance policy. In April 2017 the husband ceased payment of the monthly spousal maintenance. This precipitated the wife bringing enforcement proceedings by an Initiating Application filed on 3 July 2017 in the Family Court of Australia (as it was then known).
The husband sought (by way of an Amended Response to the Initiating Application filed 9 March 2018) a declaration that the parties had abandoned the financial agreement by their conduct. That interlocutory application was heard and dismissed by another judge of the Family Court of Australia, with orders and reasons for judgment delivered on 23 May 2018.[1] That decision was not the subject of an appeal. The proceedings were then adjourned for the allocation of further trial dates, and ultimately, the balance of the husband’s Amended Response became the subject of a hearing before the primary judge. Consistent with authority, we note that the hearing before the primary judge finally determined the rights of the parties in relation to the agreement – hence the husband did not require leave to appeal.[2]
[1] See Johanson & Johanson [2018] FamCA 355.
[2] Saintclaire & Saintclaire (2015) FLC 93-684 at [9] and Fewster & Drake (2016) FLC 93-745 at [8]–[12].
The hearing commenced before the primary judge on 22 November 2019. The hearing was then adjourned to allow for the husband’s former solicitor, Mr N, to be available for cross-examination. The husband had earlier indicated that he did not require Mr N for cross-examination. The husband initially appeared as a self-represented litigant. By the time the matter returned before the primary judge on 4 February 2020 the husband had engaged counsel to conduct cross-examination on his behalf and to provide submissions to the Court. Directions were made for the provision of written submissions and the final written submissions were filed on 1 May 2020.
The primary judge delivered his reasons and orders on 19 August 2021, dismissing the husband’s application and the proceedings were then adjourned for a further case management hearing before the primary judge for directions in respect of the wife’s application for the enforcement of the financial agreement.
The husband filed his Notice of Appeal against the orders of the primary judge on 14 September 2021. The matter returned before the primary judge on 7 October 2021 for the hearing of a stay application by the husband[3] and an application made by the wife[4] seeking interlocutory orders under s 90KA of Family Law Act 1975 (Cth) (“the Act”). The wife sought that the spousal maintenance payments contained in cl 4.2(a) of the financial agreement be enforced as if it was an order of the Court and, specifically, sought for the payment of the arrears and for ongoing payments of spousal maintenance. The wife also sought the interlocutory enforcement of the payment of the life insurance policy premiums. On 21 October 2021, the primary judge made orders with the consent of both parties, that the husband would pay $587,632 representing the arrears of spousal maintenance and, in addition, the husband would pay the sum of $88,096.53 by way of interest on those arrears. The Court further ordered (not by consent) – pending the determination of this appeal – that the husband pay to the wife the sum of $6,000 per calendar month. This is presumably by way of spousal maintenance – although the Appeal Book is silent on that precise point. The balance of the wife’s application for enforcement was stayed.
[3] Application in a Proceeding filed by the husband on 6 October 2021.
[4] Application in a Proceeding filed by the wife on 23 September 2021.
It is helpful at this point to note some of the aspects of the financial agreement highlighted by the primary judge at [10]. In particular, we note:
10.It is appropriate to record some of the principal provisions in the agreement dated 22 January 2014 – noting again that its terms were complied with in all respects until at least November 2016. The provisions I note are:
(a)Recital C(a) provided the agreement was made pursuant to s 90C of the Act and was in relation to “division of the property of the parties following the breakdown of the marriage; AND the maintenance of Mr Johanson and Ms Johanson during the marriage and after divorce”;
(b) Recital C(e) provides an acknowledgement by both parties that “this Agreement will have the practical effect to operate in complete bar and discharge to any further application by either of them against the other in relation to Part VIII of the Family Law Act”;
(c) Recital D(c) says that the property, liabilities and financial resources of the parties “currently available for alteration of property interests between them are detailed in Schedule 2 of this Agreement”, with Schedule 2 setting out the following:
Assets
House at C Street, Suburb D
$1,350,000
Furniture and contents
To be divided
Motor vehicle 1
$25,000
Husband’s business
Nil
Liabilities
E Bank – home loan
$1,100,000
E Bank card in Husband’s name A/C No. ...76
$9,570
Commonwealth Bank of Australia Mastercard in Husband’s name A/C No. …91
$5,500
F Bank credit card in Husband’s name A/C No.
£5,729
Superannuation
Johanson Family Superannuation Fund
$738,849
G Super Fund
$160,689
(d)Recital E(b) is an acknowledgment by each party that before the agreement was signed by them, they were provided with “independent legal advice from their respective legal practitioners as to” the effect of the agreement on their rights and the advantages and disadvantages of making the agreement;
(e)The maintenance component at clause 4.2(a) of the agreement relevantly provides for the husband to pay the wife the sum of $130,000 per annum “in monthly instalments of $10,833 until he reaches the age of 64”. The husband will turn 64 on 25 May 2026. This required repayment could be adjusted if the husband’s income, net of tax, was less than $260,000 for any financial year;
(f)Alteration of property interests is set out at clause 5 of the agreement, with the home at Suburb D to be sold and after payment of various specified disbursements, the balance of the nett proceeds were to be received by the wife. The parties were to retain other property as specified;
(g)By clause 5.2(l) of the agreement, the husband was to continue to pay premiums on a specified Income Protection Insurance component with J Insurance until his sixty-fourth birthday;
(h)By clause 5.2(o), the husband was to continue to pay the premiums on the specified J Insurance Life Insurance Policy in the wife’s name until his sixty-fourth birthday, with the cover not to drop below $1,000,000;
(i)By clause 5.2(p), the husband was to continue to pay on the specified J Insurance Trauma Insurance Policy in the wife’s name until his sixty-fourth birthday, with the cover not to drop below $500,000;
(j)By clause 5.2(s), the husband’s interest in the Johanson Family Superannuation Fund and G Super Fund was to be subject to a “superannuation split”, whereby 50% of the husband’s balance was to be received by the wife. Consequent upon that “split”; the wife was to resign as a member and officer of the SMSF; and
(k)Clause 8.7 of the agreement provides for the parties’ acknowledgment as to their understanding of the terms of the agreement, and at clause 8.7(h) the parties again mutually covenanted and acknowledged that “before this Agreement was signed by each, as stated in the Statement annexed to this Agreement, each was provided with independent legal advice by their respective solicitors”. The statement as to the giving of independent legal advice to the husband was signed by Mr N and confirmed by the husband on 22 January 2014. The statement as to the giving of independent legal advice to the wife was signed by Mr K and confirmed by the wife on 16 January 2014.
In highlighting certain parts of the agreement, the primary judge provided important context. The parties had been married for more than 24 years and yet there was very little by way of non-superannuation assets. The net non-superannuation assets were in the vicinity of $260,000. The parties had approximately $900,000 in superannuation. It is within that factual background that the husband, a health professional, agreed to pay the wife the sum of $130,000 as spousal maintenance each year until the husband reached the age of 64. The husband is not due to turn 64 until 25 May 2026.
GROUNDS OF APPEAL
Was the husband given independent legal advice pursuant to s 90G(1)(b)? (Ground 1)
Section 90G of the Act sets out the circumstances in which a financial agreement is binding on the parties. Section 90G(1) provides as follows:
(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.
Compliance with each of the provisions of s 90G(1) is required before the financial agreement can be said to be a “binding financial agreement”. The section is stated to be “subject to subsection (1A)”. For present purposes, s 90G(1A) is not relevant.
In this appeal the husband continues to maintain that he was not given independent legal advice as required by s 90G(1)(b). The husband maintains this position notwithstanding the fact that he signed the financial agreement which contains an acknowledgment (contained in Recital E(b)) that before the agreement was signed he was provided with independent legal advice from his legal practitioner – as to the effect of the agreement on his rights and the advantages and disadvantages of making the agreement.[5] In addition, there is the certificate signed by the husband’s former solicitor Mr N – that he had provided the requisite advice under s 90G(1)(b) before the husband signed the agreement.[6] Directly below the solicitor’s certificate, the husband signed and dated the following acknowledgment or confirmation (which is referred to in Recital E(b))[7]:
I, [Mr Johanson] confirm that prior to signing this Agreement, I received legal advice referred to above and the above signed Statement by my solicitor stating that this advice had been given to me.
[5] Wife’s affidavit filed on 9 March 2018, Annexure 1, p.4.
[6] Wife’s affidavit filed on 9 March 2018, Annexure 1, p.23.
[7] Wife’s affidavit filed on 9 March 2018, Annexure 1, p.23.
The primary judge made reference to the decision of the Full Court in Logan & Logan (2013) FLC 93-555 (“Logan”) – where the Court confirmed the earlier decision in Hoult & Hoult (2013) FLC 93-546 (“Hoult”). At the hearing of the appeal counsel for the husband confirmed that the husband did not challenge the decision in Hoult. In Hoult, Thackray J (with whom Strickland & Ainslie-Wallace JJ agreed), relying on Purkess v Crittenden (1965) 114 CLR 164, stated (inter alia) as follows:
62. Importantly, however, I consider that 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 (especially when read with the recital in the agreement to the same effect).
63. This forensic obligation is properly conceptualised as the burden of introducing evidence and should not be confused with the burden of proof as a matter of law and pleading…
It is apparent from the primary judge’s reasons that he was persuaded that the wife in the present case had satisfied the initial onus. The certificate signed by the husband’s solicitor was produced in evidence and the certificate must be read with Recital E(b) – which was to the same effect. The “forensic obligation” or “evidentiary burden” then moved to the husband to establish that the presumption of fact had been displaced. The essence of this case is that his Honour was not satisfied that the husband had displaced that presumption of fact.
The central point of the husband’s case is that he did not receive advice in the terms required by s 90G(1)(b). The husband’s evidence was that he did not receive advice as to the effect of the agreement on his rights or as to the advantages or disadvantages of the agreement. Rather, the husband said that his solicitor told him that he would receive a written advice in due course, which never occurred.[8]
[8] Husband’s affidavit filed on 8 October 2019, p.5.
The husband’s former solicitor, Mr N, gave evidence which directly contradicted the husband in certain important respects. Although the primary judge found that the husband was a generally believable witness (at [22]) the primary judge preferred the evidence of Mr N and concluded that the husband had received the advice required by s 90G(1)(b) of the Act. Accordingly, the primary judge held that the financial agreement was binding.
At [25(h)(viii)] the primary judge correctly identified the conflict in the evidence between the husband and Mr N saying “[t]his conflict of evidence lies at the epicentre of the case argued by the husband”.
The primary judge (throughout [25]) provided a summary of the husband’s evidence and his Honour noted certain concessions and made various findings in this paragraph. This paragraph is quite comprehensive – comprising three pages of a 15 page judgment.
At the commencement of [25], his Honour makes the point that the husband was at times, “a little uncertain, even vague”. His Honour attributed this uncertainty and vagueness mostly to the period of time that had elapsed since the creation of the agreement.
In [27], his Honour provided a summary of the evidence of Mr N and noted those aspects which his Honour considered to be “of particular relevance”.
A review of the primary judge’s reasons reveals that his Honour referred to certain evidence, including the evidence of Mr N – which his Honour clearly accepted; his Honour referred to the husband’s evidence and noted the concessions made by the husband; and his Honour made various findings based upon the evidence. We note the following from his Honour’s reasons:
(a)In [25(d)], the primary judge made a finding that the husband had received oral advice from Mr N, “that any agreement entered into would be ‘binding’”;
(b)In [25(h)(i)], the primary judge noted the husband’s evidence that Mr N had given to the husband “‘general’ oral advice about spouse maintenance, and that what he had negotiated with the wife was “generous”;
(c)In [25(h)(v)], his Honour noted the husband’s evidence where the husband “conceded in cross-examination that he ‘did’ get advice about the ‘effect of the agreement’ which he accepted at the time”;
(d)At [27(c)], his Honour noted the evidence of Mr N that he had given the husband advice recommending a binding financial agreement ahead of consent orders;
(e)At [27(d)], the primary judge referred to the evidence of Mr N contained in an email dated 2 July 2013 addressed to the husband confirming that the solicitor’s view was that the offer made by the husband to the wife (in relation to the payment of spousal maintenance) was “a generous one”;
(f)Also, in [27(d)], his Honour noted the evidence of Mr N that he had advised the husband that a spousal maintenance agreement to be paid “for ‘twenty years’ may not be approved by the Court”. This was in the context of the solicitor recommending the binding financial agreement ahead of consent orders;
(g)In [27(g)], his Honour noted that:
27. …
(g)… Mr N maintained he gave advice on 22 January 2014 as required by the certificate he signed. His evidence is that from the initial consultation on 8 May 2013; to the first draft of the financial agreement sent 1 July 2013; and the numerous exchanges and emails amending the draft including the consultation of 22 January 2014, he gave oral continual advice to the husband and the husband accepted that advice.
(h)In [30(d)], his Honour accepted the evidence of Mr N and found that he “gave the advice orally to the husband he was required by law to give” and he also noted “the number of likely opportunities for advice to be given”; and
(i)In [30(g)], his Honour made a finding that “the husband and wife both knew that by proceeding with the financial agreement they were substituting any rights under the Act for the terms of the carefully drafted agreement”.
At [29], his Honour stated the following conclusion:
29.On all the evidence, I have reached the conclusion that the husband did receive the independent advice required by s 90G(1)(b) and (c) from Mr N between 8 May 2013 and importantly including 22 January 2014, and that the husband’s signing of his statement to that effect – a statement included in the first draft agreement, finally executed by the husband on 22 January 2014 – creates an inference that has not been displaced.
Time and again, the High Court has made it clear that trial judges are in the prime position to assess the credibility of witnesses. Almost 30 years ago, in Devries v Australian National Railways Commission (1993) 177 CLR 472 (“Devries”) – Brennan, Gaudron and McHugh JJ stated at 479:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against – that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable.”
(Emphasis added) (Footnotes omitted)
In a similar vein, the High Court in Fox v Percy (2003) 214 CLR 118 (“Fox v Percy”), per Gleeson CJ, Gummow and Kirby JJ, stated at [23] that an appellate court:
23.…must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
(Emphasis added) (Footnotes omitted)
More recently in Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 (“Robinson”) at [43] and in Lee v Lee (2019) 266 CLR 129 at [55] – the High Court again confirmed the correctness of the principles noted in Devries and in Fox v Percy. In Robinson, the Court stated:
43.The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A Court of Appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them.
(Emphasis added) (Footnotes omitted)
The primary judge did not refer to every item of evidence from Mr N and the husband. The primary judge is not required to do so. It is important to note what the High Court said in Fox v Percy at [41]:
41.…No judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another.
(Footnotes omitted)
At [30] of these reasons for judgment, there is references to certain evidence that was obviously accepted by his Honour and included evidence of advice given by Mr N to the husband concerning the effect of the financial agreement on the husband’s rights and also included evidence of advice provided by Mr N to the husband about the advantages and disadvantages to the husband of making the agreement. His Honour made findings based on all of the evidence – including the evidence we have specifically noted in [30] of these reasons.
His Honour’s findings (including his critical finding that Mr N gave oral advice to the husband as “he was required by law to give” (at [30(d)]) are sufficient to support his Honour’s conclusion “that the husband did receive the independent advice required by s 90G(1)(b)…from Mr N from 8 May 2013 and importantly including 22 January 2014” (at [29]).
In the husband’s Summary of Argument filed on 17 December 2021 – the husband contended in paragraph 19, inter alia – that any advice provided by Mr N to the husband “would have to be given in respect to the final form of the agreement, not previous drafts where in this circumstance there were significant late amendments”. To start with, the evidence does not support the submission that there were “significant late amendments”. In fact the contrary is true. The final draft of the financial agreement was available to the parties by the early part of December 2013. Further, we were not taken to any evidence of any significant changes (or indeed any change) from one draft to the next.
This question (relating to the different drafts of the financial agreement) was mentioned at paragraph 93 of the husband’s Written Submissions filed on 18 February 2020, at the conclusion of the trial. Those written submissions were prepared by the husband’s counsel at the trial, Ms McLennan. There was some cross-examination on this point:
[COUNSEL FOR THE HUSBAND AT TRIAL]: …So if I put to you that no advice was given around any of the variations that we can see in your ledger or otherwise in regards to a variation that you had sent the client on 24.10.2013, 19.11.2013, 25.11.2013 and 11.12.2013, you accept that there was no advice given to the client around those variations?
[MR N]: No, I don’t accept that.
…
[COUNSEL FOR THE HUSBAND AT TRIAL]: You accept again that no advice was given on that day in regards to the final amendment?
[MR N]: No, I don’t accept that.
(Transcript 4 February 2020, p.39 lines 26–29 and lines 39–40)
Mr N did not accept Ms McLennan’s suggestions. As noted previously, his Honour, at [27(g)] noted (and ultimately accepted) that Mr N had provided advice on an ongoing basis from the time of the initial consultation and in relation to various amendments to the draft agreement. Further, at [29] the primary judge made a finding that the required advice had been given, “between 8 May 2013 and importantly including 22 January 2014”. This means that the primary judge (at the very least inferentially) accepted that the required advice had been given – at various points in time – when different drafts of the agreement were in existence. It was noted by his Honour that the solicitor’s file notes were less fulsome then they might have been. The solicitor himself made that concession. That did not stop his Honour from accepting that the solicitor gave the advice in accordance with the certificate. His Honour accepted the correctness of the certificate. This also means the primary judge accepted that the required advice was given by Mr N to the husband in relation to the actual agreement signed (i.e. the final version of the financial agreement) and it means that his Honour accepted the advice was given before the agreement was signed. To maintain an argument that any advice that was given related to an earlier (irrelevant) version of the agreement – the husband needed to lead evidence to that effect and he would have needed to show (by that evidence) that there were material changes in the versions of the financial agreement such that any advice given (relating to the generous amount of maintenance etc.) was no longer relevant or valid. Despite a specific request by the Court at the hearing of the appeal – we were not taken to any such evidence.
At one stage during his oral testimony there was a reference by Mr N to the fact that on the day the husband actually signed the agreement, he could not specifically recall the precise sequence of events. The certificate confirms that Mr N gave the advice required by s 90G(1)(b) to the husband before the husband signed the agreement. This was accepted by the primary judge. There is no basis to interfere with this conclusion.
There is no merit in the first ground of appeal.
Did the primary judge properly consider the husband’s evidence that he was not given the necessary advice? (Ground 2)
The complaint made by the husband in support of Ground 2 is outlined in the husband’s Summary of Argument filed on 17 December 2021. In summary, the argument appears to be that the husband gave evidence that there was no advice given to him as to the effect of the financial agreement on his rights and nor was there advice given to him as to the advantages and disadvantages of making the financial agreement. It is said that the trial judge failed to “consider” this evidence. As already indicated – the primary judge devoted approximately three pages in his reasons summarising aspects of the husband’s evidence. The husband appears to be operating under a misapprehension. The fact that the trial judge did not “refer” to particular parts of the husband’s evidence does not mean that the trial judge failed to “consider” those parts of the husband’s evidence. This much was made clear by the High Court in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 (“Whisprun”). At [62] and [63], the majority stated:
62.It is not readily to be supposed that the various matters upon which the Court of Appeal placed so much weight would have induced Newman J to accept that Ms Dixon’s condition was as she testified in her evidence-in-chief and as she reported to the doctors. Further, it should not be accepted that Newman J failed, at least in a general way, to consider the matters to which the Court of Appeal referred. The fact that his Honour did not refer to these matters in his judgment is not decisive. A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
63. However, it is unnecessary to determine whether the matters to which the Court of Appeal referred were or should have been considered by the trial judge. For the reasons that we have given, they were not part of Ms Dixon's case. To suggest that a trial judge has not properly considered a party's case is a serious charge. Such a suggestion should be accepted only when the record of the trial or other evidence persuasively suggests that the judge failed to discharge that paramount judicial duty. With great respect to the learned judges of the Court of Appeal, we do not think that the evidence met that standard.
(Emphasis added)
There is nothing to which our attention has been drawn that would “persuasively suggest” that the primary judge failed to discharge his “paramount judicial duty”. The references to the husband’s evidence contained in the husband’s Summary of Argument fall well short of the mark if the intention is to persuade this Court that the trial judge failed to consider the husband’s case or parts of the husband’s evidence. As we have already pointed out (in dismissing Ground 1) – certain parts of the husband’s evidence confirmed the evidence of Mr N. To the extent that there were any conflicts in the evidence between the husband and Mr N, it is apparent from the primary judge’s reasons that he preferred the evidence of Mr N. The fact that the husband might have “steadfastly” maintained his position is irrelevant. His Honour was not required to specifically refer in his reasons to each item of evidence provided by the losing party and provide reasons as to why that part of the losing party’s (the husband’s) evidence was not accepted by the Court. That is precisely the point made by the High Court in Whisprun. The same goes in respect of the arguments put forward by the losing party. As we have noted at [38] of these reasons, his Honour specifically highlighted evidence (which he clearly accepted) of the advice provided by Mr N concerning the husband’s rights and the advantages and disadvantages to the husband of making the agreement.
There is no substance in Ground 2.
Did the primary judge fail to give adequate reasons for preferring the evidence of Mr N? (Ground 3)
In many respects Ground 3 overlaps with Ground 1.
In the husband’s Summary of Argument at paragraph 42, it is stated in relation to Ground 3:
42.The complaint of the [husband] in respect to this ground is that the Trial Judge found that the prescribed advice had been given without identifying the prescribed advice or when the advice had been given.
The use of the words “without identifying the prescribed advice” is a complaint which is misconceived. The trial judge was not required to ascertain the content of the legal advice. In Hoult, Thackray J stated at [100]–[101]:-
100.However, the trial judge did not pose the correct question. He set out to ascertain the content of the legal advice, whereas he needed only to be satisfied that the advice referred to in s 90G(1)(b) had been given. Thus, when his Honour found that the certificate provided “an insufficient evidentiary foundation”, it seems his Honour was requiring the husband to provide a foundation for something that did not have to be proved.
101.The certificate, read with the recital, provided a sufficient evidentiary foundation for finding there had been compliance with the requirements of the Act. The question whether that foundation had been undermined by other evidence became confused with the question of the precise content of the advice. It is possible, if the questions had not been confused, that the answer would have been the same, but it would be unsafe to make that assumption.
Justices Strickland and Ainslie-Wallace agreed with Thackray J that, “it was unnecessary for the trial judge to ascertain the ‘content of the legal advice’”.[9]
[9] Hoult & Hoult (2013) FLC 93-546 at [279].
Paragraphs 12–16 of the husband’s Summary of Argument relate to Ground 1 in the Notice of Appeal. But in those paragraphs – the husband also complained that the trial judge had not ascertained the content of the legal advice. The submissions of the husband in relation to this issue are contrary to authority. The Full Court in Hoult could not have been clearer. The conclusion in Hoult was confirmed by a subsequent Full Court in Logan (see especially at [51]). As noted earlier, the husband conceded that Hoult was correctly decided.
There is no merit in this argument from the husband.
Furthermore, at paragraph 42 of the husband’s Summary of Argument, he complains that the primary judge had not identified “when the advice had been given”. This submission is plainly wrong. The primary judge did identify when the advice had been given. His Honour did so at [29] of his reasons where he stated his conclusion that the requisite advice had been provided “between 8 May 2013 and importantly including 22 January 2014”.
The husband also complains that the primary judge failed to give adequate reasons as to why he preferred the evidence of Mr N ahead of the evidence of the husband. It is worthwhile to note the following decisions and principles concerning the adequacy of reasons. In particular, we note:
(a)In AMS v AIF (1999) 199 CLR 160 at [150], Kirby J stated, inter-alia:
…an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
(Footnotes omitted)
(b)In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (“Soulemezis”), Kirby P (as his Honour then was) noted at 259 that a trial judge is not required to provide, “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”.
(c)The High Court in DL v The Queen (2018) 266 CLR 1 more recently confirmed the correctness of Kirby P’s observation in Soulemezis. At [33], Kiefel CJ, Keane and Edelman JJ stated, inter alia:
…reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”.
(Emphasis added) (Footnote omitted)
The Full Court of the Family Court of Australia (as it was then known) cited Soulemezis with approval in Bennett & Bennett (1991) FLC 92-191 (“Bennett”) at 78,266.
The Full Court in Bennett also noted (at 78,267) that an “appellate Court should be able to discern either expressly or by implication the path by which the result has been reached”.It is possible to discern the path by which the primary judge reached his conclusion. In particular, his Honour preferred the evidence of Mr N (ahead of the husband) and his Honour accepted that Mr N had provided the required advice to the husband. At [29]–[30] and elsewhere, his Honour provided adequate reasons to explain why he accepted the evidence of Mr N. His Honour noted in particular a “stream of emails and the numerous exchanges” between Mr N and the husband (at [30(a)]). That observation by his Honour must be read in the light of his Honour’s comment in [30(d)] highlighting the “number of likely opportunities for advice to be given”. This was an important aspect in his Honour’s reasoning.
At [30(g)], his Honour concluded that both the husband and the wife “knew that by proceeding with the financial agreement they were substituting any rights under the Act for the terms of the carefully drafted agreement”. His Honour was, at the very least inferentially, rejecting the husband’s assertion that he did not fully appreciate this fact. His Honour also specifically referred to Recital E(b) in [10(d)].
As we have stated earlier – to the extent that there is any conflict between Mr N’s evidence and the evidence of the husband – the primary judge preferred the evidence of Mr N. This much is recognised by the husband in the framing of Ground 3. This was largely a credibility based assessment by his Honour and our attention has not been drawn to any argument or evidence that would be sufficient to overturn the primary judge’s acceptance of the evidence of Mr N (ahead of the husband) – which led to his Honour’s finding of fact that Mr N provided the necessary legal advice. There is nothing to suggest that his Honour:[10]
… “has failed to use or has palpably misused his advantage”…or [that he] …acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
[10] Devriesv Australian National Railways Commission (1993) 177 CLR 472 at 479 and the other cases referred to earlier at [32]–[35] of these reasons.
There is no merit in Ground 3.
Did the primary judge err in making the declarations? (Ground 4)
Ground 4 is not, in fact, a separate ground of appeal. It is a general statement that the primary judge had erred in concluding that the financial agreement was binding on the parties. It was said that such conclusion was contrary to the evidence. It will be apparent from the manner in which we have addressed Grounds 1, 2 and 3 of this appeal that this Court rejects such a contention.
CONCLUSION AND COSTS
For the reasons stated, the appeal should be dismissed with costs. Each party provided a schedule of costs at the hearing of the appeal. The husband will be ordered to pay costs to the wife fixed in the sum of $19,553.33. We consider this costs order to be just in all the circumstances.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Bennett & Howard. Associate:
Dated: 20 May 2022
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