Johanson & Johanson

Case [2022] FedCFamC1A 74

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 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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…

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AGLC
Johanson & Johanson [2022] FedCFamC1A 74
Case
[2022] FedCFamC1A 74
Decision Date

CaseChat Overview and Summary

The appeal was brought by the husband against the orders of the Family Court of Australia dismissing his application to have a financial agreement declared non-binding. The husband argued that he had not received the independent legal advice required by s 90G of the Family Law Act 1975 (Cth) and therefore the agreement was not binding. The wife argued that the husband had received the requisite advice and the agreement was binding. The legal issues were whether the primary judge erred in finding that the husband had received the independent legal advice and whether the primary judge erred in declaring the financial agreement to be binding on the parties. The court found that the primary judge did not err in his findings of fact and that there was no merit in the husband's appeal. The appeal was dismissed and the husband was ordered to pay the wife's costs in a fixed sum.

The court considered the evidence and found that the husband had received the independent legal advice required by s 90G of the Family Law Act 1975 (Cth). The court found that the husband had received advice from his lawyer, Mr N, about the effect of the financial agreement on his rights and the advantages and disadvantages of making the agreement. The court found that the husband's evidence was not credible and that the primary judge's findings of fact were supported by the evidence. The court found that the primary judge had adequately reasoned his decision and that there was no error in law. The court found that the financial agreement was binding on the parties and that the husband was required to comply with his obligations under the agreement. The court dismissed the appeal and ordered the husband to pay the wife's costs in a fixed sum of $19,553.33.

Orders

Orders of the court

NAA 13 of 2021

BRC 6694 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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).

Background

Background to the litigation

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].

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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)].

Ratio Decidendi

Legal Principle Established

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.