Ogilvy and Ogilvy - [2017] FamCA 626

FAMILY COURT OF AUSTRALIA

OGILVY & OGILVY

[2017] FamCA 626

FAMILY LAW – PROPERTY – INTERIM – Where there are competing applications on whether a Points of Claim document should be filed – Where there are questions about the validity of a financial agreement purported to be signed by the parties – Where the Court ordered the wife to file and serve Points of Claim document – Where an interlocutory order is made for the husband to pay $190,000 to the wife’s solicitors trust account to use to fund her litigation.

Family Law Act 1975 (Cth)

Rakete v Rakete (2012) 48 FamLR 325

APPLICANT:

Ms Ogilvy

RESPONDENT:

Mr Ogilvy

FILE NUMBER:

BRC

7538

2016

DATE DELIVERED:

22 August 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

24 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney QC

SOLICITOR FOR THE APPLICANT:

Rostron Carlyle Lawyers

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

Phillips Family Law

Orders

Pleadings

That within 28 days hereof the applicant wife shall file and serve a Points of Claim document, pleading the particular provisions of s 90K of the Family Law Act and any contentions of law she relies upon as grounds for the relief sought by her in paragraph 3 of the Initiating Application filed 3 August 2016, and all the material facts she contends will support the relief she seeks, but not the evidence by which the facts are to be proved.
The Points of Claim document shall include particulars necessary to define the issues for, and prevent surprise at, the trial, and to enable the husband to plead in response, and support any matters specifically pleaded such as fraud, duress, unconscionable conduct or undue influence.
If any of the particulars required to be included in the Points of Claim document are to be found in the wife’s affidavit filed 12 October 2016 it shall suffice to identify them with reference to the number of the paragraph within which they are found.
That within 28 days of the date of service upon the respondent husband of the Applicant Wife’s Points of Claim document, the respondent husband shall file and serve a Points of Defence document.

Litigation Costs Funding

By way of interlocutory order, the husband shall pay the sum of $190,000 to the wife’s solicitors’ trust account within 28 days hereof, such sum to be used by the wife only in the discharge of liabilities for legal costs and outlays incurred by her.

Disclosure

The applications for orders contained in paragraphs 3 and 4 of the orders sought by the wife in her Response to an Application in a Case filed 6 February are dismissed.

Further Directions

The matter is listed before his Honour Justice Forrest for further directions at 9.00 am on … November 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ogilvy & Ogilvy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7538 of 2016

Ms Ogilvy

Applicant

And

Mr Ogilvy

Respondent

REASONS FOR JUDGMENT

For immediate determination in these proceedings are competing interim applications for procedural orders that a pleading, called a “Points of Claim” document, be filed by the wife, interim litigation costs funding orders and disclosure orders.
Central to the dispute being litigated between the parties in the Court are questions about the validity of a document styled a “Financial Agreement” purported to be signed by the parties on 19 January 2004; whether it is a “financial agreement” for the purposes of the Family Law Act 1975 (“the Act”); if it is, whether it is “binding” within the meaning of s 90G of the Act; if it is, whether its provisions oust all of the provisions of Part VIII of the Act relating to property adjustment and spousal maintenance; and, if it is a “financial agreement” that is “binding” within the meaning of s 90G, whether it should be set aside pursuant to the provisions of s 90K of the Act.

The Substantive Proceedings

By Initiating Application filed on 3 August 2016, the wife seeks property adjustment orders and spousal maintenance orders against the husband by way of final orders. In that same application, she also seeks an order in the event that the document signed by the parties and dated 19 January 2004 is declared to be a financial agreement that is binding, that it “be set aside pursuant to s 90K of [the Act]”.
In his Response to Initiating Application filed 6 September 2016, the husband seeks a declaration, pursuant to s 90G(1B) of the Act, that the “Financial Agreement executed by the Applicant and Respondent on 19 January 2004 is binding” on the parties. He also seeks an order that the wife’s Initiating Application be struck out or dismissed.
On 7 September, 2016, with the consent of the parties, a Registrar of this Court made the following orders:
1.That within 28 days the Applicant Wife file and serve an affidavit, particularising the facts and circumstances relied upon by her in support of the order sought at paragraph 3 of the Initiating Application filed 3 August 2016 for the Financial Agreement dated 19 January 2004 to be set aside.
2.That within 28 days of receipt of the Applicant’s particulars, the Respondent shall either:
(a)File a (sic) serve an Application in a Case seeking such further or other particulars or such other relief as he may be advised; or
(b)File an Amended Response to Initiating Application responding with particularity to all claims made by the Applicant with respect to the validity of the Agreement dated 19 January 2004.
3.Within 28 days after the delivery of the Amended Response, each party shall make documentary disclosure with respect to all matters in issue relating to the validity or otherwise of the Financial Agreement dated 19 January 2004.
4.That the matter be listed for mention at 9.30am on 2 February 2017.
The wife filed her affidavit on 12 October 2016 and on 8 November 2016 the husband filed an Application in a Case in which he seeks the following order:
That within 28 days the Applicant Wife file and serve Points of Claim, pleading the contentions of fact and law, with specific reference to the particular provisions of the Family Law Act, relied upon as grounds for the relief sought by her in paragraph 3 of the Initiating Application filed 3 August 2016, identifying, with reference to the paragraph numbers of her Affidavit filed 12 October 2016, the contentions of law and fact to support each particular ground of relief, and if undue influence is pleaded, whether that influence is actual or presumed and if it is presumed undue influence, the particulars the relevant relationship.
The wife then filed a Response to that application on 6 February 2017. In that, she seeks the following orders:
1. That the Application in a Case filed 8 November 2016 be dismissed.
2.That the Husband pay the sum of $177,500 to the Wife by way of interim litigation funding, either as:
(a)a partial property settlement;
(b)a lump sum spousal maintenance payment;
(c)an interim costs order; or
(d)a preliminary payment of money owing to her pursuant to the document dated 19 January 2004.
3.That within 14 days the Husband provide the following documents to the Wife by way of disclosure:
(a)A copy of the Family Property Register provided for in paragraph 13 of the document dated 19 January 2004 (hereafter “family property register”) as at 3 August 2016
(b)A copy of the family property register at any other date the Husband asserts is the date of separation pursuant to the document dated 19 January 2004
(c)Copies of all independent valuations for any item in the Family Property Register provided for in paragraph 13 of the document dated 19 January 2004
(d)All documents and information relevant to the value of Husband’s interest in [B] Pty Ltd as at 19 January 2004.
4.That the Husband file and serve an affidavit within 14 days setting out:
(a)The details as to the process engaged in by the Husband in maintaining the family property register.
(b)The details as to the process engaged in by the Wife in maintaining the family property register, to the best of the Husband’s knowledge or confirmation that to the Husband’s knowledge, the Wife had no involvement;
(c)Details of the property that the Husband contends existed at the date of separation that falls within “Pool A” as defined in paragraph 12 of the document dated 19 January 2004 as at 3 August 2016 including the Husband’s estimate of value and the provision of any existing independent valuation;
(d)Details of the property that the Husband contends existed at the date of separation that falls within “Pool B” as defined in paragraph 12 of the document dated 19 January 2004 as at 3 August 2016 including the Husband’s estimate of value and the provision of any existing independent valuation;
(e)Details of the property that the Husband contends existed at the date of separation pursuant to the document dated 19 January 2004 that falls within “Pool C” as defined in paragraph 12 of the document dated 19 January 2004 as at 3 August 2016 including the Husband’s estimate of value and provision of any existing independent valuation;
(f)In the event that the Husband contends that the date of separation was a date other than 3 August 2016, the information in paragraphs 4(c), (d) and (e) at any other date the Husband asserts is the date of separation pursuant to the document dated 19 January 2004.
(g)Details of all acquisitions of “personalty” acquired by the parties “including by any entity corporate or otherwise” as required by clause 12 of the document dated 19 January 2004.
5.That the Husband’s Application in a Case and this Response be listed before a Judge of the Family Court of Australia and the listing before a Registrar on 2 February 2017 be vacated.
The matter was then listed to be heard by a Judge of this Court in a Judicial Duty List. Due to judicial resourcing deficiencies, it was not listed for hearing until 24 July 2017.

Some Background

The husband is a self-employed businessman, currently 56 years old. The wife is 42 years old and has not engaged in employment, other than for the husband when they were living together, since commencing cohabitation with the husband in October 2002. When they met and commenced their relationship, the husband was already married with two children.
The husband and wife have five children of their relationship. The eldest was born in 2003 and the youngest in 2009. Two of the five children are twins.
According to the wife, they became engaged to be married shortly after their first child was born and a few weeks later the husband told her that that he was going to organise a “financial agreement” and that they could not get married unless it was signed. Also according to the wife, she attended at the office of a Brisbane solicitor on 19 January 2004, saw a document called a “Financial Agreement” (“the written agreement”) for the first time and signed it that day. That same Brisbane solicitor signed a document, a copy of which is attached to the written agreement (called a “Certification by Wife’s Solicitor”), bearing the same date. Another Brisbane solicitor signed a document attached to the written agreement (called a “Certification by Husband’s Solicitor”), also bearing the same date. Those two solicitors (one of whom has since retired) are well known to the Court as very experienced, specialist family lawyers. The written agreement shows what purport to be signatures of the husband and the wife. There is no dispute that they are their signatures.
In 2004, the parties married. According to the wife, in December 2010 the husband informed her in writing that he was separating from her. She says they lived separately and apart in the same home until June 2011 when they reconciled. She says they separated again in November 2011 and in March 2012, she and the children moved to separate accommodation. The wife says that they reconciled again in July/August 2013 before finally separating in December 2015.
The wife says that her solicitors wrote to the husband in April 2016 asking for information from him about his financial position to which he did not respond. The wife then commenced these proceedings in August 2016.

The Husband’s Affidavit filed 6 September 2016

The husband filed an affidavit on 6 September 2016 in support of his application for a declaration that the written agreement is binding on the parties. He attached a copy of the written agreement. On its face, it is signed by the husband and the wife. It attaches the two Certificates signed by the solicitors that I have referred to. In those Certificates, each solicitor says he and she provided their respective client with advice, independently of the other party, before the client signed the written agreement, with such advice being as to the effect of the written agreement on their client’s rights and as to the advantages and disadvantages to the client, at the time the advice was provided, of making the agreement evidenced in the written agreement.
The husband also deposed in that affidavit to the following matters of fact:
(i)At the time of entering into the written agreement:
(a)he was contemplating entering into a marriage with the wife;
(b)he was not a party to any other binding agreement with the wife in respect of any of the maters dealt with by this written agreement;
(ii)The written agreement;
(a)was expressed to be made under s. 90B of the Act;
(b)records that it was made in contemplation of marriage;
(c)records that it intended to provide for how property and financial resources are to be dealt with in the event of a separation and to define the rights and responsibilities of either party to be maintained or to maintain pursuant to s. 72 of the Act;
(d)records how in the event of breakdown of the marriage, the property and financial resources of the parties would be dealt with and the maintenance that he would provide to the wife;
(iii)That he received an original version of the written agreement from his then solicitor or on about 16 March, 2004, which contained the two Certificates referred to;
(iv)That the written agreement has not been terminated or set aside by a Court;
(v)That he made a separation declaration on 6 September 2016 and caused that to be delivered to the wife’s solicitors.
The husband also attached a copy of the document he described as a separation declaration. It purports to bear the husband’s signature. It includes a declaration that he and the wife have separated and are living separately and apart and that he was of the opinion that there is no reasonable likelihood of cohabitation being resumed.
Having regard to that evidence, none of which is disputed by the wife at this point in time, and the provisions of sections 4, 90B, 90DA, and 90G(1) of the Act, prima facie, the written agreement is a “financial agreement” and is, as the husband plainly contends, “binding” on the parties. If it is, then pursuant to s 71A of the Act, Part VIII of the Act (which contains the sections pursuant to which spousal maintenance and property adjustment applications may be brought before the Court) does not apply to the financial matters to which the written agreement applies.
At the hearing before me, the Court was told that the husband relies upon the written agreement, its terms and accompanying Certificates, as prima facie evidence that the written agreement is binding on him and the wife and ousts the Court’s jurisdiction to make just and equitable property adjustment orders or spousal maintenance orders.
As observed, the wife seeks to have the written agreement set aside pursuant to s 90K of the Act if it is declared to be “binding” in terms of s 90G. But as Senior Counsel for the husband points out, she sets out no express basis in her actual application for her claim that it should be set aside if it is found to be “binding”. It is, in my view, trite to say the husband is entitled to know the case he is to meet in that respect. It is also safe to assume, in my view, that consideration and acceptance of that fact led to consent being given to the orders of 7 September, 2016.

What of sections 90K and 90KA?

The Act gives the Court the power to set aside a financial agreement that is otherwise considered to be binding pursuant to s 90G. Section 90K of the Act provides:
90K Circumstances in which court may set aside a financial agreement or termination agreement
(1)A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:
(a)the agreement was obtained by fraud (including non‑disclosure of a material matter); or
(aa)     a party to the agreement entered into the agreement:
(i)for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or
(ii)with reckless disregard of the interests of a creditor or creditors of the party; or
(ab)a party (the agreement party) to the agreement entered into the agreement:
(i)for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship with a spouse party; or
(ii)for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the de facto relationship; or
(iii)with reckless disregard of those interests of that other person; or
(b)      the agreement is void, voidable or unenforceable; or
(c)in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or
(d)since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or
(e)in respect of the making of a financial agreement—a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or
(f)a payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or
(g)the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB.
(1A)For the purposes of paragraph (1)(aa), creditor, in relation to a party to the agreement, includes a person who could reasonably have been foreseen by the party as being reasonably likely to become a creditor of the party.
(2)For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:
(a)the person is a parent of the child with whom the child lives; or
(b)      a parenting order provides that:
(i)       the child is to live with the person; or
(ii)the person has parental responsibility for the child.
(3)A court may, on an application by a person who was a party to the financial agreement that has been set aside, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons.
(4)An order under subsection (1) or (3) may, after the death of a party to the proceedings in which the order was made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(5)If a party to proceedings under this section dies before the proceedings are completed:
(a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and
(b)      if the court is of the opinion:
(i)that it would have exercised its powers under this section if the deceased party had not died; and
(ii)that it is still appropriate to exercise those powers;
the court may make any order that it could have made under subsection (1) or (3); and
(c)an order under paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(6)The court must not make an order under this section if the order would:
(a)result in the acquisition of property from a person otherwise than on just terms; and
(b)be invalid because of paragraph 51(xxxi) of the Constitution.
For this purpose, acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution.

Also relevant is s 90KA. It provides:
90KA Validity, enforceability and effect of financial agreements and termination agreements
The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court:
(a)subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and
(b)has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court; and
(c)in addition to, or instead of, making an order or orders under paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court.

The Wife’s Affidavit filed 12 October 2016

The wife filed an affidavit in purported compliance with that order of 7 September 2016. As observed, the order required her to file an affidavit “particularising the facts and circumstances relied upon by her in support of the order” that she seeks to have the written agreement set aside pursuant to s 90K of the Act if the Court declares it to be binding.
Her affidavit is 21 pages long without the annexures. It is 75 pages long with the annexures. It has 95 paragraphs in it. It has the following headings under which all of the wife’s evidence is set out:
·History of our relationship
·Events leading up to the signing of the written agreement
·Circumstances following our marriage
Addressing the wife’s affidavit in his submissions in support of the husband’s application for Points of Claim to be filed by the wife, Senior Counsel for the husband submits that it contains “irrelevant, scandalous and prolix evidence much of which cannot have any bearing on her sec 90K claim however pleaded”. I accept there is some merit in that submission. I do not consider there is any need now to set out any of the evidence that meets that description, but sadly, in my view, there is much of it.
An affidavit of a member of the firm of solicitors acting for the husband was filed on 8 November, 2016 in support of the husband’s application currently being considered. The solicitor deposed to the opinion that the firm is “unable to properly assist or advise the Husband on the issues in dispute or the response to be made, as the Wife’s Affidavit material does not provide any clarity as to the basis for the relief sought by her to have the Financial Agreement set aside.”
Although she does not expressly say what particular provisions of s 90K apply to the facts of this case, there is evidence in the wife’s affidavit from which the Court infers she is relying on ss 90K(1)(a), (1)(b) and (1)(e). These include the grounds of fraud, unconscionable conduct and that the agreement is void, voidable or unenforceable having regard to other principles of law and equity, such as uncertainty and undue influence. She does conclude the affidavit by expressly saying that she is asserting the written agreement is void for uncertainty with reference to a particular clause of the written agreement; that the agreement is “voided” as a result of undue influence because of the husband’s “grooming” her to sign it; and that it is voidable and/or should not be enforced “as a result of unconscionability”. In addition, she does expressly say that she “reserves the right” to rely upon s 90K(1)(d), which relates to a material change in circumstances having occurred in relation to a child or children of the marriage and she does link that to particular assertions of fact. Nevertheless, there is no other actual reference to the discrete provisions of s 90K upon which she relies in asserting that the written agreement, if declared to be “binding” because of s 90G, should be set aside. Neither is there truly a thorough and particular linking of the evidence she has deposed to with each s 90K discrete ground that she relies upon.
Plainly, as I have just identified, on my own reading of the affidavit and on my understanding of the submissions of Senior Counsel for the husband, parts of the wife’s case are readily discernible. However, I nevertheless consider there is merit in Senior Counsel’s submissions that a pleading is necessary because the Court’s power to set aside a “financial agreement” that is “binding” is predicated on its satisfaction that one or more of the prescribed states of affairs set out in s 90K is established and that such a process requires proof of facts capable of leading the Court to such a conclusion, and that the wife’s affidavit falls a long way short of clearly articulating and linking the law and the facts upon which she relies.
Senior Counsel for the Husband submits that the Points of Claim document that the husband asks the Court to order the wife to file serves the same purpose as a pleading. It has to be said that although it once was, this Court is no longer a Court in which pleadings are mandatorily required by its Rules. However, as Senior Counsel says, determining an application to set aside a “financial agreement” that is found to be “binding” under the Act is different from the discretionary exercise of determining just and equitable property adjustment orders or parenting orders that are in a child’s best interests. He submits that where matters such as fraud, undue influence, and unconscionable conduct are alleged against the husband, he is entitled “to see with some precision what it is that is alleged against him”. In making that submission Senior Counsel refers to the words of Burchett J of the Federal Court who said:
The primary function of (a statement of claim) is to tell the defending party what the claim is he has to meet. That is a matter of elementary and natural justice; the claim cannot be answered until it is known. When a sufficient defence has been filed to a sufficient statement of claim, a further function will generally have been performed – that of defining the question or questions for decision. The definition is required…from an early stage, or else discovery and other interlocutory procedures are likely to prove misdirected, wasteful and unproductive.
Those words are, in my view, instructive in these immediate circumstances.
Senior Counsel for the wife submitted in response that whilst it may indeed be reasonable to require the wife to plead her case in a Points of Claim document, she ought not be put to that obligation until she knows what the husband contends is the effect of the written agreement. In advancing this submission, Senior Counsel submitted, with reference to various provisions of the written agreement, that there is clear uncertainty in respect to some of its operative provisions and that the wife is uncertain as to the separation date according to the terms of the agreement and as to what she would be entitled to receive by way of property and spousal maintenance if the written agreement is binding.
Senior Counsel for the wife then rhetorically asked the questions as to whether there is “an agreement certain” in this case, a necessary requirement for there to be a contract enforceable at law, or as to whether the written agreement is void for uncertainty because one cannot determine how it operates.
They may very well be legitimate questions that might have to be answered by the Court in the substantive proceedings, but, in my judgment, at this stage of the proceedings, they do nothing more than highlight the need for the wife to make her own decisions about whether she continues to dispute the validity and binding nature under the Act of the written agreement that, prima facie, appears to meet the statutory requirements to be considered a “financial agreement” that is “binding” under the Act, or whether she alternatively litigates to enforce the terms of that written agreement.
I do not accept the submission that the onus is on the husband to firstly prove that the agreement is certain by informing the wife what he asserts she is entitled to receive pursuant to the written agreement before the wife pleads her case. If, as is plainly the case, the wife asserts that the written “financial agreement” that prima facie appears to be “binding” in terms of s.90G and s.71 of the Act, should be set aside because it is void, voidable or unenforceable pursuant to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts (s 90K(1)(b) and s 90KA), or for some other ground set out in s 90K, it is for her, in my view, to properly plead how she will make that out before the husband is required to plead his response. I do not consider that he is under any obligation to tell her in advance of her pleading her case what he considers she is entitled to receive on a proper construction of the agreement.
I consider the process of properly defining the issues in this case that will commence with the filing of a Points of Claim document will not only make the husband properly aware of the claim he truly has to meet, but will also provide great assistance to the Court in understanding the matters it has to determine. I will so order, but in slightly different terms to those sought by the husband, so as to make clear what the Court requires of the wife in her pleading. Of course, this pleading process will conclude with the filing by the husband of a Points of Defence document in response and my orders will provide for that also.

Interim Litigation Costs Funding

The wife seeks an order that the husband pay her $190,000 for her to use to fund her litigation.
The husband concedes, through the submissions of Senior Counsel, that the Court may make orders for the interim provision of litigation expenses pursuant to s 117(2) as they would be orders “as to costs” in “proceedings under this Act”. I accept that concession is undoubtedly correct. See Rakete v Rakete (2012) 48 FamLR 325 in which Kent J applied In the Marriage of Zschokke (1996) 20 FamLR 766; (1996) FLC 92-693 and Strahan v Strahan (interim property orders) (2009) 42 FamLR 203; (2011) FLC 93-466 to determine in a case such as this that s 117(2) is a source of power for this Court to make an order for the interim provision for litigation expenses.
For an interim costs order to be made there must first be justifying circumstances and, if there are, the Court may make such order as it considers just.
For the husband, it is submitted that an order for the payment of $120,000 to the wife’s solicitors in the first instance for her use in meeting her legal costs, with follow up payments on a dollar for dollar basis as the husband pays his lawyers, would be a just order. Implicit in that submission is a concession that there are justifying circumstances in this case. I accept that there are.
I am ordering, on the application of the husband, that the wife file a pleading in the case that sets out the contentions of law and fact that she relies upon in her case that the written agreement they each signed be set aside if it is determined to be a “financial agreement” that is “binding” within the terms of the Act. She will clearly need the advice and assistance of lawyers in complying with this. The husband is a wealthy individual who has engaged experienced, specialist solicitors and Senior Counsel. The wife asserts in her evidence that the husband has been uncooperative in his approach to resolving their financial dispute to this time and also asserts that he took what might be described as a fiercely combative approach to the resolution of his financial dispute with his first wife. The husband has not adduced evidence to contradict the wife’s assertions. I consider they are likely to be true.
A case is made out for the wife, that I accept, that any orders made pursuant to s 79(1) of the Act will see her receive more than the amount she asks for or that the husband is prepared to pay her for her costs. I also accept the submission that pursuant to the written agreement, if it is declared to be a “financial agreement” that is “binding” under the Act to which s 71 applies, and the wife is unsuccessful in having it set aside, she will receive more pursuant to its terms than the amount she asks for or that the husband is prepared to pay.
The husband does not assert that he does not have the financial capacity to meet the order sought by the wife. I am satisfied that he does.
The wife does not currently have the financial capacity to continue to meet her legal representatives’ costs and outlays. These circumstances all justify the making of an interim costs funding order.
The wife’s solicitor deposed to an affidavit that was filed in February this year. In that she said that the wife owed her firm approximately $70,276 at that time and she estimated that the costs and outlays likely to be incurred in bringing the matter before the Court, including participating in mediation, would be a further $87,300 to $107,500.
It appears to me that the proceedings will now require a discrete trial to determine the issues around the validity of the written agreement and whether it is a “financial agreement” that is “binding” and, if it is, whether it should be set aside. The wife will likely wish to instruct one or more of a number of barristers she has retained in the matter, some of whom are of comparable seniority to Senior Counsel for the husband, who I would expect is likely to continue to appear for him. She is entitled to do that and it is not inappropriate. Those barristers will cost her a lot of money. She asks for $190,000, with $70,000 of that (plus another $20,000 - $30,000 after this application is determined) likely to be used to discharge liabilities for existing costs and outlays. I expect she could very well need all of the difference between $190,000 and that which will be used to discharge existing liabilities to pay for her costs and outlays through to the conclusion of such a discrete hearing into the validity and binding nature of the written agreement.
Whilst I expect the husband will also be spending a lot of money in defending the wife’s proceedings as well, I do not consider any particular issue of justice requires the amount he pays to the wife to be limited to $120,000 and thereafter to be paid dollar for dollar as he pays for his own legal representation. The wife has asked for $190,000 and I consider that to be an appropriate amount at this point in time.
The husband has asked for specific orders restricting the use of money paid to her to her legal costs. I accept that as just. He has asked for orders that she depose in an affidavit to be filed closer to the finality of the proceedings to the costs she has paid from the funds. I consider the transparency that he is apparently seeking thereby to already be provided for within the Family Law Rules through the obligation imposed on the lawyers to give their clients costs notices and to give the other party and the Court copies of those.
The husband also seeks orders that provide for how the money paid to the wife is to be dealt with in the proceedings. He wants an order that any amount paid to her is repaid to him if the written agreement is found to be binding and she receives money pursuant to it. He wants an alternative order that if the written agreement is set aside and the wife becomes entitled to a property adjustment pursuant to s 79 of the Act, that any amount she is paid be characterised as a partial property settlement. The wife opposes any such orders.
My orders in respect of this litigation costs funding issue will be made using the Court’s power to make a costs order by way of interlocutory order. I do not intend to fetter the discretion of the trial judge to make any final costs orders as determined just at the time, or to treat this payment as he or she considers appropriate at the time. I will not make those particular orders the husband seeks.
The orders I will make are set out at the commencement of these written reasons. I consider them just.

Disclosure

As submitted by Senior Counsel for the wife, the wife seeks specific disclosure of the husband in relation to the operation of the written agreement in determining the rights and entitlements of the parties. Particularly, she seeks copies of what is called “the family property register”, a term used in the written agreement at clause 13. Clearly, that clause contemplated the creation of a document called a “family property register”. That clause specifically says:
To facilitate the categorising of property in paragraph 12, the parties shall maintain a family property register in which they will note the following:
13.1    the date of acquisition of the property;
13.2    a proper description of the property;
13.3    the name in which such property is acquired and/or registered;
13.4    the interest acquired, expressed in percentage terms; and
13.5    which category the property falls into, ie, Pool A, Pool B or Pool C.
The wife also seeks copies of all independent valuations for any item in the family property register. As well as all documents and information relevant to the value of the husband’s interest in a company as at 19 January, 2004. That date, of course, is the date of the execution of the written agreement. The wife says that the husband had an interest in a company that he did not disclose to her at the time of the execution of the written agreement. That is, seemingly, part of her case that the husband obtained the written agreement by “fraud (including non-disclosure of a material matter)” (s 90K(1)(a)). The wife also seeks an order that the husband file and serve an affidavit setting out facts pertaining to the keeping of the family property register and details of the property he contends falls within the various “Pools” of property that are referred to in the written agreement. She also wants the husband to depose in that affidavit to the date of separation he contends for and as to the details of acquisitions of personal property as required by clause 12 of the written agreement.
Senior Counsel for the wife submits in paragraph 25 of his written submissions that the husband seeks a declaration that the written agreement is ‘binding’ on the parties and that he also seeks to have it enforced so as to determine the entitlements of each and, more particularly, that to be paid to the wife pursuant to the terms of the agreement. Senior Counsel for the husband submits that the husband does not seek its enforcement, but rather merely that it be declared to be ‘binding’ on the parties.
In the husband’s Response filed 6 September, 2017, he seeks a declaration specifically pursuant to s 90G(1B) that the written agreement is binding on the parties to it. He does not expressly ask that it be enforced. That is probably because, on any reading of that agreement and the evidence in this matter to date, if it is declared to be binding on the parties, it is the husband who will have to pay some amount of money, or transfer property, to the wife. Presumably, he expects, if successful in defending the wife’s application to have the agreement ‘set aside’ if it is declared binding, to have the opportunity to determine the extent of the obligations he understands the agreement to impose upon him. If that is what happened, and the wife considered that it was insufficient, it would be for her to seek enforcement of the agreement.

That said, s 90G(1B) provides:
For the purposes of paragraph (1A)(d), a court may make an order declaring that a financial agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement.
Considering the wording of that subsection, although the husband says he is not seeking to “enforce” the agreement, by seeking an order declaring the written agreement to be binding on the parties pursuant to s 90G(1B) the husband can truly be understood to be seeking to “enforce” the agreement. He is the one who is asking the Court to determine that it binds him and the wife in the sense that s 71 of the Act applies and prohibits the Court from making orders pursuant to Part VIII of the Act contrary to the terms of the agreement.
All of that said, I note the submissions of Senior Counsel for the husband that before the pleadings close, it is premature to require disclosure or the filing of the affidavit sought by the wife, as neither the Court nor the husband know the nature and particulars of the wife’s case nor the husband’s defence to her claims until that pleading process is complete. He describes the wife’s application as a “pre-pleading discovery exercise” designed to look for unspecified material that might assist her in her as yet un-pleaded case. I consider there is merit in that submission.
In determining to dismiss this part of the wife’s application that is before me as premature at this stage, I harken back to the words of Burchett J previously cited in paragraph 28 of these reasons. There his Honour said:
The definition [of the questions for decision] is required … from an early stage, or else discovery and other interlocutory procedures are likely to prove misdirected, wasteful and unproductive.
Bearing that in mind, at the same time as remembering that I am ordering the husband to pay a lot of money to the wife to assist her with paying for her legal costs and outlays at this interlocutory stage, I am of the view that the definition of the issues to be decided is required before any specific disclosure orders are considered. Then the disclosure that is obligated in the ordinary course will become clear to the parties, and if there are disputes about that they will more readily be determined by this Court.
I make the orders set out at the commencement of these written reasons.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 August 2017.

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