Piper v Mueller
[2015] FamCAFC 241
•18 December 2015
FAMILY COURT OF AUSTRALIA
| PIPER & MUELLER | [2015] FamCAFC 241 |
| FAMILY LAW – APPEAL – PROPERTY – Whether a financial agreement is binding on the parties – Where parties executed a single financial agreement which purported to be a financial agreement entered pursuant to Part VIIIA and Part VIIIAB of the Family Law Act 1975 (Cth) – Where parties in a de facto relationship and engaged to marry – Where marriage did not eventuate – Whether there was strict compliance with s 90UJ – Nature of legal advice – Whether unjust and inequitable for agreement not to be binding on the parties – Whether the two agreements needed to be in separate documents – Where no error is established – Appeal dismissed. |
| Family Law Act 1975 (Cth) s 90B(1), s 90DA, s 90G, s 90UB, s 90UC(1A), s 90UF, s 90UJ Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (No. 15 of 2008) (Cth) Family Law Amendment Act 2003 (No. 138 of 2003) (Cth) Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009 (No. 122 of 2009) (Cth) |
| Black and Black (2008) FLC 93-537 De Winter and De Winter (1979) FLC 90-605 Hoult & Hoult (2013) FLC 93-546 J & J [2006] FamCA 442 Neil v Jacovou (2011) FLC 93-475 Provident Capital Ltd v Papa (2013) 84 NSWLR 231 Russell v Quinton [2000] NSWSC 322 Stead v State Government Insurance Commission (1986) 161 CLR 141 Wallace & Stelzer and Anor (2013) FLC 93-566 Whatley & Whatley [2007] FamCA 1671 |
| APPELLANT: | Mr Piper |
| RESPONDENT: | Ms Mueller |
| FILE NUMBER: | BRC | 3829 | of | 2012 |
| APPEAL NUMBER: | NA | 80 | of | 2014 |
| DATE DELIVERED: | 18 December 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ryan, Murphy & Aldridge JJ |
| HEARING DATE: | 26 May 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 December 2014 |
| LOWER COURT MNC: | [2014] FCCA 2659 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Black |
| SOLICITOR FOR THE APPELLANT: | P. M. Lee & Co |
| SOLICITOR FOR THE RESPONDENT: | Porter Davies Lawyers |
Orders
The appeal be dismissed.
The appellant pay the respondent’s costs of the appeal as agreed or if not agreed, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Piper & Mueller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 80 of 2014
File Number: BRC 3829 of 2012
| Mr Piper |
Appellant
And
| Ms Mueller |
Respondent
REASONS FOR JUDGMENT
Ryan & Aldridge JJ
Introduction
On 21 August 2009 Mr Piper (“the appellant”) and Ms Mueller (“the respondent”) entered into an agreement said by the respondent to be a binding Part VIIIAB financial agreement pursuant to s 90UJ of the Family Law Act 1975 (Cth) (“the Act”).
At trial, the appellant contended that the document was not a binding financial agreement because it impermissibly purported to be an agreement pursuant to both Part VIIIA and Part VIIIAB of the Act. He also contended that he was not given the advice required to be given to him in order for the agreement to be binding. In the event either of the appellant’s contentions were accepted the respondent sought to uphold the agreement pursuant to s 90UJ(1A) of the Act. That is, on the basis it would be unjust and inequitable for the parties to not be bound by it.
Judge Willis (“the trial judge”) found the agreement was a binding Part VIIIAB financial agreement. The appellant’s application for the agreement to be set aside was dismissed. The appellant now appeals the orders and declarations made by the trial judge.
Background
The parties met in May 2003 and commenced a relationship in May 2004. They became engaged in May 2005. The trial judge found that the relationship ended in April 2010.
On 2 May 2012 the appellant filed an Initiating Application seeking a declaration that the agreement entered into between him and the respondent on 21 August 2009 was not binding. As well as raising the contentions already set out, he sought to have the agreement set aside on a number of grounds which are now not relevant.
On 21 June 2013 Judge Spelleken ordered that the following three questions be determined as preliminary questions:
a Whether the agreement dated 29 August 2009 is a “Part VIIIAB financial agreement” within the meaning of that term in the Family Law Act 1975;
b Whether the agreement dated 29 August 2009 is binding on the parties under Section 90UJ of the Family Law Act 1975;
c Whether the agreement dated 29 August 2009 should be set aside under Section 90UMJ(1)(e) or Section 90UM(1)(h) of the Family Law Act 1975.
On 3 December 2014 the trial judge declared that the agreement was a binding financial agreement under s 90UJ of the Act and dismissed the appellant’s application.
The August 2009 Agreement
The agreement is headed “Financial Agreement Pursuant to Section 90B and 90UC of the Family Law Act 1975 (as amended)”. Relevantly, the recitals to that agreement provide:
…
C.[The respondent] and [the appellant] have been living together as de facto spouses since the 19th May 2004.
D.[The respondent] and [the appellant] may marry in the future and wish this Agreement to have effect whether they marry or not.
E.[The respondent] and [the appellant] intend their relationship to be permanent but nevertheless wish to define their financial rights and responsibilities during their relationship and if a breakdown should occur. They wish to reduce the possibility of resorting to litigation in the future if their relationship should come to an end.
…
L.The parties desire:
a)so far as is possible to contract out of the provisions of Part VIIIA and Part VIIIAB of the Family Law Act 1975 to the extent set out in this agreement, if their marriage breaks down irretrievably.
b)to enter into a financial agreement under Section 90B and 90UC of the Family Law Act 1975, providing how, in the event of a breakdown of their relationship, their property and financial resources at the date of this Agreement, or after acquired, are to be dealt with, and/or the maintenance of each of them.
M.No other Agreement is in force under Section 90B, C or D or 90UC of The Family Law Act 1975.
N.Before each party signed this Agreement they received independent legal advice from a Legal Practitioner as to:
a) the effect of the Agreement on that parties [sic] rights
b) whether or not, at the time, the advice was provided, it was to the advantage, financially or otherwise, of that party to make the Agreement
c) whether or not, at the time, it was prudent for the party to make the Agreement.
d) whether or not, at the time, and in the light of such circumstances as were at that time reasonably foreseeable, the provisions of the Agreement were fair and reasonable.
The operative terms of the agreement then set out in detail the manner in which the assets of the parties were to be divided between them in the event the agreement came into operation. Clauses 8 and 9 defined how that was to occur as follows:
…
8.The relationship of the parties will be deemed to have broken down irretrievably if they have been living separately and apart for not less than one (1) month and one notifies the other in writing that he or she is of the opinion that the relationship has broken down irretrievably.
9.If the relationship of the parties shall have broken down irretrievably, [the respondent] shall receive a share of the assets of the parties (other than inheritance and gifts and the chattels set out Annexure A to the First Schedule) [“the respondent’s share”] calculated in accordance with the following formula:-
GS = GNAV x A
B
Where GS shall be [the respondent’s] Share.
Where GNAV shall be [the respondent’s] Net Asset Value.
Where A shall be the Consumer Price Index (All Groups) being the weighted average of 8 Capital cities last published immediately before the irretrievable breakdown of the relationship.
Where B shall mean the Consumer Price Index (All Groups) being the weighted average of 8 Capital cities last published immediately before the date hereof.
…
Clause 25 of the agreement provides:
25.The Agreement is a financial agreement made pursuant to Section 90B and 90UC of The Family Law Amendment Act 1999 and relates to certain financial matters between the parties in substitution for any rights under Part VIIIA and Part VIIIAB of The Family Law Act 1975, if their relationship shall break down irretrievably during the period, whilst at the same time preserving the jurisdiction of the Family Law Act 1975 in relation to certain other financial matters.
The word “marriage” only appears in Recital L. There the parties refer to their desire to contract out of the provisions of Part VIIIA and Part VIIIAB “if their marriage breaks down irretrievably” and to enter into an agreement under s 90B and s 90UC which is to apply “in the event of the breakdown of the relationship”. The operative terms of the agreement only contain the phrase “breakdown of the relationship” and do not use the word marriage.
The trial judge’s reasons
We shall refer only to those parts of the trial judge’s reasons that are relevant to the appeal.
After discussing the facts, her Honour turned to an analysis of Part VIIIA of the Act. Her Honour noted that s 90B(1) of the Act refers to “people who are contemplating entering into a marriage” and that s 90G of the Act sets out the requirements which must be met before an agreement is binding under this Part. Her Honour then noted that s 90G was amended pursuant to the Family Law Amendment Act 2003 (No. 138 of 2003) (Cth) (“the 2003 amendments”) with effect from 14 January 2004. This amendment had the effect of altering the requirements for the provision of legal advice. As originally enacted in 2000, s 90G(1)(b) provided that a financial agreement would be binding on the parties to the agreement if, and only if:
(a)…
(b)the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:
(i)the effect of the agreement on the rights of that party;
(ii)whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement;
(iii)whether or not, at that time, it was prudent for that party to make the agreement;
(iv)whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable; and
(c)…
As to the provision of legal advice recorded in the agreement and certified by a legal practitioner, s 90G(1)(b) of the 2003 amendments (as amended) provided:
(1)A financial agreement is binding on the parties to the agreement if, and only if:
(a) …
(b)the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:
(i)the effect of the agreement on the rights of that party;
(ii)the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and
(c) …
Her Honour then turned to the amendments made to Part VIIIA by the Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009 (No. 122 of 2009) (“the 2009 Amending Act”). The amendments to s 90G commenced operation on 4 January 2010. The amendments it made to s 90G are not relevant to the present case. However, that Act introduced s 90G(1A), which conferred a new power on the court to declare that a non-compliant agreement may nonetheless bind the parties. This provision operated retrospectively and applied to agreements already entered into under Part VIIIA (see Sch 5 Pt 1 item 8 of the 2009 Amending Act). The effect of that Act was described in Wallace & Stelzer and Anor (2013) (2013) FLC 93-566 at 87, 589 as follows:
72. The trial judge was correct in holding that (subject to the required evidence being available) the agreement in this case would be a binding financial agreement on the basis of either of the following two approaches:
(1)By the application of item 8, in that pursuant to 8(1) the agreement complied with ss 90G(1)(a), (b) and (c) as inserted by the 2009 amendments because:
· the agreement was signed by all parties;
· 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;
· the agreement has not been terminated and has not been set aside by a court;
and pursuant to item 8(6) it was unnecessary for the requirements of ss 90G(1)(c) and (ca) concerning legal advisers’ certificates to be met.
(2)By the application of item 8A in that the agreement complied with the requirements of sub-item 8A(2) because the parties had been provided with legal advice about the following matters as specified in that sub-item, being:
· the effect of the agreement on the rights of that party;
· whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement;
· whether or not, at that time, it was prudent for that party to make the agreement;
· whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable;
and there was no necessity for compliance with sub-item 8A(3).
Part VIIIAB was introduced by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (No. 115 of 2008). Her Honour noted Part VIIIAB had never required that there be advice given or certificates provided similar to s 90B as originally enacted.
In dealing with the submission that a financial agreement cannot be both an agreement under s 90B (Part VIIIA) of the Act and s 90UC (Part VIIIAB) of the Act at the same time her Honour said at [179] – [181]:
179.I have considered this submission and the circumstances in Sullivan & Sullivan. I find that I am able to distinguish the circumstances in Sullivan from the scenario in the present case. In the present case, the parties did not have a different status to each other at the time they each signed the agreement. I am satisfied, accepting the evidence of the respondent over that of the applicant for the reasons explained earlier, that both parties were still engaged when they each signed the agreement. Further, I am not satisfied that the two provisions, s.90B and s.90UC are mutually exclusive. Section 90B refers to those “contemplating marriage.” These parties were engaged and therefore contemplating marriage. Section 90UC refers to making a financial agreement whilst in a de facto relationship. These parties were in a de facto relationship. I am not satisfied that by making an agreement under both of these sections of the Act, that this is a fatal technical error or fatal to the agreement. The parties in this matter fitted in my view, squarely under each section.
180.One could imagine the argument if only of those sections was noted in the agreement. The party wishing to be relieved of the obligations under the financial agreement could simply argue a different section should have been identified as the relevant section, rather than the one that was included on the financial agreement. These parties were both simultaneously engaged and living in a de facto relationship. Whilst I accept that upon their ultimate marriage, the agreement would cease to be binding, pursuant to s.90UJ (3), neither of these parties gave any evidence about any impending marriage. The applicant agreed that they had been engaged for years and were in no rush to marry, and the respondent stated that the act of being engaged was a commitment in itself.
181.In all of the circumstances therefore I do not accept that s.90UJ (3) is a barrier to both sections being included in the agreement. I do not accept that the agreement is flawed or not binding because it is expressed to be under these two sections. It seems to me that these are the type of technical issues that lead to the introduction of the Efficiency Measures Act 2010 which was in response to Black and Black, which illustrates what the legislators intended in this remedial legislation, which was not a narrow strict interpretation of the requirements of an agreement.
(Footnotes omitted)
The trial judge then considered the argument of the appellant that he had not been given the legal advice required. Her Honour found the agreement had been drawn up by the appellant’s solicitors and that he received his own legal advice. The only evidence as to the advice that the appellant actually received was that given by him in his affidavit filed 5 November 2013 in which he said:
I was only given oral advice before I signed the agreement and whilst I do not remember the details of my discussion with [the appellant’s then solicitor], I have read “Recital N” of the agreement and I believe this would record the nature of the advice I was given.
The effect of that evidence, to which no objection was taken, is that the appellant received advice as to the effect of the agreement on the parties’ rights, whether or not it was to the appellant’s advantage, financially or otherwise, to make the agreement, whether or not it was prudent for him to make the agreement and whether or not at the time, and in the light of such circumstances as were at that time reasonably foreseeable, the provisions were fair and reasonable.
Her Honour concluded at [173] – [177]:
173.As to the wording shown in the agreement, Counsel for the applicant is correct in that reference to “advantages, financially or otherwise” has never been the requirement for a Part VIIIAB agreement. I accept that the single judge decision of J & J, a decision 8 years ago now of Justice Collier confirms that in the circumstances of that case, His Honour was not satisfied that the appropriate advice had been given. Having read that decision closely, I accept that His Honour was not satisfied that the appropriate advice had been given. I am not, however, satisfied that His Honour was troubled by the difference between the expression “advantages financially and otherwise” and advice as to the “advantages and disadvantages”. Rather, it seems to me His Honour was concerned with the issue of what was actually showing on the certificate relating to what advice was given. The issue of the different kinds of advice provided, and the essential difference between them, is discussed at paragraph 27 of His Honour’s decision which reads:
“Mr Harrison very persuasively says that if I look at paragraph 1.15.2 particularly I can take that to mean that the advice that was given was whether or not the agreement was to the financial advantage or otherwise of the husband. He argues that those words in that form must mean, if the advice was given as to financial advantage or otherwise in a financial sense, that “otherwise” must mean disadvantage. On the face of it there is some force in that argument. The certificate however omits commas that clearly appear in the repealed subsection. That subsection referred to advice as to whether the agreement was to the advantage, financially or otherwise, of the party receiving the advice. For what it is worth, the certificates annexed also contain the commas where I have indicated.
I am not able to be satisfied therefore that paragraph 1.15.2 of the agreement can of itself establish to me that the advice that was given was advice that meets the requirements of the existing subsections (1) (i) and (ii)” (emphasis added).
174.The meaning of the word “otherwise” is defined in the Macquarie dictionary as including: in another manner, differently, in other respects. In the context of “otherwise” following “advantages” it is not difficult to accept that this would conceivably include the disadvantages.
175.In the circumstances of this case, I am inclined to the view that the nature of the legal advice more than likely included disadvantages as encompassed in the term “otherwise”.
176.His Honour’s decision and discussion as seen in paragraphs 19 onwards of his decision is in line with the strict approach adopted by the Full Court in Black and Black. It is this strictness and narrow approach that was intended to be addressed by the introduction of the 2010 Efficiency Measures Act.
177.I am satisfied that in the matter in question, that each party had legal advice also about the disadvantages of the agreement.
(Original emphasis) (Footnotes omitted)
Finally, assuming for this purpose that deficient legal advice had been given, her Honour considered whether, notwithstanding that deficiency, it would be unjust and inequitable for the agreement not to be binding pursuant to s 90UJ(1A) of the Act.
The trial judge took into account that during the relationship each of the parties signed various agreements dealing with their property. All of the agreements included terms to the effect that the appellant would not make a claim on the respondent’s assets. The trial judge found, at [193], that the appellant had always had the upper hand in the financial affairs of the relationship and he was prepared “…to exploit his personal relationship with the respondent as a mechanism to advance his own interest of that of his companies and trusts to the detriment of ‘the woman I love’”. In addition, the trial judge took into account that the appellant took advantage of the respondent based on their personal relationship and the respondent being somewhat naïve in business.
The trial judge concluded at [197] – [201]:
197.Mr Rounsefell for the respondent submits that it would be unjust and inequitable if the agreement were not binding on the spouses. His primary submission is that it would be to the disadvantage of the respondent if the agreement that the parties entered into was not upheld. Mr Rounsefell submits that the parties got advice; they each saw solicitors, that the documents make it abundantly clear that each party wanted to keep their own assets, that both parties were adults, that they have each been advised that they knew what they were doing and that having gone to all the trouble of seeking advice and being advised it would now be unjust and inequitable for the document to be held invalid.
198.Mr Rounsefell says that it was the intention of both parties that this agreement would deal with their financial arrangements and that neither of them would have resort to the Family Law Act
199. I accept the force of Mr Rounsefell’s submissions.
200.Overwhelmingly it is clear to me that the applicant’s conduct is unconscionable in that he has unilaterally made decisions to his own advantage and to the respondent’s disadvantage. In considering the issue of whether it would be unjust and inequitable if the agreement was not binding on the spouse parties, there are overlapping considerations in terms of also consideration whether the respondent has engaged in unconscionable conduct when seeking to set aside the agreement.
201.After considering all of these circumstances I am satisfied that it would be unjust and inequitable if this agreement is not binding between the spouse parties. Further I am satisfied that it would be unconscionable for the agreement not to be upheld.
Discussion of the grounds of appeal
Ground 1 – The Federal Circuit Court erred in finding that the document signed by the Appellant on 7 August 2009 and signed by the Respondent on 21 August 2009 (the “Agreement”) was a “Part VIIIAB financial agreement” under s 90UC of the Family Law Act 1975
The appellant’s submission is that it is not possible for financial agreements pursuant to s 90B and s 90UC to be validly contained within the one document. It was conceded by the appellant that the parties could enter into financial agreements under each of these sections simultaneously provided they are in a separate document.
Reliance was placed on s 90B which provides:
(1)If:
(a)people who are contemplating entering into a marriage with each other make a written agreement with respect to any of the matters mentioned in subsection (2); and
(aa)at the time of the making of the agreement, the people are not the spouse parties to any other binding agreement (whether made under this section or section 90C or 90D) with respect to any of those matters; and
(b) the agreement is expressed to be made under this section;
the agreement is a financial agreement. The people may make the financial agreement with one or more other people.
The point is that s 90B requires there to be a marriage in contemplation.
On the other hand, s 90UC has as its essential basis a continuing de facto relationship. Section 90UC(1) provides:
(1) If:
(a) while in a de facto relationship, the parties to the de facto relationship make a written agreement about any of the matters mentioned in subsection (2) in the event of the breakdown of the de facto relationship; and
(b) at the time of the making of the agreement, the parties to the de facto relationship are not the spouse parties to any other Part VIIIAB financial agreement that is binding on them with respect to any of those matters; and
(c) the agreement is expressed to be made under this section;
the agreement is a Part VIIIAB financial agreement. The parties to the de facto relationship may make the Part VIIIAB financial agreement with one or more other people.
The submission then proceeded that when s 90UJ(3) is taken into account (a Part VIIIAB financial agreement ceases to be binding if the de facto parties marry), the parties must elect which financial agreement they wish to enter and choose to proceed on the basis of the existing de facto relationship or the marriage in contemplation. Further, it was submitted that having regard to the provisions in operation at the time of the financial agreement, the different financial agreements require different advice.
In our view, it is unremarkable for a document to contain more than one agreement. An obvious example is a document which contains, as an adjunct to a primary agreement, a guarantee.
There is no necessary conflict between people being currently in a de facto relationship and also contemplating marriage. As in this case, couples in a de facto relationship can intend to marry. Subject, of course, to any provisions of the Act, there is no reason why a single agreement could not deal with the distribution of their assets on the breakdown of their de facto relationship or the ending of their subsequent marriage.
However, it is quite clear that financial agreements under Parts VIIIA and VIIIAB are quite distinct.
Here the parties were in a de facto relationship and thus entitled to enter into a financial agreement under s 90UC. They were also contemplating marriage by reason of which they were entitled to enter into a financial agreement pursuant to s 90B.
Section 90B(1)(aa) specifically prevents parties to a s 90B financial agreement from entering into another financial agreement to which s 90C (during a marriage) and s 90D (after divorce) apply. A similar scheme (that is before, during and after a de facto relationship) applies under Part VIIIAB by the application of s 90UB(1)(b). Importantly, however, the Part VIIIA exclusion contained in s 90B(1)(aa) does not preclude a Part VIIIAB financial agreement and vice versa. This is a powerful indication that the two financial agreements can exist concurrently and in the one document.
This notion is reinforced by the fact that only one of these financial agreements could have operative effect at any one time. This is because the s 90B financial agreement would only operate in the event of a breakdown of the marriage (s 90B(2)(a)) which, of course, requires a prior marriage. On the other hand an agreement under s 90UC ceases to be binding if the parties to the agreement marry each other (s 90UJ(3)). Thus, it is possible for parties to enter into an agreement under s 90UC which is binding and operates while they continue in a de facto relationship and by operation of law ends immediately upon their marriage. On the other hand, a s 90B financial agreement only comes into operation when the parties marry. The two agreements therefore are complimentary, not exclusionary. Both may be binding on the parties from the time of execution but, as we have explained, only one can have operative effect.
As has been noted earlier, the operative terms of the parties’ agreement refer to “breakdown of the relationship” and not “breakdown of a marriage”. Assuming for a moment that the precise phrase “breakdown of marriage” must appear in an agreement under s 90B for it to be binding, this, at best, would mean that there would be no valid Part VIIIA financial agreement. We do not see how that difficulty would prevent the agreement being a valid Part VIIIAB financial agreement.
As the ground is solely concerned with the validity of the Part VIIIAB financial agreement this is sufficient to deal with this aspect of the matter.
As to the submission that different types of advice would need to be given so as to ensure the validity of the agreements, it is not readily apparent to us that this would be so. Even if it were so, there is no reason why both types of advice could not be given to a party prior to signing a document containing both agreements.
It follows that without more, there is no statutory imperative which requires that these agreements must be contained in separate documents. If the circumstances were such that the two agreements contained within the one document had different formal requirements in order to be binding, it may well be necessary for both sets of formal requirements to be complied with for both agreements to be binding. Failure to do so may have the effect that one or both of the agreements was not binding, but that is not a reason why the two agreements could not be in the one document.
Finally it was submitted that having both agreements in the one document renders s 90UJ(3) nugatory because clause 9 of the agreement would continue to have effect regardless of the marriage. This submission, if correct, would prevent the parties from having both these agreements in place at the one time, whether or not they were in the one document. However, the submission misunderstands the true construction of the document. Properly construed, clause 9 would cease to operate upon the marriage of the parties, as far as it formed part of the Part VIIIAB financial agreement, but would simultaneously spring to life as part of the Part VIIIA financial agreement upon the marriage.
This ground does not succeed.
Ground 2 – The Federal Circuit Court erred in finding that the Appellant was provided with the legal advice required by s 90UJ(1)(b) before signing the Agreement
Once it has been found that the agreement in the present case was an agreement entered into pursuant to s 90UC, s 90UJ(1)(b) applied. That subsection requires each party to be provided with 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…”. As has been seen, the actual advice that was provided is the advice set out in Recital N. It is to be emphasised at this point that this submission is not concerned with the sufficiency or otherwise of the certificates annexed to the agreement, it is concerned with the actual advice provided to the appellant. Due to the peculiarities of the way that evidence was given, it does however draw attention to the form of the certificate, which is in the same terms as Recital N. Thus, the analysis is of the inferences that can be drawn from the evidence, and not whether the certificate complies with the Act.
In relation to the nature of the advice, the trial judge construed the phrase “whether or not at the time it was to the advantage, financially or otherwise” to find that the appellant was given advice as to the advantages and disadvantages of making the agreement. We accept the submission of the appellant that her Honour erred in doing so because the words “financially or otherwise” qualify the word “advantage” so that there is in fact no reference to disadvantage.
Secondly, we are of the view that the decision of Collier J in J & J [2006] FamCA 442 as quoted by her Honour was correctly decided on this point and ought to have been followed. That aspect of the decision was followed by Coleman J in Whatley & Whatley [2007] FamCA 1671.
Whilst her Honour correctly noted that J & J was a case concerned with whether a certificate complied with the Act, and not the sufficiency of the actual advice given, this was not a basis for distinguishing that part of the judgment dealing with the words “advantage, financially or otherwise”. It should have been followed and applied.
The question then becomes whether the other words in Recital N can be used to infer that advice was given as to the disadvantages of the agreement. This was also considered by Collier J in J & J where his Honour said at [31] – [32]:
31.…Subparagraph (2) I have already dealt with to some extent. I am satisfied that what is meant by the certificate as to what was explained, was whether it was to the advantage, financially or otherwise, of the person to whom the certificate was supplied to enter into the agreement. It was obviously explained on the face of the certificate that it was prudent for the party to enter into the agreement. Finally, it was explained that at the time and in the light of circumstances foreseeable, the provisions of the agreement were fair and reasonable.
32.Even when one combines (2), (3) and (4), in my view, and regrettably, they fall short of me being able to be satisfied that at the time the appellant signed the agreement there had been explained to him the advantages and disadvantages of him entering into the agreement…
In Black and Black (2008) FLC 93-537 the Full Court adopted the reasoning of Collier J in J & J, but that adoption was primarily as to the construction of and compliance with s 90G(1)(b) of the Act rather than the construction of the certificate. In a similar vein, J & J has been referred to in a number of primary judgments. The issue discussed in [31] and [32], however, seems not to have been the subject of consideration in the cases other than in Whatley.
It is instructive to consider the evidence by reference to decisions of other courts.
Under s 31 of the Family Provision Act 1982 (NSW), which applied until it was repealed on 3 March 2009, the Supreme Court of New South Wales could approve an agreement under which a person released their rights under the Act, such an agreement having no effect if not so approved. In hearing an application for a release pursuant to s 31(5) of that Act, the court was required to have regard to all of the circumstances of the case, including whether:
(a) it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release,
(b) it is or was, at that time, prudent for the releasing party to make the release,
(c) the provisions of any agreement to make the release are or were, at that time, fair and reasonable, and
(d) the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice.
On such an application for approval, Bergin J in Russell v Quinton [2000] NSWSC 322 said at [70] – [75]:
Was it prudent?
70.A prudent person is one who acts with care and thought for the future in particular exercising care and good judgment in relation to one's own interests.
71.The deceased informed the plaintiff that the purpose of the Deed was to give comfort to his parents that their home would not be at risk if he and the plaintiff ended their relationship. The Deed purported to achieve much more than exclusion of the deceased's parents home from a claim by the plaintiff.
72.By 1984 the plaintiff had already made a contribution as homemaker over the preceding seven years and had worked full time to support herself. She was giving up rights in circumstances where it seems that to have maintained such rights would not have put the deceased's parents' home at risk.
73.She was advised that it was not prudent for her to sign the Deed. However the plaintiff believed that it was fair, in particular, because she wanted to continue in her relationship with the deceased. It was only in that regard that she was looking after her future interests. However the balance of her interests were in my view overlooked, or lost focus of, in the pursuit of the desire to remain in the relationship with the deceased. I am of the view that the signing of this Deed lacked good judgment and was not prudent.
Fair and Reasonable
74.Prima facie the Cohabitation Deed presents as fair and reasonable. Here were two parties who wished to enter a Deed to reflect what each of them thought at the time was fair. Each wanted to exclude the other from making a claim on their respective assets. Each had taken legal advice and accepted that the Deed should be signed.
75.But on investigation it is clear that the plaintiff was complying with a request to placate third parties (the deceased's parents) rather than signing a Deed to govern what she really wanted. The giving away of her rights in the circumstances of the relationship that had developed with the deceased in my view was not fair and reasonable.
In Neil v Jacovou (2011) FLC 93-475 Slattery J explained these paragraphs saying, at 85, 814:
64.… When considering whether the release was “prudent” within Family Provision Act s 31(5)(b), the Court should consider that a prudent person is someone who acts with care and thought for the future, in particular in exercising care and good judgment in relation to his or her own interests: Russell v Quinton [2000] NSWSC 322 [70] Though the releasing party may have had independent legal advice, whether that party gave due consideration to that advice is a relevant factor: Russell v Quinton [2000] NSWSC 322 [76]
In an entirely different context the Court of Appeal of New South Wales said in Provident Capital Ltd v Papa (2013) 84 NSWLR 231, at 253 per Macfarlan JA:
80.In my view, a reasonable solicitor in the position of Mr Caramanlis would have formed the view that Mrs Papa’s home, and the business which constituted her livelihood that she conducted from it, would be significantly endangered by her entry into the transactions with Provident. A reasonable solicitor giving her independent legal advice in relation to the transactions would not in my view have failed to draw to Mrs Papa’s attention, in strong terms, that her home and livelihood was dependent upon the viability and prospects of the gymnasium, specifically on the ability and willingness of her son to make the loan repayments out of the income from the business, and to recommend, again in strong terms, that she obtain financial advice, independent of her son, concerning the capacity of the business to service the loan. A solicitor’s obligation is not simply to explain the legal effect of documents but to advise his or her client of the obvious practical implications of the client’s entry into a transaction the subject of advice. The prospect of the subject transaction wreaking havoc on Mrs Papa’s life was glaring, given the by no means remote prospect that the business would be unable to support the loan repayments.
The significance of these cases is that, in determining what is “prudent”, the court looks to the future and the interests of the person in taking, or not taking, the proposed course. In other words, whether a particular course is prudent involves consideration of the advantages and disadvantages of the proposed course. Similarly, an assessment of whether the provisions of an agreement were fair and reasonable, necessarily involves a consideration of the advantages and disadvantages of those provisions.
The evidence established that the appellant had received advice as set out at [19] above. That evidence gives rise to the inference that the appellant had been given advice as to the advantages and disadvantages of making the agreement. Advice as to whether making the agreement was prudent, or whether its provisions were fair and reasonable must have involved such consideration and advice. How else could advice be given that the proposed course was prudent, or the terms fair and reasonable?
The trial judge did not draw this inference. Had she done so it must necessarily follow that the appellant had been given the requisite advice under s 90G. The inference is an obvious and clear one. Therefore, albeit for reasons other than those relied upon by the trial judge, her Honour was correct in finding that the appellant received advice about the advantages and disadvantages of making the agreement. This ground does not succeed.
We stress again that this case was not a case about the sufficiency of the certificate. J & J was such a case. This aspect of the case concerns the evidence before the court, the meaning of that evidence, and what inference could properly be drawn from it. In any event, it is likely that the validity of the certificates was not in issue because, as was pointed out in Wallace & Stelzer, in the circumstances of this case, retrospective compliance with the requirements of the Act was met by the parties receiving the requisite advice.
Ground 3 – The Federal Circuit Court erred in finding that the Agreement was binding on the parties under s 90UJ of the Family Law Act 1975
The appellant submits that the trial judge took into account irrelevant material as her Honour considered the terms of the financial agreement and its apparent “fairness”.
In relation to this issue, her Honour, at [197] – [199], said:
197.Mr Rounsefell for the respondent submits that it would be unjust and inequitable if the agreement were not binding on the spouses. His primary submission is that it would be to the disadvantage of the respondent if the agreement that the parties entered into was not upheld. Mr Rounsefell submits that the parties got advice; they each saw solicitors, that the documents make it abundantly clear that each party wanted to keep their own assets, that both parties were adults, that they have each been advised that they knew what they were doing and that having gone to all the trouble of seeking advice and being advised it would now be unjust and inequitable for the document to be held invalid.
198.Mr Rounsefell says that it was the intention of both parties that this agreement would deal with their financial arrangements and that neither of them would have resort to the Family Law Act
199. I accept the force of Mr Rounsefell’s submissions.
We do not agree that these remarks support the proposition that the trial judge took into account the terms of the agreement and its fairness. Rather, their import is the steps taken by the parties to put in place an agreement that would deal with their assets in the event the relationship ended. These were relevant considerations that carried considerable and appropriate weight. The reference to the word “disadvantage” in her Honour’s reasons at [197] is clearly a reference to the disadvantage of an agreement not being in place as opposed to the disadvantage of losing the benefit of the particular terms of this agreement.
It was then submitted that in the exercise of her discretion, the trial judge did not take into account that the non-compliance with the requirements of the Act was substantial. Reliance was placed on what fell from the Full Court in Hoult & Hoult (2013) FLC 93-546 where Strickland and Ainslie-Wallace JJ said at 87, 298 – 87, 299:
307.We have referred to the fact that his Honour in paragraph 57 provided a range of factors that it would be appropriate to consider when exercising the discretion. The only factor that we suggest is not available is the last one, but if there is to be a list of factors identified we would prefer the following, all of which are to be found in his Honour’s reasons:
•The terms of the section, the nature of a financial agreement as a creature of the Act, and the place of Part VIIIA within the overall scheme of the Act.
•The nature and extent of the non-compliance with the requirements of s 90G(1).
•The facts and circumstances surrounding the making of the agreement including, in particular, if one of the parties has complied with all of the mandatory requirements necessary to render the agreement binding.
•How the parties have acted subsequently in relation to the agreement (bearing in mind that changes of circumstances cannot be considered).
We do not accept that the nature of the non-compliance was substantial. The evidence of the appellant as to what advice he received was cursory. The trial judge found that the appellant had the agreement drawn up by his own solicitors on his own instructions. He had the benefit of legal advice before signing the agreement. Only then was it sent to the respondent for her to sign. Her Honour found, at [48], “Only when faced with this evidence (after the parties found a copy of the agreement with the applicant’s solicitors name shown as having drawn the document up) did he concede this was so”.
Earlier her Honour had found, at [46]:
… I consider the applicant was tailoring his evidence to suit his own case, using lack of memory, obfuscation and giving inconsistent evidence. When issues arose that were contrary to the applicant’s case, his response is to try and distance himself from the action or conduct, or blame somebody else.
The evidence does not establish that there was a failure to give the requisite legal advice to the appellant. It was not something that her Honour considered was necessary to take into account. However, if one were to take into account the nature of any non-compliance with the obligation to provide legal advice as required by the Act, we consider that would strengthen the case for it being unjust and inequitable for the agreement not to be binding, rather than the converse.
Accordingly, we are not satisfied that there is any error in the approach of her Honour to this question and this ground also fails.
Costs
Submissions were sought as to the costs of the appeal. Counsel for the appellant submitted that if the appellant was unsuccessful a costs order should not be made against him but that there was little that could properly be said against such an order. The appropriate order is that the appellant pay the respondent’s costs of the appeal.
Murphy J
I respectfully agree with Ryan and Aldridge JJ that nothing within the Act precludes a financial agreement from including an agreement pursuant to s 90B of the Act and s 90UC of the Act. Accordingly, I agree that no error is demonstrated in respect of Ground 1 and I respectfully agree with their Honours’ reasons for that conclusion.
I also respectfully agree that there is no merit in Ground 3 (which challenges the application of s 90UJ(1A) and, in any event, only becomes relevant if, contrary to the views of each of us in this Court, the Part VIIIAB financial agreement is not binding by reason of, relevantly, the failure to provide advice of the required type). Her Honour was entitled to take into account a broad range of matters relevant to the exercise of the discretion inherent in s 90UJ(1A). At [190] to [200] of the reasons, her Honour did so. None of the matters there considered are, in my opinion, irrelevant to the exercise of the discretion. Specifically, the premise inherent in the appellant’s argument (that her Honour considered the fairness of the terms of the parties’ agreement) is in my view not sustainable by reference to her Honour’s reasons.
With respect to the trial judge, I consider that she erred in the manner in which she concluded that the requirements of s 90UJ as to advice were met so as to render the parties’ financial agreement binding. However, I consider her Honour’s conclusion that the agreement was binding within the meaning of that section to be plainly correct. I agree, then, with the conclusion reached by Ryan and Aldridge JJ but wish to record why I consider that to be so.
The Issue Before the Trial Judge
While two types of financial agreement can be contained within the one document, only one type of financial agreement can be operative when called into effect or challenged. Whether one type of financial agreement rather than the other is “binding” within the meaning of the relevant section of the Act depends on the circumstances existing at that time. Here, when the appellant contended that the financial agreement was not binding, the parties remained unmarried. As a consequence, if the parties’ interests in property were not to be amenable to determination or alteration by the court, their agreement must be “binding” as a “Part VIIIAB financial agreement”. Whether that is so was to be determined by reference to s 90UJ.
Section 90UJ(1) provides:
When financial agreements are binding
(1) Subject to subsection (1A), a Part VIIIAB financial agreement (other than an agreement covered by section 90UE) 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.
Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995.
None of the requirements of s 90UJ(1) was in issue before her Honour save for whether the required advice had been given to the appellant. That issue fell to be answered by reference to the evidence before her Honour which pertained to that issue. The only evidence which her Honour had before her in that respect was:
·The short paragraph in the affidavit evidence of the appellant quoted by Ryan and Aldridge JJ in their Honours’ reasons;
·The content of the certificates signed by the parties’ respective solicitors. It was not in issue that these constituted the only “statement” relevant to the requirements in s 90UJ(1)(c) and (ca) and that they were, as sub-paragraph (ca) requires, provided to the parties; and
·Recital N of the agreement.
The terms of Recital N and the certificates of each of the solicitors were, relevantly, identical. Recital N records:
Before each party signed this Agreement they received independent legal advice from a legal practitioner as to:
a) the effect of the Agreement on that parties rights
b) whether or not, at the time, the advice was provided, it was to the advantage, financially or otherwise, of that party to make the Agreement
c) whether or not, at the time, it was prudent for the party to make the Agreement.
d) whether or not, at the time, and in the light of such circumstances as were at that time reasonably foreseeable, the provisions of the Agreement were fair and reasonable.
As a consequence, the sole question to be resolved by her Honour in respect of this issue became whether that evidence was sufficient to conclude that the appellant had received the advice required by s 90UJ. Her Honour found that it was. The issue raised by Ground 2 on this appeal is whether that conclusion was erroneous.
The Trial Judge’s Conclusion
The trial judge said:
174.The meaning of the word “otherwise” is defined in the Macquarie dictionary as including: in another manner, differently, in other respects.[1] In the context of “otherwise” following “advantages” it is not difficult to accept that this would conceivably include the disadvantages.
175.In the circumstances of this case, I am inclined to the view that the nature of the legal advice more than likely included disadvantages as encompassed in the term “otherwise”.
[1]Footnote in original. The reference is to Susan Butler, Macquarie Australian Encyclopaedic dictionary (The Macquarie Library Pty Ltd, 2006).
The passages just referred to, and a reading of her Honour’s judgment as a whole, make it clear that her Honour considered that the answer to the question of whether the appellant received the advice required by s 90UJ was arrived at by considering whether use of the expression “advantage, financially or otherwise” in Recital N permitted the inference that the relevant s 90UJ(1)(b) requirement had been met. Her Honour held that it was. I respectfully disagree and consider her Honour erred in that respect. For reasons I will shortly give, I consider that her Honour misdirected herself by confining the question in the manner to which I have just referred.
The question which her Honour posed for herself arose, as it seems to me, from the fact that the words just quoted from Recital N are the same as the then requirements of s 90G which were the subject of consideration by Collier J in J & J.[2] Ryan and Aldridge JJ conclude that Collier J’s judgment “should have been followed and applied” by the trial judge. I respectfully disagree. I do not consider that any principle emerges from that case which her Honour was bound to follow in the interpretation of s 90UJ and its application to the advice in the instant case.
[2] [2006] FamCA 442.
I consider that her Honour was correct in holding that Collier J’s comments pertain to the then s 90G’s requirements for what was to be contained in the agreement and the relevant certificates (which then were required to be annexed to the agreement). The then s 90G made it clear that it was to that question that his Honour’s decision needed to be directed: a point made clear not only by reference to the then terms of s 90G but also by the decision of this Court in Black and Black.[3]
[3] (2008) FLC 93-357 at [42] – [45].
Unlike the then iteration of s 90G, its post-2009 iteration, which is in material respects, identical to s 90UJ, does not concern what the Explanatory Memorandum in respect of the 2009 amendments described as “technical requirements that must be strictly satisfied”.[4] Earlier iterations of the former section were concerned with the precise contents of the agreement and the certificate mandatorily required to be attached to it. Now, each of s 90G(1)(b) and s 90UJ(1)(b) requires advice with specified characteristics to be given.
[4]Explanatory Memorandum, Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 (Cth), Outline re Schedule 5.
Despite s 90UJ(1)(c) requiring the provision of a statement to each party “stating that the advice referred to in paragraph (b) was provided to that party”, it is not a requirement to use that paragraph’s terminology in the statement itself. Neither s 90UJ, nor the post-2009 iteration of its Part VIIIA analogue s 90G, requires the advice given, or a description of it, to be included in the agreement. Nor does either require the statement required by sub-s (1)(c) to be annexed to the agreement. Both earlier iterations of s 90G are to be contrasted in each respect.[5]
[5]The initial iteration can be seen in Black and Black (2008) FLC 93-357 at [20]. The 2003 amendment can be seen in J & J [2006] FamCA 442 at [16].
The question under the former iterations of s 90G(1)(b), one of which was the subject of Collier J’s decision, was whether the content of the agreement met the requirements. The question under the post-2009 iteration of s 90G(1)(b), and under s 90UJ(1)(b), is whether the advice meets the specified requirements. The evidence informing the former question is the agreement itself and the certificates; the evidence in respect of the latter question is of potentially broader compass. This exact point was central to Parliament’s intention in effecting the 2009 amendments to s 90G, which are mirrored in s 90UJ.[6] Thus, while counsel’s submissions in that case referred to by Collier J were there not to the point, they may well have been to the point if the question was that which is now required under s 90G or s 90UJ.
[6]Ibid, also Item 68 of the Explanatory Memorandum, Federal Justice System Amendment (Efficiency Measures) Bill (No 1) 2008 (Cth) (above).
To the extent that Collier J purported to answer the question as to whether advice as to “the advantage, financially or otherwise” of making the agreement is advice which satisfies s 90G, it was not a question his Honour was required to answer in that case. To the extent that Collier J sought to answer the question as to whether that expression should be seen, by use of the word “otherwise”, to encompass disadvantages, it was not a question his Honour was required to answer.
In my view, her Honour correctly apprehended that the question confronting her in respect of s 90UJ was different to the question confronting Collier J in respect of the then s 90G. Where her Honour erred, however, (perhaps as a result of the focus on Collier J’s decision in the arguments before her) is in confining the question before her to whether the expression “advantage, financially or otherwise” and, in particular, the use of “otherwise” permitted of a finding that the required advice has been given.
I agree with Ryan and Aldridge JJ in their acceptance of the submission of the appellant that the comma used in the relevant phrase points strongly to the words “financially or otherwise” qualifying the word “advantage.” That, in turn, strengthens the argument that “advantage” is used as an expression exclusive of disadvantage. The result is that I agree with their Honours that the trial judge erred in concluding as she did in [174] and [175] quoted above.
Beyond that, in my respectful view, that error prompted a further error, namely her Honour misdirecting herself as to the relevant question. The question her Honour had to answer was whether, on the whole of the evidence before her, she could find to the relevant degree of satisfaction that the advice required by s 90UJ had been given to the appellant.
The evidence before her Honour was not confined to the fact that the advice rendered to the appellant was as to the “advantage, financially or otherwise” of making the agreement. Recital N is evidence of advice comprising a number of components. The evidence before her Honour was that advice was given as to “advantage, financially or otherwise” of the agreement and whether the agreement was “prudent” and whether in light of the then circumstances, “the provisions of the agreement were fair and reasonable”.
The question for her Honour was whether, taken together that evidence permits to the required degree of satisfaction that s 90UJ’s requirements as to the nature of the advice were satisfied. To the extent that her Honour confined the question in the manner earlier indicated, as in my respectful view she did, I consider respectfully that her Honour misdirected herself and erred.
Notwithstanding error, is her Honour’s conclusion plainly correct
Notwithstanding the establishment of a material error of fact, an appellate court can nevertheless uphold the trial decision if the relevant error “could have made no difference” and that “the conclusion reached was correct, notwithstanding the error”.[7] Equally the High Court has made it clear that caution should attend such a course, noting that it is one thing to conclude that a material error of fact made no difference with the result that the judgment below should be upheld and, on the other hand, an appellate court upholding the judgment “simply because the order was well within the range of the discretion of the primary judge”.[8]
[7]De Winter and De Winter (1979) FLC 90-605, 78, 091 – 78, 092. See also: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.
[8]De Winter and De Winter (1979) FLC 90-605, 78, 091 – 78, 092. See also: Stead v State Government InsuranceCommission (1986) 161 CLR 141 at 145 (where the High Court also urged caution in the context of an appeal with respect to a failure of natural justice).
In the instant case the evidence in respect of the essential question was of extremely narrow ambit. The parties below had every opportunity to advance such evidence as they might choose in respect of that question and did so. The appellant specifically deposed to having no recollection of the relevant advice given by his solicitor and relied upon Recital N.[9] There was no factual controversy below about matters central to the answering of the essential question earlier set out.
[9]I doubt whether that evidence was admissible (in effect, the appellant deposes to a belief about an assumption). However that evidence was not the subject of objection below nor an issue raised before this Court.
The caution referred to by the High Court is ameliorated by reference to those circumstances. In my view, notwithstanding the errors to which I have referred, her Honour’s conclusion that the financial agreement is binding within the meaning of s 90UJ is plainly correct and should stand.
The evidence clearly establishes the appellant was given advice in respect of the four specific matters enumerated within Recital N. The use of the conjunctive “and” indicates that all four of those specific matters were addressed in the advice. The Recital also records that a qualified legal practitioner has provided the relevant independent advice (and has given no evidence either contrary to that which is contained in Recital N or otherwise).
I am entirely persuaded that the giving of advice by such a person as to whether it is “prudent” to make the agreement combined with advice as to whether the terms are at that time, “fair and reasonable” combined with whether it is to the “advantage, financially or otherwise” for the appellant to enter the agreement permits of a finding that, in fact, the appellant has been given advice as to the “advantages and disadvantages” of making the agreement as s 90UJ requires.
Ryan and Aldridge JJ arrive at a similar conclusion by reference, in particular, to analogous provisions of a piece of State legislation (albeit that that legislation, in stark contrast to s 90UJ, and the statutory scheme applicable to financial agreements, involves court supervision and the exercise of a judicial discretion in relation to it). A similar point might be reached by, for example, reference to dictionary definitions of “prudent” which include “judicious or wisely cautious in practical affairs; discreet or circumspect”;[10] or “characterized or proceeding with care in following the most politic and profitable course; … circumspect,” [11] noting in particular that the latter word is defined, in turn, to mean “… cautious, wary, taking everything into account.”[12]
[10] Macquarie Dictionary (Macquarie Library, 2009, 5th ed).
[11] The New Shorter Oxford English Dictionary (Oxford University Press, 1993).
[12] Ibid.
While reference to either the legislation and authorities referred to by Ryan and Aldridge JJ or dictionary definitions can be each seen to reinforce the conclusion reached, it is a conclusion in any event open in my view by reason of the application of the appropriate standard of proof to the relevant question.
That conclusion does not offend any principle emerging from Black and the cases which have applied it. Earlier iterations of s 90G required “strict compliance” with requirements for what was to be recorded in the agreement itself and its compulsorily-annexed certificates. The current s 90G, and s 90UJ are also to be applied strictly for the reason given in Black: an agreement over which the court has no supervisory role precludes, if binding, access to a court determination of property interests or adjustments to them. That is satisfied by demanding proof of the required matters if the application of s 90UJ is in issue.
The consequence is that the appellant has been given advice of the type required by s 90UJ (as has the respondent) and the Part VIIIAB financial agreement is binding.
Conclusion
The appeal should be dismissed.
I agree that, in light primarily of the appeal being wholly unsuccessful, the appellant should pay the respondent’s costs of and incidental to the appeal.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Murphy & Aldridge JJ) delivered on 18 December 2015.
Associate:
Date: 18 December 2015
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