Suffolk and Suffolk (No. 2) - [2009] FamCA 917

FAMILY COURT OF AUSTRALIA

SUFFOLK & SUFFOLK (NO. 2)

[2009] FamCA 917

FAMILY LAW – FINANCIAL AGREEMENT - Whether financial agreement binding – Strict compliance – Whether after the agreement was signed the original agreement or a copy of it was given to the wife – Statutory provision not complied with – Financial agreement not binding

Family Law Act 1975 (Cth) s90G1(b) and (e)

3D Scaffolding Pty Ltd v Commissioner of Taxation [2009] FCAFC 75
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Black & Black (2008) FLC 93-357; [2008] FamCAFC 7
Browne v Dunn [1894] 6 R 67
Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) 229 ALR 136; [2006] FCA 446
Cook’s Constructions Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] QSC 179
J and J [2006] FamCA 442
Jones & Dunkel (1959) 10l CLR 298
LC v TC (1998) FLC 92-803
Whatley & Whatley [2007] FamCA 1671

APPLICANT:

Ms Suffolk

RESPONDENT:

Mr Suffolk

FILE NUMBER:

BRC

4720

2008

DATE DELIVERED:

4 September 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O’Reilly J

HEARING DATE:

15 and 22 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hall

SOLICITOR FOR THE APPLICANT:

Chan Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hackett

SOLICITOR FOR THE RESPONDENT:

Hirst & Co

Orders

IT IS DECLARED

The financial agreement made by the parties and dated 10 August 2004 is not a financial agreement binding on the parties under s90G(1) of the Family Law Act 1975 (Cth).

AND IT IS ORDERED ACCORDINGLY

The financial agreement made by the parties and dated 10 August 2004 is set aside.

IT IS NOTED that publication of this judgment under the pseudonym Suffolk & Suffolk is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC4720/2008

MS SUFFOLK

Applicant

And

MR SUFFOLK

Respondent

REASONS FOR JUDGMENT

The parties married in August 2004. They separated in mid 2007.
On 10 August 2004 the parties signed a financial agreement, expressed to be pursuant to s90B of the Family Law Act1975 (Cth) (the Act).
Section 90G(1) of the Act provides, and as at that date provided:
(1)A financial agreement is binding on the parties to the agreement if, and only if:
(a)the agreement is signed by all parties; and
(b)the agreement contains, in relation to each spouse 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)the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and
(d)the agreement has not been terminated and has not been set aside by a court; and
(e)after the agreement is signed, the original agreement is given to one of the spouse parties and a copy is given to each of the other parties.
In Black & Black (2008) FLC 93-357;[2008] FamCAFC 7, the Full Court held that strict compliance with the statutory requirements in s90G(1) is necessary to oust the Court’s jurisdiction under s79 of the Act: see at [45], last sentence. In so determining, the Full Court approved Collier J in J and J [2006] FamCA 442 in relation to s90G:
19.To my mind, the words that appear in section 90G(1) ‘if and only if’, are words of real significance. They have a meaning. They import a requirement for a level of compliance, if the agreement is to be binding, that is clearly a standard or level above and beyond what might be described as substantial compliance. Those words ‘if and only if’ make it clear that each of the parties must ensure that that which is required to be contained and dealt with in the agreement, and the annexures to it, is in fact contained, appropriately and completely. Compliance must therefore be a full compliance, satisfying the statutory requirements.
20.Something approaching full compliance, or something that if looked at in a less than strict light, might come close to establishing compliance, is not enough. Clearly, the legislation intended that if this method of parties resolving their differences was to be used without any supervisory power of a Court, in a situation where parties’ rights were to be affected, then that which was to be done had to be done fully in compliance with that which the statute set out and required.
Black was a case decided in relation to s90G as it stood in September 2002, prior to amendments effective from 14 January 2004 (see at [20]). However, nothing turns on that. It is common ground that strict compliance with s90G as it stood as at 10 August 2004 is necessary to oust the Court’s jurisdiction under s79 of the Act.
The wife contends that the financial agreement is not binding. The husband contends that the financial agreement is binding. In support of her contentions, the wife raises two issues:
(a)contrary to s90G(1)(e), after the financial agreement was signed, neither the original nor a copy was given to her;
(b)contrary to s90G(1)(b), the financial agreement does not contain, in relation to each party, a statement complying with its requirements in that the statement in the financial agreement contains the words “entering into the Agreement” in relation to each party instead of the words used in s90G(1)(b)(ii) “making the agreement” (clauses 16(b) and 17(b); and the wording in the certificates annexed to the financial agreement suffers the same deficiency.

Section 90G(1)(e)

Section 90G(1)(e) requires that “the” original agreement be given to one of the spouse parties and that “a copy” be given to “each of the other parties”. However, it appears that some three or four originals were signed by both parties.
The husband contends that the wife was given an original or a copy of the financial agreement on four occasions:
·    on 10 August 2004 at X Solicitors, immediately following signing by the husband, the wife was given an original or a copy by Mr X, solicitor, acting for the husband
·    a few days or perhaps a week after 10 August 2004 the wife received a letter from her solicitors Y Solicitors enclosing a copy of the agreement signed by her
·    a copy was given to the wife’s Counsel at Court on 1 September 2008
·    a copy was sent to the wife’s solicitors by the husband’s solicitors under cover of a letter dated 15 May 2009.
I will deal with each of these in turn.

10 August 2004

It is common ground that on 10 August 2004 the parties drove to the office of the wife’s solicitors Y Solicitors, where at about 10am the wife signed the financial agreement witnessed by her solicitor Mr Y.
The husband says that after leaving Y Solicitors he and the wife drove to his lawyers X Solicitors where he signed the financial agreement witnessed by his solicitor by Mr X.
The husband says that on 10 August 2004 at the office of X Solicitors after the husband had signed the agreement and Mr X had signed as his witness (the signing, according to Mr X, being of at least two but “probably three” originals, and according to the husband “at least” four originals) Mr X put two originals into two envelopes (one into each envelope) and handed one envelope to the husband and one envelope to the wife, and that he saw Mr X put one of the originals into an envelope and hand it to the wife. The husband does not contend in his own evidence that he (himself) gave an original or a copy to the wife.
The husband’s affidavit provides:
20.After I had completed signing the documents I handed them back to Mr [X]. He then handed to me the original copy of the Financial Agreement signed by both the Wife and I and our respective Solicitors.
21.I then observed that Mr [X] handed to the Wife a copy of the Financial Agreement signed by both of us and our respective Solicitors. He said “here is a copy for you” or words to that effect. I observed that the Wife took the copy from Mr [X] in his office. We then both left the office of Mr [X] and we left the offices of [X Solicitors].
The wife denies that she attended at X Solicitors with the husband on 10 August 2004 and denies thus that on that date she was given by Mr X an original or a copy of the agreement signed by both herself and the husband. She says that the first time that she saw a copy signed by herself and the husband was at Court on 1 September 2008, after the commencement of these proceedings.
Mr X, who did not provide an affidavit, said in an early part of his oral evidence that the wife “had received it” (T32/23) and later “yes, look it was given to her” (T32/41). In these parts of his evidence (and similar) Mr X plainly purported to “swear the issue”, without saying specifically that he gave an original or a copy to the wife or that he saw the husband give an original or a copy to her. Indeed, as will be seen, Mr X’s evidence is that he could not recall either giving an original or a copy (or any envelope) to the wife himself, or seeing the husband give an original or a copy (or any envelope) to the wife at the office of X Solicitors on 10 August 2004 after signing by the husband.
The upshot thus is that the husband does not contend that he gave an original or any copy to the wife on 10 August 2004, but that Mr X did, whereas Mr X said that he has no recollection of doing any such thing.
Rather, as will be seen, it is likely, having regard to Mr X’s evidence overall, that he gave two originals to the husband, one for the husband and one for the husband to give to the wife, and that Mr X had no conversation with or dealings with the wife on 10 August 2004.
Nonetheless, Mr Hackett urged that I should find, in accordance with the husband’s case, that Mr X gave an original or a copy to the wife on 10 August 2004, or at least, in all of the circumstances of the case, infer that it is more probable than not that on 10 August 2004 at X Solicitors the wife received an original or a copy signed by both parties.
The context of Mr X’s evidence of the events at X Solicitors on 10 August 2004 is important. Mr X said that when the husband and the wife arrived at the office of X Solicitors, he and the husband went to an interview room and “they both wanted to come into – went into the room but I told [the wife] that she couldn’t come with me, I asked her to wait in reception” (T30/8-10). Mr X said that the husband gave him an envelope containing a letter 10 August 2004 from Y Solicitors to X Solicitors which letter enclosed the originals (“probably three”) signed by the wife and witnessed by Mr Y. The letter (ex 1, 15 July 2009) provides:
We refer to the above and enclose financial agreement executed as required by Mr (sic) [Suffolk] despite legal advices we’ve provided [the wife].
She is satisfied with the terms of the agreement and has received a copy for her records.
Could you please have document executed and return 1 copy to our office for safekeeping.
We note there is no mention of Mr [Suffolk] raising any issues of a Will being drawn.
Could you kindly acknowledge receipt on duplicate letter.
Mr X’s evidence is that the following then ensued (T31/35-43):
MR HACKETT: Could you tell her Honour what happened after that, after the documents were extracted from the file?---I went – I went through the document briefly. Mr [Suffolk] said he was – he had read – he confirmed that he had read it, understood it and was prepared to sign it without any further
40.explanation. I produced a letter of advice just confirming - which Mr [Z] had sent to us to ensure that he was aware of the significance of the document he was signing. He acknowledged receipt of that letter, signed the original. ...
“Mr Z” is a reference to Mr Z, solicitor, of Z Firm, whose name appears on the coversheet to the financial agreement, and whose firm apparently had prepared the agreement.
The parties were required to have independent legal advice.
Mr X’s firm was retained by the husband.
Mr Y’s firm was retained by the wife.
Mr X said that after the husband had signed the originals and he, Mr X, had signed as his witness, Mr X said to the husband that, in accordance with the letter he would “return 1 copy” to Mr Y, as requested in the letter, but that the husband had protested, instructing Mr X he was not to do that, because Mr Y had “mucked me around”. It emerged that, although Y Solicitors had been engaged by the wife, the husband had paid or was to pay the legal fees incurred by the wife, and that the husband had been annoyed at being “mucked around” by Mr Y, by his requiring some amendments to the agreement (see ex 3, 15 July 2009). Mr X was clear in his recollection of this aspect of the matter, and clear that he had impressed upon the husband the necessity for him to give an original or a copy to the wife, as the following transcript of his evidence in chief shows (T31/44-48):
……I then said “look, I will take the other copy or the other original and send it back to Mr [Y]”. He specifically said “no, I don’t want to have any
45 more to do with him, he is mucked me around” – he made some sort of
derogatory remark and said “no, I” – and I said “well it must go to the wife” - -
Mr X then said the following in his evidence in chief (T32/10-44):
10 What, because you say Mr [Y] mucked him round?---That's right, in his view.
Yes?---I then said “well we have to be sure that – how do you want to get this to your fiancée?” and he said “well” - - -
15
No, sorry, you said “we have to be sure”?---Yes, that it goes to – because I
was aware of communication of acceptance and he – my recollection was that
he said words to the effect that “well she is in reception, you can actually give
it to her personally”. I can’t recall whether I personally said – but I do recall
20 leaving the interview room and she was there and her copy or her original was
given to her by either Mr [Suffolk] – I wouldn’t deny if it was – he said it was
mine, I don't know, but she was in reception and had received it.
So when you say it was given to her, do you recollect whether it was given to
25 her by him or by you?---I can’t be a hundred per cent on that, whether I
actually had the document in my hand and gave it to her. I would probably
say that he gave it to her because he had all the – you know, he had those
documents and I think he left an original, one of the copies in our office.

30 Now I take it then that you can’t, as you sit here, bring back a visual
recollection of him giving it to her or of you giving it to her?---No, that would
be right, I can’t. I just remember exiting the interview room with him and
walking over to her, but I can’t say whether I said “look this is the document”
or had any conversation with her.

35
Yes?---I wouldn’t have had a conversation with her that is why I think it was
more likely that he gave the document in my presence.
As I understand you Mr [X], basically what you’re saying is that you don’t

40 recall whether it was given to her or not?---No, it was – yes, look it was given
to her, it was a case of I just don’t know whether I actually gave it to her or
not but either way, she was in the reception and we had the documents or
Mr [Suffolk] had the documents in his hands.

Mr X provided a sketch plan of the office of X Solicitors (ex 4). He said that his office was upstairs (see the sketch portion with an arrow indicating a staircase). When told the husband and the wife had arrived, he descended the stairs. He and the husband went into interview room 1 (depicted on the right side of the sketch). The wife remained in the sofa area on the right hand side. After the signing and witnessing and the conversation already referred to of the husband instructing Mr X not to “return 1 copy” to Mr Y, Mr X said he and the husband left interview room 1, the husband joined the wife and he, Mr X, returned upstairs to his office. Mr X said that whilst he may have walked with the husband a little towards the wife, he did not have any conversation with the wife. The transcript of this part of his evidence, in cross examination, is (T43/16-44/5):
Now, you don’t have a specific recollection of whether you gave the copy or
an original to Mrs [Suffolk] or whether Mr [Suffolk] gave the copy or the original to Mr [Suffolk]?---That’s right.
20
Would it be your normal practice if a document was to be given that you
yourself, as a solicitor, would give it, rather than allowing your client to give
it to the opposite party?---Normally it should be done through solicitors. I’ve
got no - and we should have sent it back to [Mr Y], that was my view,
25      but I was clearly told not - that - not to do that. And when I explained that it
had to be given to his fiancé he said well, we’ll do that now and that’s all I can
recall that we - and I was relaxed with that and you know, in hindsight maybe,
you know, I should have taken the time to get it - to type up - you know, have
someone type up, “I hereby” but I didn’t want to - I left that to Mr [Suffolk]. He
30        was there, he understood the importance of giving her a copy. I’d made that
clear and she was in reception. So the two combined I was relaxed. I was in a
hurry. He was in a hurry and the matter was left on that - that’s how it was
dealt. In hindsight you can have a perfect - you could do that, but I didn’t
have - it didn’t happen at that time, yes.
35
Is it possible that you simply gave the fully signed agreement and at least one
copy of it to Mr [Suffolk] on the understanding that he was to give [the wife] a
copy or the original of the agreement, rather than doing it then and there in
reception?---Yes, it’s possible. Like it wasn’t a formal ceremony. It wasn’t
40      as though - it was just like they went out, joined each other at reception and -
yes, so whether he had it in his hand or I had it in my hand, but it wasn’t like
this is the signed agreement and - it was left - left it as - as it was.
So do you recall saying words to the effect, “Here is a copy of the agreement
45      for you”?---No, I can’t recall that, no. I can’t recall any conversation.
HER HONOUR: So you’re acknowledging that it’s possible that you just
gave [the wife’s] copy to Mr [Suffolk] to give to [the wife]?---That’s possible, yes.
MR HALL: And you certainly gave evidence that you didn’t have a conversation with [the wife] in the reception after the agreement was signed by
Mr [Suffolk]?---No.
5          Yes, I’ve no further questions.
I pause to observe that if Mr X had given the wife an original or a copy, it would have been likely for him to have had at least some minimal conversation with her, rather than none.
It is necessary to refer also to the following (T42/25-39):
Would it be your normal practice when a document is given to a party in your
25 office that you would get a receipt in respect of that document?---Yes, that’s
right.
Did you get a receipt from [the wife] when she received the copy or an original
as you say?---No.
30
Why was that?---Didn’t occur - looked like everything was, you know,
finalised. Everyone seemed to be happy and it was - yes, so - it was fairly
rushed too because they’d been - well they came in in a rush and Mr [Suffolk]
didn’t want explanation. He just said we want to be - when I went through
35 with the marked copy to make sure it was exactly the same one and he just
said, “Yes, that’s fine” and it was all, “Okay, that’s fine”. As I said, I asked
the question about returning it to Mr [Y] and he said, “No, that’s okay,
you’ve got to give it to your wife.”

The last sentence in this passage is confusing and possibly contains transcript error. Plainly, the speaker of the words “you’ve got to give it to your wife” was Mr X and not the husband. This is consistent with Mr X’s evidence overall that, as between Mr X and the husband, the husband was to do that, not Mr X.
Further, by reference to the sketch plan (ex 4), Mr X said “I didn’t go over”, that is, to where the wife was (T45/20-46/10):
Do you recall whether 10 August was interview 1 or 2?---One. Interview
room 1.

Do you recall whether the wife was in this area or that area of reception, left

25 or right?---The right-hand side.

I’ll put an L and an R there. So she was on the right-hand side?---M’mm.
So after the signing do I take it then that you came with the husband out of the

30 interview room?---That’s right.
And where do you recall going?---Well, I did - I didn’t go over and - because
I don’t recall having any conversation with her so I was sort of in the
proximity maybe of three metres. But my recollection is probably I didn’t go

35 too much further beyond the stairs because I was ready to head back upstairs
to my.
So your business was over so the wife would have been sitting here in the
right area and you would have, what, said goodbye to the husband and come

40 up the stairs to your office on the first floor?---Yes, but she came - I think they
were together. He - yes, he walked over and I didn’t sort of follow him - it’s a
- but it was within that - that area.
So that’s about three metres?---Yes, that’s right. I didn’t - yes, like I didn’t go

45 over - I didn’t go over and sit down with her or gave her an explanation.
But, I think, Mr [X], what you’re saying is that you recollect the signing,
you recollect the conversation that don’t send it back to [Y Solicitors]?---Yes.
The meeting finished, you ended up up the stairs, back in your office, business
done, but you don’t recall whether you and the husband went over to the wife
and conversed with her or whether you just said goodbye to the husband
and went upstairs?---That’s right. That’s my recollection, but - and it’s - you

5 know, just being - it’s just unfortunate that I didn’t take the diary note, but you
know it seems that it was logical for us to - like either he - he, in my presence,
handed it over or - or he asked me to do it. But I think it was the former that I
left it with him.

Later, Mr X said that the husband went over to the wife (T47/48-49/38):
Why do you say that’s not possible?---Because I - my - my - I do recall
leaving the room with Mr [Suffolk] and saying goodbye and certainly he and his
wife leaving together. So there was no - I can - my recollection is that at no
point did I leave the room and leave Mr [Suffolk] in the room or him in reception because I - I left and he went over to his wife and they left together.
5        HER HONOUR: That’s an improvement on your recollection earlier. So the
more you think about these things the more you can get a visual picture.
That’s why I asked you earlier, Mr [X] - - -?---I wouldn’t have - just as a
courtesy also I wouldn’t have waited - I would have maybe wait at the foot of
the stairs just to see them at least exit. I wouldn’t have just - there’d be no - I
10      wouldn’t have just rushed off and left the photocopier - my secretary with
them or anything like that.
MR HALL: No.
15      HER HONOUR: No. Because when I asked you earlier if you had a visual
recollection of you or Mr [Suffolk] handing the document to her you said, “No”
and I got the impression you didn’t have a visual recollection of the end of
scene. But with time sitting in the witness box today you’ve obviously now
recalled that you do have a visual recollection of saying goodbye to him and
20      of seeing him and her leaving together, that’s out the front door, shown in the
sketch, exhibit 4?---That’s right.
All right.
25      MR HALL: And by that time, of course, you would have retained a copy of
the agreement?---A copy, yes. Or the - or an original, I don’t know.
Right?---If there was - if there was three originals, which I expected, I would
have kept one original, given one to Mr [Suffolk] to give to his wife and given
30      another one to - well, probably two, for him to either keep one for himself, but
certainly give the other one to his wife.
Do you recall preparing an envelope with an original or a copy for Mrs [Suffolk] to be given to Mrs [Suffolk]?---Not specifically, but that would be in line with
35      what I - my normal custom, yes.
But you don’t recall doing that?---No, I don’t think so.
You don’t recall giving an envelope to Mr [Suffolk] to give to Mrs [Suffolk] with
40     a copy or the original agreement in it?---It’s possible.
But you don’t recall it?---No.
HER HONOUR: But that would be your normal practice, would it?---My
45      normal practice would be to split what was his and what was to go to the other
party so that there was no confusion as to what - so that’s - but I - because it
was all done within maybe a space of 10, maybe 15 minutes, it wasn’t really -
I just can’t remember. A photocopy was made, I might have got my secretary
to bring an envelope down and done it that way, but yes.
Your firm must have retained at least one copy of the original, would it
not?---Yes.
5        Sorry, that’s a funny thing to say. But at least one original, signed by both
parties?---Unless Mr [Suffolk] said he wanted to keep the original. I - my - my
recollection is we kept an original and I don’t - so - and that there was - but
I’d only guess. If there was three, he would have taken two and I would have
kept one.
10
Your evidence, in answer to her Honour’s question was you don’t recall if you
went over to Mr and Mrs [Suffolk] when you came out of the interview
room?---Well, Mr [Suffolk] was with me.
15      Yes?---I may have walked a certain distance with him to his fiancé, but I don’t
recall shaking hands or wishing her well. I don’t sort of specifically - but I’m
not ruling that out, but I mean that’s - yes.
But you do have a recollection of them leaving and seeing them
20      leaving?---That’s right.
Do you recall whether or not, when they were leaving, that either of them had
anything in their hands?---No, I don’t recall, no.
25      Thank you. Nothing further, your Honour.
HER HONOUR: And sitting in the witness box today with the improvement
of recall with taking your mind back, that’s not surprising it often happens
that you can’t remember detail, and then as you’re questioned and you’re
30      asked more and more and you think about it more and more you can
remember detail, so you’ve recalled now leaving the room with the husband,
saying goodbye to the husband and then seeing Mr [Suffolk] and the wife leaving together out the door, shown in exhibit 4?---That’s right.
35      Do you recall noticing whether or not in that goodbye time seeing Mr [Suffolk]
give the wife anything?---It doesn’t come to my - I can’t visualise that, it was
- because it was fairly rushed, the whole process of, you know, signing,
getting the copy sorted out and then leaving.
In re-examination, Mr X said (T51/24-34):
You explained to him the importance of providing a copy to the other
25 side?---Well, that it has to come back to - yes, that’s right.
You’ve told her Honour that it was discussed between you and Mr [Suffolk] that
it could be done then and there because she was present?---That’s right.
30 My question to you was, was one of the reasons why you didn’t write back to
Mr [Y], as requested, providing him with a copy, were you satisfied,
following that meeting that she had been provided - - -?---Yes, no, it was - I
was quite relaxed about that, yes.
Finally, Mr X said, also in re-examination (T52/1-53/32):
MR HACKETT: No, it’s not my question. After the meeting with Mr [Suffolk]
and they’d left, were you satisfied that Mrs [Suffolk] had been provided with a
copy?---Yes.
5        HER HONOUR: Had been?
MR HACKETT: Yes.
HER HONOUR: Sorry. Look, the question’s not helpful to me. When you
10      say “after they left” do you mean five minutes after or five weeks after?
MR HACKETT: No. On 10 August, immediately before they exited the door
to your firm’s premises, were you satisfied that she had been provided with a
copy?---Well, yes, because of her presence there and, as I said, I - as I said, I
15      can’t recall the - you know, how it was actually handed, but I - I thought that
Mr [Suffolk] certainly understood the importance and I had no reason to believe
he’d jeopardise - you know, he’d do something that, you know, was pretty
fundamental.
20      Mr [X], at the outset of your evidence I thought you told her Honour that
you were unclear of the meeting and that it may have been the case that you
handed it to her, or it may have been the case that Mr [Suffolk] did, is that
right?---That’s right, yes.
25      Thank you, your Honour. I have no further questions.
HER HONOUR: I think that’s what you opined, but I don’t think that’s what
his evidence was. Anyway, that’s a matter for submissions.
30      MR HACKETT: The transcript will speak - - -
HER HONOUR: The transcript will speak for it. Very well. If you don’t
mind, gentlemen, I will ask another question, and of course give you leave to
ask questions arising. You said to Mr Hackett that after they had left and
35      immediately before they exited you were satisfied that she had been, that is
already been, provided with a copy. That’s before they walked out the door.
Now, you didn’t see it, and you’ve told us that - - -?---No, that’s right. I
suppose I - by conduct - - -
40      Is what you’re really saying that you were satisfied that Mr [Suffolk] understood
the importance of giving her a copy, because you’d told him that, and that you
were satisfied that he would give her a copy?---Mm him.
Is that really what your evidence is?---That’s right, yes. I can’t, in honesty
45      say, that I visualised - I actually saw the handing over. I can’t recall that,
although if someone said that’s what happened, well, I - the circumstances
were there that that would have actually happened.
Can I just ask you this? Is it the case that you can’t really - sorry, just by way
of explanation of your evidence, when you said you were satisfied that she
had been given a copy before she left the room, what you’re really saying is,
that you can’t be satisfied that she had been given a copy because you didn’t
5        see it, but you were satisfied that he understood the importance of it and
would give her a copy, is that the way I should understand what you’ve told
me?---Yes.
Yes, all right. Mr Hall, anything arising out of that?---No, your Honour.
10
MR HALL: No, your Honour.
HER HONOUR: Mr Hackett, anything arising out of that?
15      MR HACKETT: Yes, your Honour.
HER HONOUR: Thank you.
MR HACKETT: In part of your answer to her Honour you said the words, I
20      didn’t make a clear note of it, but someone will correct me if I’m wrong. If
someone said that it was handed over in your presence, you couldn’t deny
that?---No, not at all.
Can I put this version to you then; Mr [Suffolk] says that you said this in his
25      presence, paragraph 21, that it was you that handed to the wife a copy of the
financial agreement signed by them both and you said words - either these
words or words to this effect, “Here’s a copy for you.”?---Yes, that could have
been possible.

It is plain that the husband’s evidence in the first two sentences of par 21 of his affidavit set out above was not corroborated by Mr X, who conceded only that such was “possible”.
I turn now to the husband’s oral evidence.
The husband said that on arrival at X Solicitors, Mr X took both himself and the wife upstairs to his office, and to his recollection there were “at least” four originals of the agreement. The husband was adamant that he and the wife were not taken to a downstairs interview room, saying specifically that he had only met with Mr X “in that room downstairs once previously” to sign mortgage documents (T89/48-90/5); and that he recalls the occasion of 10 August 2004 clearly because “only once in my life have I done this”, that is, signed a “prenuptial agreement”: T89/45. The husband had said in his affidavit, par 16, also that Mr X took both himself and the wife into Mr X’s office, and also that the wife gave Mr X an envelope, which Mr X opened, containing the documents signed by the wife. The husband said that he signed the documents, and Mr X witnessed his signature. Plainly, thus, on the husband’s version of events the wife also was present while he signed and Mr X witnessed. Indeed, the husband said in his oral evidence that when he signed the documents with Mr X “she was sitting next to me” (T94/14).
The husband said that Mr X gave the wife a copy of the signed agreement, in Mr X’s upstairs office, almost immediately after he had signed and Mr X had witnessed, and that he saw Mr X give the wife a copy “in front of me” (T95/35). He said that Mr X had two envelopes and gave “to each of us one” (T95/40) and that he saw Mr X give one envelope to the wife and that Mr X gave the other to him (T96/15; see also T102/30 and T110/10-20). He said that in Mr X’s office he and the wife had been sitting next to each other in chairs with Mr X sitting opposite (T102/20). He said that “she was holding both of these envelopes” when he was driving from Mr X’s office (T95/44). He said that Mr X keeps envelopes in a cupboard next to his desk and this is where he had obtained the envelopes (T96/40). The two envelopes containing the originals as given to him and the wife were not sealed (T101/12).
The husband said that he does not know when the wife opened her envelope but “some weeks later” he saw “that copy of her agreement” in a safe (T101/34) and that the copy in the safe was the wife’s copy as he had put his copy “on my desk in the study and then I put in cabinet next to it” (T101/50); and the copy in the safe was “on his own without any envelope in there” (T103/12).
He said that the wife’s copy (in the safe) was in a leather document folder, a little larger than A4, with a three sided zip, the folder containing also the parties’ passports, jewellery certificates, travel cheques, his citizenship certificate, foreign currency and other items (T103/25-104/15). The husband saw the document in the leather folder (which he said was kept in the safe) some “four, five, six” weeks after (seemingly, after 10 August 2004) and that it is “not possible” it was a copy signed only by the wife because he had “memorised” seeing both signatures on the document (T106/10-14). The husband said that he and the wife only opened the safe “when we travelled somewhere” (T105/10) and that on the occasion on which he opened the safe he had done that “to see how much travel cheques we have” (T105/43) because they were about to go on an overseas holiday (T106/36) and that when he saw the document “I was just browsing through it so to see is this one that we have just drafted previously or this is the one which has been signed and I was satisfied there at least as being safe - - -” (T106/44).
Curiously, the husband said he “just wanted to see that she had both copies there”, but discovered only one copy (T106/28) although earlier he had said that he had put his copy on his desk in the study which he later put into a cabinet next to the desk. The husband later clarified however that he located his copy in the study after opening the safe and seeing “her copy” (T106/45-107/15).
The husband said that he had looked at the copy in the safe to see whether it was the agreement “that we have signed”, or a draft copy before being signed (T107/5) and that he remembers this specifically (T107/19). He said also that his purpose in looking at the document in the safe was only for the reason to see “is this the one that is signed” or a previous draft prior to amendment, and that “I wanted to make sure is this one that is signed or it’s a draft one” (T108/38).
He said further that he thought that both copies should be together (T106/28; T107/10; T107/22; T107/35), but despite opportunity did not put both copies together, but left his in his study.
He said he was concerned that the housecleaner “perhaps could have” dropped his copy in the bin, so he then moved it from his desk in his study to a locked cabinet in his study next to the desk: T108/1-20.
In the husband’s affidavit, par 23, he said that “on each occasion” the safe was opened before the parties’ separation “I observed the copy of the Financial Agreement was in the safe”. However, his oral evidence in cross examination was directed only to the one occasion some four, five or six weeks after 10 August 2004 when, for some unidentified reason, on seeing the document in the safe he wanted to ensure that is was a copy signed by both of the parties and not a prior draft.
By way of observation, it is curious that the husband was motivated some four, five or six weeks after 10 August 2004 specifically to look at the copy of the agreement in the folder to see whether it was a final version signed by both parties or an earlier draft. However, the husband was adamant in his evidence that upon inspection of the document in the folder in the safe it was signed by both.
There are several inconsistencies between Mr X’s evidence and the husband’s evidence, most notably:
·    whether on 10 August 2004 the husband signed the documents and Mr X witnessed them upstairs in Mr X’s office or downstairs in interview room 1
·    whether on 10 August 2004 the wife remained in the sofa area while the husband signed and Mr X witnessed the husband’s signing or whether at that time she was in the same room as Mr X and the husband and sitting next to the husband
·    whether in Mr X’s upstairs office Mr X gave the wife an envelope containing an original, that occurring in front of the husband, or whether Mr X had wanted to send the wife’s original back to Mr Y but the husband prevented that by instructing him not to, Mr X then emphasising to the husband the importance of giving the wife a copy and understanding or believing that he would do that (which would tend to negate the possibility of the wife’s presence during such conversation).
Plainly, the evidence of Mr X and the husband is wholly at odds in respect of these three critical aspects of the matter.
The wife’s evidence is that she did not go to X Solicitors at all on 10 August 2004 but rather that the husband dropped her home after she had signed the documents at Y Solicitors and “left home in his car after he had dropped me off”: affidavit par 24.
The wife’s case is that she had attended at X Solicitors twice, once about a week or so before 5 August 2004, and once on 5 August 2004, but not 10 August 2004. There is evidence, and it is common ground, that there was a meeting at X Solicitors with Mr X on 5 August 2004, which had been scheduled for the purpose of signing the agreement, prior to amendments made to it, on which occasion Mr Y and the wife were shown into the upstairs boardroom and the husband and Mr X were in Mr X’s office. Indeed, there is evidence that Mr X made a diary note of the parties’ attendance on 5 August 2004 (although it was not put into evidence). Objectively, it may be that there was no meeting at X Solicitors prior to 5 August 2004, so that the wife is mistaken in this regard. I will however refer more to this below. What is important, presently, is that Mr Hall conceded that the wife’s evidence of her recollection of not going to X Solicitors on 10 August 2004 is likely to be incorrect, given Mr X’s evidence: Mr Hall’s written submissions 21 July 2009, par 20. However, the wife’s evidence is consistent with the evidence of the husband and Mr X in her recollection that there were two meetings at X Solicitors. In my view, it is not surprising that the wife may have confused the two events and indeed their respective dates. However, the wife’s evidence was clear that on neither occasion that she was at X Solicitors did she leave with an original or a copy of the agreement; that Mr X did not give her an original or a copy at X Solicitors; that the husband subsequently did not give her an original or a copy; and that the first time she saw any original or a copy signed by both parties was at Court on 1 September 2008.

Objectively, as it is common ground that the wife signed the originals on 10 August 2004 at Y Solicitors, and that the husband signed later that morning on 10 August 2004 at X Solicitors, there can be no question of the wife being given an original or a copy of the agreement signed by both parties until after the husband had signed at X Solicitors. The wife says she was not there on 10 August 2004. Whether that be right or wrong, both Mr X and the husband having her there, but in different areas, it is plain that the inconsistencies between Mr X’s evidence and the husband’s evidence need to be determined, to which I will turn below.
The wife said that sometime after 10 August 2004, after she had signed the agreement at Y Solicitors, she received a letter from Mr Y, and enclosure, being a copy of the document signed by her, and bearing only her signatures witnessed by Mr Y, annexure MLS1 to her affidavit. In her affidavit in response, at pars 2(e) and (f), she said that the copy of the document in the safe was the one sent to her by Y Solicitors, and that she on the husband’s request had opened the safe “when requested to do so” as she alone held the key and pin number.
In her oral evidence, the wife gave what appeared to me to be a cogent account of a meeting at Mr X’s office about seven or ten days before 5 August 2004, and was very specific in her recall about it, the narrative of which is quite different from any narrative which could have matched the meetings on 5 August 2004 or 10 August 2004 (T63/35-67/1). It is common ground that Mr X’s file on the matter contains no diary note of any such meeting before 5 August 2004. However, it must be observed that it is common ground also that his file contains no diary note of the meeting on 10 August 2004, so that the absence of any diary note certainly is not conclusive that no such earlier meeting took place. The wife’s evidence in relation to such an earlier meeting seven or ten days before 5 August 2004 has the “ring of truth”, particularly for her detail of being kept waiting because Mr X was in another meeting, and, despite repeated questioning, consistency in her responses related to the duration of the matter and the sequence of events throughout it (T63/35-67/1). If such a meeting took place, the wife plainly has not confused it with the meeting on 5 August 2004, because on that occasion Mr Y, whom she met for the first time, was there (T67/8-28); and cannot be confused with the meeting on 10 August 2004 because, in the meeting which the wife has 7-10 days before 5 August 2004, the purpose was “about signing agreement before we get married” (T64/8); but it was not to sign an agreement, “Just discuss this matter” (T64/10), so that plainly there is no confusion between this event as described by the wife and either of the meetings on 5 August 2004 or 10 August 2004. In particular, in relation to the meeting earlier than 5 August 2004 which the wife says took place, she said that Mr Y was not there, but “just the three” of Mr X, the husband and herself (T63/46). (Possibly, as Z Solicitors prepared the agreement, and it was prepared by 5 August 2004, an earlier meeting may well have taken place before 5 August 2004 at Z Solicitors, which the wife has confused as an earlier meeting at X Solicitors. However, as this was not put to the wife, it is merely observation as to a possibility, having regard to the wife’s detailed and specific recall of a meeting earlier than 5 August 2004, and otherwise plays no part in my assessment of the evidence or findings.)
The wife said, curiously that she had never been to Mr X’s office after 5 August 2004 (T68/5), in respect of which I would refer to Mr Hall’s concession, written submissions, par 20; but, more significantly, the wife said “I never received any agreement from either Mr [X] or Mr [Suffolk]” (T68/15).
In cross examination, the wife said that when she left Mr Y’s office on 10 August 2004 she did not have any documents with her, a matter the subject of extensive cross examination by Mr Hackett, and extensive submissions against the wife’s credibility, it being put by Mr Hackett that plainly when the wife left Y Solicitors on 10 August 2004, she must have had the envelope containing the three or four originals that subsequently was given to Mr X. However, I do not find any inconsistency in the wife’s evidence. In particular, the wife made clear that after she had signed at Mr Y’s office, the husband was in the reception area (T71/25-30), which Mr Hackett said was common ground. The wife said that after she finished signing “Mr [Y] went out and talked to his secretary in the office and I was waiting with my husband together in the reception for a few minutes” (T71/35). She said “I can’t remember” as to whether Mr Y had given her an envelope with documents, but then seemed to say that he had not: “No, no” (T71/30-45). However, it is quite possible that Mr Y at the reception area gave the envelope directly to Mr Suffolk, which would have been logical, because the next step in the chain of events was for Mr Suffolk to attend at X Solicitors for him to sign, a matter well known to Mr Y: see the letter addressed directly to Mr X (ex 1, 15 July 2009). Indeed, it would have been illogical for Mr Y to have given an envelope with the letter addressed to Mr X and the four originals to the wife, and logical only for it to have been given to the husband, for him to take to Mr X for signing and witnessing. See also T73/25-40, where the wife said that if Mr Y had given her anything, she would have given it to the husband.
Mr Hackett, in cross examination, was further insistent to the wife that Mr Y on 10 August 2004 at least must have given her a copy for her records (as stated in ex 1, 15 July 2009, second paragraph). However, the wife’s affidavit evidence and her oral evidence were consistent that Mr Y had said to her at the meeting on 10 August 2004 that he would send her a copy in about a week, and that she received a copy in about a week, plainly enough, being the copy signed only by the wife and witnessed by Mr Y, annexure MLS1 to her affidavit (T77/42-78/1), which is the copy she said she put in the safe: wife’s affidavit in response pars 2 (e) and (f).
Before proceeding further, it is necessary to mention that on page 13 of the agreement (ex 1, 1 September 2008), at the lower half of the page, the wife’s signature appears below the following:
I, [the wife], acknowledge that after the Agreement between myself and [the husband] dated 10 August 2004 was signed by me and him, a copy of the said Agreement was given to me.
However, it is common ground that all signing by the wife was at the office of Y Solicitors before the husband later signed at X Solicitors, so that the wife’s acknowledgement is an incorrect acknowledgement.
Further, it is common ground that if Mr X had followed Mr Y’s request and returned “1 copy” to Mr Y, s90G(1)(e) would have been satisfied, by agency arising from the wife’s retainer of Mr Y, such that “in person” giving is not required.
However, I accept Mr X’s evidence that the husband prevented that course, by instructing Mr X to the contrary, that is, to not comply with Mr Y’s request.
The husband’s evidence in relation to 10 August 2004 at X Solicitors is internally consistent, and superficially attractive not only in its meticulous detail and but also because of the confident assured manner in which the husband gave his evidence in relation to what happened on that occasion.
However, it is inherently unlikely that Mr X would have permitted the wife to be in the same room as the husband because not only was there to be signing and witnessing, which is a formality, but also Mr X had another and more significant role, namely that of being the husband’s independent legal adviser, of which Mr X plainly was aware, and which role he fulfilled, including taking the husband “through the document briefly”, with the husband confirming to his independent legal adviser that he had “read it, understood it and was prepared to sign it without any further explanation”, and Mr X giving the husband a “letter of advice”: T31/35-43; and T42/35 as set out already. Plainly, Mr X would not have performed the role of independent legal adviser to the husband in front of the wife. It is therefore not difficult to accept Mr X’s evidence as credible that he insisted that the wife remain in the reception area: T30/5-15.
In my view, whilst Mr X was not able to recall whether certain things put to him had occurred (see, eg, T48/32-42) and further said “I just can’t remember”(T48/48) as to certain matters (see also T48/42 and T48/49), he was adamant and consistent in relation to the sketch plan ex 4 as to himself and the husband being in interview room 1 and the wife being in the sofa area, and clear in his evidence that the wife was not in the interview room. Indeed, as noted already, it would have been somewhat surprising if Mr X had permitted her to be in the room when the husband was attending upon Mr X for the purpose not only of signing but also of certification as to specific legal advice having been given to him, having regard to the importance of Mr X being the husband’s separate legal adviser, just as Mr Y had been the wife’s separate legal adviser. It will be recalled that on 5 August 2004 Mr X, as was appropriate, took the precaution of having the wife and Mr Y in the boardroom with himself and the husband in his own office. In the circumstances, it is extraordinary to think that five days later, with Mr Y not present, Mr X would have done other than what he said he did, which has to ensure that the wife remained in a separate area and was not present while he attended upon the husband.
I therefore accept Mr X’s evidence, and find, that on 10 August 2004 the meeting was in the downstairs interview room 1, and not his upstairs office, and that the wife was not present in the room when the husband signed the documents and Mr X witnessed them, or at any other time, but remained in the sofa area, and I reject the husband’s evidence to the contrary. Plainly, in relation to the third critical area of difference (third bullet point) I reject also, as inconsistent with the evidence of Mr X which I have accepted, that in Mr X’s upstairs office the husband saw Mr X give to the wife an envelope containing an original of the financial agreement.
What remains therefore for determination is whether it is proved that Mr X gave to the wife in the downstairs sofa or reception area an original or a copy of the document after signing by the husband, to which subject matter I will shortly turn.
Before doing so, however, it is necessary to make two further observations in relation to the evidence.
First, I take into account, in my acceptance of Mr X’s evidence, and in making the findings referred to, and thus necessary rejection of the husband’s evidence in relation to the three notable areas of difference identified, that the husband well may be the person to have better recall of 10 August 2004 at X Solicitors rather than Mr X, the husband being the client, and the attendance for him being not an everyday matter: T89/45; whereas for a busy practitioner the signing and witnessing of documents is or can be an everyday matter. However, unfortunately I have concluded that the contest between Mr X’s evidence and the husband’s evidence is not one of recall but of honesty, such that the subject matter of the husband’s evidence in the three areas of difference in my view is not capable of being categorised as mistaken recall by the husband, but rather is evidence which deliberately is false. I would refer in this regard to the nature and extent of the inconsistency between the husband’s evidence and Mr X’s evidence as to what had occurred, in particular the husband’s evidence, somewhat incredible in itself, that the wife was present while Mr X attended upon the husband for the purpose of independent legal advice as well as the signing and witnessing. Moreover, Mr X said, which I accept, that while in the interview room the husband said “well she is in reception, you can actually give it to her personally”: T32/18, which evidence again is utterly inconsistent with the notion that she was in the same room with Mr X and the husband. In a similar vein, if the wife had been in the upstairs office with Mr X and the husband, or even in the downstairs interview room 1 with Mr X and the husband, there would have been no occasion for Mr X to say to the husband, which I accept he said “well it must go to the wife”: T31/48. Thus, the inconsistencies between Mr X’s evidence, which I have accepted, and the husband’s evidence, which I have rejected, are too stark to resemble innocent error or mere mistaken recall, leading to my conclusion of deliberately false evidence on the part of the husband in respect of these matters.
Secondly, I have observed that the husband’s evidence in relation to 10 August 2004 had the quality of internal consistency, that is, before being compared with Mr X’s evidence. Possibly, this was because the husband’s evidence as to this occasion had been rehearsed. In contrast, the husband’s evidence in cross examination as to looking at the wife’s document in the safe; and why he examined it some four, five or six weeks after 10 August 2004; and his evidence concerning her copy, his copy, his “memorising” the signatures on her copy; that he wanted both copies together even though to date his copy had been in the study; his copy was not safe there because the cleaner might drop it in the bin; although that seemingly had not been a concern in the four, five or six weeks beforehand; has the hallmark not only of internal inconsistency but the hallmark, as put by Mr Hall to the husband in cross examination, that the husband was “making this up as you go along” (T109/40). Regrettably, having listened carefully to the husband’s evidence and having observed his demeanour, I conclude that the husband’s evidence concerning “the document in the safe”, in so far as his observing that it was one signed by both (as opposed to the copy the wife received from Mr Y, annexure MLS1, received by her about a week or so after 10 August 2004) also deliberately is false. I accept Mr Hall’s submission that, some four, five or six weeks after 10 August 2004, when the husband and the wife had just been married, and were about to embark on a trip, there was no motive for the husband to “see if it was a previous draft or a signed one”, or for him to “memorise” that it was one signed by them both, and find it inconsistent that, suddenly, he decided that both his and her copies should be kept together, but when he had the opportunity to put the two together, he did not do so but left his in the study.
I turn then to the question whether, on 10 August 2004, in the downstairs sofa or reception area, Mr X gave an original or a copy to the wife.
Mr Hackett submitted that Mr X’s evidence “corroborated” the husband’s evidence that Mr X had given an original or a copy to the wife at X Solicitors on 10 August 2004. In my view this is an impossible submission and I reject it. Whilst it is true that Mr X acknowledged that “if someone said” that it was handed over in his presence he could not deny that (T53/22), and that it is “possible” that he gave an original or a copy to the wife (T53/28), I have rejected the husband’s evidence that he saw Mr X give an original or a copy to the wife. Further, Mr X’s acknowledgement that it is “possible” that he did so in my view is consistent with honesty, in that in respect of some matters Mr X said he did not have recall. An acknowledgement of “possibility”, however, is not proof on the balance of probabilities. Moreover I accept, as patently correct, Mr Hall’s submission at par 7 of his written submissions 21 July 2009 in relation to Mr X’s evidence, that “at no time did he give positive evidence that he gave a copy of the signed agreement to the wife”, and accept that the following paragraphs of Mr Hall’s written submissions are an accurate summation of the effect of Mr X’s evidence overall:
22. If Mr [X’s] evidence is accepted and amounts to “in toto” to the fact that he cannot say positively that either he or the Husband gave a fully signed copy of the agreement to the Wife, then there is no evidence that a fully signed copy was given to the Wife by either Mr [X] or the Husband.
23.This is so because the Husband swore that Mr [X] gave it to her (a proposition entirely inconsistent with the possibility that he, Mr [Suffolk], gave it to her). It is submitted that the assertion that Mr [X] gave it to her is not the over-all impression of the evidence of Mr [X], and rather it is submitted that Mr [X] did not give it to her, that he was comfortable that Mr [Suffolk] knew the importance of giving it to the Wife and left it to him to do so, but did not observe him do so.
In all of the circumstances of the case, and having had careful regard in particular to the evidence of Mr X and the husband, but also careful regard to the evidence of the wife, and also the Jones v Dunkel, Browne v Dunn and other arguments put by Mr Hackett, dealt with more specifically below, I find it not proved on the balance of probabilities that Mr X gave an original or a copy to the wife on 10 August 2004, being so satisfied having taken into account the nature of the cause of action and defence, the nature of the subject matter of the proceedings, the gravity of the matters alleged and also the serious consequences to each of the parties as to the subject matter in issue; and similarly not proved, having regard to the same matters, that any person did so on that date or subsequently prior to the commencement of these proceedings.
Although that is sufficient to dispose of this aspect of the matter, it is necessary to make a finding also concerning “the document in the safe”.
Having rejected the husband’s evidence that the document he saw in the safe had been signed by both the wife and himself, I find that the wife’s copy of the document in the safe annexure MLS1 was that sent to her by Mr Y on or after 10 August 2004 which the wife said, which I accept, she received from Mr Y a week or so after 10 August 2004. I take into account that in Mr Y’s letter to Mr X 10 August 2004 (ex 1, 15 July 2009) Mr Y stated that the wife “has received a copy for her records”, that is, a copy of the agreement as signed by the wife. Mr Y’s letter to the wife, comprising part of annexure MLS1, is dated also 10 August 2004. It is possible that Mr Y prepared both letters before the wife arrived at his office on 10 August 2004, and anticipated giving the wife a copy on that day, but for some reason did not and then sent it to her.
I would add the following. I accept Mr X’s evidence as to his conversation with the husband concerning Mr Y’s request that after signing by the husband “1 copy” be returned to Mr Y, the husband’s specific instruction to Mr X that he was not to send a copy to Mr Y and the discussion between Mr X and the husband wherein Mr X emphasised to the husband the necessity that an original or copy be given to the wife.
The husband in my view is the author of his own misfortune by not permitting Mr X to return an original or a copy to Mr Y, as Mr Y properly had requested. If the husband had permitted Mr X to do that, which Mr X said in his evidence was what “normally” should have been done “through solicitors” (T43/20-30), then, as I have mentioned is common ground, there would have been a “giving” to the wife, by the agency of her retained lawyer.

Husband’s remaining submissions

I have carefully considered all submissions in Mr Hackett’s written submissions 22 July 2009 (curiously denoting Mr Richardson SC and Mr Hackett as Counsel for the husband, although at no stage was an appearance announced for Mr Richardson) and, having carefully considered the balance of the submissions, do not find substance in them.

It is necessary however specifically to deal with two of the matters raised, the first concerning Jones v Dunkel and the second Browne v Dunn.

Jones v Dunkel

Mr Hackett submitted that an adverse inference should be drawn in the wife’s case by her not calling her solicitor Mr Y (written submissions 22 July 2009, pars 38-39, esp 39).
The argument was premised as follows. Based upon the evidence of the husband and Mr X there is a factual basis to draw the inference, favourable to the husband, that the wife received an original or a copy of the agreement signed by both parties on 10 August 2004, especially against the background of the wife’s denial that she was at X Solicitors on that date, which is against her case, and the inconsistency arising in her case by the circumstance that, despite ex 1 (ex 1, 15 July 2009) and Mr X’s evidence that he did not return a copy to Mr Y, her case “must be” that Mr Y “never followed it up” with Mr X (nor vice versa) despite the requirement that the wife or her solicitor be given a copy after signing by the husband. Thus, it was submitted, the “logical explanation” for Mr Y “never following it up” with Mr X is that the wife was given an original or a copy on 10 August 2004 and “instructed her solicitor accordingly.” The submission proceeded that the wife did not call Mr Y to say to the contrary, and it is thus appropriate to draw the inference that his evidence would have been unhelpful to the wife’s case so that more readily I should draw the inference on the existing evidence, facts and circumstances that the wife received an original or a copy on 10 August 2004 at X Solicitors.
There are I think several difficulties with the argument.
First, the inference must be open upon facts proved by direct evidence: Jones v Dunkel (1959) 101 CLR 298 at 308.6 per Kitto J, 312.6 per Menzies J and 321.3 per Windeyer J. However, I have rejected the evidence of the husband that he saw Mr X give the wife an original or a copy. Further, Mr X’s evidence suffers difficulty of recall such that (without setting out his evidence again) Mr X ultimately thought that the husband had given or was to give an original or a copy to the wife, although he could not recall that he saw that occurrence himself. The position thus is as ably put by Mr Hall in pars 22 and 23 of his written submissions, as earlier set out. The state of the existing evidence thus does not of itself fairly support a positive inference capable of being assisted by any adverse inference against the wife by her not calling Mr Y to enable any positive inference in the husband’s favour to be more readily drawn: see generally Cross on Evidence at [1215].
Secondly, the rule cannot be used to fill gaps in or deficiencies in the evidence or to convert conjecture and suspicion into inference: Jones v Dunkel at 312.5 per Menzies J; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) 229 ALR 136; [2006] FCA 446 at [50]; Cross on Evidence at [1215]. It seems to me that the husband is endeavouring to use the rule to fill a gap or deficiency in the evidence in his own case (Mr X’s inability to remember, and the stark inconsistencies between the husband’s evidence and Mr X’s evidence), and further that the “logical explanation” theory is at best conjecture in that it is equally possible that there is other available explanation for why Mr Y did not “follow up” with Mr X (indeed, if it is the case that he did not), for example, that his retainer was completed. (See, for example, the last document in Mr Y’s file, annexure MLS2 to the wife’s affidavit, being a further letter 10 August 2004 from Mr Y to the wife, enclosing a copy of Mr Y’s account, noting it had been paid in full and enclosing a business account receipt, which document tends to denote end of the retainer). Further, there is positive evidence from the wife to support the notion that she had no motive to contact Mr Y after she had left his office on 10 August 2004 because she did not know that she was “entitled” to receive a copy of the agreement signed by both parties or was “not quite sure” about any such entitlement: T78/5. Her positive evidence as to this thus contradicts one of the planks in the “logical explanation” theory, namely that for some reason the wife would have seen fit to communicate with Mr Y on or after 10 August 2004 to tell him that her “entitlement” was satisfied, that is, that she had been given already an original or a copy of the agreement signed by both parties, thus at once both exploding the “logical explanation” theory, and showing it to be speculative conjecture.
Thirdly, in order to invoke the rule, there must have been some claim or suggestion in the case that the facts in it would be elucidated by calling the person not called, so that the natural inference where the person is not called is that the party fears to do so, by fear of the exposure of facts unfavourable to the party: Jones v Dunkel at 320.9 – 321.1 per Windeyer J. That is to say, the rule only applies where an issue has been raised, whether on the pleadings or in some other manner, to which the evidence not called could be said to be relevant: Cook’s Constructions Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] QSC 179 (22 August 2008) per Martin J at [50], [51]. The husband’s Reply to the wife’s Statement of Facts and Contentions (folio 12) does not plead or raise the contention now sought to be relied on: see at par 1 (i) and (ii). Although delivered before the parties’ affidavits, the husband and his legal advisers knew, at least at the commencement of the hearing on 15 July 2009, that the wife did not propose to call Mr Y as a witness in her case. The parties made mutual discovery of their respective solicitors’ files in relation to the preparation and signing of the agreement. No document from Mr Y’s file was put to the wife in cross examination which might have suggested any such further attendance or instruction. The only questions put to the wife in cross examination concerning Mr Y were the following. Mr Hackett asked the wife whether, after her meeting with Mr Y on 10 August 2004, she had ever met with Mr Y again, to which the wife responded “Never again”: T72/1. Later, Mr Hackett asked the wife “Ms [Suffolk], after 10 August 2004 did you ever speak by telephone with Mr [Y]?”, to which she responded “Never”: T78/20. These questions are insufficient to alert the wife or her legal advisers that it later would be contended in submission that the wife after 10 August 2004 indeed had met or spoken with Mr Y and that in such communication she had told him that she had received an original or a copy signed by both, nor to alert the wife or her legal advisers as to any connection between that line of questioning and the circumstance that Mr Y had not after 10 August 2004 reverted to Mr X in relation to Mr Y’s request in the letter ex 1. No cross examination was directed to the wife as to the proposition put in argument of the “logical explanation” theory, namely that Mr Y had not made further inquiry of Mr X because she, the wife, had told Mr Y that she had been given an original or a copy, so as to alert the wife or her legal advisers to the possibility of an adverse inference being sought. In my view, it thus cannot be inferred that the reason the wife did not call Mr Y was because she “feared to do so”. Rather, more simply, she had no notice of any issue by pleadings, cross examination, or otherwise, that an inferential case was to be put. The point was raised for the first time in Mr Hackett’s written submissions 22 July 2009, which is too late to accord fairness to the wife in relation to the point. The rule only applies where a party is “required” to explain or contradict something: Jones v Dunkel at 321.4 per Windeyer J. Here, in relation to the evidence in the husband’s case, and in the wife’s case according to the cross examination of her which was conducted, there was nothing raised which “required” explanation or contradiction concerning Mr Y. Rather, the state of the evidence in the husband’s case was so contradictory as to not require answer at all.
There is a general principle that the rule does not apply in relation to one’s solicitor: Cross on Evidence at [1215]. However, I acknowledge in this regard that the mutual disclosure of the solicitors’ files may well have amounted to a waiver of privilege also in relation to oral communications between solicitor and client. This matter however was not argued and is one which I need not decide.
I am firmly persuaded, however, that the “conditions” (Jones v Dunkel at 321.1 per Windeyer J) which need to be present for an inference to be made that any oral evidence by Mr Y would have exposed facts unfavourable to the wife’s case, namely that he did not revert to Mr X to obtain a copy because the wife had told him that she already had one, are not met. In summary, the facts proved in the husband’s case are insufficient to attract operation of the rule (in particular, because I have rejected the husband’s evidence; moreover, it is starkly inconsistent with Mr X’s evidence, as explained); the submission rests upon conjecture where it is equally possible that there is other available explanation for Mr Y not being called; and the issue of any contention based upon adverse inference was not raised in the pleadings or in cross examination of the wife in order to alert the wife and her legal advisers that such would be contended, namely that a natural inference arises from the circumstance that she did not call Mr Y because of fear to do so. Finally, it is not now obvious, and certainly was not obvious during the hearing, that inevitably the drawing of such a natural inference would be raised in argument if the wife should fail to call Mr Y. No issue was raised which would have made it logical to call him. The submission is based upon conjecture raised for the first time in final submissions.
In my view, forensically what has occurred is that when the husband’s evidence went so badly wrong, by Mr X contradicting the husband’s affidavit evidence, then the husband in his oral evidence contradicting Mr X’s oral evidence, the husband in final submissions has sought to grasp onto an unavailable straw to fill a gap in his own case, which is not a permissible use of the rule.
I reject therefore the husband’s Jones v Dunkel submission as not arising, and further as unfounded speculation.

Browne v Dunn

Mr Hackett submitted (written submissions 22 July 2009, par 43) that Mr X was not challenged by Mr Hall and it was not put to Mr X that the wife was not at X Solicitors on 10 August 2004 and not given an original or a copy by Mr X on 10 August 2004 after it was signed by the husband “contrary to the rule in Browne v Dunn” (1894) 6 R 67. This is wrong. Mr Hall did put to Mr X that the wife was not at X Solicitors on 10 August 2004: T42/45; T43/1, to which Mr X responded: T43/2 “That’s not correct”. Plainly, as it was put that the wife was not there, it was not necessary to put her (negative) case that something did not occur while she was not there. The one proposition encapsulates the other. Moreover, it was not necessary to challenge Mr X with the wife’s evidence that she was not given an original or a copy by him on 10 August 2004 after signing by the husband because Mr X did not give positive contrary evidence that he had done so.
That is sufficient to dispose of the matter.
However, as the submission has been put, in deference to it I will address the point as if the questions referred to had not been put in cross examination.
As is understood, the rationale for the rule in Browne v Dunn is procedural fairness such that notice of a contrary position should be put: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSW LR at 18.
However, the matter proceeded on affidavit, and the wife had deposed in her affidavit that she was not at X Solicitors on 10 August 2004 and was not on that date given an original or a copy of the agreement: principal affidavit, par 26; and affidavit in response, par 2i. The husband and his lawyers were thus on notice as to the wife’s evidence, and there was no surprise to the husband or his lawyers. Although the wife is the applicant, for convenience Mr X gave evidence before the wife. Her affidavit evidence however was read before Mr X gave his evidence.
I am unable to conclude therefore that there was any breach of the rule. See, generally: 3D Scaffolding Pty Ltd v Commissioner of Taxation [2009] FCAFC 75 at [29], [30] and [31]; Cook’s Constructions v Stork Food Systems Aust Pty Ltd (above) at [44] – [45]; LC v TC (1998) FLC 92-803 at [38]. The issue was clear. Further, the point specifically listed for preliminary determination was that the husband asserted and the wife denied her being at X Solicitors on 10 August 2004 and that on that date Mr X gave her a document of the type required by s90G(1)(e).

Conclusions

In conclusion, considering all of the evidence and all of the matters raised it is impossible to conclude on the balance of probabilities that it is more likely than not that on 10 August 2004 at X Solicitors either Mr X or the husband gave to the wife an original or a copy of the agreement signed by both parties and accordingly, as I have said, I have found this not proved.
Further, in addition to finding the husband’s case not proved, I accept the wife’s evidence that the first time she saw an original or a copy of the agreement signed by both parties was on 1 September 2008, at Court, and that at no stage prior to that had she been given an original or a copy of the agreement signed by both parties. In short, I accept the wife’s evidence on this point as credible and correct, despite her evidence that she did not attend at X Solicitors on 10 August 2004, and Mr Hall’s concession that having regard to Mr X’s evidence the wife’s evidence of her recollection of not going to Mr X’s office is likely to be incorrect. There are many explanations for this, consistent with credibility, for example, that the wife genuinely does not recollect being there on that date, her recollection being that the husband dropped her home after her visit to Mr Y rather than there being any deliberate mistruth on her part. I had ample opportunity during the hearing to observe the wife’s demeanour and formed the view, having regard to her evidence, and all of the evidence overall, that her evidence in two critical respects was both honestly given and more likely than not to be correct in fact, first that on 10 August 2004 she was not given by Mr X or anyone an original or a copy of the agreement signed by both parties and secondly that she did not see an original or a copy signed by both parties until 1 September 2008, at Court.

Document sent by Y Solicitors to the wife on or after 10 August 2004

The wife’s affidavit refers to the circumstance that a few days or perhaps a week after 10 August 2004 she received a letter from Y Solicitors “enclosing a copy of the agreement signed by me”, which letter and enclosure are annexure MLS1 to her affidavit. It is plain upon examination of the enclosure that it is a photocopy of the financial agreement as signed only by the wife and witnessed by her solicitor Mr Y on 10 August 2004 which he sent to the wife on or about that date, obviously, according to her evidence, after she had left his office on that day.
Mr Hackett submitted that s90G(1)(e) addresses “the time” at which the original is to be given to one of the parties that is, the original signed agreement, and “a copy” is to be given to each of the other parties, namely “after” the agreement is signed by all of the parties, such that s90G(1)(e) is satisfied if a copy is given to the other party or the other parties after signing by all of the parties but which copy either bears no signatures or not the signatures of all of the parties. This arises, he submitted, by having regard to the words in s90G(1)(a) “signed by all parties” and the word “and” immediately following s90G(1)(a), both of which precede s90G(1)(e), making clear that “the giving” must be after all of the parties have signed, but that there is nothing in s90G(1)(e) to require the copy or copies to bear any signatures because the provision does not say specifically that the “copy” has to be a “signed copy” or “a copy” signed by all of the parties.
Mr Hackett submitted that it is not a matter for challenge that the husband had been given “the original or one original” by Mr X, and that the wife’s own evidence establishes that after the husband signed at X Solicitors, she received “a copy” from Y Solicitors, being the copy signed only by her, annexure MLS1. He submitted that to construe s90G(1)(e) as requiring also that the “copy” should bear signatures is to “read in something not there.”
He submitted (written submissions 22 July 2009, par 12) that an illustration which “demonstrates the proper construction” of s90G(1)(e) was one used by me during the hearing such that if the agreement had been prepared on a typewriter with a carbon copy, and the original was signed by all parties and given to the husband, and the carbon copy given to the wife, with no signatures, there would be compliance with the provision. However, that is not the illustration which I made at the hearing. Rather, my observation was related to the production of the print by word processor, such that in modern times it is more likely that there be several signed “originals”: T30/45-T31-25. Thus, my example should not be taken as suggesting compliance with s90G(1)(e) if a “carbon copy”, or any “copy” not signed by all parties be given to a party.
Mr Hall submitted that to interpret “a copy” in s90G(1)(e) as “an unsigned copy” being sufficient would be to ignore the effect of the words in s90G(1)(e) “after the agreement is signed”, that is, signed by all parties, and that “a copy” in s90G(1)(e) plainly is intended to be read in conjunction with the words “after the agreement is signed” (meaning, having regard to s90G(1)(a), “signed by all parties”) with effect that the plain meaning is that one spouse party is to be given “the original” meaning “the original signed agreement” (as signed by all parties) and the other party or other parties “a copy” meaning “a copy of the original signed agreement” (as signed by all parties), and that to find otherwise, the prefacing words “after the agreement is signed” would be rendered meaningless.
In my view it is plain, contextually, having regard to both s90G(1)(a) and the prefacing words in s90G(1)(e) that “the original” means the original agreement as signed by all parties, and that it is not necessary to add or read in such additional words to achieve that plain meaning because no other meaning is available. “Copy”, according to the Australian Concise Oxford Dictionary, has the primary meaning “thing made to look like another”, and according to the Macquarie Dictionary, “reproduction, or imitation of an original”. Thus, a document not showing the signatures of all of the parties cannot be “a copy” of the original agreement but merely “a copy” of the form of a proposed agreement before signature by all of the parties, by which signing the agreement comes into existence.
I reject therefore the husband’s case that the document sent to the wife by Y Solicitors, annexure MLS1, is capable of being, “after the agreement is signed” , “a copy” of “the original” agreement given to the wife within the meaning of s90G(1)(e).
Moreover, it would appear to be plain that the object or purpose of s90G(1)(e) is to serve as communication to the other party or other parties of the fact of signature by all parties, not only for the purpose of communication of the fact of signing by all parties, so that all know that the agreement has come into existence and is no longer merely a proposed agreement, but also for all parties independently to have evidence of the coming into existence of the agreement. If “a copy” in s90G(1)(e) were interpreted as submitted by Mr Hackett this apparent object or purpose would be defeated.

1 September 2008 and 15 May 2009

It is common ground that on 1 September 2008, more than three months after the commencement of these proceedings by the wife on 26 May 2008, a copy of the signed financial agreement became ex 1 in the proceedings, and that a copy was on that date provided to Mr Hall of Counsel, for wife; and further that by enclosure with a letter dated 15 May 2009 to the wife’s solicitors the husband’s solicitors forwarded a further copy of the signed financial agreement to the wife’s solicitors.
Mr Hackett submitted that “after” in s90G(1)(e), should be given its literal meaning of “at any time after” the agreement is signed, so that even if I should determine that the wife was not given a copy of the original agreement on 10 August 2004, and that annexure MLS1 which she received from her solicitors is not a “a copy” within the meaning of s90G(1)(e), then the statutory requirement nonetheless is met by her being given a copy of the signed financial agreement on each of 1 September 2008, at Court, and by way of the enclosure of it with the letter 15 May 2009 to her solicitors.
Mr Hall submitted that “after” in s90G(1)(e) and in the context of s90G as a whole, imports that there be some immediacy in the giving; or at least that there be reasonable conjunction of temporality in the giving; such that the giving is required to occur at or about the time as, or soon after, the financial agreement is signed. He submitted that to “make sense”, the provision as a whole should be interpreted as requiring the giving to occur after the signing by all parties but with some temporal conjunction to the signing.
In my view, whilst “after” is a word of wide import, its context in s90G(1)(e) denotes the completing step for satisfaction of the statutory requirements in s90G, such that it is untenable to suggest that the completing step should be capable of being met after legal proceedings be instituted as to the very question whether the completing step has been taken.
Thus, I accept Mr Hall’s written submissions 21 July 2009, par 45, which I will set out rather then paraphrase:
45.The use of the term “after it is signed” imports that there is to be some immediacy in the giving. The particular wording contemplates that the “giving” occurs at or about the time the agreement is signed, otherwise the inclusion of the words “after it is signed” in s90G(1)(e) make no sense. Further when read together with the other requirements set out in section 90G, it makes sense to interpret the section as requiring the giving to occur with some temporal connection to the making of the agreement, as the other matters in s90G(1)(a) to (c) relate to its form, and to what the agreement must contain, and the acknowledgement of receiving advice, and a certificate certifying that the advice was given. All of these matters must be done at the time the agreement is made. It thus makes sense that likewise, so must the giving of the original and a copy to the parties be done at the same time.
In pars 47 and 48 of his written submissions, Mr Hall makes the point, which I accept, that the husband’s seeking to rely on provision of a copy of the agreement signed by both parties to the wife after commencement of the litigation is demonstrably untenable for satisfaction with s90G(1)(e), the wife receiving such copy some five or so years after it was signed, after the marriage has broken down and after the parties have separated for close to two years and after proceedings have been instituted to set the agreement aside, in part on the ground that no copy of the signed agreement was given to her after it was signed, is illogical and must fail.

Section 90G(1)(b) and (c)

It is not necessary to deal with this aspect of the matter to dispose of it. However, as the matter was argued, it is appropriate that I determine it.
The financial agreement contains clauses 16 and 17:
16.[The husband] acknowledges that before this agreement was signed by him as certified in Annexure “A” to this Agreement, he has been provided with independent legal advice by [Mr X], a Lawyer of [X Solicitors] practising [in] the State of Queensland as to the following matters:
(a) the effect of the Agreement on his rights; and
(b)the advantages and disadvantages of him entering into the Agreement, at the time that the advice was provided.
17. [The wife] acknowledges that before the Agreement was signed by her as certified in Annexure “B” to this Agreement, she has been provided with independent legal advice by [Mr Y], a Lawyer of [Y Solicitors] practising [in] the State of Queensland as to the following matters:
(a) the effect of the Agreement on her rights; and
(b)the advantages and disadvantages of her entering into the Agreement, at the time that the advice was provided.
The certificates, annexures A and B, contained similar wording, not different in effect.
The wife points to the words “entering into the Agreement”, in each of clauses 16(b) and 17(b), compared with s90G(1)(b)(ii), the words “making the agreement”. Mr Hall relies upon the “strict compliance” principle in Black. However, s90G(1)(b), in terms, requires a statement “to the effect” of the words following, not the precise words in s90G(1)(b)(ii). Whilst I acknowledge that the different words used are capable of different meanings in other contexts, in this particular context, in my view, the words used are synonymous, so that there is no substantive difference between “entering into” an agreement and “making” an agreement in this particular context.
Mr Hackett submitted, which I accept, that the differences are semantic and that this is not the issue which emerged in Black. That case dealt with actual omissions of subject matter required to be contained in the statement so that “the agreement was flawed”: see at [42]-[46]. Here, there are no omissions. The word difference in the statement in my view is within the statutory requirement that the statement be “to the effect” of what is set out in s90G(1)(b). That is to say, in this particular context, in my view the phrase “entering into the agreement” is to the same effect as the phrase “making the agreement”. Mr Hall referred to Whatley & Whatley [2007] FamCA 1671 at [26]. However, as that case dealt with additional words in the agreement under consideration, in my view it does not assist, it being observed in that case that the additional words were “not mere verbiage” but, as I understand that decision, beyond use of words “to the effect” of the words in the provision.

The Federal Justice System Amendment (Efficiency Measures) Bill (No 1) 2008

Counsel referred to Schedule 5 to the Bill, item 4, which seeks to repeal s90G(1)(e), and which by item 8 would have the repeal retrospective to 27 December 2000, the date of commencement of the Family Law Act Amendment Act 2000, which inserted s90G; but with the qualification that item 4 not apply to an agreement where a court has made an order setting aside the agreement.
As at the date of this judgment I am aware that the Bill has passed the House of Representatives on 5 February 2009 and presently is before the Senate.
Clause 2 of the Bill provides, in its table, that item 4 of Schedule 5 will commence on the day after the Act receives Royal Assent.
I have read the second reading speeches in the House of Representatives and the Explanatory Memorandum to the Bill.
However, as is plain, these matters are academic to my proper determination of the matter according to the statutory law as it presently stands.
This much, at least, was common ground between the parties.
The effect it that, even if soon the Bill passes the Senate and receives Royal Assent, then, subject to any appeal, my judgment will stand by reason of the qualification to reciprocity which I have mentioned, being Parliament’s recognition that retrospectively it cannot denounce a court order.

Appropriate relief

Counsel agreed that if I should find the s90G(1)(e) requirement not met, s90K is not invoked and that declaratory relief is appropriate, with a consequential order. I will therefore declare that the financial agreement signed by the parties on 10 August 2004 is not a binding financial agreement within the meaning of section 90G(1) of the Family Law Act 1975 (Cth), and order accordingly that it be set aside.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:

Date: September 2009