FEDERAL CIRCUIT COURT OF AUSTRALIA
| WARNER & CUMMINGS | [2017] FCCA 432 |
| Catchwords: FAMILY LAW – Property application to set aside a binding financial agreement (“BFA”) – novel but legally and factually artificial argument that the recitals to the BFA should not be considered in construing the “operative” parts of the BFA as well as that the recitals cannot be considered in relation to compliance with the requirements of s.90UJ and s.90UM of the Family Law Act1975 (“the Act”) – actions of the Applicant found to be opportunistic in bringing the Application and did so only after the proceeds of sale of his property were not realised – challenge to evidence of Applicant’s former solicitor regarding the nature, quality and content of advice given to Applicant prior to the signing of the BFA – principles of construction considered in light of recent High Court decisions – failure by Applicant to refer to any relevant Full Court authority regarding “advice” given in conformity with Part VIIIAB requirements and issuing a “certificate” under those same requirements. |
| Legislation: Family Law Act 1975 (Cth), ss.90G, 90K, 90UD, 90UJ(1) & (1A)(b) & (c), 90UM |
| Applicant: | MR WARNER |
| Respondent: | MS CUMMINGS |
| File Number: | CAC 1778 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | 8 June 2016 |
| Date of Last Submission: | 6 July 2016 |
| Delivered at: | Canberra |
| Delivered on: | 10 March 2017 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Mr A… |
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- AGLC
- Warner and Cummings [2017] FCCA 432
- Case
- [2017] FCCA 432
- Decision Date
CaseChat Overview and Summary
This matter concerned an application by a de facto husband against his de facto wife. The dispute revolved around the validity of a financial agreement made between the parties under section 90G of the *Family Law Act 1975* (Cth). The application was heard by Judge Neville.
The primary legal issue before the court was whether the de facto husband had discharged the onus of proving that the requirements of section 90G of the *Family Law Act 1975* had been met, specifically concerning the provision of independent legal advice to the de facto wife prior to the execution of the financial agreement. The court was required to determine if a certificate of legal advice, when read in conjunction with a recital in the agreement, constituted sufficient evidence of compliance with the legal advice requirement.
Judge Neville reasoned that a certificate of legal advice, when read with a relevant recital in the financial agreement, should be treated as prima facie evidence that the legal advice component of section 90G(1) had been satisfied. His Honour adopted the principle that such a certificate, in conjunction with the recital, should give rise to an inference or presumption that the requisite advice had been given, thereby passing the evidentiary burden to the other party. The court found that the trial judge had erred by focusing on the specific content of the legal advice, rather than being satisfied that the advice referred to in section 90G(1)(b) had been given. The certificate, read with the recital, was considered a sufficient evidentiary foundation for this finding.
The court ordered that the de facto husband pay the de facto wife the sum of $121,848.25, plus interest, within 28 days. The de facto husband's application was dismissed, and he was ordered to pay the de facto wife's costs unless otherwise agreed within 14 days.
The primary legal issue before the court was whether the de facto husband had discharged the onus of proving that the requirements of section 90G of the *Family Law Act 1975* had been met, specifically concerning the provision of independent legal advice to the de facto wife prior to the execution of the financial agreement. The court was required to determine if a certificate of legal advice, when read in conjunction with a recital in the agreement, constituted sufficient evidence of compliance with the legal advice requirement.
Judge Neville reasoned that a certificate of legal advice, when read with a relevant recital in the financial agreement, should be treated as prima facie evidence that the legal advice component of section 90G(1) had been satisfied. His Honour adopted the principle that such a certificate, in conjunction with the recital, should give rise to an inference or presumption that the requisite advice had been given, thereby passing the evidentiary burden to the other party. The court found that the trial judge had erred by focusing on the specific content of the legal advice, rather than being satisfied that the advice referred to in section 90G(1)(b) had been given. The certificate, read with the recital, was considered a sufficient evidentiary foundation for this finding.
The court ordered that the de facto husband pay the de facto wife the sum of $121,848.25, plus interest, within 28 days. The de facto husband's application was dismissed, and he was ordered to pay the de facto wife's costs unless otherwise agreed within 14 days.
Orders
Orders of the court
1.
Within 28 days of the date of the Orders of this Court, the Applicant pay the Respondent the sum of $121,848.25 together with interest at the rate prescribed by the Family Law Rules from 17th May 2015.
2.
The Application, filed by the de facto Husband on 12th November 2015, be dismissed.
3.
Absent any Application within 14 days from the date of these Orders, the Applicant is to pay the Respondent’s costs, either as agreed or taxed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
At [96] - [98], his Honour said (emphasis added particularly in relation to the accepted use made of recitals):[96] … I am unable to accept the view his Honour expressed at [88] that “the certificate is, without more, insufficient to satisfy the onus of establishing that the relevant s.90G requirements have been met”. The certificate, when read with Recital N, should have been treated as prima facie evidence of compliance with the legal advice component of s.90G(1).[97] Put another way, employing Windeyer J’s formulation in Purkess v Crittenden (supra at 171), the production of the certificate, read together with the recital, should have given rise to “an inference, a presumption of fact or a presumptio hominis” that the requisite advice had been given.[98] … the production of the certificate (especially when read with the recital) had caused the evidentiary burden to pass to the wife. The inference properly to be drawn from the certificate (read with the recital) is that the advice required by s.90G had been given, even though there was no evidence of the content of that advice…. Then in relation to the specifics of “advice”, Thackray J said, at [100] – [101] (emphasis added):[100] … the trial Judge did not pose the correct question. He set out to ascertain the content of the legal advice, whereas he needed only to be satisfied that the advice referred to in s.90G(1)(b) had been given. Thus, when his Honour found that the certificate provided “an insufficient evidentiary foundation”, it seems his Honour was requiring the husband to provide a foundation for something that did not have to be proved.[101] The certificate, read with the recital, provided a sufficient evidentiary foundation for finding there had been compliance with the requirements of the Act. The question whether that foundation had been undermined by other evidence became confused with the question of the precise content of the advice. It is possible, if the questions had not been confused, that the answer would have been the same, but it would be unsafe to make that assumption. In a similar vein, at [279], the joint judgment of Strickland and Ainslie-Wallace JJ recorded that:[68]It also must not be forgotten that, as Justice Thackray has correctly pointed out in paragraph 100 above, it was only necessary for the trial judge to be satisfied that the advice referred to in s 90G(1)(b) had been given, and the certificate can be a sufficient evidentiary foundation for that finding; it was unnecessary for the trial judge to ascertain the “content of the legal advice”, and that was the error his Honour made.[68] At [288], their Honours also confirmed, by reference to the Full Court’s decision in Parker that s.90G(1A)(c) “is not confined to “technical” breaches.” Against the background of these statements of principle by the Full Court (again I note that unfortunately they were not addressed in any submissions by the Applicant, accepting that there is a brief reference to the decision at first instance in Hoult in the Applicant’s primary submissions at footnote 12), I note the following matters summarily, having regard also to the consideration of the evidence earlier in these reasons.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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