FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Whittle & Whittle [2023] FedCFamC1F 771
File number: HBC 252 of 2023 Judgment of: MCGUIRE J Date of judgment: 7 September 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE - Discovery – Interpretation of s 90G(1A)(c) – Unjust and inequitable – Breadth of “relevance” of obligation for discovery – Narrow interpretation Legislation: Family Law Act 1975 (Cth) ss 79 and 90G
Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) rr 6.01, 6.06 and 10.10
Cases cited: Hoult & Hoult [2013] FamCAFC 109; (2013) FLC 93-456
Parker & Parker [2010] FamCA 664; (2010) 43 Fam LR 548
Parker & Parker [2012] FamCAFC 33; [2012] FLC 93-499
Division: Division 1 First Instance Number of paragraphs: 35 Date of hearing: Matter determined on the papers in Chambers Place: Hobart Solicitor for the Applicant: Murdoch Clarke Solicitor for the Respondent: Blissenden Lawyers ORDERS
HBC 252 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WHITTLE
Applicant
AND: MR WHITTLE
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
7 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The wife’s application for disclosure be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whittle & Whittle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J
I am asked to determine a discrete issue as to discovery/disclosure.
On 21 March 2023 the wife filed an application initiating proceedings seeking orders as follows:
1.Subject to full disclosure and the determination of the Respondent’s business interests that the matrimonial asset pool is divided equally.
2.That the Respondent pay the Applicant's costs of and incidental to this application.
Notably the application initiating proceedings was not accompanied by an affidavit of the applicant other than a standard Financial Statement.
Further, and also notably, the application at [51] answers ‘no’ to the question:
Have the parties entered into a financial agreement or a part VIIIAB Financial Agreement under the Family Law Act 1975 or under any relevant state or territory legislation?
In a Response to the Initiating Application filed 16 May 2023 the respondent husband seeks the following orders:
1.That the Initiating Application filed 21 March 2023 be dismissed on the ground that by virtue of the terms of the…
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CaseChat Overview and Summary
The Court considered the leading authority on this issue, which is the majority decision in Hoult & Hoult, where Strickland and Ainslie-Wallace JJ held that the operation of section 90G(1A) is not confined to technical breaches and that the discretion under section 90G(1B) is broad. However, the Court in Whittle & Whittle determined that the consideration of "justice and equity" in the context of section 90G(1A)(c) should be limited to the facts and circumstances relevant to the making and performance of the agreement. The Court found that the notion of "unjust and inequitable" should focus on the 'opting out' nature of Part VIIIA agreements, where parties can reach agreements outside the normal requirements of justice and equity.
The Court concluded that allowing broader discovery into the materials that informed the parties' agreement would sit uncomfortably with the principles of Part VIIIA of the Family Law Act. The Court emphasised that the remedial section at section 90G(1A)(c) specifically references "unjust and inequitable" with an emphasis on the change in circumstances from the time the agreement was made. Therefore, the Court held that the consideration of "unjust and inequitable" should be narrowly interpreted to align with the underlying intention of Parliament evident in Part VIIIA.
The Court's decision clarified that the discretion under section 90G(1A) should focus on the facts and circumstances relevant to the making and performance of the agreement, rather than allowing broader discovery into the circumstances surrounding the parties' agreement. This interpretation ensures that the principles of Part VIIIA, which allows parties to reach binding agreements outside the normal requirements of justice and equity, are respected. The Court's reasoning provides guidance on the scope of discovery in the context of agreements under Part VIIIA of the Family Law Act.
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Background to the litigation
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Ratio Decidendi
Legal Principle Established
As such, where the issue is the breadth of the obligation to make discovery with reference to the preliminary dispute of the status of the agreement of 31 May 2021 the Respondent argues a narrower interpretation of the obligation of discovery referenced towards “unjust and inequitable”. The applicant seeks broader discovery as to the “justice and equity” of the agreement itself in respect to the circumstances surrounding the parties reaching agreement. At its most abstract therefore, as with many issues or challenges to discovery, is the question of relevance.CONSIDERATION The leading authority on this issue, and specifically as to the consideration of “unjust and inequitable” in the context of section 90G(1A)(c) remains the majority (Strickland and Ainslie‑Wallace JJ) in Hoult & Hoult.[1][1]Hoult & Hoult [2013] FamCAFC 109; (2013) FLC 93-456 (‘Hoult’). Their Honours confirmed that the operation of section 90G(1A) is not confined to technical breaches.[2] [2] Parker & Parker [2012] FamCAFC 33; [2012] FLC 93-499. Further their Honours recognised that the discretion at section 90G(1B) is a broad one informed by the pre-conditions of section 90G(1A)(a)-(e) being established and where a court exercising that discretion must inquire into the “facts and circumstances” surrounding the agreement in order to exercise that discretion. At [286] their Honours succinctly address the issue now before this Court thus: 286.…we have no difficulty with the trial judge’s reasons up to the point where he suggests that, “in the exercise of the s 90G(1A) discretion, the ‘justice and equity’ of the bargain, or, perhaps, its inherent ‘fairness’ referenced to ordinary notions of that term, cannot be wholly irrelevant to the exercise of the s 90G(1A) discretion” (paragraph 37 reasons for judgment). It is here where we part company with the trial judge. We consider that his Honour has misdirected himself and applied the wrong test in interpreting and exercising the discretion. It follows, as their Honours then determined, that it is only the facts and circumstances relevant to the making and performance of the agreement that are to be considered.[3][3] Hoult (n 1) 291. To allow otherwise a consideration of the materials that informed the parties' agreement sits uncomfortably, or indeed offends, the notion of Part VIIIA sitting separately from the section 79 obligations of justice and equity in the making of property orders (and the similar requirements of the former section 87 in respect of Deeds). Notably, the remedial section itself at section 90G(1A)(c) specifically references “unjust and inequitable” as disregarding any change in circumstances from the time the agreement was made with emphasis on the ‘opting out’ nature of Part VIIIA agreements where parties are able to reach agreement outside of the normal requirements of justice and equity. Their Honours cited the trial judge at [31]-[32] as follows:31.By way of (stark) contrast, the regime contemplated by Part VIIIA sees parties having the freedom to enter binding agreements without reference to what might be “just and equitable” within the meaning of s 79 of the Act. That is, binding agreements might be informed by the parties idiosyncratic notions or perceptions of what is, or is not, just and equitable or otherwise appropriate for them. Vitiating elements aside, the parties are perfectly free to make “a bad bargain” (in s 79 terms). Importantly, any such agreement can be “binding” within the meaning of s 90G and, by reason of so being, can exclude Part VIII of the Act without reference to a court and without reference to what a court might consider is a “just and equitable” settlement within the meaning of s 79.32.These matter [sic] must, in my view, be important in the determination of whether it is “unjust and inequitable” to hold parties to an agreement that is otherwise not binding within the meaning of s 90G. That is, the underlying intention of the parliament, evident in Part VIIIA is an important aspect of the s 90G(1A)(c) discretion.