Whittle & Whittle (No 2)

Case [2025] FedCFamC1F 140

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Whittle & Whittle (No 2) [2025] FedCFamC1F 140

File number: HBC 252 of 2023
Judgment of: MCGUIRE J
Date of judgment: 6 March 2025
Catchwords: FAMILY LAW – PROPERTY – Binding Financial Agreement – Where the wife seeks a declaration that the Financial Agreement between the parties is not binding – Where neither party received independent legal advice – Where wife is a professional and prepared the Financial Agreement – Whether it would be unjust and inequitable if the Financial Agreement was not declared binding on the parties – Declaration that the Financial Agreement signed by the husband and wife is binding within the meaning of s 90G of the Family Law Act 1975 (Cth)
Legislation:

Family Law Act 1975 (Cth) ss 90G(1), 90G(1A) and (1B)

Evidence Act 1995 (Cth) s 140
Cases cited:

Hoult & Hoult [2013] FamCAFC 109, (2013) FLC 93-546

Kaimal & Kaimal [2020] FamCA 971

Parker & Parker [2012] FamCAFC 33, (2012) FLC 93-499
Division: Division 1 First Instance
Number of paragraphs: 69
Date of hearing: 27 February 2025
Place: Hobart, delivered Melbourne
Counsel for the Applicant: Mr Trezise
Solicitors for the Applicant: Murdoch Clark
Counsel for the Respondent: Mr Dixon SC and Mr McKenna, direct brief

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:

6 MARCH 2025

THE COURT ORDERS THAT:

1.It is declared that the Financial Agreement signed by the husband, Mr Whittle (“the husband”), and the wife, Ms Whittle (“the wife”), on 31 May 2021 is binding within the meaning of s 90G of the Family Law Act 1975 (Cth).

2.The husband make, file and serve any application for costs supported by written submissions within 14 days from the date of these Orders.

3.The wife make file and serve written submissions in response within 14 days of receiving the husband’s written submissions.

4.The matter otherwise be reserved on the issue of costs.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 of Whittle & Whittle (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

McGUIRE J:

APPLICATION

  1. On 21 March 2023 the wife, Ms Whittle,…

Continue reading Whittle & Whittle (No 2)

Sign in free to access the full text

Details
AGLC
Whittle & Whittle (No 2) [2025] FedCFamC1F 140
Case
[2025] FedCFamC1F 140
Decision Date

CaseChat Overview and Summary

In the case of Whittle & Whittle (No 2), Ms Whittle sought a declaration that the Financial Agreement between her and Mr Whittle was not binding. The dispute centred on whether the Financial Agreement was compliant with the mandatory provisions of the Family Law Act 1975 (Cth), specifically section 90G, which requires independent legal advice for such agreements. Neither party had obtained independent legal advice. The wife, a professional, drafted the Financial Agreement, raising questions about the fairness and equity of enforcing the agreement. The court was required to decide whether the agreement should be deemed binding despite non-compliance with the statutory requirement for independent legal advice.

The court considered the discretion provided under sections 90G(1A) and (1B) of the Act, which allows a court to declare a financial agreement binding if it would be unjust and inequitable not to do so. McGuire J found that the wife's professional status and the detailed drafting of the agreement indicated a level of understanding and sophistication. Additionally, the husband had ample opportunity to seek independent advice but did not. The court concluded that enforcing the agreement would not result in injustice or inequity, given the wife's role in preparing the agreement and the husband's failure to seek independent advice.

Accordingly, the court declared that the Financial Agreement signed by both parties on 31 May 2021 was binding within the meaning of section 90G of the Family Law Act 1975 (Cth). The court also ordered that the husband must make, file, and serve any application for costs supported by written submissions within 14 days from the date of the orders. The wife was to respond within 14 days of receiving the husband's submissions, and the matter was reserved on the issue of costs.

Orders

Orders of the court

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:

6 MARCH 2025

THE COURT ORDERS THAT:

1. It is declared that the Financial Agreement signed by the husband, Mr Whittle (“the husband”), and the wife, Ms Whittle (“the wife”), on 31 May 2021 is binding within the meaning of s 90G of the Family Law Act 1975 (Cth).

2. The husband make, file and serve any application for costs supported by written submissions within 14 days from the date of these Orders.

3. The wife make file and serve written submissions in response within 14 days of receiving the husband’s written submissions.

4. The matter otherwise be reserved on the issue of costs.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Consequently, where the parties agree non-compliance with the mandatory provisions of s 90G(1), the issue rests with the exercise of the discretion available to the Court under s 90G(1A) and (1B) of the Act which provide:(1A) A financial agreement is binding on the parties to the agreement if:(a)the agreement is signed by all parties; and(b)one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and(c)a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and(d)the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and(e)the agreement has not been terminated and has not been set aside by a court.(1B)For the purposes of paragraph (1A)(d), a court may make an order declaring that a financial agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement.BACKGROUND The wife is 47 years of age. She is employed as a professional and has completed a degree. The husband is 54 years old. He is a group director effectively operating an upmarket business. In effect he holds an overall 28 per cent interest in the entities with the remainder being held by one other person. The parties commenced cohabitation in 2000 in Melbourne and moved to City E in 2006. They married in late 2006. The parties finally separated on 25 May 2021 after a previous separation and a trial reconciliation. They were divorced in mid-2022. There are two children of the marriage X (aged 17 years) and Y (aged 14 years). The children live by agreement between their parents. It is clear that prior to the final separation the parties had negotiated as to a financial settlement and the wife searched the Internet and obtained a template for a financial agreement. By email of 10 May 2021 the wife corresponded with the husband and provided the husband with a first draft of a financial agreement and the email states: Hi [the husband]Here is the agreement I mentioned I was working on. I’ve tried to make it as basic as possible but compliant with the law.It only deals with [F Street] so that the new mortgage can be taken out and no stamp duty on transfer. You might be pleased to know that though that I’ve specifically excluded everything else (like business property, super, etc). I’ve also left out the car as I do trust that we will work something out. Trying to keep it simple.Please let me know your thoughts.Thanks.[The wife] By email of the same date the husband responded: Hi There,I think that’s a good start and obviously I’m not a Lawyer but there are some points that confuse me; F.This Agreement excludes other property held by the Parties, spousal maintenance, and superannuation arrangements.I think this could be interpreted as excluding all other assets from the Deed, so the house becomes yours and everything else is up for debate?I think it needs to be more specific, IE;House = [the wife]Furniture, fixtures, fittings etc = [the wife] (other than a few things that are personal to me like the […] Dresser) [The wife’s] super = [the wife][The wife’s] bank account balance = [the wife]Super, bank balances and other [the husband] or [the husband] Entities assets = [the husband] [The husband] agrees to pay school fees.[The husband] agrees to supply a vehicle etcJust my thoughts… [The husband]

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.