ALDO & SM

[2005] FamCA 1246

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT SYDNEY Appeal No. EA 24 of 2004

File No. SYF 3369 of 2001

BETWEEN:

ALDO

Appellant Husband

-and-

Respondent Wife

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  Finn, Coleman and Warnick JJ
DATE OF HEARING:         17 March 2005
DATE OF JUDGMENT:     23 December 2005

APPEARANCES:

Mr Hodgson of Counsel (instructed by Nemes Thomas & Co Solicitors; Level 1, 278-282 Church Street, Parramatta NSW 2150) appeared on behalf of the appellant husband.
Mr Tregenza of Counsel and Ms Welshman of Counsel (instructed by Peter Zipkis & Associates; Suite 1, 35 Spencer Street, Fairfield NSW 2165) appeared on behalf of the respondent wife.

Name of Appeal ALDO & SM

Appeal Number  EA 24/2004
Date of Appeal hearing  17^th day of March 2005
Date of Judgment  23^rd day of December 2005
Coram  Finn, Coleman, Warnick JJ

Catchwords: Appeal against discretionary judgment in proceedings under s 79A of the Family Law Act 1975 (Cth).
Grounds asserting discretion exercised on erroneous findings of fact not established.
Grounds asserting exercise of discretion based on findings of fact which may have been erroneous not established as such findings of fact not material to the exercise of discretion.
Grounds challenging exercise of discretion not established.

Appeal dismissed
Appellant to pay respondent’s costs

By Amended Notice of Appeal filed 9 March 2005 the husband appealed against orders made by Boland J on 13 February 2004 in proceedings brought by the husband against the wife, dismissing the husband’s application pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”). The wife resisted the husband’s appeal.

BACKGROUND

The husband was born in September 1966 and was accordingly aged 37 years at the date of her Honour’s judgment. The wife was born in July 1964 and was then aged 39. The parties were married on 19 May 1991. There were no children of the marriage.
The parties separated under the one roof in late 1993, according to the wife, or early 1994 according to the husband. The cohabitation was accordingly of something less than three years’ duration. A Decree Nisi dissolving the marriage was pronounced on 21 July 1995.
On 29 May 1995 orders for settlement of property were made by a Registrar of the Court. In summary, the orders provided for the transfer to the wife of the husband’s interest in the former matrimonial home of the parties; that the wife indemnify the husband in respect of all outgoings on the property including mortgage payments; that the husband be declared the sole and beneficial owner of his motor vehicle and be solely responsible for the liability in respect of it and his Bankcard; and that other than as previously provided by the orders, each party retain all property possessed by either of them.
The matrimonial home was jointly owned. The evidence before the trial Judge, which has not been contested in this Court, was that the equity in the home was between $30,000.00 and $40,000.00 at the time of the making of the 1995 orders.
The husband filed his application pursuant to s 79A on 11 April 2001. The grounds relied upon by the husband before the trial Judge, in his reply and response filed 24 October 2001, were that there had been a miscarriage of justice by reason of “fraudulent conduct” of the respondent, a miscarriage of justice by “reason of the suppression of evidence and the giving of false evidence” by the wife.

JUDGMENT OF THE TRIAL JUDGE

The proceedings before her Honour occupied some seven hearing days in March and October 2003. It is difficult to capture the substance of the reasons for judgment other than by more extensively referring to them than is usual. Moreover a thorough retracing of the reasoning process of the trial Judge enables a better appreciation of the challenges to that process arising from the grounds of appeal.
Having identified the application of the husband, and the wife’s response seeking the dismissal of such application, the trial Judge recorded Court events from the time of filing of the wife’s application for “Consent Orders” in the Family Court at Parramatta on 21 February 1995, through to the making of the orders which gave rise to the proceedings before her on 20 March 1995 and proceedings subsequent thereto, the most significant of which for present purposes was the husband’s application pursuant to s 79A.
Under the heading “ISSUES” the trial Judge identified a number of issues requiring determination. Significant amongst these was whether or not the husband had signed the Terms of Settlement upon which the orders of 29 March 1995 were based, and other documentation relevant to the making of those orders, including the authenticity of the witnessing signatures of a number of persons.
Her Honour set out a detailed “BACKGROUND HISTORY” to the matter. A consideration of the husband’s grounds of appeal will require extensive reference to her Honour’s reasons for judgment and particularly to findings of fact there made. It is unnecessary and unhelpful for present purposes to refer in any detail to the detailed background history which her Honour gave.
The “RELEVANT LAW S.79A” was referred to by her Honour. There is no suggestion that the statements made by her in that regard were other than accurate, the husband’s complaints being in relation to the application of the relevant law to the facts of the case, and a number of findings of fact relevant for that purpose. A lengthy list of documents relied upon by the parties was provided by her Honour. There is no suggestion that such list was in any way defective.
Under the heading “EVIDENCE ON THE ISSUE OF FRAUD” her Honour referred to the evidence of the husband in relation to the signature of documents. The husband conceded having signed only three documents relevant for the purpose of the orders of 29 March 1995, they being an affidavit sworn by him before a Justice of the Peace, Mr O, on 3 April 1995; the Acknowledgement of Service of the wife’s divorce application on 6 June 1995; and the Memorandum of Transfer of the matrimonial home to the wife in accordance with the orders of the Court in June 1995.
The trial Judge was “unable to accept the majority of the husband’s evidence about the signing of documents” (judgment, paragraph 93). A number of circumstances were relied upon to support her Honour’s conclusion in that regard (judgment, paragraphs 93 & 94).
Her Honour found that the husband had “executed a Statement of Financial Circumstances” for use in the application for consent orders before Ms P on 16 March 1995. Her Honour gave reasons for so concluding, finding Ms P, who had been employed by solicitors “for forty years and has been a Justice of the Peace for over 30 years” a “witness of truth” (judgment, paragraph 95). The original of such Statement of Financial Circumstances was filed in the Court at Parramatta on 20 April 1995.
The trial Judge rejected the husband’s claim that he did not attend on the wife’s solicitors on 21 August 1995 to advise that “he had changed his mind about the property settlement”, preferring the evidence of the wife’s solicitor, Mrs M, an “experienced lawyer” who “not only had another staff member present when she saw the husband” but made “an accurate file note of what the husband reported on that occasion”. Her Honour said of the husband’s evidence generally, “he was prepared in cross-examination to say anything which he believed assisted his case, including giving answers which were contrary to his own sworn Affidavit evidence”. A number of examples of which she then provided (judgment, paragraph 97).
The trial Judge said of the wife’s evidence, “Wherever there is a discrepancy between her [the wife’s] evidence and that of the husband, I accept and prefer her evidence” (judgment, paragraph 98). Amongst the reasons for so doing were the “appropriate concessions” made by the wife and the “relatively straight forward and honest manner” in which the wife gave her evidence.
Mr O, a pharmacist who was a witness in the husband’s case, was regarded by her Honour as “truthful” and as having given “his evidence to the best of his recollection” (judgment, paragraph 99). Mr O disputed the authenticity of documents purportedly signed by the husband and witnessed by Mr O. For reasons which her Honour gave, and which related to Mr O’s mistaken beliefs with respect to his Justice of the Peace stamp, and her Honour’s findings based on expert evidence to which she later referred, she found that the signatures on a number of the contested documents were in fact those of the husband and had been witnessed by Mr O (judgment, paragraph 100).
The trial Judge referred to evidence given by a Mr F that he recognised the husband and had witnessed the husband signing the Memorandum of Transfer (the authenticity of which signature was not disputed by the husband) at a gymnasium, rather than, as the husband asserted, a branch of the Advance Bank. The gymnasium, was a gymnasium at which both the husband and Mr F had been employed during 1995.
The trial Judge accepted the evidence of a Mr K, an employee of Sydney Water, who had witnessed documents signed by the husband as to his understanding of the Terms of Settlement, upon which the orders of 29 March 1995 were based, on 16 March 1995 (judgment, paragraph 103).
The evidence of the wife’s solicitor, Mrs M, was “generally based on her file notes, and her normal practice rather than any clear recollection of events”. The trial Judge accepted the evidence of Mrs M “in its entirety” having regard to the “very professional manner” in which Mrs M gave “her evidence to the best of her recollection”. Mrs M’s explanations of a number of events were accepted by the trial Judge as “likely” for reasons which she detailed.
The trial Judge had “no difficulty in accepting the evidence given by Mr T”, a solicitor in the same practice as Mrs M. Her Honour found that “Mr T would not have witnessed a document without accepting the deponent held out to him to be the person named in the document”, rejecting the suggestion of the husband that “the wife organised another person to hold themselves out as the husband before Mr T and that person had the skill to sign a document before Mr T with a signature identical to that of the husband” (judgment, paragraph 105).
Her Honour made reference to the evidence of handwriting experts relied upon by each of the parties. The qualifications of neither handwriting expert were challenged, either before the trial Judge or in this Court. The trial Judge produced a “schedule and provided a copy to Counsel for each party” to “assist in identification of documents as each expert” used a different numbering system in their reports. Her Honour reproduced the schedule in her judgment (paragraph 108).
In addition to the affidavit evidence of each expert, her Honour had an Order 30A Joint Expert Statement (judgment, paragraph 110) to which she referred. Her Honour referred to the opinion of Mr A, the expert called in the wife’s case that “signatures of the husband on disputed documents are genuine”, and to the opinion of Mr D, the expert called in the husband’s case, that “he is equivocal as to whether questioned signatures” are those of the husband, suggesting that the signatures are either “those of the husband, or skilful forgeries”. Mr D, her Honour concluded, suggested that “no reliance should be placed on the signatures because of his opinion about the JP stamp” (judgment, paragraph 111).
As her Honour recorded (judgment, paragraph 112), the experts had differing opinions as to how more than one JP seal of Mr O could have come into existence. As she also recorded, the experts were “also in disagreement about whether all of the signatures purporting to be those of Mr O are genuine”. The wife’s expert was “equivocal” as to whether:
... illegible signatures of Mr O on the questioned documents, except his signature on the Terms of Settlement and annexure note (Exhibit 3) are in fact the same signatures as provided in illegible specimen documents. (judgment, paragraph 114)
Mr D (paragraph115) was of the opinion that “due to the differences between the signature, purporting to be that of Mr O on the Terms of Settlement (Exhibit 2), and the specimen signatures, … they are probably not genuine signatures”.
Mr D was “equivocal” as to whether a signature, which Mr O conceded to have been “highly probable” as his, was a “genuine signature”, having “based his findings about the seal impressions”. In cross-examination Mr D:
... conceded a consistency between all seals appearing on documents filed in the Parramatta Registry [where the orders were made in 1995], including the Affidavit which the husband concedes he signed before Mr O, but maintained none of these seals were consistent with the sample seal
which had been provided to him (judgment, paragraph 116).
A number of other concessions in relation to the seal made by Mr D were recorded by her Honour (judgment, paragraphs 117 & 118). Mr D suggested that there were three JP stamps of Mr O, conceding that it was “possible that the true explanation in this matter was that there was more than one stamp, and that various stamps had been applied to various documents” (judgment, paragraph 119). Mr D conceded in cross-examination that:
… if the signatures were forgeries and made before an independent person, the task of getting the signature right would be extraordinarily difficult
and that:
… during his period of service in the police force he had not encountered a person with the requisite degree of skill to produce similar forgeries. (judgment, paragraph 120)
Mr A agreed that having regard to the differing “defects”, two seals had been made, although “probably sourced from common artwork” (judgment, paragraph 121). Mr A had relied for the exercise of his expertise on signatures “supplied by Mr O himself” and gave reasons for his opinion that the signatures of the husband and Mr O on the contested documents “fitted within the range of each writer’s signatures”.
Her Honour concluded that there were “at least two seals” suggesting by way of explanation that:
... it is highly likely that Mr O’s wife when overseas had two self inking stamps made, and the impressions of each of those stamps is to be found on the JP handbook. I find that it also likely that one of these stamps was used by Mr O and affixed by him to Exhibit 1, 2, C and D, and that another stamp was shown to Ms Di when she attended Mr O’s pharmacy and caused the seal impression to be placed twice on a piece of paper. (judgment, paragraph 124)
Mr D’s “hypothesis” that the signature on Exhibit D should be “questioned, because of non-acceptance of the veracity of the seal” which he had conceded to be “essentially the basis for questioning the signature”, was rejected by her Honour. The husband and Mr O had both acknowledged the signatures on the document “as being genuine”.
Her Honour rejected Mr D’s hypothesis in relation to the means by which one of the seals could have been affixed to disputed documents (judgment, paragraph 126), particularly given the absence of evidence “to suggest the handbook has ever left the custody of Mr O to enable” other copies to be made in the manner Mr D had suggested. The trial Judge particularly relied upon Mr D’s:
… most appropriate concession that he knew of no person who had demonstrated the high level of skill required to write signatures before an independent third party bearing such close resemblance to genuine signatures. (judgment, paragraph 127)
in concluding that the evidence of Mr A with respect to signatures of the husband and/or Mr O was to be preferred to that of Mr D.
Her Honour recorded:
I find Mr A’s expert opinion corroborates other evidence which I have particularised above, and notwithstanding both experts’ evidence is at odds with Mr O’s recollection that he only had one stamp, I accept and prefer the evidence of both experts that there were at least two stamps. (judgment, paragraph 129)
Under the heading “CONCLUSION - FRAUD” her Honour made a number of findings of fact. It is appropriate to refer briefly to these, for reasons which will become apparent when the grounds of appeal are considered. Her Honour found that the parties:
... around the end of 1994 or early 1995 … reached agreement that the wife would retain the matrimonial home subject to the mortgage, and that the husband would retain his motor vehicle and various chattels. (judgment, paragraph 130)
Her Honour further found that:
On 20 February 1995 the husband executed the Affidavit in support of that Application before Mr O, Justice of the Peace, at his chemist shop and at the time of execution Mr O placed by means of a self inking stamp a “seal” on the Affidavit. The self inking stamp was one of probably two self inking stamps held at Mr O’s pharmacy.
At the same time the husband signed copies of the Terms of Settlement, (judgment, paragraph 130)
Having executed the documentation, the husband was found to have “personally delivered the document to the wife’s solicitors’ office and informed Mrs M he did not wish to receive independent legal advice about the property settlement”.
The application for consent orders and Terms of Settlement were filed in the Family Court at Parramatta on 21 February 1995. Requisitions issued in relation to the documentation thus filed. Her Honour found that the husband took “the Affidavit of Understanding, which did not have the Terms of Settlement annexed, into the offices of Sydney Water at Fairfield and executed the Affidavit before Mr K, a Justice of the Peace on 16 March 1995”. The document had been provided to the husband for that purpose by the wife’s solicitors by letter of 6 March 1995. Her Honour accepted that on 16 March 1995 the husband delivered the “Affidavit executed before Mr K” to the wife’s solicitors’ office and whilst there “executed a Statement of Financial Circumstances before Ms P”.
The Affidavit of Understanding, executed before Mr K, lacking a copy of an annexed copy of the Terms of Settlement, was rejected by the Court, resulting, her Honour found, in the provision of a further copy of the Affidavit of Understanding with a copy of the Terms of Settlement “already signed by the parties” annexed. The trial Judge found that those documents were “delivered” to the husband by the wife and that the husband “executed the Affidavit of understanding” with a copy of the terms attached before Mr O who also “signed the document”.
The trial Judge concluded that it was “likely at this time the husband or Mr O traced over the signature on Exhibit 3 [the Terms of Settlement] which the husband had previously signed on 20 February when he signed the Application for Consent Orders”.
Her Honour found that on 3 April 1995 “the parties both attended at the offices of the wife’s solicitor”, where the wife executed a Statement of Financial Circumstances before Mrs M whilst the husband executed the affidavit contained in the application for consent orders before Mr T and a further “Affidavit of Understanding”. The “documents executed before Mr T were not filed in the Parramatta Registry”.
The trial Judge found that “On 6 June 1995 the husband personally took the transfer [of his interest in the former matrimonial home] into the wife’s solicitors’ office” and “asked an employee in the wife’s solicitors’ office how long it would take for matters to be completed because he wanted to go overseas”.
Her Honour found that “On 17 August 1995 the husband contacted the wife’s solicitors and said he no longer wished to go ahead with the property settlement” and that on 21 August 1995:
… the husband attended at the wife’s solicitors’ office where Mrs M, in the presence of Ms JF, saw the husband who told her he no longer agreed with the settlement. Mrs M told the husband that she could not give him legal advice.
Her Honour then said:
Based on my findings above I find no evidence to support the husband’s assertion that Exhibits 1 [Proposed Consent Orders], 3 [Terms of Settlement], 9 [Proposed Consent Orders dated 3 April 1995] and B [Wide Angle Photo] contain forged signatures or that the seals appearing on those documents were affixed by anyone other than Mr O, and in particular that they were not affixed by an offset printing process. (judgment, paragraph 131)
The husband’s application for relief in reliance upon “fraudulent conduct” by or on behalf of the wife was thus rejected.

Under the heading “EVIDENCE ON THE ISSUE OF MISCARRIAGE OF JUSTICE - ANY OTHER CIRCUMSTANCE”, the trial Judge considered the alternate basis upon which the husband sought relief under s 79A. Her Honour recorded that:
The first factor on which the husband seeks to rely in respect of “any other circumstance” is his evidence about his lack of understanding of the English language at the time the orders were made, and his consequent reliance on representations made by the wife. (judgment, paragraph 132)
Her Honour referred to a number of concessions made by the husband during cross-examination in relation to his understanding of documents written in English (judgment, paragraph 133); his attempts to learn the English language; his capacity to communicate with medical practitioners (paragraph 134); and to the fact that:
During the course of these proceedings the husband had the benefit of a Portuguese interpreter, but for the majority of his cross-examination he answered questions, which were not translated, in the English language. (judgment, paragraph 135)
Her conclusion was that “whilst English is the husband’s second or third language” he had “a reasonable comprehension of both written and spoken English by 1995 and was well able to read the documents executed by him” (judgment, paragraph 136). Her Honour found the husband to be “an intelligent man who demonstrated a real understanding of questions asked of him in cross-examination”, particular matters in that regard being cited.
Her Honour referred to the second matter upon which the husband relied: “his health”, and recorded, accurately it is conceded, that “No expert medical evidence was tendered before me”. Her Honour accurately recorded that the husband “unfortunately suffers epilepsy”. The husband “placed no evidence before the Court of his work history after 1995 such evidence as was before [her Honour] only being elicited in cross-examination”, nor did he detail his “claim before the Compensation Commission”. Her Honour referred to the absence of evidence of what “the husband’s medical condition was as at 1995, save and except he was attending medical practitioners, but was also working” (judgment, paragraph 137). The husband’s health was thus rejected as a basis for finding a miscarriage of justice.
The trial Judge relied upon the absence of “evidence that the husband’s medical condition at the time of the orders was likely to deteriorate requiring treatment etc, which would have required a significant adjustment under s. 75(2)(a) in his favour”. Whilst this gave rise to a ground of appeal (ground 2), it was not suggested that the trial Judge’s reference to an absence of evidence regarding the husband’s “medical condition” before her was erroneous.
The dispute between the parties as to whether the husband “was working at the time of the making of the orders”, was referred to by the trial Judge who noted the inconsistency in the evidence of the wife and that of her mother. The husband’s evidence that “from January 1995 his income was derived from social security payments” was supported by the evidence of the wife. Evidence from Centrelink established that social security payments to the husband “commence[d] on 3 July 1995 and not January 1995 as asserted by the husband”. The wife’s mother, who owned and conducted the cleaning business in which the husband from time to time had employment prior to mid 1995, produced records including cheque butts evidencing payments of wages and/or tax for the husband up to 30 June 1995. Her Honour concluded that “the records generally substantiate the assertions made by [the wife’s mother]” whose evidence was accepted and preferred to that of the husband. The husband having been in employment at the time the orders were made in May 1995 supported her Honour’s conclusion that:
… at the time of the making of the consent orders the husband’s medical condition had not precluded him from working, and that he was earning $450 per week not the current weekly income of $5,900 set out in his Statement of Financial Circumstances filed in the Court in 1995. (judgment, paragraph 141)
The Financial Statement prepared by the wife on behalf of the husband was considered by the trial Judge. That document suggested that the husband could have had a weekly gross income before tax of $450.00 plus overtime of $150.00 per week, together with $450.00 per week “From business”, $4,000.00 per week from “Part time jobs” to produce a total weekly income of $5,900.00. The only reliable evidence, as her Honour noted, suggested that the husband had an income of $400.00 per week (judgment, paragraph 143). It is clear, as her Honour found, “that at no time did the husband have an income or annual earnings of the magnitude set out in his Statement of Financial Circumstances”, a matter which assumed significance later in her Honour’s reasoning.
Her Honour recorded the husband’s assertion that:
… the agreement between himself and the wife was to the effect that the wife would pay to him a sum of money equivalent to not only half of the home, but half of the value of the Commodore motor vehicle and the furniture. (judgment, paragraph 144)
For reasons which she gave, her Honour rejected the claim that there had ever been an agreement between the parties in those terms, finding that the husband:
… did agree to the transfer to the wife provided that he was released from any liability under the mortgage, and that he received the chattels as asserted by the wife in her oral and affidavit evidence as his property entitlements. (judgment, paragraph 145)
Support for such conclusion came from the husband’s inability when “cross-examined about this aspect of the agreement” to “say what sum he expected to receive”.
With respect to contributions and s 75(2), as they emerged from the evidence presented before her, her Honour said:
I accept the wife’s evidence of her initial contribution to the parties’ property, and find that the wife’s family lent or gave monies to the parties for the deposit for the matrimonial home. I also accept and prefer the wife’s evidence about how mortgage payments were made and her contributions throughout the parties’ short term marriage. The husband conceded the wife’s earnings during the marriage were larger than his earnings. I find the wife’s contributions both financial and non financial exceeded those of the husband such that, at the date of the orders, her contribution based entitlement exceeded the husband’s contribution based entitlement. I am unable to make a positive finding about the weight which would have been given in 1995 to the husband’s medical condition particularly as he was then in employment. I accept it was a relevant s.75(2) factor and may have warranted an adjustment in his favour. (judgment, paragraph 147)
Her Honour implicitly acknowledged that the settlement which she found the parties to have reached may have been “more generous” to the wife than she “would have been likely to receive if the matter proceeded to a defended hearing” (paragraph 148). Her Honour was:
… satisfied that the husband well knew he could obtain independent legal advice, and that he clearly communicated to the wife’s solicitor that he did not wish to do so. I find he executed the Affidavit of Understanding before Mr O contained a clause expressly stating that he could obtain legal advice from the Chamber Magistrate at Fairfield but chose not to do so. I am satisfied his level of fluency in the English language in 1995 was such that he could read and understand the Affidavit. I find that it was only after his employment with [the wife’s mother] was terminated, and he lost his driving licence that he changed his mind about the settlement in about August 1995. (judgment, paragraph 149)
The “financial evidence” upon which the Court was asked to make the consent orders between the parties was considered by the trial Judge to be “misleading or at least confusing” (paragraph 150). That the husband was shown as having a weekly income of $5,900.00 when in fact his income was $400.00 weekly “may have been given substantial weight by the Deputy Registrar in coming to the view that the Terms of Settlement were just and equitable”. Having referred to the authorities which were relevant in that regard, the trial Judge found that “Such a failure may fall within the ambit of ‘any other circumstance’”.
The inaccurate and considerable overstatement of the husband’s weekly income and the circumstances surrounding the preparation of the document, thus led to the conclusion that there had been a miscarriage of justice by reason of any other circumstance.
The issue of “whether, in the exercise of my discretion, the orders made on 30 May 1995 should be set aside or varied” was then considered. Her Honour concluded that “the provisions in the orders are not so unreasonable as to give rise to an inference that there was some circumstance which vitiated the husband’s reasoning in entering into the orders”. She referred to the fact that “The husband was well aware from July 1998 of his legal right to seek to set aside the orders” and his failure to take “steps to prosecute his claim until 2001 some 3 years later”. The explanation for such failure, “a lack of financial resources to do so”, did not suggest that his position had changed between 1998 and the time he in fact filed an application under s 79A.
Reference was made in the trial Judge’s reasons to the absence of any direct or indirect contributions by the husband to the maintenance, conservation or improvement of the matrimonial home since January 1995, during which period the wife had been solely responsible for the expenses associated with the home and the refinancing of the home subsequent to, and in reliance upon the orders of May 1995.
At the time of trial the matrimonial home was agreed to be worth $325,000.00 and to be subject to an outstanding mortgage of $100,000.00. By reference to a “retrospective valuation of the matrimonial home as at 30 May 1995 of $150,000”, her Honour found the equity in the home at the date of the orders to have been “approximately $30,000” (judgment, paragraph 157).
Her Honour regarded her findings with respect to the husband’s lack of credit and assertions which “resulted in a lengthy and expensive trial involving forensic handwriting experts” and his “lack of candour and honesty”, to be “appropriate matters to take into account in the exercise of [her] discretion”. “Weighing all of these factors in the balance”, she thus concluded that the orders should not be set aside.
Under the heading “CONCLUSION” was reiterated the trial Judge’s finding that the assertions on behalf of the husband that “the wife or some other person, had fraudulently procured the husband’s signature on documents presented to the Court to obtain the Consent Orders” had been “without merit and unsubstantiated”. Her Honour rejected “factors such as his health, level of understanding of the English language and lack of legal representation at the time of the making of the orders as circumstances constituting a miscarriage of justice” (judgment, paragraph 161). She further recorded that:
Whilst I accept the husband’s epileptic condition was a relevant factor to be considered by the parties in reaching their agreement, on the evidence before me I could not be satisfied, particularly as the husband was in employment at the time the orders were made, that his medical condition itself was sufficient to vitiate his understanding of or otherwise render inappropriate the orders. (judgment, paragraph 161)
The husband’s language skills were found to be “such that he was fully aware of the nature of the orders he sought to have the Court make” and had reached agreement with the wife “because he wished to be free of the responsibilities associated with the mortgage secured over the matrimonial home”. Notwithstanding her conclusions with respect to the “inaccurate and misleading nature of the financial information” and the possible impact of such material “on the Deputy Registrar at the time of the making of the orders”, her Honour considered the factors relevant to the exercise of her discretion, “including the husband’s lack of candour, his delay in commencing the proceedings, the quantum of the parties’ assets and the wife’s contributions” to be “so overwhelmingly in favour of maintaining the orders that it would be inappropriate to now set aside or vary” the orders of 29 May 1995. The husband’s application was thus dismissed.

GROUNDS OF APPEAL

GROUND 1

Ground 1 of the Amended Notice of Appeal provided: -
Her Honour the trial judge’s exercise of her discretion [sic] so as not to set aside the 1995 orders despite the miscarriage of justice she determined had occurred (by reason of the provision to The Deputy Registrar of wrong information concerning the Husband’s income) did not constitute a proper exercise of that discretion by reason or any or all of the matters referred to in the further grounds appearing hereunder.
No written submissions in support of this ground were advanced, learned Counsel for the husband indicating that he would articulate the ground at the completion of his submissions with respect to the remaining grounds in the Notice of Appeal and in reliance upon them, his “overall submission” being that there were “so many issues and difficulties about the matter relating to the circumstances surrounding the making of the order as to oblige the trial Judge to have set aside the orders and sent them back for a proper hearing”. Learned Counsel submitted that these features pertaining to the making of the orders “override all else”. It is thus appropriate to turn to the particular grounds of appeal as they have been agitated and to consider ground 1 at the conclusion of our consideration of the particular grounds.

GROUND 2

Ground 2 provided:
Her Honour was mistaken in her recall of the evidence before her concerning the Husband’s health and hence did not correctly perceive its impact as a considerable Section 75(2) factor both at the time of the making of the orders by The Deputy Registrar and at the time of the hearing before her Honour.
It was submitted that:
The findings of her Honour about which complaint is made are the findings commencing at the top of page 44 of the judgment “There is simply no evidence …” and the content of paragraph 138.
The evidence of the Wife in fact suggested that the Husband’s epilepsy was a serious problem, particularly in relation to his capacity to hold down employment. She said that in the period between 1991 and 1995 the Husband had, because of his epilepsy, been unable to work for weeks and sometimes for months at a time.
Evidentiary references are the Wife’s affidavit 12 September, 2001 paragraphs 5, 6, and 7 (A/B1.145-146), (A/B10.1530-1533.18) and the wife’s mother’s affidavit 27 August, 2002 paragraphs 2, 4, 5, 6, 10, 11 and 14 (A/B.5.585-588). (A measure of the Husband’s lack of sophistication may be thought to be his statement to the wife’s mother (A/B5.586) that: “I’m not sick. It was a kind of spell that somebody gives me from Brazil”).
Further evidence about the Husband’s health before her Honour, relating to the period post 1995, was that the Husband in addition to his ongoing epilepsy had suffered a serious back injury suffered several years before the trial before her Honour. He had been and was at trial receiving workers’ compensation payments and had been classified totally incapacitated (A/B9.1323).
Exhibit 15 demonstrates that he had been on Centrelink payments (commencing as a sickness allowance) from July, 1995 to April, 1998.
The Wife had said (consistently with the Husband’s evidence) that the Husband had ceased working for the Wife’s mother at about the time of his departure from the matrimonial home (Wife’s affidavit 3 May, 2002 paragraph 25, A/B4.480) but in her oral evidence changed her position to support her mother’s evidence that the Husband had not left her employment until the end of June, 1995. (Appellant’s Pre Argument Statement, pages 1 & 2)
Reliance was placed upon a number of passages in affidavits to support this challenge:
5.Shortly after the wedding the Applicant suffered a fit which I subsequently found to be caused by epilepsy. I was not previously aware the Applicant suffered from this illness.
6.About the time of our marriage the Applicant lost employment in a pastry shop. After that time he worked in a series of pastry shops in various locations. His employment was broken by various periods of unemployment ranging from a few weeks to a few months. On several occasions I was required to collect the Applicant from work as he had suffered a fit. I was then required to nurse him until he recovered and was able to return to work.
7.In about August 1992 my mother agreed to provide contract cleaning work to the Applicant. Due to his illness he was unable to work on his own and consequently he was usually accompanied by my mother or myself. I worked with him part-time as I also maintained a full-time job. (Wife’s affidavit, AB 145-146)
...
2.I refer to the affidavit of the applicant sworn 2 August 2002 in these proceedings and in particular to paragraphs 5(a) and 5(b) thereof and say that before the wedding of my daughter and the applicant. [sic] I had a message on my answering machine from a take away sandwich shop in the Kogarah area where the applicant was working. The message said words to the effect of:
“ALDO got sick at work and has been taken to hospital.”
I immediately called the sandwich shop and was told that the applicant had fainted at work and had been taken to hospital.
On one occasion after this I made a point of going with the applicant to the local shops. While we were there I asked the applicant words to the effect of:
“What happened on that day when you fainted at work.”
He said words to the effect of:
“I don’t know. Maybe I was tired.”
He appeared to brush off my enquiry. There was no mention to me of epilepsy or any other illness by the applicant.
…
4.Sometime after the marriage when the applicant was working in a pastry shop in Burwood I received a phone call from the applicant. He said words to the effect of:
“I’m not well can you pick me up.”
I went to Burwood to pick the applicant up. On the way to my home he said to me words to the effect of:
“Before the fit starts I hear voices in my head and my stomach is upset. I then get a bad headache and then I don’t remember anything.”
I said to the applicant words to the effect of:
“You should see a doctor and get this checked out.”
He expressed no interest in seeking treatment and said words to the effect of:
“I’m not sick. It was kind of a spell that someone gives me from Brazil.”
I said to the applicant words to the effect of:
“You should go to a doctor to be sure you are not sick.”
He said words to the effect of:
“I don’t need to see a doctor.”
5.In relation to paragraphs 5(c) and 5(d) of the applicant’s aforesaid affidavit I say that in about February 1991 I offered the applicant work through my cleaning company so he could earn more money. From then until about June 1991 he worked for the business on a casual basis while he was being trained for the job. At the time he had no transport of his own. It was necessary for me to use my own car to take the applicant to work and train the applicant.
6.During this training period the applicant was ill on several occasions. During this period if I was unable to work with the applicant I always arranged for someone else to drive him to the work location and work with him.
...
10.From between 1992 to 1995 I worked with the applicant on numerous occasions. On at least two occasions he had seizures while we were working. We usually worked in different parts of the jail. On one occasion when he had a fit the staff called an ambulance and the applicant was taken to Blacktown Hospital. He was treated in the casualty section of that hospital by a doctor. I spoke to the doctor about the applicant’s health and she said that she had a brother who had similar problems. I asked if she could talk to the applicant regarding the fits which she did and she provided a referral for the applicant to attend Dr W at Westmead Hospital. Annexed hereto and marked with the letter “A” is a copy of a note in the Spanish Language which I made at the time. Annexed hereto and marked with the letter “B” a translation of the note in the English language. I attended the doctor with the applicant on this occasion. I believe this was the first time that the applicant had sought any help regarding his illness. I subsequently attended with the application on Dr W on several further occasions. I did not always stay in the surgery with the applicant. At all times I was present the doctor spoke to the applicant in English language without the aid of any interpreter.
11.After he consulted Dr W and commenced treatment his health improved and the fits occurred with less frequency.
…
14.The applicant continued to work with me until about June 1995. He resigned as he was sick and wanted to obtain sickness benefits. I gave him a letter confirming the reason for his resignation. Annexed hereto and marked with the letter ““C” [sic] is a copy of that letter dated 30 June 1995. (The wife’s mother’s affidavit, AB vol. 5, 585-588)

The following exchange during cross-examination of the husband was also relied upon:
And what was that injury?--- Actually I slipped and I fell, I hit my – my back and the back of my head so I had back problem and aggravation of epilepsy.
Right. Well you now have a back problem?---Actually epilepsy as well.
You’ve had epilepsy from - - - ?---Before.
- - - prior to your marriage?---Yes.
So you’re receiving weekly payments of compensation pursuant to the New South Wales Workers Compensation Act since that time?---Yes.
And are you aware as to whether your doctors have certified you totally incapacitated for work or partially incapacitated for work?---Totally incapacitated for work. (Transcript of 12 March 2003, page 71, lines 8-23, AB vol. 9, 1323)
Further reliance was placed upon Centrelink records which showed the husband to have been receiving benefits from between July 1995 and April 1998. Reference was made to the evidence of the husband, supported by the wife, that the husband had ceased being employed by the wife’s mother at about the time he left the former matrimonial home prior to the making of the consent orders. That issue was taken up later in the submissions on behalf of the husband (Ground 7).
On behalf of the wife it was submitted that the trial Judge “made an accurate statement of the evidence”. It was submitted that her Honour was not in doubt as to the husband’s prior history of ill-health, having referred to it elsewhere in her judgment. In paragraph 23 her Honour said:
In about 1992 the wife attended with the husband when he consulted a specialist, Dr W. The husband asserts the wife accompanied him to act as an interpreter. The wife disputes she acted as interpreter, and says the husband communicated himself with Dr W in the English language. The wife made notes prior to the appointment in the Spanish language setting out the date of an appointment, and instructions regarding a CAT scan.
In judgment paragraph 161 her Honour said:
The husband also relied on factors such as his health, level of understanding of the English language and lack of legal representation at the time of the making of the orders as circumstances constituting a miscarriage of justice. Whilst I accept the husband’s epileptic condition was a relevant factor to be considered by the parties in reaching their agreement, on the evidence before me I could not be satisfied, particularly as the husband was in employment at the time the orders were made, that his medical condition itself was sufficient to vitiate his understanding of or otherwise render inappropriate the orders.
It was conceded before this Court that no medical evidence in relation to the husband’s state of health had been adduced before the trial Judge. It is important to have regard to the terms in which her Honour expressed her finding. The finding complained of says nothing about the husband’s earning capacity, simply and accurately recording that “there is no evidence that the husband’s medical condition at the time of the orders was likely to deteriorate requiring treatment etc” thereby enlivening a potential s 75(2)(a) adjustment in his favour. If the husband sought to assert before her Honour that his condition at the time the orders were made was likely to deteriorate, it was for him to adduce medical evidence to that affect. This he did not do and cannot now complain that the trial Judge did not find as he had hoped she would. This complaint has no substance.

GROUND 3

Ground 3 provided:
Her Honour erroneously took no account of the fact that the Wife three times adamantly insisted (consistently with the Husband’s evidence) that the signature “ALDO” on the Terms of Settlement provided to the Court upon which the 1995 orders were made was not that of the Husband. (Her Honour appears to have overlooked this evidence as it is not referred to anywhere in the judgment).
The Court was referred to the evidence of the wife which was relied upon in support of this complaint but has not been expressly referred by either Counsel to any passage in her Honour’s judgment where this issue was discussed.
It was submitted on behalf of the wife:
6.In her evidence the Respondent was examining exhibit 2 (A/B 11A, p. 1935). The signature to which the Respondent was taken is obviously overwritten (compare the photocopy of the same page forming part of exhibit 3 at p. 1939). (Respondent’s Summary of Argument)
It was further submitted that:
7.Her Honour found that this overwriting is likely to have occurred at the hand of either the husband or Mr. O (A/B 1, p59, last bullet point). (Respondent’s Summary of Argument)
In re-examination the wife was asked:
And do you recall the – well, you have been asked a question by my friend as to whether the signature on that document is that of ALDO, and you say it is. Were you there when he signed it?---Yes.
Where did he sign it, do you recall?---In her place.
And was Mrs G present at the time?---Yes.
That is the evidence, your Honour. (Transcript of 27 October 2003, pages 30 & 31, lines 45-5, AB vol. 10, 1617-1618)
There was no objection to the questions.
As was submitted on behalf of the wife, it is important to have regard to the document to which the wife was referred during this cross-examination, on which the husband’s signature had clearly, whoever signed the original, been “overwritten” on the document. To the extent that the wife’s answers appear clear from cross-examination, and favourable to the husband, her re-examination sheds sufficient doubt on the issue to obviate any necessity for a clear finding in relation to it.
It is apparent from the numerous passages in her Honour’s judgment in which her findings with respect to the execution of disputed documents, both by the husband and his attesting witnesses, that her Honour reached her conclusion that the husband had, on the totality of the evidence, signed the documents. Part of the evidence upon which her Honour relied for her conclusion was that of the experts.
During the course of submissions in support of this ground, the Court raised with learned Counsel for the husband what significance had been sought to be made of the wife’s concessions in final addresses before the trial Judge. The Court has not been referred to any submissions made in reliance upon the wife’s concessions. As the submissions of learned Counsel for the husband before this Court make clear, if in fact the husband denied having signed the Terms of Settlement, and the wife agreed that he had not, that could have assumed considerable significance in the proceedings before the trial Judge. The absence of any submissions to her Honour to that affect reinforces our impression that, in context, the wife was conceding no more than that the overwriting on the document did not look like the husband’s signature. Unless the husband was able to demonstrate that the trial Judge erroneously relied on the other evidence which led her to conclude that the husband had signed the disputed documents, this challenge could not succeed, even if, contrary to our view, the trial Judge erred in not making the findings asserted on behalf of the husband that the wife had “three times before the cock crowed” as learned Counsel for the husband submitted, denied that the signature on the terms was that of the husband.
On the view we take of the evidence of the wife in relation to the husband’s signature on the “overwritten” document, as is well established, the trial Judge was not required to make findings of fact. Not every issue arising during the course of proceedings, nor every conclusion reached, requires mentioning in the course of reasons for judgment provided that the reasoning process is discernable. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279, McHugh JA said that reasons for judgment:
… enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
Soulemezis v Dudley (Holdings) Pty Ltd (supra) and other authorities were followed by the Full Court of this Court in Bennett and Bennett (1991) FLC 92-191. The Full Court there said (at 78,266):
In the latter case [Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247], McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.
In our view, there was no necessity for her Honour to expressly refer to this evidence having regard to the circumstances as we have outlined them. This ground accordingly lacks substance.

GROUND 4

Ground 4 provided: -
Her Honour’s adverse findings concerning the Husband’s credit were grounded on premises not wholly available to her.
The submissions made with respect to Ground 4 were also “advanced in support of Grounds of Appeal 9 and 11”. Learned Counsel for the wife’s response to Counsel for the husband’s outline also dealt with the three grounds together. It is convenient for this Court to adopt the same approach.
Grounds 9 and 11 respectively provided:
9.There was no proper evidentiary basis for her Honour’s conclusions that –
(a)Copies (or any copy) of the application were obtained by the Husband prior to 20 February, 1995 “probably from the wife”.
(b)“After the Husband executed the affidavit in support of Consent Orders” (which he denies) “he personally delivered the document to the Wife’s solicitor’s office” (which he also denies).
…
11.Her Honour the trial judge did not adequately address in her judgment –
(a)The submissions made by Counsel for the Husband at the hearing on the relative merits of the evidence of the experts D and A.
(b)Mr. D’s particular observations made in paragraph 13.2 on page 12 of his report being Annexure “C” to his affidavit filed 20 February, 2003 reproduced early (the Appeal Book page is unclear in the writer’s copy) in Appeal Book 7.
(c)The evidence of Mr. O read with that of the Husband and particularly that of the Wife concerning the signature said by Mr. A to have been that of the Husband.
(d)Her Honour did not advert to the evidence of Mr. D on page 4, paragraphs 10 and 11, of his report dated 21 February, 2003 concerning the imprint on the Application for Consent Orders filed 21 February, 1995 of the ESDA reading “F/N 21/8/95” in the Court file.
It was submitted on behalf of the husband:
(i)Her Honour does not define “[the wife’s mother]” early in her judgment (as she does with other terms) and throughout her judgment refers to SM as “the Wife”. Nonetheless it seems probable that her Honour’s reference to “Mrs SM” is to the Wife and not to the wife’s mother. But both possibilities are addressed below.
(ii)We know that the Husband did not receive the copy of the documents which were insufficiently addressed to him sent by the Wife’s solicitors. Her Honour was satisfied that that was so (J.130, bullet point 3).
(iii)The Wife does not anywhere give evidence that she provided the copy she received from her solicitors, or any other copy, to the Husband.
(iv)Neither does the wife’s mother do so.
(v)It is submitted that the Wife’s evidence at A/B10.1566.47 that -
“(Ms. SM) would probably have given herself, or probably my mother that was working for him. I don’t know. I didn’t give him anything”
in answer to a question in cross examination on this topic carries no weight, has no support from any other evidence and could not properly found her Honour’s finding to the effect that the document somehow made its way to the Husband on 20 February, 1995 or thereabouts.
(vi)It is difficult to see why either “Mrs SM” would give the Husband a copy to be signed and taken to the Wife’s solicitors in circumstances where there had been posted to the Husband and, so far as was then known to the Wife, the wife’s mother and Ms. M, the Husband had received a copy of the documents. (Appellant’s Pre Argument Statement)
It was submitted in reply on behalf of the wife:
9.The evidence of Mrs. M at A/B 4 at p. 454 which was not objected to and not cross examined upon supported conclusion as to the probabilities [sic].
10.Further, at A/B 9, p. 1471 Mrs M noted file note that the wife’s mother gave some instructions to Mrs. M on 13 January, 1995.
11.That it is possible that the wife collected the Application for Consent Orders on this or upon a subsequent occasion.
12.It must be remembers [sic] that the delay by the husband in bringing the proceedings has dimmed the recollection of all concerned. Ordinarily the delivery of an Application for Consent Orders would be completely unremarkable. (Respondent’s Summary of Argument)
It was further submitted by Counsel for the husband:
(vii)Her Honour placed reliance on the diary note of 20 February, 1995 which was contained in Ms. M’s file which read: “20/2 rec’d docs from H. He doesn’t wish to obtain legal advice”. But Ms. M’s evidence contained some potent inaccuracies despite her Honour’s acceptance of her evidence “in its entirety” (J.104). For example, in paragraph 20.(a) of her affidavit sworn 8 April, 2002 (A/B4.455) Ms. M says that she believes that the documents signed by the Husband on 6 June, 1995 were the Statement of Financial Circumstances and Affidavit of Understanding. Plainly, they were not. They were the Acknowledgement of Service of the divorce application and the Memorandum of Transfer of the real estate.
The response to that assertion by Counsel for the wife was that:
13.This does not appear to challenge the finding of fact that Her Honour accepted the evidence of Mrs. M, entirely drawn from her filed note and relied upon at paragraph 38 of the judgment at A/B 1, p.31.
14.Her Honour has accepted Mrs. M’s evidence that this was her file note. It is, on its face, a contemporaneous business record of Mrs. M’s legal practice.
15.It is not suggested that Mrs. M created the file note after the event. Her Honour has accepted the evidence of Mrs. M and accepted her as a witness of credit.
16.The Appellant relies upon Her Honour’s acceptance of the whole of Mrs. M’s evidence, picks a part of this evidence that which is attacked and then relies upon this matter to suggest that Mrs. M’s evidence ought not to have been accepted in paragraph 38. This proposition does not follow as, unless it is to be alleged that Mrs. M, a solicitor of long standing in this Court, fabricated this contemporaneous document then any other reflection upon her evidence is irrelevant.
17.The Appellant relies upon paragraph 20(a) of her affidavit (A/B 4, p.455) Mrs. M has expressed a belief in that paragraph as to what the documents were. There has been no challenge to the honesty of that belief.
Counsel for the husband further contended:
(viii)Ms. M was also in error in paragraph 17 of the same affidavit (A/B4.455) where she refers to an affidavit of JF declared on 22 February, 1995 concerning service of the Application for Dissolution. The JF affidavit is annexed to that of Ms. M. It was not “declared” but sworn. It was not sworn on 22 February, 1995 but on 9 June, 1995. It could not have had annexed to it the Acknowledgement of Service because the Acknowledgement of Service was not delivered (as appears from A/B4.469) until 6 June, 1995. These observations are not made in an attack on Ms. M’s credit but to show, with respect to her, that her memory on relevant matters was shaky and that her level of care was not all that it could be (the errors regarding Ms. JF being apparent from the annexures to Ms. M’s very affidavit; further, the whole history of several failed endeavours to comply with court requirements in a relatively simple procedure – the obtaining of consent orders - was far from exemplary.). The observations also impact upon her Honour’s finding at J.94 adverse to the Husband concerning his account of what happened on 6 June, 1995.
Counsel for the wife countered that submission:
18.The Appellant relies upon paragraph 17 of Mrs. M’s affidavit as being sworn rather than declared. This is inconsequential hair splitting at its zenith. The alternatives on the form (A/B p. 469) are between “Sworn” and “affirmed”. “Affirmed” has been struck out. Is cannot seriously be suggested that Ms. JF has not declared the matter contained in the acknowledgement to be true as Mrs. M deposed.
On the husband’s behalf it was asserted:
(ix)The Husband swore that he was not provided by anybody with the Application for Consent Orders nor did he sign it (A/B9.1349.45-1350.10 and A/B9.1356.44).
On behalf of the wife reliance was placed upon the fact that the “husband was not accepted by Her Honour as a credible witness” (paragraph 19).
It was further asserted by the husband:
(x)Reference is made to the ESDA imprint on the ESDA referred to in Ground 11.(d). It is very difficult to understand how this imprint could have occurred. There was a period during which the Court file was missing in October, 2003. The imprint corresponded with a file in Ms. M’s file. It was put to Ms. M that the Husband did not attend her office on 21 August, 1995. The imprint was never explained and it is respectfully submitted that it was a matter which should have been addressed in her Honour’s judgment.
In response it was submitted on the wife’s behalf:
20.There were two affidavits of Mr. D read, one sworn 21 February, 2002 (A/B 3) and one on 12 February, 2003. Neither affidavit contain a report dated 21 February, 2003. No report annexed (irrespective of the date) has the relevant observations in paragraphs 10 and 11 and/or page 4.
21.In any event, the High Court made it clear in Abalos v Austalian Postal Commission (1990) 171 CLR 167 that there was no duty on the part of the judge to expressly deal with every piece of evidence before the Court. This trial ran for 7 days with an enormous volume of evidence. It cannot be suggested that Her Honour is bound to deal with every point raised.
22.There was no evidence before the Court of the method of attachment of ESDA readings. In the absence of such evidence it is difficult to see what could be made of any such observation of Mr. D. The Appellant asserts that the imprint was never explained. It is not a matter for the Respondent to explain every matter identified in the Appellant’s case. It was the Appellant who alleged forgery.
It was submitted on the husband’s behalf:
(xi)The Husband denied attending the Wife’s solicitor’s office on 20 February, 1995. No one gave evidence of having seen him there.
The response to that submission was that:
23.There was evidence before the Court of the husband attending at the offices of Watson Stafford in the file note of Mrs. M. Business records of this nature are much better in informing a Court of events long since past than assertions.
It was further submitted:
(xii)Mr. D disavowed the genuineness of the Husband’s signature and of Mr. O’s seal and signature on the Terms of Settlement, although, of course, Mr. A was of the view that the signature of the Husband and of Mr. O and of Mr. O’s seal were genuine.
On the wife’s behalf it was asserted that:
24.The opinion of Mr. D was flawed. In his first report dated 11 February, 2002 (text at pp. 237 – 250). There were four questioned documents as follows-

Q1

Application for Consent Orders, which included Application and Applicant’s Affidavit, Applicant’s Affidavit and Respondent’s Affidavit

Q2

Terms of Settlement

Q3

Statement of Financial Circumstances

Q4

Terms of Settlement

25.The Specimen Documents relied upon by Mr. D were identified as S1 to S9. At paragraphs 1.5 (A/B 3 p.242) and 2.5 (A/B 3 p.244) of his report Mr. D concluded that the stamp and questioned signatures of the Appellant on Q1, Q3 and Q4 as well as S1 were probably not genuine signatures. It must be understood that the competence of a forensic document examiner is not to conclude whether or not a signature is genuine or not, it is to make comparisons and to express a view as to whether the same hand wrote (or in the case of a stamp, the same stamp was applied) the questioned signature (the questioned stamp).
26.Mr. D concluded that the specimen signature with which he was provided was not genuine. The sample signature at S1 is reproduced at A/B 3 at pp. 273 and 274. Each of these documents were adopted by both the Appellant and Mr. O as their signatures/seal. The Appellant did so in his affidavit (A/B 2 pp. 162A (para. 4(d)), 163A (para. 5, 8), 164A (para. 10, 11) and 199A – 201A. Mr. O accepted it at A/B 3 p. 188 (paragraph 6) and A/B 3 p. 200.
27.The favourable comparison by Mr. D between S1 (on the Appellant’s case, genuine) and Q1, Q2 and Q4 supports the proposition that the signature and seals on those questioned documents were genuine.
28.On this basis, Q4 (the Terms of Settlement) are genuine. This was the finding of Her Honour at A/B 1, p 55 (para. 116).

It was contended on behalf of the husband:
(xiii)As to Ms. M’s file note which reads: “20/2 rec’d docs from H. He doesn’t wish to obtain legal advice”, the note does not stipulate by what means or directly from whom the documents were received (mail, messenger delivery, personal delivery by someone). Ms M was cross examined about the diary note at A/B9.1475.1 to 1476.35.
In response, Counsel for the wife submitted:
29.The document relied upon is a file note. It does not pretend to be exhaustive. However, that it records the receipt of documents from the husband together with a conversation with him suggest (without any apparent alternative explanation) that he took the documents to Mrs. Monk, personally.
The husband contended:
(xiv)There are various draft bills in Ms. M’s file prepared at various dates, one of which (A/B12A.2008) records an attendance on 20 February, 1995 “to file documents, consent orders”, but it must be erroneous because the Court file demonstrates that the Consent Orders were filed on 21 February), there is a trust account ledger entry (A/B12A.2077) signifying that the wife (not the Husband) provided cash of $300 for “filing fees for divorce” and a cheque drawn on the same date for “filing fees” in the same amount but on other bills – see A/B12A.2017 and 2023 – there is no record of any attendance on anybody in relation to the Wife’s matter.
(xv)The only attendance (shown on all bills) said to have been made by the Husband on the Wife’s solicitors is shown as having been made on 6 June, 1995. This happens to be the one (and only) day on which the Husband himself says that he attended on the Wife’s solicitors. His evidence was that he came in respect of a divorce document. He did. It is common ground that he signed an Acknowledgement of Service of the Wife’s divorce application at the Wife’s solicitor’s office that day and that he brought with him the signed Memorandum of Transfer under which he transferred his interest in the home to the Wife.
On behalf of the wife it was submitted that these points were of “little consequence”.
In response to the husband’s contention that:
(xvi)At J.62 her Honour referred to this visit on 6 June, 1995 and to a file note reading: “ALDO came in and with documents signed. He wanted to know how long the matter would take as he wants to go overseas”. (One wonders why ALDO would want to know this unless, as was his case, he was expecting to get some money in consideration of the transfer).
The wife submitted:
31.The proposition made by the Appellant does not follow at all. He may have been concerned to ensure that the divorce and property settlement were finalised prior to leaving for Brazil.
The husband further contended:
(xvii)Her Honour found (J.130, bullet point 24) that the Husband also attended the Wife’s solicitors on 21 August, 1995. The Husband denies that he attended on that day. There is no record of it in any draft or final bill in the Wife’s solicitors file.
On the wife’s behalf it was submitted in response that:
32.Merely because an attendance on the solicitors by the Appellant is not recorded in the charging record of the firm does not mean that it did not occur. There are many explanations of it, for example, the solicitors could not charge for an attendance by the husband without the permission of the wife, the attendance may have been brief. Time has probably too long passed to know.
It was further submitted on the husband’s behalf:
(xvii)It is submitted that in light of these matters, the finding of her Honour as to the Husband’s attendances, particularly that of 20 February, 1995, was not justified on the evidence.
In response it was asserted on the wife’s behalf:
33.The points raised by the Appellant do not justify any review of Her Honour’s findings of fact. At A/B 1 p. 50 (para. 104) Her Honour noted that Mrs. M’s evidence was based on hear [sic] file notes and normal practice. The sequence of events set out in A/B 58 to 61 are findings of fact available to Her Honour.
The husband finally submitted, with respect to these grounds:
(xix)Further in relation to the trial judge’s assessment of the Husband’s credit, her Honour appears to have placed considerable store on the differences between the accounts of Mr. K and Mr. F on the one hand and the Husband on the other hand in relation to the execution of documents. The execution or non execution of the document before Mr. K was of no relevance to the Court’s exercise of power undertaken by The Deputy Registrar because it was not put before him. The matter concerning Mr. F was, it is submitted, of practically no significance. Mr. F said that the document was signed by the Husband and witnessed by him at a gymnasium. The Husband said it was executed at a bank. He said he did not recognise Mr. F. He did not deny that he had signed the document (it was the Transfer) and that it had been appropriately witnessed. It had been executed eight years earlier. It is respectfully submitted that her Honour placed too much store on these matters (J.101-103).
Counsel for the wife responded to that submission:
34.The witnesses Mr. K and Mr. F were completely independent witnesses who gave versions of events completely inconsistent with the evidence concerning documents which each of them witnessed.
35.Mr. K’s affidavit is at A/B 5 p. 618 – 621 and Mr. F’s at A/B 6 pp. 720 -722. The evidence of he and Mr. F is inconsistent with the version of events alleged by the Appellant. The Appellant alleged at paragraphs 15 - 17 of his affidavit sworn 12 July, 2001 (A/B 1, p. 162) that the Respondent made representations to the [sic] him that he should go with her to the Bank and sign some forms so she could get a loan so she could give him half the value of the house, etc. The Appellant deposed that following this he attended with the Respondent at the Advance Bank and signed the Transfer. The truth is entirely inconsistent with the Appellant’s version of events. Mr. F worked at the Gymnasium in Fairfield. The gym was cleaned by cleaners after closing time, which is a time when Mr. F stayed back. The Appellant worked as a cleaner. Mr. F had never been employed at a bank and had not been employed at a bank.
Although articulated at considerable length, the issues thus raised are able to be shortly dealt with.
The trial Judge’s finding that the husband “obtained the Application for Consent Orders prior to 20 February ‘probably from the wife’” was submitted on behalf of the husband to have been not “properly grounded in evidence”. To the extent that the complaint relates to whether or not the husband received the application, if established, it may be of significance. However, if it is purely directed to the identity of the person from whom the husband obtained the document, the finding that the husband had actually obtained the document itself not being challenged, this complaint could not advance the husband’s case even if it were established. We thus propose to confine ourselves to the former issue.
It was submitted in that regard that the trial Judge had been satisfied that the husband did not receive “the copy of the documents which were insufficiently addressed to him sent by the Wife’s solicitors”, that “The wife does not anywhere give evidence that she provided the copy she received from her solicitors, or any other copy, to the Husband”, nor did any other person on her behalf make that assertion (Appellant’s Pre Argument Statement, page 3). It was thus submitted that there was no evidence upon which her Honour could make a “finding to the effect that the document somehow made its way to the Husband on 20 February, 1995 or thereabouts”.
On behalf of the respondent it was submitted that the evidence of the wife’s solicitor, Mrs M:
On or about 20^th February 1995, the documents were received back in the offices of Watson Stafford executed by the husband. I believe that it is possible on this occasion the documents were passed on to the husband via his mother in law. (Mrs M’s affidavit sworn 8 April 2002, paragraph 7, AB vol. 4, 454)
was not objected to, and not cross-examined upon. It was submitted that such evidence provided a foundation for the trial Judge’s conclusions with respect to receipt of the documentation. It was submitted on behalf of the wife that “the delay by the husband in bringing the proceedings has dimmed the recollection of all concerned” and that “Ordinarily the delivery of an Application for Consent Orders would be completely unremarkable”. Objectively, there is force in each of these submissions.
Not every erroneous finding of fact by a trial Judge will vitiate the exercise of discretion, particularly in a case such as this involving an array of events which occurred almost a decade before. Unless it could be shown, if it be established, that the trial Judge’s erroneous finding of fact with respect to receipt of the application for consent orders was material to the exercise of her discretion, such error of fact would not vitiate the exercise of that discretion. Given that the trial Judge found a miscarriage of justice for “any other circumstance” by reference to the circumstances surrounding the making of the consent orders, this challenge could only go to the husband’s complaints in relation to fraud.
The issue of significance in relation to the application for consent orders is whether, on balance, the husband received the documentation. The evidence before the trial Judge raised a number of ways in which the husband may have received the documentation. Ultimately, the only impediment to finding that the husband had not received the documentation was the husband’s own evidence. The orders were made. There undoubtedly was an application for consent orders. The trial Judge’s credit findings are of relevance in circumstances where the husband denied having received the documentation. Having made such detailed findings in relation to credit, it was not necessary for the trial Judge to repeat them or refer to them in the context of every disputed issue. The credit findings were of general application.
As was submitted on behalf of the wife, not until almost six years after the consent orders were made did the wife or anyone advising her have reason to consider issues such as that raised by this ground. Having regard to the totality of the evidence, whether or not the husband ever saw the application for consent orders was immaterial. As we understand it, neither party appeared when the consent orders were made, as they undoubtedly were. Other than to the extent that providing the husband with a copy of the application for consent orders may have been part of the pattern of conduct which is said to have constituted fraud, the issue could not assume any significance in the outcome of the proceedings. Nothing to which this Court has been referred establishes that it was not reasonably open to the trial Judge to conclude as she did with respect to the obtaining of the consent orders, from whomsoever they were in fact obtained. Even if she was in error, nothing turns upon such error.
The trial Judge found the husband not to be a witness of credit. No similar finding attached to Mrs M. Indeed the highest the challenge to Mrs M’s evidence in this Court has been is that there were “potent inaccuracies” (Appellant’s Pre Argument Statement, page 4). We do not propose traversing all of the matters raised in the submissions on behalf of the husband, some of which are, with great respect, too trivial to warrant discussion. This is perhaps best illustrated in the complaint about a file notation of a court attendance on 20 February 1995 to file documents when that in fact occurred on 21 February 1995. It is less than clear to us what this complaint actually is, but it is abundantly clear that it has not been demonstrated that the trial Judge’s findings in any of the respects sought to be impugned, were not reasonably open to her on the evidence before her.
Implicit in this complaint is that Mr K and Mr F gave false evidence before the trial Judge in relation to their having witnessed documents asserted to have been signed by the husband. No motive for doing so was suggested, either at trial or before this Court. If, as the husband asserts, he did not sign the documents witnessed by Mr F or Mr K, then the forger was both fortunate and skilful in forging not only the husband’s signature in a form that closely resembles his signature, but also the signatures of Mr K and Mr F in forms closely resembling their signatures. The improbability of this is obvious. Moreover, it may be that the husband’s only complaint with respect to Mr F is where he actually signed the documents, which was a matter of no significance whatsoever.
Nothing to which the Court has been referred demonstrates that any of the challenges has substance. In each instance there was evidence able to be accepted. That evidence was in many instances of less than perfect recollection and in the case of Mrs M’s file notes, contemporaneous records which, with hindsight, may have been more carefully particularised. It is also to be remembered and of most “potent” significance, that the husband was not accepted as a witness of truth.
Standing back from the events surrounding the making of the consent orders, it is apparent that there were two quite different versions of those events. The wife’s case was that the husband did not have solicitors or ever seek to, or in fact obtain legal advice. Indeed, documentation purporting to represent his financial position was prepared by the wife’s solicitors, a course hardly likely to be helpful to an attempt to achieve an unjust outcome. No attempt was ever made to conceal or misrepresent these somewhat unusual aspects of the events surrounding the making of the consent orders.
The husband’s case was that, to the extent that he admitted signing any documentation, such documentation was equivocal in that it was not inconsistent with his claim as to the nature of the settlement he and the wife had reached nor inconsistent with the wife’s version of the parties’ agreement. Given that on one view of it, the husband’s case was that there were two “arrangements”, one contained in the Court orders and the real one agreed previously, the challenge raised by this ground is curious. There was a considerable body of evidence before her Honour supporting the wife’s assertion that the consent orders reflected the “real” arrangement, at least for some years after they were made.
The husband’s case consisted of denials and attempts to find flaws in the evidence relied upon by the wife. So far as the independent witnesses Mr K and Mr F were concerned, none has been demonstrated. So far as Mr T, a partner in Mrs M’s firm and Ms P, an employee of the firm, are concerned, nothing established at trial obliged her Honour to disregard their evidence. Indeed, the making of concessions on the part of Mr T was inconsistent with anything other than an innocent involvement in the events. Mrs M, a busy solicitor, was cross-examined in relation to events which she was entitled to think uncontroversial until almost six years after those events had occurred. To the extent that criticisms were made of her file notes, the “nitpicking” nature, as was submitted on behalf of the wife, of most of those complaints is itself of significance.
It has not been demonstrated that it was not reasonably open to the trial Judge to prefer the evidence of the wife and her witnesses to the husband’s evidence. As has been recorded earlier, when properly analysed, the husband’s case in relation to fraud involved either a conspiracy between numerous people, none of whom was suggested to have any motive in that regard to help the wife, who the evidence does not suggest they ever knew, or an immensely skillful and lucky forger who was able to forge signatures of independent witnesses as well as of the husband. The improbability of that scenario is obvious as the husband’s own hand writing expert conceded.
This challenge lacks merit.

GROUND 5

Ground 5 provided:
Her Honour’s favourable findings concerning the Wife’s credit were overly generous to the Wife to the point where they were not on the evidence available to her.
Though curiously worded (“overly generous”), the thrust of this complaint seems to be that the trial Judge ought not have accepted the evidence of the wife. The effect of the trial Judge’s findings in relation to credit, as was made clear by her, was that she preferred the evidence of the wife and the wife’s witnesses to the evidence of the husband. There is no doubt that there was evidence before the trial Judge, the issue being whether it was reasonably open to her to prefer the evidence of the wife and her witnesses to that of the husband. The law in this regard is not in doubt. In Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472 at 479 Brennan, Gaudron and McHugh JJ observed:-
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588, Kirby J explained “the trial judge’s real advantages” in relation to the credit of witnesses. In the course of his judgment at 619 his Honour said:-
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary of electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge was driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.

The matters raised by Counsel for the wife would be sufficient to dispose of this challenge but other matters provide further support for rejecting it.
Her Honour saw the husband, heard him give evidence and heard him cross-examined. The Terms of Settlement were simple, providing that the husband would transfer his interest in the home to the wife, be relieved of his obligations under the mortgage over the property and retain some personalty. The settlement was not complicated. There was no issue that the husband signed the transfer, the issue was whether that was to facilitate the sale of the property so that he would get the half share of the proceeds which he claimed that the parties had agreed upon, or to complete an agreement that gave him no entitlement to such property.
The Financial Statement which the husband signed was, it is transparently obvious to this Court and found by the trial Judge, a highly inaccurate document. Had it been intended to falsely convey affluence on the part of the husband in order to enhance the prospects of the orders being made, a clumsier attempt is hard to envisage. Moreover, the fact that the document was prepared by the wife and her solicitors without question, when on any view of it it was improbable that as a casual cleaner the husband could have been earning approximately $300,000.00 per annum, supports the inescapable inference that no one involved in the preparation or execution of the document paid any regard to the accuracy of its contents at least so far as the husband’s income was concerned.
The trial Judge’s finding that there had been a miscarriage of justice was itself clearly based on the inaccuracies in that document and possible impact of them upon the learned Registrar who made the consent orders. Nothing to which the Court has been referred establishes that the trial Judge was in error in finding as she did with respect to the husband’s level of understanding of the English language. Indeed, it could be submitted that the absence of anything more than has been able to be presented on behalf of the husband given the totality of the material, in fact supports rather than undermines the trial Judge’s conclusions. This ground has not been established.

GROUND 7

Ground 7 provides:
Her Honour’s finding of the existence of a miscarriage of justice, while correct so far as it went, failed to recognize the egregiousness of that miscarriage represented by the number and importance of matters about which The Deputy Registrar was not apprized [sic] when he exercised the Court’s power.
A number of matters were submitted in relation to this ground. We struggle to understand why this ground was raised given that, albeit not for precisely the reasons asserted in this ground but in substance by reason of them, the learned trial Judge found that there had been a miscarriage of justice in relation to the making of the consent orders. We have some difficulty understanding why, given the absence of challenge to that finding on behalf of the wife, this ground has been agitated in this Court. As was sensibly submitted on behalf of the wife “Her Honour found that there was a miscarriage of justice. The question is what then flows from that”.
Insofar as, to support this ground, Counsel for the husband argued that a miscarriage of justice where fraud was involved, ought almost invariably lead to the setting aside of the tainted orders, we observe that such a proposition is only open if this Court accepts that her Honour should have found fraud on the part of the wife in the process leading to the making of the orders by consent. That is not the position. This ground is not made out.

GROUND 8

Ground 8 provided:
There was no proper evidentiary basis for her Honour’s conclusion that the Terms of Settlement (which the Husband denies he saw or signed) were attached to the Affidavit of Undertaking (which latter document the Husband concedes he signed) when the 1995 orders were made.
It was submitted in support of ground 8:
(i)The writer is presently unable to find the concession referred to in the fifth sentence of that paragraph. Certainly one would expect as a matter of careful practice that two such documents would be attached to each other.
(ii)But here there was no clear evidence that the two documents were ever stapled together (although it is appropriate to refer the Court to A/B10.1690.15 – 1693.20). But see also see Ms M at A/B9.1483.1.
(iii)Whilst her Honour’s expression of faith in the efficiency of the Court system (A/B10.1672.23) was understandable, it still constitutes something of a leap of faith in the absence of specific evidence supporting it in the instant case. (Appellant’s Pre Argument Statement)
On behalf of the wife it was submitted:
55.This concession was noted by Her Honour as having been made by counsel for the Appellant at trial. Unless it is to be suggested that he did not make this concession then there is no substance in this ground. That the draftsman of the Appellant’s submissions cannot find the transcript of the concession is hardly surprising bearing in mind the many days of evidence. (Respondent’s Summary of Argument)
At the completion of the hearing of the appeal neither party had taken the Court to any transcript reference to shed light on this issue. At no time in the course of submissions on his behalf did learned Counsel for the husband suggest the significance, if any, of this alleged factual error on the part of the trial Judge. Nothing to which we have been referred suggests that the outcome of the case changed as a result of her Honour’s allegedly erroneous belief in relation to the “concession”. The result of the case could not have changed, regardless of whether her Honour was right or wrong in recording the concession complained of, given the nature and extent of other findings made by her.
As is well known, it must be demonstrated that an error of fact on the part of the trial Judge was material to the exercise of discretion (see De Winter v De Winter (1979) FLC ¶90-605). In a case such as this, involving to a large extent a reconstruction of events which occurred almost a decade before, the possibility of errors of fact was considerable. Unless those errors were material to the exercise of her discretion however those errors cannot avail the husband’s appeal. This ground has not been shown to have merit.

GROUNDS 10 & 11

Grounds 10 and 11 respectively provided:
10.There was no proper evidentiary basis for her Honour’s conclusion that Mr. O had “at least two seals” or for rejection of Mr. O’s firm evidence that he had only one.
11.Her Honour the trial judge did not adequately address in her judgment –
(a)The submissions made by Counsel for the Husband at the hearing on the relative merits of the evidence of the experts D and A.
(b)Mr. D’s particular observations made in paragraph 13.2 on page 12 of his report being Annexure “C” to his affidavit filed 20 February, 2003 reproduced early (the Appeal Book page is unclear in the writer’s copy) in Appeal Book 7.
(c)The evidence of Mr. O read with that of the Husband and particularly that of the Wife concerning the signature said by Mr. A to have been that of the Husband.
(d)Her Honour did not advert to the evidence of Mr. D on page 4, paragraphs 10 and 11, of his report dated 21 February, 2003 concerning the imprint on the Application for Consent Orders filed 21 February, 1995 of the ESDA reading “F/N 21/8/95” in the Court file.
It was submitted on behalf of the husband that:
(i)The central two bases on which her Honour ultimately rejected the opinion of Mr. D in deference to that of Mr. A were her Honour’s findings that Mr. O had at least two seals and that Mr. D proffered the professional opinion that despite the belief of Mr. O and the Husband that their signatures appeared on the Terms of Settlement filed in the Family Court, Mr. O’s seal and the signatures appearing on that document were in fact not those of Mr. O and the Husband. The matter referred to in Ground 12(d) also apparently weighed heavily in her Honour’s assessment of Mr D’s evidence. (Appellant’s Pre Argument Statement)
Earlier in reviewing the trial Judge’s reasons for judgment, extensive references were made to her Honour’s exhaustive consideration of the issues raised by Mr O’s evidence. We do not propose extensively revisiting those passages.
As was discussed during the course of the trial, this challenge necessarily involved a finding that not only had the wife, or someone on her behalf, forged Mr O’s signature, but had also obtained Mr O’s stamp without his knowledge or consent and had a copy of the stamp made. The expert witnesses agreed that there were possibly at least two stamps of Mr O. Mr O gave no evidence of his stamp ever having left his possession until well after the relevant documents came to be affixed with either his stamp or one made from it. The improbability of any explanation other than that suggested by the trial Judge is obvious. That improbability can be taken in conjunction with the improbability of Mr O’s signature having been forged in a fashion very similar to his actual signature and the co-incidence referred to earlier with respect to other forged signatures which were actually those of real people and bore resemblances to those people’s actual signatures.
On behalf of the husband it was submitted that:
(ii)The development and analysis of these issues will require fairly extensive development at the hearing of the appeal.
Mr O was a witness in the husband’s case. Cross-examination of Mr O raised two possibilities, one that Mr O was mistaken in his recollection of events and had executed the documents with his stamp, the other being that referred to shortly before, namely that the wife or someone on her behalf had forged Mr O’s signature and procured the use of his Justice of the Peace stamp without his knowledge or consent on occasions. That necessarily would have involved the removal of the stamp for the purpose of making a copy, although Mr O’s evidence did not suggest that to have been likely to have occurred. In the course of her judgment dealing with this issue, her Honour found Mr O to have been a “truthful witness, who gave his evidence to the best of his recollection”. (paragraph 99).
Her Honour found that Mr O “did not, prior to witnessing documents, have a practice of seeking identification from a deponent of an Affidavit or document” and that “although he maintained doubt about a number of signatures attributed to him, he did concede that he did sometimes sign things quickly”. Mr O’s evidence was that “it was highly unlikely he had two stamps” although “No evidence was called from his wife who purchased the stamp” which he undoubtedly did have. Her Honour found that there were “probably unknown to Mr O, two stamps”. His evidence was that the stamp which he had “was misplaced or lost at some time around 2000 or between 2000 and 2001”, there being no suggestion that the stamp had been lost or misplaced at any earlier time, and certainly no evidence of it having ceased to be in Mr O’s possession in 1995. Nothing to which this Court has been referred demonstrates that her Honour erred in concluding as she did with respect to the evidence of Mr O. On the evidence before her, only two other findings could have been entertained. One such finding, that the wife or someone on her behalf had been able to obtain Mr O’s stamp, either to use or have copied without his knowledge or consent was precluded by Mr O’s evidence in relation to when his stamp was lost. The other was that Mr O was deliberately untruthful, a finding less favourable to the husband than the finding made by the trial Judge. Nothing in her Honour’s approach to or conclusions regarding Mr O’s evidence reveals error on her part.
So far as the experts were concerned, as her Honour’s careful review of the evidence makes clear, each witness was abundantly qualified to express opinions in relation to the disputed documentation. It has sensibly not been suggested that, as her Honour’s examination of the evidence plainly indicates, the issue was clear cut. In our view, on the evidence before her, her Honour could have preferred the opinion of either expert to that of the other without being in error. Her Honour preferred Mr A, the wife’s expert, to Mr D, the husband’s expert, and gave reasons for so doing. To the extent that those reasons involved reliance upon her conclusions with respect to the evidence of Mr O, those conclusions or findings having survived challenge, that ceases to be a possible basis for impugning her Honour’s conclusions with respect to the expert witnesses. Nothing to which this Court has been referred demonstrates that it was not reasonably open to her Honour to prefer the opinion of Mr A to that of Mr D. Her Honour gave detailed and cogent reasons for doing so. This challenge thus lacks substance.

GROUND 12

Ground 12 provided:
Her Honour in rejecting Mr. D’s opinion in favour of Mr. A appears to have relied heavily on a perception that Mr. D’s evidence was to the effect that he was of the opinion that the lower seal in Mr. O’s JP handbook had been placed in the handbook by a different process or mechanism than the application of a rubber stamp; this was an apparent misunderstanding by her Honour of Mr. D’s evidence.
In support of this ground it was submitted:
(i)Mr. D was in fact merely being appropriately cautious about the offset printing issue.
(ii)His evidence was only to the effect that he could not exclude the possibility that an offset printing process had been used. He said that the seal did not (my emphasis) look like and offset printing (A/B10.1666.39) and that he did not believe that it was an offset printing (A/B10.1667.5). (Appellant’s Pre Argument Statement)
It was submitted on behalf of the wife in response:
60.The proposition that a false seal appearing to be that of Mr. O was placed not only on the documents alleged to be forged but also on Mr. O’s personal Justice of the Peace Handbook is simply fantastic. Somehow, not only is the forger (presumably alleged to be the wife) able to forge freehand the signature of the Appellant before disinterested witnesses such as Mr. K, Mr. T and Miss P but that she can also produce a false stamp by Mr. O by way of an offset printing process and attach it not only to the documents intended to be filed in the Family Court but also to the personal private Handbook of Mr. O. The Appellant’s case is a flight of fancy. (Respondent’s Summary of Argument)
This ground relates to an aspect, albeit of minor significance, of the contest between the expert witnesses. We have previously dealt with that challenge. It is only necessary to say that nothing to which we have been referred by Counsel for the husband demonstrates any error on the part of the trial Judge. We have previously referred to the improbability of the sequence of events in relation to the documentation which the husband was necessarily asserting. Even if her Honour was wrong in the manner complained of, the issue was not sufficiently material to her conclusion in relation to the handwriting evidence to establish this complaint. This ground is not made out.

GROUND 1

It was submitted on behalf of the husband that the effect of the challenges contained in the grounds to which we have referred was, cumulatively, to establish error by the trial Judge. To the extent that such is the husband’s case, rejection of the various grounds said to support Ground 1 would imply that Ground 1 must fail. For more abundant caution however we propose considering the learned trial Judge’s reasons for dismissing the husband’s claim notwithstanding that she had found a miscarriage of justice “by reason of the material relating to the husband’s financial position” presented at the time the orders were made. Having determined that there had been “a miscarriage of justice by reason of any other circumstance” her Honour, correctly in our view, proceeded to consider whether in the exercise of her discretion she should set aside or vary the orders of 30 May 1995, and was:
... satisfied in this case that the provisions in the orders are not so unreasonable as to give rise to an inference that there was some circumstance which vitiated the husband’s reasoning in entering into the orders (see Gebert (supra). (judgment, paragraph 153)
The equity in the matrimonial home at the time the orders were made was approximately $30,000.00 on the evidence before the trial Judge. The evidence established that, prior to the making of the orders, the wife had made a contribution by or on her behalf (albeit a sum of $1400.00), to the initial acquisition of the property. Thereafter, until the parties separated, the contributions of the parties could have been regarded as approximately equal. The income of the parties may have rendered a modest s 75(2) adjustment in the husband’s favour appropriate. Nothing presented to the trial Judge would have warranted any other s 75 (2) adjustment at the date of making the orders, notwithstanding that the husband, as the trial Judge was aware, then suffered from epilepsy.
The wife’s case was that the husband wanted to be relieved of any obligation under the mortgage and did not want anything out of the property. The trial Judge preferred the wife’s version of those events to that of the husband. Whilst the settlement represented by the consent orders was somewhat more generous to the wife than a contested resolution of the matter may have resulted in, it was open to her Honour to conclude that the provisions were “not so unreasonable as to give rise to an inference that there was some circumstance which vitiated the husband’s reasoning in entering into the orders”. Nothing to which the Court has been referred establishes that it was not reasonably open to her Honour to so conclude in reliance upon the findings of fact she made on the evidence.
The trial Judge further relied upon events subsequent to the making of the consent orders. She found that the husband was “well aware from July 1998 of his legal right to seek to set aside the orders” but, despite having a series of solicitors file a “Notice of Address for Service” on his behalf, “took no steps to prosecute his claim until 2001”. To the extent that the husband claimed to have been unable due “to a lack of financial resources” to do so, her Honour found, correctly, that the absence of such resources had not prevented the husband from prosecuting the claim before her over a period of seven hearing days. The accuracy of her Honour’s findings in relation to these matters has not been challenged in this appeal. Indeed, given her acceptance of the evidence of Mrs M, her Honour could have relied more upon the period from 1995 to 1998 during which period the husband was aware of the effect of the consent orders and had voiced his opposition to them. In reality, the husband’s unexplained period of delay could have been regarded as six years rather than the three upon which the trial Judge relied.
The trial Judge further had regard to the husband’s absence of contributions to the matrimonial home subsequent to January 1995 and the wife’s contributions in that regard, albeit any income the property may have generated was retained by her. Her Honour was entitled to have regard to these contributions which, as she recorded, were made “in reliance on the consent orders”. Her Honour is not suggested to have erred in fact in any of the matters to which she thus referred, and was clearly entitled to have regard to contributions made by the wife in reliance upon the orders made, particularly given that the first indication to the wife that the husband wished to challenge the orders was in 2001, almost six years after the orders had in fact been made. Her Honour was aware of the value of the matrimonial home at the time of the hearing before her and the equity in it of approximately $225,000.00. She was also aware of the “relatively modest equity”, being “approximately $30,000.00” at the date the orders were made. Having found that the husband “substantially delayed the commencement of proceedings” the relief he sought was found to be “prima facie prejudicial and unfair to the wife” for reasons which her Honour gave. None of the facts relevant to the exercise of her Honour’s discretion has been successfully challenged in this appeal.

The trial Judge further referred to having found the husband not to be a “witness of credit” and the rejection of his evidence in relation to the execution of documents resulting from that. Challenges to these findings have not been successful in this Court. Her Honour recorded, without doubt accurately having regard to the voluminous nature of the appeal books, that the husband’s “assertions have resulted in a lengthy and expensive trial involving forensic experts who have carried out extensive testing”, and that “his lack of candour and honesty in his evidence are appropriate matters to take into account” in the exercise of discretion. Her Honour was entitled to rely upon those matters and it was relevant to the exercise of her discretion that the wife had been put to great expense in successfully resisting the husband’s claims in circumstances where, on the evidence, the wife had no reasonable prospect of recovering any of those expenses from the husband. It is reasonably clear that, save for the evidence of Mr D and Mr O, the husband’s case essentially involved denials in relation to the execution of relevant documentation, thus obliging the wife to locate and obtain evidence from no less than five witnesses, two of them solicitors. Her Honour was entitled to take these matters into account in the exercise of her discretion. Her Honour concluded that “weighing all of these factors in the balance” she did not find it “appropriate or proper in the exercise of my discretion” to vary or set aside the orders of 30 May 1995. Nothing to which we have been referred demonstrates this to have been other than a reasonable exercise of her Honour’s discretion.
Under the heading “Conclusion”, her Honour reiterated that the reasons for declining to exercise her discretion to set aside or vary orders of 30 May 1995 were “the husband’s lack of candour, his delay in commencing proceedings, the quantum of the parties assets and the wife’s contributions”, her conclusion being that those factors were “so overwhelmingly in favour of maintaining the orders that it would be inappropriate to now set aside or vary those orders. Nothing to which this Court has been referred establishes that her Honour thus erred.

CONCLUSION

None of the challenges to the trial Judge’s decision having been established, the appeal must be dismissed.

COSTS

It was submitted on behalf of the husband that, if the appeal was dismissed, no order for costs should be made against the husband, principally in reliance upon his financial circumstances. Whilst it appears likely that the wife would have little prospect of recovering any order for costs made against the husband, her entitlement for costs is overwhelming. Even accepting that the husband is in poor financial circumstances and poor health, our conclusion in relation to costs would not change. For the reasons we have given, the husband’s appeal had little or no substance. The wife has been put to the no doubt very considerable expense of resisting the husband’s appeal and has been wholly successful in that regard. The husband will accordingly be ordered to pay the wife’s costs of the appeal.

ORDERS

The Court accordingly orders:
1.That the appeal be dismissed.
2.That the husband pay the wife’s costs of and incidental to the appeal as agreed or failing agreement as assessed under Division 19.6.2 of Chapter 19 of the Family Law Rules 2004 on a party/party basis in accordance with the relevant scale.

I certify that the preceding
171 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 23/12/2005

[2005] FamCA 1246

23 December 2005

Key Legal Topics

Areas of Law

Civil Procedure

Administrative Law

Legal Concepts

Appeal

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Q1	Application for Consent Orders, which included Application and Applicant’s Affidavit, Applicant’s Affidavit and Respondent’s Affidavit
Q2	Terms of Settlement
Q3	Statement of Financial Circumstances
Q4	Terms of Settlement