Barr and Halley
[2012] FMCAfam 727
•20 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARR & HALLEY | [2012] FMCAfam 727 |
| FAMILY LAW – Property settlement – re-opening of case previous orders having been made – consideration of circumstances of the previous orders being made and whether they constitute a miscarriage of justice – application dismissed. |
| Family Law Act 1975, s.79A |
| Clifton & Stuart, 14 Fam LR 511 In the Marriage of Holland (1982) Fam LR 239; FLC 77,341 |
| Applicant: | MR BARR |
| Respondent: | MS HALLEY |
| File Number: | TVC 44 of 2010 |
| Judgment of: | Coker FM |
| Hearing date: | 13 June 2012 |
| Date of Last Submission: | 13 June 2012 |
| Delivered at: | Townsville |
| Delivered on: | 20 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Smith |
| Solicitors for the Applicant: | Billings Cloak |
| Counsel for the Respondent: | Mr Fellows |
| Solicitors for the Respondent: | McKays Solicitors |
ORDERS
That the application in relation to leave to reconsider the issue of property settlement between the parties is dismissed.
That the Respondent file and serve any written submission in relation to costs within 28 days
That in the event there is compliance with Order 2 herein, the Applicant file and serve response submissions within 14 days of receipt of the Respondent’s submissions.
That unless otherwise specifically requested the issue of costs be determined in chambers without oral submissions.
IT IS NOTED that publication of this judgment under the pseudonym Barr & Halley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 44 of 2010
| MR BARR |
Applicant
And
| MS HALLEY |
Respondent
REASONS FOR JUDGMENT
The application relates to a specific preliminary point to be determined prior to a hearing, if a hearing is found to be appropriate, in respect of the reopening of a property decision which was made by consent between Mr Barr and Ms Halley. The order that is the subject of the application is an order which was made by consent on 17 December 2008. At that time an application for consent orders was filed in the registry of the Mackay Magistrates Court in North Queensland.
Some three years later an application was filed by the husband seeking to re-determine the issue of property. The orders that were sought in his application on both an interim and final basis were identical. They both commenced with order 1 as follows:
That the applicant be granted leave to bring the proceedings out of time.
The orders then went on specifically to provide for proposals with regard to the sale of a property at Property S, which is registered in the name of the wife, and the payment out of various liabilities and then various other debts to be paid.
Whilst it was not at all clear from the initiating application that the order related to the provisions of section 79A of the Family Law Act it was obvious that that was the position taken by both parties when, on the first occasion that the matter was mentioned before me, it was specifically requested that the proceedings be listed for the purposes of a preliminary determination of the issues that arise, pursuant to the provisions of section 79A.
The position of the wife in relation to the matter was set out in her response which was e-filed on 1 March 2012. The orders sought by the wife on a final basis were sharp and to the point. They were as follows:
1. That the Application of Mr Barr be dismissed.
2. That the costs of the Respondent Ms Halley be borne by the Applicant Mr Barr.
The reason that this matter arises pursuant to the provisions of section 79A of the Family Law Act is clear when it is noted that the application for consent orders filed on 17 December 2008 resulted in there being an order by consent which issued from that Court on 24 December 2008. The terms of the order were as follows:
1. That within 14 days of this Order, the husband do all such things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all of his interest in the real property known as Property S, being the whole of the land more particularly described as (omitted) Title Reference (omitted).
2. That the wife indemnify the husband against all payments and liabilities pursuant to the mortgage to the Westpac Banking Corporation, mortgage number (omitted), and the husband and wife will sign all necessary documents to refinance the mortgage into the wife’s name only.
3. That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a)each party be solely entitled, to the exclusion of the other, all property in the possession of such party as at the date of these Orders;
(b)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(d)each party be solely liable for and indemnify the other against any liability in that party’s name as at the date of these Orders.
4. That the husband the wife shall do all such things and sign all documents necessary to give effect to these Orders and in the event that either party refuses or neglects to comply with any part of these Orders, then the Registrar or Deputy Registrar of the Magistrates Court of Queensland at Mackay is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to these Orders, and the party in default shall pay all reasonable costs incurred by the party for the purposes of enforcing this Order.
NOTATION
5. Each party acknowledges that his or her concurrence in consent to these Orders was in no way occasioned or brought about by any representation or influence made either directly or indirectly by or on behalf of the other party and that in no way was such concurrence the result of any influence exerted either directly or indirectly by or on behalf of the other party.
6. Within the meaning and spirit of s81 of the Family Law Act 1975 the parties intend the above provisions shall as far as practicable finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them.
The position taken by the husband in relation to the matter clearly arises as a result of what he says was a miscarriage of justice, arising from his misunderstanding of the documents that he was actually signing and which were signed by him on 16 December 2008. The husband’s evidence is contained within his affidavit of 18 January 2012. In particular he notes at paragraph 8 the following:
I am a (omitted) and my knowledge of legal matters is limited. At the time I signed the consent order documents, I believed they were documents to transfer a property at Property S to the Respondent. I did not appreciate it that they were Court documents.
He goes on in his affidavit to note that he subsequently became aware, “that the documentation were court orders and that these documents mean that I do not get a share of the assets that I played a major role in accumulating during the marriage.” He does not, in that affidavit, refer to when he received that information but in cross-examination the husband acknowledged that he spoke with a friend who was a barrister at (omitted) a few months after those orders were signed and the orders then subsequently issued. In other words, the conversation with his friend took place somewhere toward the first third of 2009.
It is noteworthy that the husband acknowledged that to be the case because it is troubling that a period of some three years or thereabouts passed before his initiating application was filed in January 2012. In any event, the husband, at paragraph 46 of the affidavit to which I referred, makes reference to the delay in bringing these proceedings, making reference to the fact that, due to adverse personal and financial circumstances that he refers to in the affidavit such as his health and having no fixed address and therefore unstable living circumstances, he had not been able to bring the application at an earlier time.
There is, however, no full explanation in relation to that particular aspect of the matter and I must say that it troubles me in relation to the determination of these proceedings to a significant degree.
However, that issue was not pressed, but rather what was strongly the subject of cross-examination in relation to the matter was the husband’s exact knowledge in relation to these proceedings. The application for consent orders was a lengthy document. It was signed on virtually every page by the parties. Most significantly, page 26 of the application for consent orders headed Affidavit of Respondent was completed, the husband acknowledges by him, in that various boxes were ticked indicating what he was swearing to. In particular, he swore to the following:
· I have read this application and the draft consent orders which I am now requesting this Honourable Court to make.
· The orders are agreed upon by all parties.
· I am aware of my right to obtain independent legal advice.
· I have signed each page of the draft consent orders, lodged with this application, and dated them today.
· I have no interest in property, superannuation, or a financial resource which is not described in column 2 of Part G.
It is important that that be noted because the husband seemed at pains in cross-examination to suggest that he had not fully read the document that was signed by him, notwithstanding his swearing to that effect. More particularly, it flies in the face of the fact that in some parts of the document there were changes made by the husband.
For example, at page 15 of the document the inclusion of $10,000, being funds held in the bank has been crossed out and an amount of $800 has been inserted and initialled by the husband and his witness. More particularly, on the following page the total has correspondingly been altered to reflect the reduction of $9200 in the figures that were contained in the documentation.
Again, on page 18 that change has been noted which was then reflected in a varied amount for the total net worth of the parties. Also, on page 19 further inclusions were made relating to the husband’s superannuation entitlements with (omitted) and that has been initialled by the husband.
It flies in the face of the suggestion by him that he, (a) did not know what he was signing, and (b) only cursorily glanced at the documentation. More particularly, however, it flies in the face of the husband’s own experience. He is a (omitted) by occupation. He has been involved, therefore, in legal proceedings or legal dealings on many occasions as a result of the need to enter into contracts and to act in a professional and appropriate manner when acting as a (omitted).
I am troubled by the husband’s evidence in relation to this matter with regard to a suggestion that he did not know what he was signing. He signed the consent order and the application for consent orders, completed the affidavits and took necessary steps in relation to the matter.
His position was now to say that what he thought he was doing was signing whatever documents were necessary to effect a transfer of property from he and the wife to the wife, so as to remove his obligations and responsibilities in relation to a mortgage, however, when cross-examined in relation to such issues he did specifically indicate that he had read the application for consent orders, knew that it was a document for a court, and signed, as required, the necessary pages and completed the necessary boxes.
It is also, as I have indicated previously, noteworthy that he made certain adjustments in relation to the figures contained within those documents which, I must say, flies in the face of a suggestion that he only cursorily glanced at such documentation.
It was interesting that the husband was able to justify what he says was the cursory examination of the figures contained in the documentation by noting that he was not a materialistic person. With respect, that also flies again in the face of the actual application that is before the court here, because, if the husband were not a materialistic person, then the financial circumstances that he now finds himself in would not be a matter that necessarily troubled him.
In any event, I was not overly impressed with the husband. I gained the distinct impression that he knew at least three years or more ago that there were consent orders which directly affected his property rights and entitlements, but took no action, even to just communicate his position to the wife. He therefore allowed her to act in accordance with the orders.
There were steps taken by the wife including, of course, the transfer of property pursuant to the consent orders and the rearrangement of her financial affairs as a result of those consent orders, and yet notwithstanding that knowledge and the fact that the orders were being acted upon, he took no steps for a significant period of time, and has failed in any real way to explain the delay in relation to the bringing of any proceedings with regard to this matter.
It is troubling in the extreme, particularly when the flow on consequences for the wife are obviously so clear, particularly when they relate to the liabilities and obligations that the wife still has.
In any event, it was clear that the husband said that he had been misled in relation to this matter. That certainly that was the thrust of a submission put on the part of the father, it being contended that it was in some way the actions of the wife that had led the husband into a situation of having a false impression of the effect or consequence of the documents signed or allowing him to draw an incorrect or false inference as to what he was signing and the consequences of signing of those documents.
It is, however, clear that the husband knew that the documents were court documents and must obviously have known that there were consequences flowing from that. More particularly, and I think, most significantly, also in relation to this matter, the wife’s own evidence in cross-examination was to explain why the terms of agreement which were signed by the parties were entered in to.
She was asked in cross-examination whether it was agreed that she would take over the debt associated with the house and, of course, also receive the house property. She said that that was the case, but it also reflected a verbal agreement that was entered into between them. She says that there had been a prior separation and that, upon the resumption of their relationship, it was agreed that if there were to be another separation, and that unfortunately of course did occur, then she would receive the benefit of a pay out that she had previously received, and the agreed amount would be in the sum of $260,000.
The husband acknowledges in his material the receipt of a certain pay out by the wife in an amount in excess of $260,000, but the wife says that that was the figure that was agreed to be received by her, prior to any other division of property being effected.
She said that that was what was agreed between the parties and when asked whether that then explained what was reflected in the consent orders she answered quite directly and, I thought, quite honestly that that was the case and that that was why the husband had happily signed the consent orders, knowing exactly what was arising, in relation to the signing of the documentation.
It is particularly noteworthy, that the wife was not challenged in relation to that contention in respect of the matter, and I must say that it is a matter that weighs heavily in relation to the determination of these proceedings.
In the end, I had, obviously, the opportunity to read the written evidence of each of the parties, but also to see each in the witness box. The impression I gained, unfortunately, insofar as the husband was concerned, was that he had, late in time, determined that he had not received what he thought might have been able to be achieved by him in some other arena, such as proceeding to a trial, and that he now sought to rewrite history.
I am far more inclined to the view that the wife’s evidence as to there being a verbal agreement with regard to an initial amount to be received by her rings true, particularly when the husband acknowledged that that was an amount that was received by the wife and that it explains why the husband agreed immediately to enter into the terms of arrangement that were contained within the consent orders.
In any event, the evidence and the facts of this particular case must be considered in light of the provisions of section 79A of the Family Law Act. Section 79A(1) is relied upon in relation to this matter by the husband and is in these terms:
SECTION 79A SETTING ASIDE OF ORDERS ALTERING PROPERTY INTERESTS
79A(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
the court may, in it’s discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside
When one considers the various bases upon which an order might be set aside pursuant to the provisions of section 79A(1), it is clear that only subsection (a), relating to a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information and the giving of false evidence or any other circumstance), is what is relied upon in relation to the proceedings.
However, to be successful the husband must satisfy the court that the miscarriage of justice arises, in this instance, as a result of the husband not giving true consent. His cases rises or falls on whether, in fact, he knew what he was signing and the consequences of what he was signing. The husband says that the lack of understanding held by him in relation to the signing of the documents arises from the fact that the percentage distribution referred to in the material between the parties is that of a 77/23 per cent distribution, in favour of the wife, which is not fair in all the circumstances and, additionally, makes reference to the fact that it does not include certain other liabilities or entitlements, that either he or the wife might have had.
But of course, that flies in the face of the disclosure that was given by the husband at the time of the application, particularly a correction of various figures and the specific notation by him that the figures contained within the application for consent orders, specifically reflected the entirety of the assets and liabilities held by him. With respect, he cannot have it both ways, suggesting that he corrected certain documents and certain figures but not others, and that whilst swearing that the document was an accurate reflection of the financial circumstances that existed insofar as he was concerned, now suggests that in some way they jointly and severally, failed to include the entirety of the assets or liabilities. This was argued on the part of counsel for the wife. It would be ludicrous in the extreme for parties to attempt to enter into consent orders with one party or the other knowingly omitting the inclusion of documentation or the inclusion of information known only to themselves and then later being able to somehow rely upon that information, for the purposes of setting aside the terms of the order.
In any event, I am not satisfied that that even occurred and I am far more inclined to the view that the husband knew what he was doing in relation to this matter and acted in the way that he did, specifically for the purpose of resolving the financial affairs between he and the wife, in terms of the verbal agreement that had been noted.
The contention by the husband that no, as he put it, “sane person”, would enter into an agreement which provided for a distribution of 77/23, or perhaps even less than that, flies in the face of what is seen in courts exercising jurisdiction in relation to family law matters on almost a daily basis. Many factors influence people’s decisions in relation to settlement of arrangements, particularly with regard to property and the question of guilt arising from the reasons for the breakdown of a relationship very often influence people, in relation to such decisions.
In that regard, I note particularly the comments contained within the decision of the Full Court of the Family Court in Clifton & Stuart, 14 Fam LR 511 at 518, where their Honours noted as follows:
The most recent decision of the Full Court In the Marriage of Gebert (1990) 14 Fam LR 62; [1990] FLC 92-137 clarifies the position. In that case the husband had consented to an order by which the wife was to receive over 90% of the assets. He later repented of his generosity and sought to set it aside under s 79A(1)(a). Speaking of over-generous order the Full Court, comprised of Nicholson CJ, Baker and Burton JJ, said at Fam LR 66-7; FLC 77,935:
It would, in our view, be straining the meaning of the words “miscarriage of justice” far beyond what parliament intended to describe orders made in such circumstances as amounting to a miscarriage of justice. We consider that the words “any other circumstance” appearing in s 79A(1)(a), while not to be read ejusdem generis, with fraud, duress, suppression of evidence or the giving of false evidence, are intending to cover over situations where for one reason or another, a miscarriage of justice has occurred: see McKenna v McKenna (1971) 18 FLR 15 at 18; In the Marriage of Holland, supra, at Fam LR 239; FLC 77,341. The important matter that must be established for an application under this part of the section to succeed is that there has been a miscarriage of justice.
Their Honours went on to note in, In the Marriage of Gebert (1990) 14 Fam LR 62, that there are many situations where a party, acting perfectly rationally, for reasons of his or her own, was prepared to make a more substantial allowance to the other spouse than would normally be the case. It would be straining the meaning of the words “miscarriage of justice” in section 79A of the act to describe orders made in such circumstances. Finally, and I think, perhaps, most significantly, it was noted in Gebert at page 68 as follows:
The very expression “miscarriage of justice” used in s79A(1)(a) does not fit happily with the concept of a party of full age and with full knowledge of the circumstances entering into an agreement of this nature in circumstances where he had deliberately decided not to seek legal advice, although urged to do so. No doubt had the situation brought about by the order been imposed upon him, it may have amounted to a miscarriage of justice but the law fortunately still allows persons to form their own views as to the arrangements of their affairs. In the present case, there appears to be no doubt that this is precisely what the husband did. The fact that he later repented of that decision, in no sense elevates his original decision to consent to such an order to a miscarriage of justice nor should such order in our view be interfered with. On the contrary, we would regard it as a considerable miscarriage of justice from the wife’s point of view if the husband’s then conscious decision entered into free of duress, was now to be interfered with on a paternalistic view as to what might or might not have been in his best interests.
I could not agree more with the comments of Nicholson CJ and Baker and Burton JJ. This was an agreement entered into by the parties with full knowledge. I find that it was entered into by the husband in light of the verbal agreement which the wife referred to in relation to her receipt back of a sum of approximately $260,000, being an amount that had been injected to the relationship by her following receipt of a compensation payment.
The husband acted in full knowledge. The husband acted with the opportunity to obtain legal advice and, in fact, though not obtaining legal advice, he acknowledged in his material and confirmed in cross-examination that he spoke with a business associate, also a person known to the wife, who discussed with him the arrangement contained within the orders that were proposed to be made by consent.
There has been no miscarriage of justice. If anything, there is simply a sense of disappointment or regret expressed by the husband in relation to the arrangements that were entered into in relation to this particular matter, but it could not possibly be suggested that that gave rise to a miscarriage of justice and, as noted by the Full Court in Gebert & Gebert (supra), there would be a considerable miscarriage of justice from the wife’s point of view, if the husband’s conscious decision was now interfered with.
I intend, therefore, to dismiss the application in relation to leave to reconsider the issue of property in relation to this matter. I intend also, noting the response filed by the wife, to make directions with regard to the wife filing written submissions in relation to costs within 28 days of the date of this order and should they be filed, that the husband have the opportunity to respond within 14 days of receipt. Further, I intend to order that unless there is a specific request for the parties to be heard, that the issue of costs be determined in chambers without oral submissions.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Coker FM
Date: 20 July 2012
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