Begbie & Narang
[2021] FamCA 140
•19 March 2021
FAMILY COURT OF AUSTRALIA
Begbie & Narang [2021] FamCA 140
File number(s): MLC 12593 of 2019 Judgment of: HARTNETT J Date of judgment: 19 March 2021 Catchwords: FAMILY LAW – PARENTING – where the Respondent wife sought an order to vary final parenting orders regarding changeover – where order to vary changeover arrangements made by consent.
FAMILY LAW – PROPERTY – where the Applicant husband sought enforcement of final property orders – where the wife made an application to set aside partially and/or entirely final property orders pursuant to s 79A of the Family Law Act1975 (Cth) on grounds of duress and a reconsideration by her of the justice and equity of the orders – where the wife sought final property orders in substitution pursuant to s 79A of the Act.
FAMILY LAW – SPOUSAL MAINTENANCE – where the wife sought an order for the Court to review and determine a just and equitable outcome in the matter of spousal maintenance.
Legislation: Family Law Act 1975 (Cth) ss 45A, 74, 75, 77, 77A, 79, 79A, 106A, 117; and
Family Law Rules2004 (Cth) Pt 10.3, rr 1.10, 10.12 , 17.02(1)(h), 19.08.
Cases cited: Bigg v Suzi (1998) FLC 92-799;
Bretton & Bondai [2013] FamCAFC 168;
Brewster & Brewster [2016] FamCA 465;Ebner & Pappas [2014] FLC 93-619;
Pelerman & Pelerman (2000) FLC 93-037;
Karlsson and Karlsson [2020] FamCAFC 207;
Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27;
Munnings v Australian Government Solicitor (1994) 68 ALJR 169;
Ritter & Ritter and Anor (2020) FLC 93-957;
Spencer v Commonwealth of Australia (2010) 241 CLR 118;Suiker and Suiker (1993) FLC 92-436;
Thorne v Kennedy (2017) 263 CLR 85;Werhan & Campagnola [2012] FamCAFC 137; and
Webster v Lampard (1993) 177 CLR 598.Number of paragraphs: 53 Date of hearing: 11 January 2021 Place: Melbourne Solicitor for the Applicant: RF Legal Respondent: In person ORDERS
MLC 12593 of 2019 BETWEEN: MR BEGBIE
Applicant
AND: MS NARANG
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
19 MARCH 2021
THE COURT ORDERS THAT:
1.Within seven days hereof, the Respondent wife (‘the wife’) sign all documents necessary to complete the transfer of the real property situate at and known as B Street Suburb C in the State of Victoria from the joint proprietorship of the husband and the wife to the sole registered proprietorship of the husband as ordered in the final property orders made 23 July 2020.
2.In the event the wife fails to comply with order 1 herein, or fails to do all acts and things and execute all such documents as are necessary to give effect to the orders made 23 July 2020, a Registrar of the Family Court of Australia at Melbourne be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) (‘the Act’) to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to these orders and those of 23 July 2020.
3.The wife pay a part of the costs of this proceeding incurred by the Applicant husband (‘the husband’) pursuant to s. 117 (2) of the Act. The quantum of such costs shall be in the sum of $ 2,000 and there be a stay on the payment of 24 months.
Note: The form of the order is subject to the entry in the Court’s records.
Note:This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 of the Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Begbie & Narang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J:
PRELIMINARY
The substantive proceeding in this matter commenced upon the Applicant husband (‘the husband’) filing, on 7 November 2019, an Initiating Application wherein he sought final property orders.[1] On 23 December 2019, the husband filed an Amended Initiating Application wherein he sought, in addition, interim parenting and property orders.[2] Additionally, final parenting orders, as sought, were included by him in a further Amended Initiating Application filed 16 July 2020.[3]
[1] Initiating Application filed 7 November 2019, page 2.
[2] Amended Initiating Application filed 23 December 2019, pages 3, 4 and 5.
[3] Amended Initiating Application filed 16 July 2020, pages 2-8.
In response to the final property orders application of the husband, the Respondent wife (‘the wife’) filed a Response to Initiating Application on 20 December 2019. In that response, the wife sought final property orders.[4] Upon filing an Amended Response to Initiating Application on 31 January 2020, the wife sought interim property orders, as well as final and interim parenting orders.[5]
[4] Response to Initiating Application filed 20 December 2019, page 2.
[5] Amended Response to Initiating Application filed 31 January 2020
The final hearing of the substantive proceeding was listed before His Honour Justice Wilson on 23 and 24 July 2020. On the first day of trial, and prior to the hearing of evidence, the parties resolved the matter on a final basis in respect of both parenting order and property order applications. Final orders by consent of the parties were made by Justice Wilson on 23 July 2020 (‘the final order’). At that time, both parties were legally represented. Lander And Rogers acted for the husband and Taussig Cherrie Fildes acted for the wife. Mr Sweeney of Counsel appeared for the husband and Mr Puckey of Counsel (now Senior Counsel) appeared for the wife. On 4 August 2020, the final order was amended pursuant to r 17.02(1)(h) of the Family Court Rules (2004) (‘the Rules’). The final order, as amended, contains the following orders being the subject of and/or relevant to the current proceeding:-
1.The husband pay to the wife’s solicitors trust account the sum of $200,000 (‘the payment”) on or before the 23 August 2020 (“the date”).
2.Contemporaneously with the payment the wife sign all documents and do all acts and things as are necessary to transfer to the husband at the expense of the husband –
a.all of her right title and interest in the real property situate at and known as B Street Suburb C (“Suburb C”) and indemnify the wife regarding all liabilities; and
b.any and all shareholding she has in private companies of which the husband is a director including D Pty Ltd and the husband shall indemnify the wife with respect to all liabilities of that company or companies or of the wife arising is respect of that company or companies whenever they arise.
3.In the event of default in making the payment by the date or complying with the obligations imposed by paragraph 2 hereof Suburb C be forthwith offered for sale on terms and conditions and for a reserve price of $920,000 (or other amount agreed in writing) and the proceeds be applied as follows –
a.first to pay the costs of and incidental to the sale;
b.secondly, to make the payment together with interest calculated monthly from the date of default in accordance with the Family Law Rules; and
c.finally, the balance be paid the husband.
4.That pending the settlement of the sale of Suburb C –
a.the husband pay and be solely responsible for the mortgage payments and all other outgoings of the property and pay $275 per week to the wife; and
b.the husband have the right to occupy the Suburb C[.]
5. In relation to the following companies and trusts –
a. E Pty Ltd;
b. F Pty Ltd;
c. D Pty Ltd; and
d. Bebgie Family Trust;
the husband, both personally and his capacity as director and shareholder of the above listed companies and trust, hereby indemnifies and keeps indemnified the wife in respect of any debts, liabilities, taxes, causes of action, and other outgoings of the companies and/or trusts absolutely (whether past, present or future), and the husband be solely liable for all debts, business debts and any other liabilities of the above listed companies and trusts, including taxation liabilities howsoever incurred.
6.The husband pay and indemnify the wife in respect to any debt owed or owing to either of his parents or to his brother Mr S.
7. In accordance with s 90XT(l)(a) of the Family Law Act 1975 ("Act")-
a.a base amount of $42,200 ("base amount") be allocated to the wife out of the husband's interest in G Super ("fund"); and
b.the wife is entitled to be paid, using the Base Amount, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
c.the entitlement of the husband in the fund is correspondingly reduced by force of this order.
8.Z Super Fund Pty Ltd as the trustee of the fund ("trustee") do all such acts and things and sign all such documents as may be necessary to -
a.calculate, in accordance with the requirements of the Act the wife's entitlement pursuant to the provisions of paragraph 7 herein; and
b.pay the entitlement whenever the trustee makes a splittable payment from the husband's interest in the fund.
9.Paragraph 7 herein has effect from the operative time and the operative time is four days after service of these orders on the trustee by the wife's lawyers.
10.After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 ("SIS Regulations") the wife do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife's request in accordance with the SIS Regulations, for the rollover or transfer of the wife's interest to a complying superannuation fund of the wife's choosing in accordance with the SIS Regulations.
11. The court notes the value of the wife's interest is calculated in accordance with the SIS Regulations.
12. That until the happening of any of-
a.the rollover into another superannuation fund of the payments split created by this order; or
b. the wife satisfies a condition of release and has paid the payment which is created by this order; or
c.the wife executes a waiver of rights within the meaning of s. 90XZA of the Act in relation to the payment split created by this order hereof;
13.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 to all other property (including choses-in-action) in the possession of such party as at the date of these orders save that -
i.the husband shall forthwith make available for collection by the wife the chattels in annexure "A" attached hereto; and
ii.the wife shall forthwith make available for collection by the husband the chattels in annexure "B" attached hereto
b. monies standing to the credit of the parties in any bank account are deemed to be in the possession of the person whose name appears on the bank's record thereof;
c. superannuation entitlements are deemed to be otherwise in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements;
d.insurance polices remain the sole property of the owner named thereon;
e.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
f.any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
…
19.In order to facilitate changeover when same does not occur at school unless otherwise agreed in writing the mother deliver the children to the father's residence or the paternal grandparents' residence at the commencement of time and the father shall deliver the children to the mother's residence at the conclusion of time.
…
21.The father forthwith enrol and complete at his expense the ‘H program in accordance with paragraph 4(b) of the recommendations of Dr J on page 53 of his family report dated 18 March 2020 and provide evidence of compliance to the mother.
22.The father engage and attend upon Dr K or her referral for such appointments as are recommended by Dr K for the purposes of obtaining assistance as discussed in Dr J’s family report and recommended at paragraph 4(d) on page 53 of that report and provide evidence of compliance to the mother.
23.The parties engage and attend upon Ms L for such appointments as are recommended by Ms L for the purposes of improving their communication and co-parenting as recommended at paragraphs 2 and 4(c) on page 53 of Dr J’s family report at the parties’ joint expense.
On 11 December 2020, being approximately four and a half months after the making of the final order, the husband filed an application in a case together with an affidavit of evidence affirmed on 10 December 2020. That application was returnable on 15 December 2020. That application went to the enforcement of order no. 2 of the final order.
On 15 December 2020 The Court made orders as follows:-
(a)All extant applications are adjourned to 11 January 2021 at 10.00am for hearing in the judicial duty list.
(b)On or before 30 December 2020, the wife file and serve an application pursuant to s 79A of the Family Law Act 1975 (Cth), as foreshadowed by her, together with an affidavit of evidence sworn or affirmed by her.
(c)On or before 7 January 2021, the wife file and serve a financial statement.
(d)On or before 8 January 2021, the husband file and serve any affidavit in reply that he may wish to rely upon.
(e)The husband’s costs of this day are reserved.
The hearing of the husband’s adjourned application and the wife’s s 79A of the Act application proceeded on 11 January 2021 and was conducted by video link.
The material relied upon by the husband consisted of his Application in a Case filed 11 December 2020; and his affidavits of evidence affirmed on 10 December 2020 and 8 January 2021 respectively.[6]
[6] Transcript of proceeding dated 11 January 2021, page 3 at lines 35-40.
The material relied upon by the wife consisted of a Response to an Application in a Case filed 31 December 2020; her Financial Statement affirmed 8 January 2021; and her affidavit of evidence affirmed on 30 December 2020.
The husband sought, in essence, that the wife, by signing all documents forthwith, complete the transfer of the real property situate at and known as B Street, Suburb C in the State of Victoria (‘the Suburb C property’). In the event she did not do so, he sought an order pursuant to s. 106A of the Act be made. The husband sought also that the wife pay the husband’s costs of the proceeding pursuant to s 117(2A) of the Act.[7] In respect of the s 79A application of the wife, the husband sought summary dismissal and costs.
[7] Application in a Case filed 11 December 2020, page 3; transcript of proceeding dated 11 January 2021, page 10 at lines 30-35.
The wife sought orders, in essence, that the property orders as contained in the final order be set aside pursuant to s 79A of the Act and orders in substitution be made with particular regard to the division, if any, of the Suburb C property; that order/s for spousal maintenance be made pursuant to ss 74 and 75 of the Act; that order 23 of the final order, as outlined above, be enforced; and order 19 of the final order, as outlined above, be varied such that changeover occur at McDonald’s in Suburb M.[8] In the Response to Application in a Case filed 31 December 2020, the wife initially sought the enforcement of order 21 and order 22 of the final order.[9] On 11 January 2021, and upon the husband affirming and filing affidavit evidence of his compliance with those orders,[10] the wife withdrew that part of her application for the enforcement of order 21 and order 22 of the final order.[11] Given the evidence before the Court, namely Ms L’s refusal to ongoing engage with the family, the wife’s application in respect of order 23 of the final order had no merit and was not proceeded with by the wife.
[8] Response at an Application in a Case filed 31 December 2020, page 5.
[9] Response at an Application in a Case filed 31 December 2020, page 5.
[10] Affidavit of Mr Begbie affirmed 8 January 2021, paragraph 10.
[11] Transcript of proceeding dated 11 January 2021, page 5, lines 15-25.
Upon the hearing of the matter on 11 January 2021, an order was made in terms of that sought by the wife to vary order 19 of the final order. The order dated 11 January 2021 was made by consent of both parties, and provides:-
(1)Order 19 of the final orders made 23 July 2020 is varied such that all changeovers that do not occur at school, and in the absence of any written agreement between the parties, shall be at the McDonald’s carpark at N Street Suburb M
TRANSFER OF B STREET, BRIAR HILL
As referred to in paragraph 3 above, order 1 of the final order provided for the husband to pay to the wife the sum of $200,000 on or before 23 August 2000. Order 2 (a) of the final order provided for the wife to contemporaneously transfer to the husband her interest in the Suburb C property. That property was held, and remains so held, in the joint names of the parties.
The husband transferred, to the trust account of the wife’s solicitors (as required by order 1) the sum of $100,000 on 10 August 2020, and the further sum of $100,000 (making a total of $200,000 as required by order 1) on 11 August 2020. The husband then made arrangements with his conveyancer, Ms P, to effect the transfer of the Suburb C property into his sole name.
The husband was notified by Ms P that the Certificate of Title was in the possession of Q Company, as they had previously handled the conveyancing when the parties first purchased the property. The husband was also informed by Ms P, that those solicitors were not prepared to release the title, unless both parties signed an authority, and the wife signed a statutory declaration stating that "Ms Begbie" and "Ms Narang" were one and the same person.
On 7 September 2020, Ms P contacted the husband and wife by email to request their respective signatures on an attached letter for the release of the certificate of title. The husband promptly signed the necessary authority.
On 9 September 2020, Ms P contacted the wife requesting that she additionally sign a statuary declaration confirming that ‘Ms Begbie’ and ‘Ms Narang’ were the same person.
Having received no response from the wife, Ms P again contacted the wife via email on 23 September 2020.[12] On 28 September 2020, the wife responded stating she was “saving to buy printer cartridges to print the documents”[13]. That same day, Ms P emailed the wife as follows:-
…
Thank you for the update, as it is quite urgent that we receive these documents as soon as possible as you are required to comply with the courts orders to transfer the property are you able to have the documents printed at officeworks? Officeworks is open and are able to print documents for you which you can collect at the store. All you have to do is contact your local officeworks and they will provide you the required instructions on how to organise the documents printed. Printing with officeworks will only cost you 10c a page at most which is quite affordable.
Once you have hard copies of the documents if you could complete them and then both take a photo of the documents or scan and email them to me and then post the hard copy documents to…
Hope the above provides a reasonable solution to your printing issues.
[12] Exhibit ‘B3’ to the Affidavit of Mr Begbie affirmed 10 December 2020.
[13] Exhibit ‘B3’ to the Affidavit of Mr Begbie affirmed 10 December 2020.
The husband’s solicitor, Mr Robert Frajsman of RF Legal, wrote to the wife on 12 November 2020, requesting that the wife comply with the conveyancer's request to complete the necessary transfer documents by Friday, 20 November 2020.
The wife failed to respond to the requests of the husband’s conveyancer and solicitor. She failed to sign the necessary documents to enable the transfer of the Suburb C property from the proprietorship of the husband and wife jointly to the husband solely. She continues to adopt that course. She acknowledges that she has received the sum of $200,000 from the husband and has, in fact, expended some part of that sum.
The wife’s failure to effect the transfer of the Suburb C property, such that the husband is then the sole registered proprietor of the property in accordance with the final order, and in the context of the husband having made the ordered payment of $200,000 to the wife, resulted in the husband’s bringing of his application to enforce the relevant order.
The husband’s application was first before the Court on 15 December 2020. By that time the wife had accepted the $200,000 payment (as provided in order no.1 of the orders made 23 July 2020) from the husband and done all things necessary to ensure the superannuation split in her favour occurred as also provided for by the final order of 23 July 2020.
On 15 December 2020 the wife had no s 79A of the Act application before the Court. She was a litigant in person. She submitted that she intended to bring an application of that type. As a consequence, the matter was adjourned to enable her to file the necessary material.
Whilst the husband in the first instance sought enforcement of the final order and his affidavit material went to that application, on the second hearing of the matter, the husband sought also summary dismissal of the wife’s application. He argued that the wife’s application was an “abuse of the legal process” and that there was “no reasonable prospect of success” with respect to her application.
SECTION 79A APPLICATION
At the hearing of the interim applications on 11 January 2021, the wife submitted the reason she sought, under s 79A of the Act, that parts of the final order be set aside was because at the time of her signing of the final order, subsequently made by consent of the parties, she was “under extreme pressure and duress.”[14] At the time of signing the final order, the husband and the wife were represented by very experienced counsel. Their solicitors, as well as family members, were also present during the negotiations.[15]
[14] Transcript of proceeding dated 11 January 2021, page 4 at line 30.
[15] Transcript of proceeding dated 11 January 2021, page 5 at lines .
The relevant sub-section of s.79A(1) of the Act, although not clearly articulated by the wife, the wife relies upon is :-
(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
…
the court may, in its 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.
The Full Court of the Family Court of Australia[16] has said the following passage is to be borne in mind when considering an application of this type:-
As is well-known, s 79A of the Act is not a provision which is intended to, or operates as an avenue of redress for a party who has, or believes he or she has, in the light of subsequent events, made a bad bargain. That is why, as the authorities reveal, there are cases, particularly where a long period has intervened between the making of the orders which give rise to the s 79A application and the s 79A application, for having a threshold determination (see Oastler (supra), and Patching (supra)). The trial Judge’s order accordingly, and in the interests of both parties, had the potential to facilitate a cheaper and more expeditious determination of the proceedings if the husband could not, by reference to events in, and surrounding the 1995 orders, demonstrate a possible basis for relief under s 79A.[17]
[16] Karlsson and Karlsson [2020] FamCAFC 207, [44].
[17] Wernham & Campagnola [2012] FamCAFC 137, [23].
The plurality of the High Court of Australia said the following as to vitiating factors generally in Thorne v Kennedy (2017) 263 CLR 85 at [41]:-
In any case where a transaction is sought to be impugned by the operation of vitiating factors such as duress, undue influence, or unconscionable conduct, it is necessary for a trial judge to conduct a “close consideration of the facts ... in order to determine whether a claim to relief has been established”. On appeal, it is also essential for the appellate court to scrutinise the trial judge’s findings and assess any challenge to the trial judge’s conclusions in light of the advantages enjoyed by that judge.
SUMMARY DISMISSAL OF THE S 79A APPLICATION
Pursuant to ss. 45A(1) and 45A(2) of the Act, the Court can make a summary decree in favour of one party, in relation to the whole or part of a proceeding, if satisfied that a party has no reasonable prospect of successfully either prosecuting or defending the proceeding or part of the proceeding. In determining whether a defence or proceeding has no reasonable prospect of success, proceedings need not be hopeless or bound to fail.[18]
[18] Family Law Act 1975 (Cth) s 45A(3).
Part 10.3 of the Rules deals with the procedural matters of a summary dismissal. Pursuant to r. 10.12, an application may be made for summary dismissal of s. 79A application if the Court has no jurisdiction; the other party has no legal capacity to apply for the orders sought; it is frivolous, vexatious or an abuse of process; or there is no reasonable likelihood of success. The absence of a formal application by the husband, were that the case, would not impede the Court from making a summary dismissal in the current proceeding because, in any event, it is empowered to make orders of its own initiative, pursuant to r 1.10 of the Rules.
The principles to be applied in respect of summary dismissal or determination on an interim basis were set out in Bigg v Suzi (1998) FLC 92-799 and were affirmed in Pelerman & Pelerman (2000) FLC 93-037 at 87,582. The principles, as summarised,[19] are that:-
(a)the power for summary dismissal is a discretionary one;
(b)relief “is rarely and sparingly provided”;
(c)the parties seeking summary dismissal must show that the application is “doomed to fail” or has been otherwise described “that the opponents lack a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”;
(d)a weak case or one that is unlikely to succeed is not “sufficient to warrant termination”;
(e)“[i]f there is a serious legal question to be determined, it should ordinarily be determined at trial”; and
(f)“[i]f notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action in which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings.”
[19] Brewster & Brewster [2016] FamCA 465, [66] per Berman J.
More recent authority has preferred the application of the “no reasonable likelihood of success test” rather than the “doomed to fail” test.[20] The power is to be exercised where it is clear there is no real question to be tried.[21]
[20] Karlsson and Karlsson [2020] FamCAFC 207, [40] citing Spencer v Commonwealth of Australia (2010) 241 CLR 118; Bretton & Bondai [2013] FamCAFC 168, [59] and [60].
[21] Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27, [35].
An order summarily dismissing an action on the basis that the application discloses no reasonable cause of action is an interlocutory order.[22]
[22] Ebner & Pappas [2014] FLC 93-619 at [30] – [32].
The means by which the issue is determined, as was said by the Full Court of the Family Court of Australia in Ritter & Ritter and Anor (2020) FLC 93-957 :-
66….must only take into account the material on which the respondent seeks to make out the case, or as often expressed takes the respondent’s case “at its highest” unless the respondent’s version is inherently incredible or unreliable (see Munnings v Australian Government Solicitor (1994) 68 ALJR 169 at 171; Bigg & Suzi (1998) FLC 92-799; Webster v Lampard (1993) 177 CLR 598 at 608).
THE WIFE’S EVIDENCE
It is the wife’s evidence that she has not signed the necessary documents to effect the transfer of ownership of the Suburb C property because she has had “a change of mind that it was not a fair and equitable outcome”[23].
Further, it is the wife’s evidence that, relevantly:
a)the wife “ felt under extreme pressure to sign without enough time for better judgement. Considering the wife stopped receiving financial assistance for the children, from the father. And, that all payments stopped once consent orders were signed in the husband’s favour. The father has not paid a cent towards our children’s expenses, no child support at all, on 23 July 2020 the mother was paying a babysitter by the hour, my barrister kept telling me to sign, the mother felt extreme pressure and confused”;
b)the wife “was under financial duress when signing the consent orders on 23 July 2020. The bills from her solicitor were building, and financially supporting herself, X and Y on Pension payments from Centrelink and Single parent Centrelink payments, Mr Begbie is not paying child support or spousal maintenance”;
c)the wife “moved out of the former marital home in May 2020 and is now renting with the children further adding financial strain. The husband has sole use of the former marital home B Street, Suburb C (sic). However, the husband is residing at R Street, Suburb C. Neither properties have mortgages”;
d)the wife “was strongly advised to settle with the monies offered by Mr Begbie as she was told that “Mr Begbie and Mr S were “raging” and “climbing the walls” in the interview room, my barrister Tim Puckey told my solicitor Carly Boekee that Mr Begbie’s barrister did not want to be in the same room as them”. The wife is intimidated and frightened of the husband especially when he is raging and angry, he is 6’4” tall and the wife is 5’2”…….. Ms Narang is the stay home parent since X was born in 2015. Mr Begbie controlled all the money, and gave her an allowance. If she was to ask for more money Mr Begbie would ask “what I needed it for?”, “Do we really need it?”, “Don’t I give you enough money”;
e)the wife “is solely responsible for all payments for the children she has 100% care of the children, receiving pension payment and single parent payment from Centrelink. …. The mother is terrified for the children and herself of further violent behaviour from the father if asked for child support or spousal maintenance. The father’s state of mental health is of great concern in recent months as his actions and violent behaviour is erratic and passive aggressive”;
f)the husband made payments to the wife of $275 per week for the support of herself and the children. Additionally, the wife “applied for and was approved for the government grant to take two lots of $10,000 from her superannuation fund” to cover weekly expenses as claimed by her. In August 2020, the weekly payments of $275 previously made by the husband to her, ceased;
g)the $200,000 payment made by the husband to her in accordance with the orders was deposited into the wife’s solicitor’s account. After payment of her own outstanding legal costs, the wife received a sum of $114,000;
h)the husband received a wage prior to COVID-19 of approx. $75,000 per year ($1100 per week clear in his account). He is currently living with his father Mr T at R Street, Suburb C. There is no mortgage on his father’s house nor is there a mortgage secured by the property at B Street, Suburb C.
The evidence of the wife includes further, as set out in her financial statement that :-
i.her average weekly income is Centrelink payments of $763;
ii.her mother resides with her and contributes to one half of the rental expenditure in the sum of $320 (total rental per week is $640);
iii.the total weekly expenditure incurred by her for the support of herself and the children is $1,190 together with payment of private health in the weekly sum of $115, comprehensive car insurance in the weekly sum of $23, and motor vehicle registration in the weekly sum of $34;
iv.she has savings in the Commonwealth Bank of $4,884 together with total bank savings from various other accounts of $1,180;
v.she has ownership of 2 motor vehicles with a total value of $12,200 and;
vi.she has CBA credit card debt of $6,420.
CONSIDERATION
At the time of seeking final property orders by consent before Justice Wilson, the wife sought, through her Counsel, as did the husband, through his Counsel, to have the Court find that s. 79 (2) of the Act was satisfied. That section is as follows:-
The Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
The Court declared itself to be so satisfied.
The wife, some five months later, determined that the orders, in part and not in their entirety, did not produce, to her mind, a fair and equitable outcome. She has nevertheless, in that period of reflection by her, accepted and dealt with $200,000 as received from the husband, together with the monies received by her by way of transfer of the superannuation monies of the husband to a nominated superannuation fund of the wife. Superannuation monies of $20,000 had been withdrawn by her from her own entitlements prior to her signing the consent orders.
The parties were both represented by experienced family law barristers and solicitors at the time of the making of the orders. They also each had with them a family member for support. The negotiations between the parties through their respective legal representatives did not occur in a face-to-face context as the Court was not holding face-to-face hearings at the relevant time due to the effects of the COVID-19 pandemic. Thus there was some distance between the parties. The negotiations also followed earlier Court events and hearings, including a conciliation conference. The proceeding had first been filed on 7 November 2019.
During the course of the litigation, the wife filed a second further Amended Response. That document is dated 16 July 2020. In that further amended Response the wife sought a payment to her of $250,000 to be made contemporaneously with the transfer by her to the husband, of her interest in the Suburb C property. She ultimately compromised her position, accepting a figure in the range, being $200,000.
Following the wife’s receipt of monies from the husband, the wife paid her legal costs and deposited (as on her affidavit of evidence (annexure 4)) the sum of $100,000 with a company known as V Pty Ltd. Those funds appear to now be deposited with W Group.
The husband will be required to pay child support as assessed. The wife has made no application to the child support agency for such liability to be assessed and payable, despite her evidence as to the dire financial position she finds herself in. The wife is able to seek an assessment of child support payable by the husband to her for the support of the parties’ children. The position existed when she sought the final order by consent, and it continues to exist.
The wife has made no payments in respect of any of the outgoings of the Suburb C property since the parties separated in 2019, despite her joint proprietorship of the property, and her occupation of same until May 2020.
At trial the wife had $30,000 in superannuation entitlements, having earlier obtained a further $20,000 from her superannuation fund by satisfying an early release provision. The effect of the final superannuation splitting orders made 23 July 2020 was to provide the wife with a further $42,400 making her total superannuation balance a sum of $72,500. This represented, as was said by the wife, a 50% adjustment in respect of superannuation entitlements to each of the parties.
The wife’s evidence does not establish to the necessary standard of proof, the balance of probabilities, that she was placed under duress by either her solicitor or barrister. Certainly, she would have found the day a stressful one. She negotiated the matter prior to trial however, and did not have the further stress associated with the giving of evidence during a trial. There is no evidence to suggest that agreeing to orders at the time she did was the only option available to her. Rather, such agreement prior to trial was the manner in which she determined to proceed with the litigation, litigation which had been on foot with ongoing negotiations over time.
It was not until December 2020 that the wife first voiced her complaint that she had acted under duress when agreeing to the orders made. This was after she had received the benefit of the final order in a payment to her by the husband, and a transfer of the husband’s superannuation entitlements (as provided for in the order) to a superannuation fund in the name of the wife. Having received those funds, the wife then dealt with them. It appears now, on reflection, she thinks she did not strike a fair bargain and points to the allegedly parlous state she and the children of the parties are in. In submissions, the wife acknowledged that a part of her consideration was that by not negotiating the settlement she did, she could have been ‘worse off’.
The final property orders did not include an order pursuant to s 77A of the Act. The wife claims to be in need of spousal maintenance from the husband. That is an order she can seek if she so chooses. To that end she can file a specific application with supporting material addressing that single issue.
There is no evidence put before the Court by the wife that there has been a miscarriage of justice by reason of duress in the making of the consent orders. The evidence , limited as it is and with no opportunity for the Court to find basic factual matters such as the length of the parties cohabitation, the complete asset pool as calculated by the wife, or what percentage adjustment of the parties net assets the wife sought and/or achieved, is evidence as to the making of a final order producing an equal division of the parties superannuation entitlements and resulting in a payment to the wife of $200,000 being $50,000 less than that which she sought in her material filed. There is not a suggestion by the wife in her evidence that information including disclosure, which should have been made available to the wife, was not so made available. Nor is there evidence that the valuation of any asset was manifestly inaccurate. The wife could have challenged the evidence of the husband but did not adopt that course, after considering her options and receiving legal advice about the settlement prior to her execution of the consent orders. There is no evidence that the final order does not fall within the ambit of what is just and equitable.
The wife has not established on her evidence that she was subject to duress. Even if I am wrong in reaching that conclusion, then the wife has not established that any such duress (should same be factually established) amounted to a miscarriage of justice. Even were that to be established, then, the Court must still determine whether to exercise its discretion to set aside or vary the final order or make another order.[24] The wife places no evidence before the Court from her mother; her solicitor and/or her barrister. The Court infers that none of these persons, present during the negotiations, would give evidence that assists the wife. The negotiations were such that the husband and wife were not in each other’s physical presence at any time. The wife’s uncorroborated evidence is otherwise not persuasive and is entirely insufficient.
[24] Suiker and Suiker (1993) FLC 92–436.
The parties have already expended considerable sums in legal costs. There is little remaining monies available to them. In these circumstances, and given the paucity of evidence placed before the Court by the wife, the Court would not exercise its discretion to set aside the orders. The focus of the wife’s evidence is largely on meeting day to day needs and costs of herself and the children now and into the future. The wife seeks in that regard that the Court “review and determine a just and equitable outcome in the matter of spousal maintenance”. What exists now is a property settlement order. There is no s. 77A of the Act order within the final order. There is nothing which precludes the wife from bringing a discreet s. 74 or s. 77 application. But that is not a s.79A of the Act application on the ground of duress resulting in a miscarriage of justice, or the wife, on reflection, determining that the consent orders she entered into were not just and equitable, the order sought being:-
1.Under the Family Law Act 1975-Sect 79a I ask the Honourable Magistrate to set aside the consent order to review and determine a just and equitable financial outcome in the division of property B Street Suburb C.
The Court finds that there is no reasonable likelihood of success of the wife’s s. 79A application on the evidence as placed by her before the Court and accordingly her application shall be summarily dismissed. The husband’s enforcement application is made out. The wife has failed to comply with an order of the Court. She has had the benefit of the payment. The Court shall thus accede to the husband’s application.
COSTS OF THE HUSBAND
Section 117 of the Act provides the Court with power to make orders in relation to costs. Section 117(1) creates a statutory presumption that each party to proceedings under the Act “shall bear his or her own costs”.[25] This presumption is subject to s 117(2) of the Act, which empowers the Court to “make such order as to costs…as the court considers just”[26] if it is “of opinion that there are circumstances that justify it in doing so.”[27] Section 117(2A) provides that in “considering what order (if any) should be made” for the payment of costs, “the court shall have regard to” the matters identified in ss. 117(2A)(a) to (g) of the Act. Rule 19.08 of the Rules similarly empowers the Court to make an order for costs.
[25] Family Law Act 1975 (Cth), s 117(1).
[26] Family Law Act 1975 (Cth), s 117(2).
[27]Family Law Act 1975 (Cth), s 117(2).
The husband seeks a costs payment to him in the sum of $5,788.98 in respect of his enforcement application. The quantum as claimed by him is reasonable and appropriate by reference to Rule 19.18 and schedule 3 of the Rules. The husband works as a tradesman, in receipt of income of $540 a week, it being reduced as a result of the COVID-19 pandemic. He resides in the property at B Street Suburb C which he and the wife agree has a value of $920,000. He has loans from his family of approximately $750,000 which he has yet to repay. Additionally, he borrowed a further $200,000 from his family to pay out the wife the monies owing to her pursuant to the final order. The wife is in receipt of Centrelink benefits and has the primary care of the parties’ children. She has a total of $6,064 in savings accounts. She has credit debt. She receives no child support payments from the husband. She has still to make an application for a child support assessment. Neither party is in receipt of legal aid. The wife’s non-compliance with previous orders has necessitated the proceeding as commenced by the husband. The wife’s application in response has been entirely unsuccessful. Whilst all these matters would see a resultant costs order against the wife, the wife’s financial circumstances are presently limited. That consideration requires a reduction in the costs ordered in the exercise of that Court’s discretion, and a significant stay on the payment of such costs. The Court shall order the wife to pay the husband the sum of $2,000 and that there be a stay on the payment of 24 months.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 19 March 2021
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