Berge & Berge & Anor

The application before Rees J in the Family Court of Australia concerned an attempt by the wife to vary or set aside final property settlement orders made in earlier proceedings. The wife's application was brought under section 79A(1)(a) of the *Family Law Act 1975* (Cth), alleging that the second respondent had suppressed evidence regarding changes to the conditions and costs associated with the subdivision of a property. She contended that had the original court been aware of these changes, which reduced the likely cost of completion, it would have been more confident in the subdivision's completion and the reliability of the joint expert's valuation. The wife also sought variation under section 79A(1)(c), based on the husband's failure to pay a sum of money as ordered, despite interest accruing on the outstanding amount and the wife's inaction in seeking enforcement.

The court was required to determine whether a miscarriage of justice had occurred due to the alleged suppression of evidence concerning the property subdivision, and whether it was just and equitable to set aside the original orders based on the husband's default in payment. Specifically, the court had to consider if the wife's knowledge of the changed subdivision conditions and reduced costs, evidenced by her commissioning of a "shadow valuation report," meant that the original valuation, which was contingent on the original subdivision conditions, was rendered speculative in a way that constituted a miscarriage of justice. Furthermore, the court had to assess the equitable considerations of allowing the wife to rely on the husband's non-compliance with a payment order, particularly given her own lack of enforcement action.

Rees J found that no miscarriage of justice had occurred in relation to the suppression of evidence concerning the subdivision. The court noted that the wife herself had commissioned a valuation report and was aware of the changed conditions and reduced costs. This indicated that the original valuation, which was based on the original conditions, was not the sole basis for the original orders, and the wife's knowledge meant she was not prejudiced by any suppression. Regarding the husband's default, the court determined that it was not just and equitable to permit the wife to use his failure to pay as a basis for setting aside the orders, especially as she had not pursued enforcement.

Consequently, the application of the wife filed on 22 March 2011, seeking orders pursuant to section 79A of the *Family Law Act 1975*, was dismissed.