Buxton & Buxton
[2008] FamCA 179
•19 March 2008
FAMILY COURT OF AUSTRALIA
| BUXTON & BUXTON | [2008] FamCA 179 |
| FAMILY LAW – PRACTICE AND PROCEDURE - s 79A application seeking to set aside consent orders made in 1993 – application by husband to split hearing of s 79A application – seeking preliminary hearing to determine only whether any ground exists to establish a miscarriage of justice – court has discretion to divide s 79A application into separate hearings – discretion to be exercised with caution – “generally preferable” for s 79A application to be dealt with in one hearing – overlap of relevant matters – degree and nature of any miscarriage of justice relevant to exercise of discretion to vary or set aside order – consideration of impact of split hearing on costs to parties – significant costs already incurred – preferable to deal with application in one hearing – application dismissed. |
| Family Law Act 1975 (Cth) s 79A(1)(a) Family Law Rules 2004 (Cth) rr 1.04, 1.06, 10.13 & 10.14 |
| Patching and Patching (1995) FLC 92-585, McIntyre and McIntyre (1994) FLC 92-468, G and G [2005] FamCA 1171, N and N [2006] FamCA 1232 (unreported), Oastler and Oastler (1993) FLC 92 -390 |
| APPLICANT: | Mr Buxton |
| RESPONDENT: | Mrs Buxton |
| FILE NUMBER: | ADF | 1569 | of | 1993 |
| DATE DELIVERED: | 19 March 2008 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 22 February 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Birchall |
| SOLICITOR FOR THE APPLICANT: | J Richard Croft |
| COUNSEL FOR THE RESPONDENT: | Mr McGinn |
| SOLICITOR FOR THE RESPONDENT: | Calderwood Atkinson |
Orders
That the husband’s Application in a Case filed on the 16 November 2007 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Buxton and Buxton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 1569 of 1993
| Mr Buxton |
Applicant
And
| Ms Buxton |
Respondent
REASONS FOR JUDGMENT
Introduction
The husband by application in a case filed on the 16 November 2007 sought the following orders:
“1.That the issue of setting aside the property settlement Order made between the parties on the 22nd February, 1993 be determined as a preliminary matter.
2.That the wife do pay the husband’s costs of and incidental to this Application.
3.Providing for such further or other matters as the Court deems just and expedient.”
This is an application pursuant to Section 79A.
The application came on for determination on the 22 February 2008 when the husband was represented by Counsel Mr Birchall and the wife by Counsel Mr McGinn.
During submissions counsel for the husband sought orders that the matter proceed by way of preliminary hearing to determine whether any ground existed which would establish that there had been a miscarriage of justice under the provisions of Section 79A(1)(a), reserving the question of whether the Court should exercise its discretion to vary the order or set aside the order to the second hearing.
Background
The parties were married in 1959 and separated in either 1991 or 1993.
On the 11 February 1993 the wife commenced proceedings for property settlement and spousal maintenance. At the time she was represented by a solicitor.
On the 22 February 1993 a Consent Order for property settlement and maintenance was made by a Registrar of this Court.
The parties were divorced the decree becoming absolute in August 1996.
On the 7 April 2005 the wife filed an application seeking final orders:
“1.That the order made by a Registrar on the 22nd of February 1993 be varied by insertion of paragraph 1(j) to read ‘the husband shall transfer all his interest in the block of land [M] to the wife and it shall be the property of the wife absolutely.’
2.In the alternative that the orders made by this Honourable Court on the 22nd day of February 1993 be set aside and an order for property settlement be made as:
a) That each party retain all items of real and personal property presently and solely in their respective names to the exclusion of the other.
b) That the husband transfer to the wife all his estate interest in the vacant land situated at [M].
c) That the husband pay the wife costs in this application.
d) Such further or other orders as the Court thinks fit.”
On the 3 June 2005 the husband, through his solicitors, filed a Response to the application for final orders. He sought the following orders:
“1.That the orders of the 22nd February 1993 be amended at paragraph 1 (g) to read ‘that the shack situated at [M] aforesaid and the leasehold vacant land situated and known as [M] and described in Memorandum of Lease No. […] shall be sold forthwith and the net proceeds from such sale to be divided equally between the parties’.
2.That the wife do pay all of the husband’s costs incurred in these Family Court proceedings.
3.Any other order deemed just and equitable by this Honourable Court.”
There have since been further amended applications for final orders filed by the wife and amended responses filed by the husband. The final versions of those applications are currently on file. The wife seeks orders by way of her amended application filed on the 23 April 2007 as follows:
“1.The Court being satisfied there has been a miscarriage of justice by reason of orders made by this Honourable Court on the 22nd day of February 1993 be set aside.
2.That in full and final settlement of all property matters between the parties:
(a)The husband do deliver to the wife within 28 days all the contents of the wife’s former work shed situated at [E] as at the 22nd day of February 1993 or such of them as remain in his possession, custody or control being all the items referred to in exhibit B of the Affidavit of the wife sworn on the 16th day of March 2007.
(b)That the husband forthwith transfer to the wife all his estate and interest [M property] and being the whole of his interest comprised and described in lease number […] between [M] Leaseholders Inc as lessor and the husband and the wife as lessees.
(c)Henceforth the parties retain all other items of realty and personality in their possession to the exclusion of the other subject to such cash adjustment as is deemed necessary to provide for an equal 50/50 split between the husband and the wife.”
The amended Response of the husband filed on the 2 May 2007 seeks the following orders:
“1.That the Amended Application of the wife filed herein on 23rd April, 2007 be dismissed.
2.That the wife do pay all of the husband’s costs incurred in these Family Court proceedings.
3.Any other Order deemed just and equitable by this Honourable Court.”
In the past Trial Notices have issued and Pre-Trial Conferences have been scheduled, but these have been adjourned from time to time. The last Pre-Trial Conference was adjourned to enable the most recent Form 2 Application filed by the husband (being the application heard by me) to be determined.
On the 4 June 2007 the husband filed an application in a case in which he sought the following orders:
“1.That the Amended Application of the wife filed hereon on 23rd April, 2007 be summarily dismissed.
2.That in the alternative the issue of setting aside the Order made between the parties on 22nd February, 1993 be determined as a preliminary matter.
3.That the wife do provide particulars as to the basis upon which her Application is made pursuant to Section 79A of the Family Law Act.
4.That the time for the respondent husband to file further Affidavit material be extended.
5.Providing for such further or other matters as the Court deems just and expedient.
6.That this Application be listed for hearing before the Pre-Trial Conference on 18 June 2007.”
On the 6 July 2007, when both parties were represented by counsel, a Consent Order was made by Judicial Registrar Forbes which provided:
“UPON NOTING
(a)the parties are to attend a PTC on 13/7/07 at 2.15 pm at which they will seek by consent an extension of time for the wife to file further affidavit material within 21 days and the husband to file affidavit material within a further 28 days;
(b)at the PTC the parties will seek a new trial date;
(c)the wife has provided particulars as to her claim pursuant to s.79A;
(d)that the husband may seek further particulars in due course.
BY CONSENT:
1.That the husband’s F2 filed 4/6/2007 is dismissed.”
The parties have filed affidavits of evidence in chief and some affidavits of valuers, but it is possible that further updated evidence may be necessary.
The wife has provided particulars of the grounds on which she claims that there was a miscarriage of justice which would substantiate an exercise of discretion under Section 79A(1)(a) which can be summarised (but not limited to) by the following:
(1)Negligence on behalf of her solicitor at the time,“to the extent that the wife effectively was not advised all about the terms of the orders”. The wife’s former solicitor is now deceased. The wife has previously settled proceedings against her former solicitor in the State civil jurisdiction.
(2)Material was not disclosed to the Court at the time the Consent Order was made to enable the Court to properly exercise its discretion.
(3)The husband did not disclose to the wife the full extent of his savings and financial resources, his recent receipt of redundancy or retirement benefits and superannuation.
Submissions on behalf of the husband
The husband submits that the cost of preparing for further litigation would be wasted if the wife is unable to satisfy the Court of the existence of “one of the necessary pre conditions”. It is submitted that it is therefore inappropriate to put the parties to the further expense of having to prepare the case in full if the wife may be unsuccessful in establishing the ground to set aside the original Consent Order.
Submissions on behalf of the wife
Counsel for the wife submitted that an application to split the hearing had already been dealt with by the orders of the 6 July 2007 and that the cost to be saved in this matter are limited because the matter is otherwise ready for trial on all of the issues. It was also submitted that if the husband is ultimately successful then he has a remedy available in costs, there being a parcel of land which remains held in the joint names of the parties which is valued at approximately $200,000.
The Law
Section 79A(1)(a) provides:
(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 Family Law Rules provide by Rule 1.04 that the main purpose of the Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case.
Rule 1.06 also provides that the Court must apply these Rules to promote the main purpose, and actively manage each case by:
(c) identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial;
Rule 10.13 provides:
After the final resolution event, a party may apply for a decision on any issue, if the decision may:
(a) dispose of all or part of the case;
(b)make a trial unnecessary;
(c)make a trial substantially shorter; or
(d)save substantial costs.
Rule 10.14 provides:
On an application under this Part, the court may:
(a)dismiss any part of the case;
(b)decide an issue;
(c) make a final order on any issue;
(d)order a hearing about an issue or fact; or
(e)with the consent of the parties, order arbitration about the case or part of the case.
NoteThis list does not limit the powers of the court. The court may make orders on an application, or on its own initiative (see rule 1.10).
The Full Court of the Family Court of Australia (Nicholson CJ, Fogarty and Jordan JJ) in the marriage of Patching, H and Patching, RE (1995) FLC 92-585 considered an appeal in relation to a Section 79A Application. In the joint judgment the Full Court referred to the earlier decisions of McIntyre and McIntyre (1994) FLC 92-468 and said at 81,797:
“Recent decisions of the Full Court have emphasized the independent significance of the exercise of the discretion which s.79A gives: see Prowse (1995) FLC 92 - 557 and Morrison (20 December, 1994 not yet reported).
In Oastler (1993) FLC 92 -390 the Full Court emphasized that it is generally preferable to deal with all of the steps in the one hearing. The reasons for that are obvious, namely that even if the Court concludes that there have been circumstances which amount to a miscarriage of justice it must then consider whether in all the circumstances it should exercise its discretion to vary or set aside the orders and/or make a new s.79 order. In exercising that discretion it will have regard to, inter alia, the degree and nature of the miscarriage in question, any delay, alterations in the parties' positions in the meantime, and the extent to which, if at all, it is now appropriate to vary the original orders: McIntyre, supra, provides an example of this. The last of those circumstances was important in this case for reasons which will subsequently become apparent. Of course there will be cases where it is convenient to divide the procedure into several hearings; for example, where there is a discrete issue under the first and or second step and the property circumstance of the parties are complex.
Here, as the parties agreed to this split hearing, it would not normally be appropriate for either to complain to this Court about that: see Nolan v Ingram (1984) FLC 91 -585; Ahmad (8 December, 1994 , not yet reported). However, the procedure did in fact cause difficulty in this case because it meant that his Honour considered not only the question of a miscarriage of justice but also the discretion to set aside the original orders in a vacuum as it were, that is, without having the additional material against which to determine whether it was a proper exercise of discretion to do so and what other orders would be appropriate. Those difficulties emerge from his Honour's first judgment to which we now turn.” (My underlining).
In the decision of G & G [2005] FamCA 1171 of Kay, Warnick & Guest JJ on the 2 December 2005 the Full Court referred to the quoted passage from Patching and Patching (Supra) later in the judgment they said at paragraph 20:
“20.Whilst there appear to be strong arguments as to why it might be inappropriate to hold split hearings in s 79A applications to determine firstly whether there is any basis for interfering with the existing orders, and then if there is such a basis what order it is then appropriate to make, there can be no doubt that there is a discretion to make an order for a split hearing. In a case where the financial circumstances of the parties are very complicated, the cost of obtaining up to date valuations and of litigating over the size of the asset pool can be very substantial indeed. Much of the cost involved in preparing for such litigation would be entirely wasted in a s 79A application if the applicant is unable to satisfy the Court of the existence of one of the necessary pre-conditions to the Court varying or setting aside the original order.“
The Full Court also said:
“33.…The order that Joske J made was said to be subject to any discretion in the trial Judge. That would, of course, enable the wife at any time during the proceedings before the trial Judge to renew her application for a single hearing rather than a split hearing. It might become apparent in the course of those proceedings that it is necessary to expand the parameters of the matters to be determined by the trial Judge. However, that is a matter for the discretion of the trial Judge and not a matter about which we feel it would be appropriate that we make any further comment at this time.”
The application before me in this matter is specifically to direct that there be one initial separate hearing to determine if the grounds of Section 79A(1)(a) can be established, being a process which would apparently be binding upon the Judge who hears the final proceedings.
This point was also referred to by Her Honour Justice Brown in the matter of Naylor & Naylor [2006] FamCA 1232 (a judgment delivered in November 2006) at paragraph 13:
“13.The question of whether a judge who heard a threshold hearing on the grounds would be part heard for the balance of the trial (if there were a balance of the trial) was not addressed in submissions.”
Her Honour’s judgment in this matter is useful for its clarity. In particular paragraphs, 3, 4, 7, 8, 9 and 10 are useful:
“3.In her amended application the wife sought a preliminary or separate hearing of two paragraphs of the husband's further amended form 1 application filed 11 October 2005. In paragraph 1 he sought that the final orders be set aside, pursuant to s.79A, and in paragraph 2, that the binding financial agreement signed on 10 March, 2004 be set aside pursuant to s.90K. What the wife actually seeks (vis a vis the s.79A application) is a separate, preliminary or initial hearing directed to a finding as to whether there has been a miscarriage of justice pursuant to s.79A(1)(a). That would involve a finding on the alleged vitiating circumstances which, according to the further amended application of the husband, involve allegations of suppression of evidence, including a failure to disclose and the giving of false evidence. At a hearing of that point, the Court would not consider whether the orders should be set aside and, if so, what orders (if any) should be made in lieu.
4.Miscarriage of justice means no more than that justice has miscarried or that an order has been unjustly obtained. It concerns the integrity of the judicial process, as reiterated by the Full Court in Bigg v Suzi (1998) FLC 92-799. One can find judicial support for the principle that the term should not be interpreted too narrowly (for example, Gerbert v Gerbert (1990) FLC 92-137) or too widely (for example, Clifton v Stuart (1991) FLC 92-194 and Suiker v Suiker (1993) FLC 92-436. In this case it would be possible to quarantine evidence on the s.79A(1)(a) ground and make findings on that evidence as to whether or not there has been a miscarriage of justice.
…
…7.The rule of thumb is that a hearing of an application pursuant to s.79A will generally not be split into two or more parts. On occasions courts have heard evidence and submissions referable to the question of whether final orders should be set aside and, if a finding was made to that effect, have the parties adduce, in a separate trial, evidence referable to the orders which should be made in lieu. However, that is a dangerous course, as illustrated by the Full Court’s decision in Patching v Patching (1995) FLC 92-585. What is sought today is something short of that, being an initial hearing which does not proceed (if a ground were proven) to the point of deciding whether the final order, or the financial agreement, should be set aside.
8.In Patching, the Full Court set out succinctly the reasons behind the general rule and the difficulty facing a court which tries to exercise the discretion to set aside (assuming a miscarriage of justice has been found) in the absence of all potentially relevant evidence. The judgment makes clear the caution which needs to be exercised when considering dividing the s.79A procedure into several hearings.
9.The wife's submission is that this is a case which comes within the class of exceptions referred to by the Full Court in Patching, at 81,797. It is submitted that there is a discrete issue under the first step of the s.79A process and that the property circumstances of the parties are complex.
10.On the evidence available to me, I could not make a positive finding that the parties' property circumstances are complex. I take the Full Court in Patching to be referring by this to the nature and extent of the parties' financial and other circumstances, which would be relevant to the decision whether to set the orders or financial agreement aside and whether to make other, and if so what, orders. If by reason of their complexity that would involve the preparation of complex, expensive and voluminous material which would be unnecessary were no grounds to be established, the court might determine it to be convenient to divide the trial and make findings on the grounds and whether there had been a miscarriage of justice.”
Discussion and Conclusion
Clearly the Rules encourage the Court to consider the process which will be simpler and cheaper for the parties. There is clearly a discretion to divide the judicial determination of the application under Section 79A into two processes with the first process being an initial hearing directed to determine whether there has been a ground established which would be within the definition of a miscarriage of justice pursuant to Section 79A(1)(a).
Such an initial hearing should not and could not properly consider exercising the discretion to set aside the first order as the exercise of discretion would usually require considering matters of evidence well beyond that needed to establish the ground of miscarriage of justice. As Justice Brown said in Naylor & Naylor (Supra) at paragraph 7:
“7.…What is sought today is something short of that, being an initial hearing which does not proceed (if a ground were proven) to the point of deciding whether the final order, or the financial agreement, should be set aside.”
Notwithstanding that there have been cases where the Judge has decided to determine the discrete issue of the existence of a ground to establish a miscarriage of justice, most of the binding authorities referred to the fact that it is “generally preferable” to deal with all of the steps in the one hearing. The Full Court in Patching & Patching (Supra) referred to Oastler and Oastler (Supra) and thereafter noted that considering whether to exercise its discretion to vary or set aside an order under Section 79 that exercise of discretion will have regard to matters including “the degree and nature of the miscarriage in question”.
In this matter there will obviously be other matters to be considered when exercising the discretion, but this factor is one that clearly overlaps with the proposed first step in the proceedings namely, determining whether there has been a miscarriage of justice.
The issue of costs is another factor to be considered when considering the discretion to split the hearing. Obviously, there would be less cost to both parties if the wife’s application were dismissed if she failed to establish the initial ground. If however she established the ground there would be a further hearing and costs would not be saved.
As previously indicated the parties have progressed to Pre-Trial Conferences on several occasions, with the Pre-Trial Conferences being adjourned. The parties have filed affidavits of evidence in chief but there may well be further material (including finalisation of appropriate valuations) to be prepared before the matter could be determined at one final hearing.
However there appears to have been a significant amount of work completed by the solicitors for both parties in preparation for a final hearing. The costs therefore to be saved are not as great as they might otherwise be if the separate hearing had been sought and heard at a much earlier stage.
The husband’s counsel placed emphasis upon matters which may become significant in the exercise of the Court’s discretion if a miscarriage of justice has been found to exist. These included the length of time since the Consent Order was made in 1993; the age of the husband (71); the significance, if any, of the proceedings brought by the wife against her former solicitor who is now deceased and the significance of the compensation she received when she agreed to a compromise of those proceedings.
In the submissions by counsel for the wife emphasis was placed upon the fact that the matter has progressed in a significant direction towards the final hearing and that the husband, if ultimately successful, has a remedy by way of an application for costs. Counsel emphasised the existence of a parcel of land worth approximately $200,000 which is held in the joint names of the parties. It is alleged that this therefore provides sufficient resources against which any order for costs might be ultimately secured.
Therefore whilst there is clearly a discretion to divide the matter into two separate hearings, hearing in the first step the discrete issue concerning the existence of a ground which establishes a miscarriage of justice, the Court must give careful consideration to such a procedure. It is a discretion which must be exercised with caution.
The decision in this case must be one which balances the considerations applicable to this particular matter.
Whilst there is some attraction to the simplicity of a separate discrete hearing on the grounds alleged to establish a miscarriage of justice, the factors involved in that hearing may also have a direct influence upon the exercise of the discretion whether to set aside or vary the original order. I am also satisfied that significant costs have already been incurred in preparing the matter for a full hearing.
This matter therefore is one where it would be preferable to deal with all of the steps in the one hearing.
I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 19 March 2008
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