Emmett & Emmett (No. 2)
[2010] FamCA 57
•21 January 2010
FAMILY COURT OF AUSTRALIA
| EMMETT & EMMETT (NO. 2) | [2010] FamCA 57 |
| FAMILY LAW – PROPERTY – setting aside final property orders – no miscarriage of justice due to duress, suppression of evidence or any other circumstance – no exceptional circumstances relating to the care of a child – what order would have been made had a s 79A(1) ground been established – gambling FAMILY LAW – CHILD SUPPORT – departure from administrative assessment – payment of school fees FAMILY LAW – MAINTENANCE – no adult child or spousal maintenance |
| Family Law Act 1975 (Cth) ss 75(2), 72, 79, 79A(1), 79A(1)(a), 79A(1)(d), 79(4), 118 Child Support (Assessment) Act 1989 (Cth) ss 116(1)(b), 117(2), 117(2)(c)(ia), 117(4), 117(4)(c), 117(6), 117(7), 117(7)(a), 117(7B), 117(8), 124, 124(2)(b) Evidence Act 1995 (Cth) ss 69(3)(a), 135 |
| E and E (22 November 2006) NA 68 of 2004; NA 11of 2005 (Full Court) Jones v Dunkel & Anor (1959) 101 CLR 298 Molier & Van Wyk (1980) FLC 90-911 Public Trustee (as the executor of the estate of Gilbert v Gilbert) (1991) FLC 92-211 Holland & Holland (1982) FLC 91-243 Clifton v Stuart (1991) FLC 92-194 Suiker (1993) FLC 92-436 Kokl & Kokl (1981) FLC 91-078 SH v DH(1) (2003) 31 Fam LR 102 Crescendo Management v Westpac Banking Corp (1998) 19 NSWLR 40 In the Marriage of Pelerman (2000) FLC 93-037 Morrison (1995) FLC 92-573 Tate (2000) FLC 93-047 Holland & Holland (1982) FLC 91-243 Liu & Liu (1984) FLC 91-572 Public Trustee v Gilbert (1991) FLC 92-211 Simpson & Hamlin (1984) FLC 91-576 Christian & Donald [2008] FamCA 44 Baker v The Queen (2004) HCA 45 R v Kelly (Edward) 2000 QB 198 State Central Authority v Ustinov [2008] FamCA 987 Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [1998] QSC 250 Harris v Caladine (1991) 172 CLR 84 Gyselman & Gyselman ((1992) FLC 92-279 |
| APPLICANT: | Ms Emmett |
| RESPONDENT: | Mr Emmett |
| FILE NUMBER: | TVF | 2766 | of | 2000 |
| DATE DELIVERED: | 21 January 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Townsville & Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 16-20 March 2009; 14 - 16 April 2009; 12 August 2009 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| COUNSEL FOR THE RESPONDENT: | Ms Pack, Senior Counsel |
| SOLICITOR FOR THE RESPONDENT: | Wilson Ryan & Grose |
Orders
The wife’s amended application for final orders filed on the 30th July 2008 be dismissed.
The husband pay $1,230.00 per month (total) by way of periodic child support for R and A from 16 March 2009 until 24 November 2010 and $1,000.00 per month thereafter until A completes his secondary education (expected to be November 2012).
The husband pay school fees for R and A at G Private School or at any other secondary school each attends, including any incidental charges contained on invoices received from the school from time to time from 1 January 2009 until each completes his secondary education and the husband in addition reimburse R the sum of $1,200.00.
The husband’s application pursuant to s 118 Family Law Act 1975 (Cth) be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Emmett & Emmett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: TVF 2766 of 2000
| MS EMMETT |
Applicant
And
| MR EMMETT |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings relate to applications by the wife:-
1.1.To set aside consent orders made on 11 September 2001 for the alteration of property interests and to make new orders for the alteration of the property interests of the parties.
1.2.For a variation of child support;
1.3.Spousal maintenance;
1.4.Adult child maintenance; and
1.5.An order restraining the husband from leaving Australia unless child support is paid in advance.
SHORT HISTORY AND CHRONOLOGY
The wife was born in 1959.
The husband was born in 1962.
The parties married and commenced living together in 1986.
There are three children of the marriage, J born in August 1990 (aged 19), R born in November 1992 (aged 16) and A born in June 1994 (aged 15).
The parties separated on 5 November 2000 having lived together for over 14 years.
Immediately after separation, the children lived in the former matrimonial home with their mother. From March 2001 until April 2007 the children lived with the husband.
The final consent orders for parenting and alteration of property were made on 11 September 2001. The 2001 property orders are the subject of the wife’s current application pursuant to s 79A(1)(a) and (d) Family Law Act 1995 (Cth) (“FLA”).
The wife brought an application to re-open the property settlement by way of an application she filed on 2 January 2002. Neither that application nor any supporting documents were in evidence before me. I am told that the wife’s application was dismissed with costs on 11 February 2002. Senior counsel for the husband did not, however, argue that what happened during those proceedings in February 2002 meant that the wife’s s 79A application could not be heard by me. I note that when the matter went to the Full Court in November 2005 (see below) the dismissal of the wife’s application in February 2002 did not draw any attention and was not apparently relied upon by the husband at that time either. Accordingly, I do not take into account the effect of any order made in February 2002.
The parties were divorced by way of a decree nisi pronounced on 2 February 2003.
On 21 January 2004 the wife filed an application seeking that the 2001 property orders be set aside and new final property orders be made.
On 11 October 2004 Monteith J summarily dismissed the wife’s application to set aside the 2001 property orders.
The husband then brought a further application pursuant to s 118 of the Family Law Act 1995 (Cth) and on 14 February 2005 Monteith J restrained the wife from commencing parenting or property proceedings without leave and ordered that the wife pay the husband’s costs.
The wife appealed the orders made by Monteith J both on 11 October 2004 and 14 February 2005.
The Full Court heard the wife’s appeal on 1 and 2 November 2005. The Full Court received further written submissions on 25 August 2006 and 7 September 2006 and delivered a judgment on 22 November 2006 upholding the wife’s appeal. The Full Court remitted the matter for retrial.
In April 2007 the children commenced living with their mother by mutual agreement. Consent orders were made by Jordan J (see Annexure D) to the wife’s primary affidavit).
The remitted hearing was originally listed before Carter J on 12 and 13 June 2007 but Her Honour was of the view that the matter was not ready to proceed. Her Honour entertained an application by the Husband to summarily dismiss the wife’s s 79A application as it was then formulated. Her Honour declined to do so.
The matter has now been heard by myself over a period of eight days.
APPLICATIONS
Wife
The wife has filed an amended application for final orders on 30 July 2008.
The orders that she seeks are in the following terms:-
1.That pursuant to Division 5 Part 7 of the Act in addition to the periodic payment of child support pursuant to assessment by the Child Support Agency, the husband pay child support for the children other than in the form of the periodic amounts paid to the wife as follows:-
(a)All school fees incurred by each child, within twenty-eight days of the wife or the schools submitting to the husband an invoice for such school fees, and
(b)All other education costs of the children until completion of their secondary education, within seven days of a request being made by the wife, payable to the wife in the event of the wife providing a detailed receipt for education costs she has incurred, or to the provider in the event of the wife producing an invoice from the provider.
(c)Private health insurance premiums for the children as and when they fall due.
(d)That in this order:
(i) “school fees” means all fees for the children attending secondary school, including enrolment deposits, administration fees, tuition fees, parent association levies, school levies and costs associated with non optional extra-curricular activities including excursions, camps, trips.
(ii) “other education costs” means all other costs of the children’s education including:
(A)school and sports uniforms;
(B)school and sports shoes;
(C)school bag;
(D)requisite text books and stationery ;
(E)music instruments and tuition fees;
(F)fees payable for the children’s school sporting activities once they commence attending school, whether optional or non optional sport;
(G)all other optional extra curricular activities currently undertaken by the children or agreed between the husband and the wife;
(H)application fees for extra curricular exams including but not limited to:
(i)registration for [J] to sit for the under graduate medical admission test (UMAT) – cost $150.00;
(ii)the MedEntry program (a two-day workshop in Brisbane, beginning 12 June 2007);
(iii)Trinity College London speech and drama exams for [J] in October 2007;
(I)the accommodation or other incidental costs of sitting the exams in (H);
(J)all costs incidental to the sitting of the exams referred to in (H) above;
(K)transport to and from those exams;
(L)accommodation while sitting those exams in the event that those exams are not held in Townsville;
(M)costs for equipment necessary for study including computers and computer equipment.
(iii) “Private health insurance” means the private health insurance currently covering the three children be continued to be paid by the husband including full hospital and dental cover.
2.That the amounts paid by the husband pursuant to order no. 1 not be credited against the husband’s annual child support liability.
3.That the amounts paid by the husband pursuant to this order not be credited against the husband’s annual child support liability [sic].
4.That pursuant to section 79A, the orders dated 11 September 2001 be set aside.
5.That by way of property settlement, the husband pay to the wife the sum of $350,000 within 30 days from the date of any order.
6.That the husband transfer the property at [H] into the wife’s name unencumbered or purchase a property for the wife to the value of the current market value of the matrimonial property at [W].
7.That the husband return the wife’s name to the current MBF and Medicare private health fund paid at the family rate.
8.That pursuant to sec 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the husband’s interest in his [T Super] superannuation plan, the wife shall be entitled to be paid an amount calculated in accordance with the regulations, using a base amount of 75% of the value and that there be a corresponding reduction to the entitlement the husband would have had in the [T Super] superannuation plan but for this order.
9.The operative date for which order no. 1 has effect is 12 June 2007.
10.That having been accorded procedural fairness in relation to the making of order 1 above, the trustee of the [T Super] superannuation plan is bound by the terms of this order.
11.That pending the wife exercising her rights, pursuant to regulations 7A.05, 7A.06 and 7A.07 of the Superannuation Industry (Supervision) Regulations 2001 (“the Regulations”) and either the trustee of [T Super] superannuation plan acting on the wife’s request pursuant to Regulation 7A.09 of the Regulations or the trustee acting pursuant to Regulation 7A.10 of the Regulations the husband be restrained from dealing with, in any manner his interests in the [T Super] superannuation plan.
12.That the husband pay to the wife by way of spouse maintenance the sum of $500 per week.
13.That the husband be responsible for the educational and living expenses of the three children after leaving school including any gap year costs for travel and living expenses and also including accommodation, books and any other expenses until the children attain the age of 25 years or commence work in their chosen profession.
14.That the husband is not allowed to obtain work outside of Australia whilst responsible for paying his annual child support liability or that if it is beneficial to the husband to work overseas that he continue to pay his contribution to child support as assessed prior to leaving the country.
15.That the husband return to the wife all property removed from the family home in November 2000 not belonging to him including all jewellery owned by the wife. This should include any property returned to the husband by the Queensland Police Service following the robbery in 1999.
16.That the husband purchase for the wife a new vehicle to the value of the vehicle that he removed from the possession of the wife on the night of separation.
17.That the husband return to the other the sum of $395.00 being the cost of a new pair of glasses smashed by the husband on the day of separation.
Husband
The husband filed an amended response to the amended application for final orders on 23 December 2008. He sought orders in the following terms:-
1.That the wife’s amended application for final orders filed 30 July 2008 be dismissed with respect to:
1.1the application for a change to the husband’s child support assessment and/or the application that the husband pay costs of the children additional to his child support application;
1.2the application that the husband pay costs for the child [J] who is now over the age of 18;
1.3the application pursuant to section 79A that the orders made by consent on 11 September 2001 be set aside;
1.4the application for property settlement contained in paragraphs 5 to 11 inclusive and 15 to 17 inclusive of the amended application;
1.5the application for spouse maintenance;
1.6the application for child maintenance in whatever form, contained in paragraph 13 of the amended application;
1.7the application for a restraining order contained in paragraph 14 of the amended application;
in its entirety.
2.That pursuant to section 118 of the Family Law Act and Rule 11.04 of the Family Law Rules, the applicant wife not be permitted without leave of a court having jurisdiction under this Act, to institute proceedings under this Act of the kind or kinds specified in any such order.
3.That the applicant wife pay the respondent husband’s costs of and incidental to the whole of the proceedings before this court.
4.For such further or other order as to this court seems fit.
In the Husband’s case outline filed on the 13th of March 2009 he expresses the orders that he seeks in the following terms:
1.That the wife’s application for final orders pursuant to s 79A and/or for property settlement and/or spousal maintenance be dismissed.
2.That a departure order be made that the respondent husband pay:
2.1Child support as assessed;
2.2Fees for the children of the marriage [R] and [A] at [G] School
During final submissions in respect of the husband’s child support departure application, senior counsel for the husband sought that the periodic amount payable by the father be $1,230.00 per month until November 2010 (which is the date R will turn 18) and thereafter an amount of $1,000.00 per month until the completion by A of his secondary education (which is expected to conclude at the end of 2012).
Further, in final oral submissions, senior counsel for the husband made it clear that the husband would agree to an order for the payment of school fees for R and A including any incidental charges contained on invoices received from the school from time to time.
The husband also sought an order which would effectively discharge the current arrears of child support.
THE WIFE’S SECTION 79A APPLICATION
Order 4 as sought by the wife in her amended application for final orders filed 30 July 2008 seeks that consent property orders dated 11 September 2001 be set aside pursuant to s 79A(1) FLA.
At the outset of the hearing, in discussions with the wife, there were four grounds identified by the wife to support her s 79A(1) application.
The relevant part of s 79A(1) FLA is in the following terms:
“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……
(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….”
Section 79A(1AA) FLA says:-
For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:
(a)the person is a parent of the child with whom the child lives; or
(b)a parenting order provides that:
(i) the child is to live with the person; or
(ii) the person has parental responsibility for the child.
Relying upon these sections, the wife, at the commencement of the hearing, suggested that:
30.1.There had been a miscarriage of justice by reason of duress;
30.2.There had been a miscarriage of justice as a result of the suppression of evidence, including failure to disclose relevant information;
30.3.There has been a miscarriage of justice by reason of any other circumstance, which circumstance was that she did not give her true consent to the document which formed the basis of the making of the consent orders on 11 September 2001.
30.4.That given the change in circumstances of the living arrangements of the children which was effected in April 2007, exceptional circumstances have arisen relating to the care, welfare and development of R and A and that the wife would suffer hardship if the court did not vary or set aside the 2001 property orders.
Early in the trial, senior counsel for the husband suggested that the wife could only rely upon the last of these claims. The argument was that because the wife had not raised the evidentiary basis for the other three claims in hearing that had not proceeded before Carter J, she should be taken to have abandoned them.
The wife had however in the material filed for this trial clearly raised material that went to at least one miscarriage of justice ground.
At paragraph 141 of the Full Court’s reasons for judgment delivered on 22 November 2006, the Full Court said that they discerned from the wife’s submissions that she relied upon miscarriage of justice grounds. The Full Court had decided that Monteith J should not have summarily dismissed that claim and it was that claim, based upon miscarriage of justice, which the Full Court remitted for rehearing. In those circumstances I rejected the submission by senior counsel for the husband that I should not embark upon an inquiry in relation into the miscarriage of justice grounds.
MATERIAL RELIED UPON
For a bit of over a day and a half, at the commencement of the trial, objections to material were taken. Material had been filed at a late stage by both parties and the wife at the commencement of the trial provided a list of additional documents that she wished to have in evidence.
As a consequence of objections taken both by the wife and by the husband, significant proportions of some of the affidavit material were struck out.
The wife relied upon the following documents:-
36.1.Wife’s affidavit filed 3 March 2009.
36.2.Parts of the wife’s affidavit filed 4 December 2008.
36.3.Wife’s financial statement filed 16 March 2009.
36.4.Transcript of DY filed 10 September 2001.
36.5.Affidavit by RH filed 24 February 2009.
36.6.Affidavit of Ms G filed 16 March 2009.
36.7.Affidavit of MS filed 23 January 2002.
36.8.Affidavit of ER filed 23 January 2002.
36.9.Statement by Mr S (Exhibit A).
Only the wife and Ms G were required for cross-examination.
A subpoena was issued for the solicitor who represented the wife in September 2001, Mr P, to give oral evidence. The wife has, by implication, waived legal professional privilege. Mr P swore an affidavit on 27 March 2009 and gave oral evidence.
The wife requested leave to issue a subpoena to Mr U, who, I found, was a relevant witness to some of the events on 11 September 2001. He was counsel for the Independent Children's Lawyer on that day. I asked that the Principal Registrar contact Mr U and request that he make himself available to give evidence. Arrangements were made for him to give evidence by video link and he did so.
The husband relied upon the following documents:
40.1.Husband’s affidavit filed 4 March 2009.
40.2.Husband’s affidavit filed 17 March 2009.
40.3.Husband’s financial statement filed 5 March 2009.
40.4.Affidavit of LE filed 13 March 2009. This affidavit was not in the end necessary as there was an agreed value of $340,000 for the property currently owned by the husband.
40.5.Affidavit by Mr SK filed 13 March 2009.
40.6.Affidavit of Mr F sworn 16 March 2009.
On the final morning of the trial, I indicated to senior counsel for the husband that because of the discrepancy in the evidence between Mr F and the wife as to whether or not Mr F’s wife was in court at the time the consent orders were made, that I would have to advise the wife that she could make a Jones v Dunkel submission.
Simply stated, Jones v Dunkel & Anor (1959) 101 CLR 298 is authority for the proposition that if a party does not call a person who might presume to be able to put a true complexion on a fact relied upon by a party, then an inference favourable to the other party may be drawn where the evidence otherwise provides no sufficient explanation, for the witness being called. Windeyer J said at page 321 “unless a party’s failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case.”[1]
[1] Jones v Dunkel & Anor (supra) at 321.
Senior counsel for the husband sought to call Mrs F about the issue as to where she was at 4.55pm on 11 September 2001. I allowed Mrs F to be called. She gave oral evidence and was cross-examined by the wife. The use of the evidence was limited to counteracting any Jones v Dunkel submission.
The wife wished to have a discussion on the final day of the trial as to whether or not she would be permitted to re-call Mrs G. She asserted that Mrs G may be able to give some evidence about her memory of whether or not Mrs G was in court at the time the consent orders were made. I did not allow that because:-
44.1.Mrs G had made no reference to this matter either in her affidavit or her statement.
44.2.Mrs G had failed to attend court when scheduled on the first occasion and was given a second opportunity to attend court.
44.3.At the time Mrs G gave evidence, the wife had known for some time that there was a factual dispute between the wife and Mr F as to whether or not Mrs F was in the court room at the time orders were made. It was part of the wife’s case that the reason Mr F put pressure on the wife to sign the consent orders was because his wife was waiting for him. Despite that knowledge, the wife did not seek to lead evidence from Mrs G about this point.
44.4.Recalling Mrs G would mean that the case would not finish, notwithstanding that the time scheduled to complete the case had already been extended on two occasions.
44.5.Mrs F was being called by senior counsel for the husband to cover a potential Jones v Dunkel submission and the use to which Mrs F’s evidence is put is limited to that purpose.
44.6.The weight that I place on this one particular piece of evidence is not great as I have otherwise concluded that the wife has significantly recreated her memory about the events of 11 September 2001.
On my own motion, I made an order which led to Ms C, who was the Independent Children's Lawyer on 11 September 2001, providing an affidavit. Ms C sought leave, which was granted, to be represented by Mr Collins of counsel. Ms C gave oral evidence and returned on her own request on two further occasions to give supplementary evidence.
CREDIT
Wife
The wife has demonstrated by the way she has conducted these proceedings before me that she is an intelligent woman. On some occasions when speaking to her I made a point with an ironic tone and she acknowledged that with a smile.
The wife claims that possibly not all the gaming records on her Jupiters’ card are hers and that it would have been possible on occasions for her to have moved away from a gaming machine, leaving her card in it and for another unknown person to have operated the gaming machines. When pressed, the wife agreed that she would not have done that intentionally and if it happened it would only have happened occasionally. I find the wife’s evidence that someone other than herself used her identity card at the casino, was disingenuous and an attempt to deflect the responsibility for the results of what is in the ATM records. The wife was not prepared to take full responsibility for how she has lost money on gambling machines. The wife denies that she has ever had a gambling problem. I find that she has had and still has a gambling problem. Her inability to face that fact reflects poorly on her credit.
The wife on more than one occasion blamed one of her former solicitors, Ms I (whom the wife agreed was an accredited family law specialist), with errors in affidavits which the wife subsequently swore to be true. During cross examination the wife was taken to paragraph 60 of her affidavit filed 6 June 2007 (see Exhibit K ), at which she states:
I would also point out that the ATM at the casino is very convenient. It is next to a driveway, with parking, so that one can park the car and withdraw money whilst keeping children in sight in the whole. It’s also relatively close to the children's school, such that I would pass by the casino a number of times per day. The casino ATM was the most convenient place to withdraw cash for all my day to day needs.
The wife agreed in cross-examination that it was not physically possible, given the geographical location of the casino, to do what she had sworn she had done. The wife attempted to blame the error on the fact that her then solicitor who had prepared the affidavit was from Brisbane and had incorrectly drawn the affidavit. The wife, however, swore the affidavit. I do not accept her explanation that it was her solicitor’s fault. As I have said, the wife is an intelligent woman. Another example was the financial statement prepared for the trial scheduled before Carter J. The wife said inaccurate information on that document was generated by Ms I after the wife had given Ms I general information. I do not think that evidence by the wife is inherently likely.
The wife was reluctant to admit that multiple withdrawals from the ATM machine at Jupiters on one day was indicative of the fact that she was losing money on gambling activities on that day. She gave a variety of explanations as to why it was that she would have withdrawn cash on a particular day (reasons connected with other daily activities and needs). She did however agree eventually that making eight withdrawals totalling $1,800 on one day would mean that she had lost money on gambling activities in that day.
Objective records, both from Jupiters and banking records indicate that the wife had significant gambling losses. Those records, which I refer to in more detail below, are not consistent with the wife’s evidence that much of the money was withdrawn for living expenses and that she had substantial winnings which she gave to her husband in cash and that she was unaware of what he did with those monies. That evidence of the wife is not credible.
During her cross-examination, the wife would respond to many propositions put to her by senior counsel for the husband with the response “incorrect”. When occasionally tested about her response, the wife would often find some minor reason why she could have disagreed with the proposition that had been put. The wife on occasions would pause for a period of time before answering “incorrect”. I gained the impression that she was considering if there was a reason she could find that would justify her being able to give that response. At times, the wife’s demeanour in the witness box and particularly her facial reaction to questions being asked, gave me considerable disquiet in accepting the answer which she then gave, at those times.
The wife was asked questions about the conversation she had with her legal representatives following the making of the orders as well as the nature of the complaint she made about Mr F to the Bar Association. Although the fact of the making of a complaint would seem to indicate her unhappiness with the orders and the possibility that she had not consented to them, there were inconsistencies between the account contained in her affidavit of the conversation that she had with Mr F and Mr P and the account of the same conversation contained in her complaint to the Bar Association; specifically, in the former she stated that they had refused to discuss the orders with her because they no longer acted for her, while in the latter some discussion in relation to the orders had taken place and there was no mention of their having ceased to act for her. The wife denied the existence of any inconsistency between the two accounts.
The wife gave evidence about what she remembered happening between 4.55 pm and 5.00 pm on 11 September 2001. Her evidence about this was unclear and inconsistent. She stated as follows:
HIS HONOUR: Well, the transcript starts at Exhibit R the transcript seems to start at 4.55 and end at 5.00 pm. So the matter was before his Honour for five minutes? There's nowhere near five minutes worth of conversation there. So is it your memory that when his Honour was provided with the orders that he read them?---No.
What happened in the five minutes?---We came into the Court room, that conversation went on.
Well, that's not five minutes worth of conversation is it?---Well, I'm not sure whether he read them or not but - - -
Well, why did you just say he didn't read them if you’re not sure?---Well it didn't seem that he had read them. We were only in there for - - -
I'm sorry?---It didn't seem like he'd read them, I mean these are the consent orders which are seven pages.
Yes, you're saying, what is it your opinion a Judge could not read those in say four minutes?---I don't know, your Honour. I didn't feel like he read them. I didn't know if he read them or not, maybe he didn't.
Did you watch him when you were in the Court room as to what he did? Do you remember what he did?---I didn't think he read them.
So I got: he didn't read them; you don't think he read them; you don't know whether or not he read them?---I don't think he read them. They were definitely on his desk. They were definitely before him. I saw him flick like that and I didn't feel that he read the whole consent orders.
Yes.
MS PACK: Mrs [Emmett], you know very well that his Honour read those orders don't you?---No, Ms Pack.
I conclude that the wife was either being untruthful or had so reconstructed what had happened when His Honour was on the bench for five minutes making consent orders, that the wife’s memory of those events was totally unreliable.
Mrs G gave evidence that she realised these were things that she got wrong in her 2003 statement and she told the wife about these within days of giving that statement to the wife. Notwithstanding that the Wife knew there were errors in the statement, the wife subsequently annexed that statement, without it being altered, to an affidavit the wife swore to be true.
It was part of the wife’s case that her legal advisors on 11 September 2001 told her that she could come back to Court as the applicant in six weeks time. Mr F positively denies any such statement being made. Mr P said he could not recall “six weeks” being spoken about but he could recall a proposition being discussed that the wife could come back some months down the track (the actual orders provide that the wife be able to come back about nine months later for a reconsideration of parenting orders). I accept the evidence that the primary intent of that part of the consent orders was to create an opportunity for some of the restrictive supervision provisions relating to the children spending time with their mother to be reconsidered.
I find that it is inherently unlikely that either Mr F or Mr P, both of whom are experienced family lawyers, would give the advice that the wife alleges was given. Mrs G does not record any such advice being given. I do not accept the wife is accurately recording that she was told she could abort a two week final hearing by entering consent orders and then come back as the applicant in six weeks time and have another hearing.
Notwithstanding the wife in final submissions accepted Mr S’s untested evidence that no meeting took place at Legal Aid during the hearing, the wife still, during cross examination, put to Mr P that a meeting had taken place. The wife now seems to accept that no meeting(s) took place but continues to assert that both Mr F and Mr P told her that a meeting had taken place. I cannot accept her evidence about that.
Conclusion in relation to the wife’s credit
Overall, I did not find the wife to be a credible witness. The wife has invested a large amount of her time and effort into this litigation. She has retrospectively reached the conclusion that various injustices were perpetrated upon her on the 10th and 11th September 2001. The hearing before me was not an occasion to re-run the hearing of the parenting application which was settled by consent orders on 11 September 2001. It is clear that the wife’s current view is that her legal advisors should have pressed on with the hearing of her residence application at that time. I conclude that the wife in a number of areas has reconstructed events that happened particularly on 11 September 2001. As will become clear in the discussion below, I have not found credible a number of assertions made by the wife.
Mrs G
Although Mrs G gave her evidence in a straight forward manner and I form the view that she has not set out to deliberately deceive the Court, I accept the submission made by senior counsel for the husband that despite her alleged distaste at the request to give evidence, Mrs G was opinionated, vocal and assertive in giving her evidence. She was confident until she realised there were inconsistencies in some of the evidence she gave.
Discussions took place between Mrs G and the wife within one week of 11 September 2001. She says she was next asked by the wife to recall events in 2003. Mrs G prepared a statement at that time. Mrs G’s 2009 affidavit gives a different version. Mrs G is now suggesting that a version of events recorded by her in 2009 should be preferred to a version recorded in 2003. It is not inherently likely that Mrs G’s memory of events of 11 September 2001 is better in 2009 than it was in 2003.
I analyse the inconsistencies in Mrs G’s evidence in more detail below. I conclude I cannot accept her evidence where it conflicts with the evidence of Mr F and Mr P. I am unable to place great weight on other memories that Mrs G has had where those memories differ from other evidence which I have found more reliable.
The Husband
The husband gave evidence in a considered and thoughtful manner. His answers were usually succinct. He made appropriate concessions and there were a number of occasions that he could not respond to a question asked by the wife unless the documents were shown to him (there are quite a number of times where a question remained unanswered because no documents were shown to him). I did not note on any occasion that I had a problem with the credibility of any answer that the husband gave and I accept that the version of events that he gave accurately report his memory of events.
Mr F
Mr F is a barrister who has his chambers in Townsville. At the time of the making of the consent orders, he had been a lawyer for over 20 years, working initially as a solicitor between 1980 and 1993 and then subsequently as a barrister. His evidence is that most of his professional legal life has worked in the field of family law and related jurisdictions. Mr F gave his evidence in a precise and considered manner. There were some things he could positively remember happening or positively say did not happen. There were other things about which he was unsure and he said so. I find Mr F gave strong and compelling evidence. Where Mr F’s evidence differs with that of the wife or Mrs G I prefer Mr F’s version.
Mr P
Mr P has been practising as a solicitor for over 33 years, primarily in the area of family law. At the time the orders were made in 2001 he was a highly experienced family lawyer. He gave his evidence in a relaxed and confident manner.
There was one inconsistency in Mr P’s oral evidence when compared with his written evidence. At paragraph 8 of his affidavit, he indicates that there would never have been a question about the cutting of the wife’s legal aid part way through the trial. I do not accept that. It is inconsistent with other evidence Mr P gave about this topic. I discuss that evidence below.
Having said that, I did not at any time get the impression that he was creating memories that he did not have. He readily conceded some things that the wife put to him but was not moved in any significant way from the sworn statements that he made in his affidavit.
For completeness, I note below, that the statement that Mr P makes at paragraph 18 of his affidavit about the state of the super splitting laws as at 11 September 2001 is not accurate.
Ms C
Ms C is clearly a very cautious solicitor. She did not attempt to reconstruct memory that she did not have. She took a very long time to answer some questions, not because she was attempting to fabricate an answer but because she was being ultra cautious to ensure that the answer that she gave was as accurate and precise as she could achieve from her memory.
Mr S
Mr S’s statement was admitted into evidence as Exhibit A. Mr S was not required for cross-examination and what he says is to be accepted without challenge. Mr S has been a grants officer with Legal Aid Queensland for 19 years.
Mrs F
Mrs F was called at short notice. She made a minor slip by referring to the morning that Australians woke up to see the twin towers disintegrating as being the 11th of September rather that the 12th of September but that was clarified and she was certain about the evidence she gave. As I say elsewhere, given the circumstances in which she was called, I confined the use of her evidence to being evidence which would neutralise the wife’s ability to make a Jones v Dunkel submission against the husband.
Conclusion in relation to credit
Given my findings in respect of the credibility of the witnesses in this case, I accept where it is in conflict, the version of events given by the husband and witnesses called in his case over the evidence of the wife and Mrs G, unless otherwise specifically indicated in any discussion elsewhere in these reasons.
LEGAL PRINCIPLES
Miscarriage of Justice
The wife seeks that orders made by consent on 11 September 2001 be set aside, inter alia, on the basis that there has been a miscarriage of justice.
Under s 79A(1)(a) FLA, the miscarriage of justice is to be based upon fraud, duress, the giving of false evidence, the suppression of evidence (including failure to disclosure relevant information) and any other circumstance.
Section 79A(1)(a) FLA is intended to apply only to circumstances in existence at the time the original order was made (see Molier & Van Wyk (1980) FLC 90-911 and Public Trustee (as the executor of the estate of Gilbert v Gilbert) (1991) FLC 92-211). For there to be a miscarriage of justice there needs to be a situation “which significantly indicates that the decree or order was obtained contrary to the justice of the case” (see Holland & Holland (1982) FLC 91-243).
In Clifton v Stuart (1991) FLC 92-194 the Court made it clear that the term “miscarriage of justice” should not be interpreted too widely. It concerns the integrity of the judicial process….. As O’Leary J said in Simpson and Simpson (1983) FLC 91-349 “’justice’ means ‘justice according to law’”.
In Suiker (1993) FLC 92-436 the Full Court referred to Clifton v Stuart[2] and agreed that “The expression ‘miscarriage of justice’ relates to the integrity of the judicial process….. This passage was not intended to refer only to the hearing in the Family Court, but that the expression ‘judicial process’ can refer to a variety of matters and circumstances which had an influence on the outcome of the litigation. It is neither necessary nor desirable to attempt to define the matters which may amount to a miscarriage of justice by reason of any other circumstance in the relevant sense”.
[2] (supra)
It seems clear to me that, based on that definition, a miscarriage of justice can occur as a result of events that are unconnected with the other party to the proceedings.
In this case the wife claims that there was a miscarriage of justice as a result of events that she said took place prior to the making of the orders on 11 September 2001.
Duress
It is not suggested in this case that there was any “duress” of the kind referred to traditionally and described by Gee J in Kokl & Kokl (1981) FLC 91-078 as being the “compulsion of a person by physical or mental harm”.
Senior counsel for the husband referred to the formulation of Ryan FM in SH v DH(1) (2003) 31 Fam LR 102 where she adopted the applicable test as being that formulated by McHugh JA in Crescendo Management v Westpac Banking Corp (1998) 19 NSWLR 40 at 45 - 46, namely:-
A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather than take any alternate course of action. The proper approach in my opinion is to ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed.
Senior counsel for the husband also referred to the decision In the marriage of Pelerman (2000) FLC 93-037 where the Full Court said at 87,589:-
87. In the circumstances of the parties who are separated and carrying out negotiations against a background of proceedings having been instituted by one of them, negotiating positions are established which, of their very nature, produce some pressure. However, elevating that pressure to the level required to attract the requisite principles is another matter. In any event, it is not consistent with pressure of the type amounting to the equitable concept of ‘duress’.
In SH & DH, Ryan FM concluded that the pressure placed on the wife in those robust negotiations was not illegitimate.
Usually it will be one party putting pressure on the other party that will give rise to a “duress” ground. However, in the facts of this case, senior counsel for the husband acknowledged in oral submissions that if the behaviour of the wife’s lawyers was as alleged by her, then that would constitute undue influence to the extent required to cause a miscarriage of justice, in the sense that the lawyer’s behaviour had affected the judicial process. Senior counsel for the husband acknowledged that if the circumstances were as alleged by the wife, then it would be an insufficient answer for the husband to say, if the wife has a complaint, then her remedies lay elsewhere, other than against the husband.
Suppression of evidence (including failure to disclose relevant information)
There is an obligation on a party to make a full disclosure of all relevant material. The failure to do so may amount to a suppression of evidence (see Morrison (1995) FLC 92-573; Tate (2000) FLC 93-047; Pelerman (2000) FLC 93-037).
Any other circumstance
This is not to be read ejusdem generis with the other grounds but is not unlimited. It encompasses miscarriage of justice whereby orders are unjustly obtained or obtained contrary to the justice of the individual case. The consent is part of the judicial process upon which the Court relies. In Clifton v Stuart (1991) FLC 92-194, the Full Court concluded that a party was not entitled to rely upon the incompetence of his or her legal representatives. The consent of a party to a property order must be an informed consent. However, in Holland & Holland (1982) FLC 91-243, the Full Court said that a party may be able to establish a miscarriage of justice by reason of “any other circumstance” “if that party’s consent was for any reason not a true consent” (at 77,339).
In this case, the wife alleges the incompetence of her legal advisers created circumstances which meant that her true consent was never given to the document she signed, prior to it being presented to the Court. In the event that the wife is able to establish that as a fact, it would be the case that there had been a miscarriage of justice as a result of any other circumstances, those circumstances being that the orders were unjustly obtained.
Exceptional circumstances relating to the care of a child
“Exceptional circumstances” can arise after the orders have been made (see Liu & Liu (1984) FLC 91-572). What amounts to exceptional circumstances is a matter of fact and degree. In Public Trustee v Gilbert (1991) FLC 92-211, the unexpected death of a party shortly after the orders were made “were so exceptional as to take it out of the normal vicissitudes of life”. In Simpson & Hamlin (1984) FLC 91-576, the Full Court agreed that a simple change to the custodial arrangements of a child after the making of a property order would not by itself constitute “exceptional circumstances”, but that the circumstances surrounding that case were exceptional.
Senior counsel for the husband pointed out that in Sandrik the relevant change occurred less than four months after the orders were made and in Simpson & Hamlin (supra) the change took place less than two weeks after the property orders were made. In this case the change took place five and a half years after the orders were made.
The Full Court in Christian & Donald (2008) Fam CA 44 at par 38 quoted with approval of remarks of the trial judge in Simpson & Hamlin (supra):-
The ordinary vicissitudes of life coupled with the difficulties that parties to a marriage often experience in the cast of restructuring their lives following the dissolution of their marriage and their assets, and their obligations to support each other and the support, care and control of the children, frequently creates situations where it is desirable having regard to the children’s welfare that such a change occurs.
Senior counsel for the husband submitted and I agree the words “circumstances of an exceptional nature” must be their ordinary meaning. In a different context, Callinan J in Baker v The Queen (2004) HCA 45; (2004) 223 CLR 513 at 573 referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) 2000 QB 198 at 208:-
We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form as exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not to be unique or unprecedented, or very rare, but it cannot be one that is regularly, or routinely, or normally encountered.
This passage was cited by Dawe J in State Central Authority v Ustinov (No 4) (2008) Fam CA 987.
The second limb to this ground is that hardship has to be occasioned to the wife or to the children as a result of the change in circumstances.
THE EVENTS OF 10TH AND 11TH SEPTEMBER 2001
The Wife’s Evidence
In her affidavit sworn and filed 3 March 2009 the wife gives a version of what happened on 10 and 11 September 2001, at paragraphs 8 to 13.
The wife refers to DY giving evidence on 10 September 2001. She says on the afternoon of 10 September 2001 Mr F advised her that her Legal Aid funding had the potential to be discontinued and that both Mr P and Mr F had attended a meeting at the Legal Aid Office that lunch time (10 September 2001). The wife says that Mr F returned after lunch and advised her to sign consent orders giving residency of the children to her husband. She says she refused and advised him that the case would continue. It is common ground that the husband was cross-examined in Court on the afternoon of 10 September 2001.
Both Mr P and Mr F deny that there was a meeting at lunch time at the Legal Aid Office. They deny that they told the wife that there was a meeting at the Legal Aid Office during lunch time on 10 September 2001. I accept the evidence from Mr F and Mr P that they did not tell the wife that there was a meeting at the Legal Aid Office at lunch time on 10 September 2001.
The wife in her affidavit goes on to say that on the morning of 11 September 2001 she arrived at the Court alone. At approximately 9 am she said Mr F and Mr P arrived and attended the interview room where she was waiting. The wife asserts that Mr F advised her at that time that he was not prepared to continue to represent her at the trial that day. Mr F denies this. It is, in my view, highly unlikely Mr F would have said this and I find he did not. The wife says that Mr F advised her that her legal aid funding was going to be cancelled at lunch time on that day (11 September 2001) and again both he and Mr P had to return to Legal Aid for a meeting to confirm that her funding had been cancelled.
Both Mr F and Mr P deny that those statements were made to the wife or that there was in fact any communication with the Grants Officer at Legal Aid Commission (for whom Mr P worked) in relation to the cancellation of legal aid funding. I accept the evidence of Mr F and Mr P in that regard.
The wife says that Mr F then (at a time some time after 9 am on 11 September 2001) went on to tell the wife that her best option was to sign consent orders “regarding the residency of the children remaining in the full time care of the father for six weeks”.
It should be remembered that the wife is an intelligent woman. This matter had been set down for a period of hearing that could have been up to a two week period. It is not inherently probable that the wife would have understood that a two week hearing could be aborted only to be rescheduled in six weeks time. It is certainly inherently unlikely that two experienced lawyers would tell the wife that that was what was going to happen. I do not accept the wife’s evidence that Mr F advised her that in “six weeks we would return the matter to Court as the applicant mother and apply for sole residence of the children”. Nor do I accept the wife’s evidence that Mr P joined with Mr F to advise her to come back and renew a sole residency application in six weeks time.
The wife says that she was distressed “as to the level of abuse these children were suffering at the hands of the father”. I am unable to say what the wife’s emotional state was on 11 September 2001 but it does not appear a matter of dispute that the wife at some time on that day was joined by Ms G who provided the wife with emotional support during the day. The wife said that she called Ms G about 9.30 am and that Ms G came to the court at about 10.30 am.
The wife says that “after advising Mrs [G] of the situation and some discussions with Mr [F] and Mr [P], everybody went to morning tea”.
The wife said that at that time she believed that Monteith J was informed that consent orders were going to be signed.
If the wife thought that the matter had been settled by morning tea time on 11 September 2001, one might rhetorically ask what the wife thought was happening between that time and when consent orders were eventually signed somewhere around 4.30 pm on 11 September 2001.
The wife seems in her affidavit to say that after morning tea she, Mr F, Mr P and Ms G returned to the interview room. The wife says there was a brief further discussion regarding the withdrawal of funding by Legal Aid. Again, I do not accept the wife’s evidence if by “withdrawal of funding by Legal Aid” she meant immediate withdrawal of funding for the trial that day.
The wife says that she and Mrs G were informed by Mr F that he was going to the Legal Aid Office along with Mr P and that they were to return to court at 2 pm “for the result of the meeting”. I do not accept the wife’s evidence that Mr F made that statement. The wife now seems to accept that Mr F’s and/or Mr P did not go and see the Grants officer at the Legal Aid Office during lunch time on either 10 or 11 September 2001.
The wife next says that at 2 pm she and Mrs G came back to the court house and were told (presumably by Mr F and/or Mr P) that Legal Aid had withdrawn the funding. It is inherently unlikely that either Mr F or Mr P would tell the wife that a meeting had taken place at Legal Aid when it had not. I reject that evidence by the wife and one of the versions given by Mrs G in that regard.
The wife also says that Mr F, in Mr P’s presence, advised her that she could run the case alone the following day and that Mr P would not be attending. I reject the wife’s evidence in that regard and prefer the evidence given by Mr F and Mr P to the effect that no such thing happened. The wife asserts that Mr F told her that Ms Pack would “eat her alive”. Mr F has no recollection of saying those words to the wife.
I reject the wife’s assertion that she felt that she was going to have to continue the trial alone.
The wife alleges that Mrs G was there and was asked to sit outside the interview room while Mr F and Mr P spoke to her. I do not accept that evidence and find that Mrs G was in the interview room with the wife at all material times on 11 September 2001.
In paragraph 10 of her affidavit, the wife discusses the shuttle negotiations that took place. I reject the wife’s evidence that it was mainly Mrs Pack who was typing up the consent orders and I accept Mr F’s evidence that it was mainly him. It is clear from paragraph 10 of the wife’s affidavit that she concedes some discussion took place, at least after lunch, in relation to property matters. I reject the wife’s evidence that Mr P did not tell her that property would be included in the consent orders. I reject the wife’s assertion that she believed that consent orders only contained matters relating to the children for a six week period.
The wife asserts that Mr F alleged that the $15,000 for child support “would be floating and six weeks worth of child support would be taken out and the rest returned to the parent who had the children”. I accept Mr F’s evidence that he has never used the word “floating” in that context.
The wife says at approximately 4.45 pm Mr F arrived in the interview room where Mr P, Mrs G and she were seated around a table. She says Mr F was holding consent orders and he had his fingers in two different places between the pages. The wife says that on three occasions she went to take the orders out of Mr F’s hands and he snatched them back. I do not accept that is what happened.
The wife’s evidence at paragraph 11 is in the following terms:-
I then told him that I was not signing anything that I had not read and asked why there were all these pages if I was only consenting to [the husband] having the children, bearing in mind that this was only for a further six weeks. He advised that all the pages were only pages regarding court protocol.
I find that it is highly unlikely that the wife made the statement alleged by her or that Mr F said what the wife alleges. Both lawyers deny that the wife did not know what she was signing and Mrs G makes no comment that she was aware that the wife thought that it was a deal in relation to children only for a period of six weeks.
The wife asserts that Mr F, in a stern elevated voice, said “you know what is in them just sign them and hurry up as the judge wants to go home”. I reject this evidence by the wife. I find that Mr F did not speak in a stern, elevated voice nor did he tell the wife that she had to hurry up because the judge wanted to go home.
The wife relies upon the fact that each page of the orders was not signed by her but only corrections initialled. There is no suggestion however that when the wife signed the front page of the orders that the other pages were not annexed. I draw no inference from the fact that each page was not signed by either of the parties.
The wife says that the parties then went into the court room. The transcript shows that that was at 4.55 pm. The wife gave evidence that Mrs F had arrived, “obviously to collect Mr [F]”, and I deal with that issue elsewhere. The implication by the wife is that Mr F was in a hurry to leave because his wife had obviously come to collect him. I have found elsewhere that Mrs F was not there.
At paragraph 13 the wife deals with a meeting with Mr U and Ms C and Mr P after the consent orders were made and of an alleged discussion with Mrs G after they left the building at evening. I find elsewhere that aspects of the evidence given by the wife in relation to both those events cannot be fully accepted for reasons set out elsewhere.
In terms of the negotiations that took place on 11 September 2001 prior to the making of the orders, the wife reiterated in oral evidence that she was unaware at that time that what was being negotiated was both children and property matters. She stated again that it was her belief, as a result of a conversation she had with Mr F, that the matter was being returned to court in six weeks. The wife stated:
I had a conversation with him about the residency of the children. He told me to sign consent orders and then we would bring the property – bring the whole application back in six seeks. So that conversation wasn’t about property, it was about the residency of the children, actually no mention of the property at that stage. And when he told me that my legal aid funding had been cut at 2 o’clock in the afternoon and that we should sign consent orders – the general conversation, Mr [F] went from room to room to Mrs Pack, and he would come back with a piece of paper – or paper with his handwriting on it, and like, with “$30,000 child support, what do you think about that?” And I would say, “What, no.” And then we’d negotiate that on a piece of paper, and he would go back saying that the doilies, saying that there was prints, chairs, stuff like that.
In the evidence quoted above the wife seems to indicate, although she was aware of general financial negotiations in which she actively participated, she was unaware that a final adjustment of property was being discussed. I do not think that is plausible.
The wife was taken to page 8 of her complaint to the Bar Association in respect of Mr F, where she alleges that “Mr [F] and Mr [P] agreed the home would not have to be sold, but [the husband] was happy to give me the equity in the house.” This statement indicates the wife’s awareness that property settlement was being discussed. When questioned about this allegation, the wife stated that it was something that was discussed merely “in a scenario situation. Not in a factual situation that I was told, Well [the husband’s] giving you the equity in the house and the sale of your home is in the consent orders, otherwise if you can’t keep it, the consent orders will make you sell it.” (transcript 18.3.09 page 129). I do not accept the wife’s explanation.
A copy of the consent order, signed by the parties and the Independent Children's Lawyer is Annexure A to the wife’s affidavit sworn 3 March 2009.
The wife conceded that she was aware when she went to Court on 10 September 2001 that the Court was going to be asked to make orders about parenting matters and about property matters. She also acknowledged that she had sworn an affidavit in which her solicitor had set out her case on both parenting and property matters. It was put to the wife that her counsel had a schedule of assets and liabilities on 11 September 2001 and that the wife saw that schedule. The wife denied this. She also denied the proposition put to her by senior counsel for the husband that prior to the making of the orders on 11 September 2001, the wife had a discussion with her counsel in relation to the value to be attributed to the property of the wife and the husband, and the manner in which certain items of property would be divided between them.
The wife in paragraph 13 of her primary affidavit says that after the meeting concluded with the Independent Children's Lawyer and Mr U at 6 pm, she and Mrs G left the building “Mrs [G] and I then read the orders and in disbelieve could not believe that Mr [F] had contained the property settlement as well as the residency orders without any hearing of the matter within the court or without my instructions or even having the courtesy to tell me. We also were alarmed that the matter was not allowed a review until July the following year and I had never been told this by Mr [F] or Mr [P]”.
These are fairly dramatic allegations by the wife, yet Mrs G does not mention them in either her statement or her affidavit nor was she asked any questions by the wife in respect of this aspect of the wife’s evidence. Mrs G in her affidavit states that in the discussions with the Independent Children's Lawyer after the orders were made, it was emphasised that the matter “would go back to court in six months and if [the wife] had modified her behaviour then there was a good possibility she could have more access with the children with less restrictions”. Nowhere does Mrs G say that after she left the Court she, for the first time, realised that it would not go back to Court in six weeks, nor does she say that she was surprised after leaving the court building to discover with the mother that the consent orders contain final alterations in relation to property settlement.
I conclude that the evidence of Mr F and Mr P is to be preferred to the evidence of the wife in relation to her knowledge of the existence of property orders in the consent orders which she signed.
Ms G’s Evidence
Mrs G supported the wife during the proceedings in September 2001 and swore an affidavit on 10 March 2009 which the wife relied upon in her case. Mrs G also provided the wife with a statement on 12 September 2003. That statement was annexed to an affidavit the wife sworn on 19 December 2003. The annexure page and the statement became Exhibit PP in these proceedings.
Mrs G was an important witness in the wife’s case. She was present at Court from approximately 10.30 am to about 6 pm on 11 September 2001. She has provided her memory of the events of that day.
The evidence that she gives goes to the wife’s assertion that there was a miscarriage of justice relating to the wife being told that her legal aid funding had been withdrawn. Her evidence also goes to the issue as to whether or not the wife gave her consent to the document which formed the basis of the consent orders.
Mrs G’s evidence is that in early September 2001 (it is not controversial that this was on 11 September 2001) she received a telephone call from the wife mid morning. The wife asked her to come into the Family Court. She says that at that time the wife told her that it was possible that her legal team would not be continuing with her case. As indicated, Mrs G arrived at about 10.30 am.
Mrs G said that she was present at the Family Court and sat in on discussions with the wife, her barrister Mr F and her solicitor Mr P.
Mrs G made statements in three paragraphs of her affidavit about legal aid funding being cut. Mrs G’s evidence was that during the morning there were discussions where either Mr F or Mr P told the wife that “her legal aid funding was tenuous and that it was possible that her funding would be cut that day leaving her with no representation if the trial continued” (Mrs G’s affidavit, paragraph 2).
Mrs G said that she had a conversation with Mr F who told her that evidence had been given by child psychologist, DY, which he described as “damning evidence” and she says he also referred to evidence from medical records which he also categorised as “damning”. He told Mrs G that it would be best for the wife if she did not continue with the case “and that this evidence would play a big part in her Legal Aid funding being discontinued” (paragraph 2).
Because of its importance, I set out exactly what Mrs G says at paragraph 3 of her affidavit sworn on 10 March 2009:-
3. After lunch Mr [F] and Mr [P] told us they had had a lunch time meeting with Legal Aid to give them a progress report on the matter and were told by Legal Aid that [the wife’s] funding would in fact be discontinued as at the end of the day. If the hearing continued into the next day they would not fund [the wife’s] legal representation.
In paragraph 4 of her affidavit, Mrs G says that after considerable negotiations had taken place (including negotiations in relation to financial matters):
Mr [F] took me aside and told me that the evidence against [the wife’s] psychiatric state was quite damning and it would be best not to go to trial and to have that information put before the judge. He again stated that given the fact that, as she had no chance of ‘winning the case’ her legal aid funding had been withdrawn and if she didn’t sign the document she would have to represent herself in court the following day. [end paragraph 4; sheets 3 and 4]
Originally in oral evidence Mrs G said that the statement in her affidavit relating to legal aid funding in paragraph 2 was the same statement as made in paragraph 4.
During cross-examination it was pointed out to her that there was a significant difference between these two statements made as they related to legal aid funding. The first statement uses the word “would” and the second statement uses the word “had been” as it related to what the wife and she were told about legal aid funding. That is, in the first statement, Mrs G is saying the indication was that the evidence so far would in the future lead to legal aid funding being discontinued whereas the second statement is Mrs G saying that Mr F and/or Mr P had told the wife and Mrs G on 11 September 2001 that that had actually already happened.
During oral evidence, Mrs G revised her initial indication that there was only one conversation saying there were conversations both before and after lunch in respect of legal aid funding.
Mrs G was asked whether or not the statement that she made in September 2003 contained an assertion such as the one contained in paragraph 3 of her affidavit. She agreed that it did not. Mrs G agreed in oral evidence that it was an important thing to have omitted from her 2003 statement (namely, that she and the wife had been told that the two lawyers had at lunch time on 11 September 2001 had a meeting with Legal Aid at which meeting Legal Aid indicated that funding would in fact be discontinued at the end of that day).
In addition, there is nothing in the 2003 statement asserting that either Mr F or Mr P told the wife and Mrs G at some point during the 11 September 2001 that legal aid funding had been withdrawn.
These are important inconsistencies between Mrs G’s 2003 statement and the affidavit which she has now signed.
I have to make a decision in this case about different memories of events that took place a long time ago.
Mrs G’s explanation for the inconsistencies between her 2003 statement and her 2009 affidavit was that her 2003 statement was prepared by her under pressure at her place of employment without time for her to be able to properly reflect on the events of that day in 2001.
She also says that over time, memories came back to her that enabled her to add to her 2003 statement. Those memories were in part helped by the fact that she had during the preparation of the wife’s case in 2001, assisted the wife in typing a number of the wife’s documents, including the trial affidavit upon which the wife relied before the hearing which led to the consent orders being made.
I do not accept Mrs G’s explanation for the inconsistencies in her evidence.
I find Mrs G’s memory that she was informed about a meeting with Legal Aid at lunch time on 11 September 2001 and her recollection that she and the Wife were told that legal aid had been withdrawn, to be inaccurate.
Statements by Wife and Mrs G that the Lawyers Lied
It seems an agreed fact (the wife does not challenge Mr S’s evidence) that no meeting took place with Legal Aid on 11 September 2001 at lunch time or at any other time. If that is so, in order to accept the evidence of the wife and Mrs G I would have to accept that Mr F and Mr P lied about the fact that it had taken place and Mr F and Mr P conspired to construct that story in order to put pressure on the wife to accept a settlement.
I find that scenario is inherently unlikely.
Senior counsel for the husband asked rhetorically during submissions what possible motive Mr F and Mr P might have in conspiring to lie to the wife on 11 September 2001. The lie that was told according to the wife and Mrs G was that they had been to a meeting at Legal Aid (where no meeting had taken place) and Legal Aid funding had been withdrawn. Neither Mr F nor Mr P were tested in relation to possible motivation. Senior counsel for the husband speculated that had the case not settled, Mr F and Mr P would have got another eight days of legal fees. That is, if there was any motivation, it was to have the case continue rather than not.
One could equally speculate that the lawyers had concluded that the wife was a very difficult client and they wanted to end the case rather than have to manage a case on her behalf. However, I find that motive is a remote possibility given that both lawyers on a pro bono basis provided legal services on two further occasions for the wife. The other possible scenario (not put to either lawyer) is that both lawyers formed the view that it was in the wife’s best interests to settle the matter in the way that it did and that telling the wife this story was one means of putting pressure on her to do what was in her best interests even though she could not see it at the time. Given my assessment of the professionalism of both lawyers, I also discount this possible motive.
There is therefore some force in the argument by senior counsel for the husband that there is simply no motive that could be reasonably found for the two lawyers to do what the wife and Mrs G assert that they did do (that is, lie about a meeting with Legal Aid and assert as a fact that legal aid had been terminated when it had not). Senior counsel for the husband referred to the case of Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [1998] QSC 250. In the context of a consideration as to which version of a conversation between certain parties in the case was accurate, the Court stated at 111:
I am inclined to accept Mr Ferrier’s account of the conversation largely because an important feature of it is corroborated by Mr Deeb. He told Lady Trout when they spoke on 5 May that Mr Ferrier was waiting for instructions about the item of jewellery. Mr Ferrier had explained that to Mr Deeb on that day or perhaps a day or two earlier. Unless Mr Deeb and Mr Ferrier colluded about this aspect of their evidence Mr Deeb did explain to Lady Trout why Mr Ferrier had not proceeded further with the will and his knowledge came from what Mr Ferrier had told him. Collusion was not suggested and the court would need compelling evidence before it found that two reputable solicitors had so tainted their evidence. [emphasis added]
Senior counsel for the husband invited me to make a finding that all of the lawyers acted in a manner consistent with their duty to the court and their duty to their clients. Having carefully heard all the evidence I have no hesitation in making such a finding. I find that they did not lie to the wife or conspire to do so.
It is common ground that there was discussion about the possible future of Legal Aid funding given the evidence that had been adduced in the hearing to that time. It is possible that the wife and/or Mrs G have in their own minds reconstructed statements that may have been made in relation to Legal Aid funding on the day. I do not accept Mrs G’s assertions contained in paragraph 3 of her affidavit or the assertion contained at the end of paragraph 4 of her affidavit to the effect that the wife and she were told that a lunch time meeting had taken place with Legal Aid on 11 September 2001 and/or Legal Aid funding had been withdrawn on that day. I conclude that not only did no lunch time meeting with Legal Aid take place, neither lawyer said it had taken place, and neither lawyer indicated to the wife and Mrs G that Legal Aid funding had been withdrawn on that day.
Further evidence of Mrs G
Another example of where Mrs G’s 2009 affidavit contains information that is not in her 2003 statement is contained in the sixth last line of sheet 2 of the affidavit. The words before that, which relate to consideration of the husband’s superannuation, are the same as those words in the 2003 statement but the following words were added:
I had in fact asked Mr [F], ‘what about [the husband’s] superannuation?’ but he waved his hand in a gesture as if to say ‘move on’, my question was not answered.
Mr F said, and I accept, that it is his belief that he did not ignore any of the wife’s concerns. I do not accept the evidence of Mrs G quoted in the preceding paragraph.
A reading of Mrs G’s affidavit would lead one to the conclusion that Mr F had more than one conversation with Mrs G about the damning effect of the evidence about the wife’s psychiatric state. When tested in oral evidence the wife said that she had numerous conversations with Mr F during the day and that she thought that the conversations referred to at the bottom of sheet 1, top of sheet 2 of her affidavit and at the bottom of sheet 3, top of sheet 4 of her affidavit were different conversations. She, however, could not remember how many times Mr F talked to her about the “damning evidence” nor did she have any recollection as to whether or not Mr P was present. She seemed reasonably certain the wife was not present. Mrs G’s memory about these matters was not good and I would not be comfortable in relying upon Mrs G’s assertion that Mr F on more than one occasion during the day talked to her about the “damning evidence”. It was not put to Mr F that he had multiple conversations with Mrs G about “damning evidence”.
Mrs G certainly remembers speaking to Ms C and Mr U after the orders were made. She initially indicated that she did not have any memory of talking to them before the orders were made but later in her oral evidence Mrs G said that she did speak to Mr U before the orders were made when she was outside the door of the room where the wife was.
Mrs G confirmed that there were negotiations that extended from the time that she was there, about 10.30 am, through to the time the orders were signed. Mrs G said that when the orders were signed it was late in the afternoon because they were “starting to lose light”.
In her affidavit, Mrs G says that during the preparation of the final document, discussions were held between the wife and her legal team and the husband and his legal team. She says that Mr F moved between the two rooms where each team was ensconced. Mrs G says there were a number of issues during the preparation of the document that the wife expressed concerns over. One of them related to superannuation and I have already commented that I do not accept Mrs G’s version of that conversation. She said that the wife did not wish to sell the family home and that there was a discussion regarding this and it was thought that if she was able to obtain employment then maybe this would not have to happen as she could then take over the mortgage.
That evidence is consistent with there being an earlier draft that allowed the wife a provision to purchase the matrimonial home and is consistent with the husband’s interpretation of the final orders which, although requiring a sale, did allow for the wife to acquire the property as a purchaser on the basis that she took over the mortgage, paid the husband $15,000 by way of lump sum child support and paid the husband an additional amount of $6,505 which (based on the husband’s evidence) I accept related to legal costs (although on the face of the orders it appears to be a property order).
Mrs G also said the wife was unhappy about the amount of the upfront child support and that was negotiated down from $30,000 to $15,000. She said Mr F would take his notes and draft documents which consisted of loose sheets of paper and move from room to room negotiating with the parties. The negotiation process took up most of the afternoon. Mrs G also remembers the husband was concerned about his grandmother’s chairs and lace doilies.
Mrs G says that it was very difficult to read the final document, impossible to read it in full, as it was being continually passed around the table between the wife, members of her legal team and herself. She said that whenever the wife was asked a question she was quickly moved onto another point, the document would be taken out of her hands and pages turned to where it had to be signed and given back to her. She said that Mr F was pressuring for the final document to be signed. She said that Mr F stated “the judge wants to go home!”
In relation to the assertion that Mr F said to hurry up because the judge wanted to go home, he denies that that was said. He indicated that Justice Monteith would regularly remain in chambers until 6 pm in order to facilitate the finalisation of a consent arrangement. He said no pressure of this nature was applied to the wife. I accept his evidence in that regard.
Mr P said that the court officer did at some point during the afternoon make inquiries about the progress of negotiations and indicated His Honour’s view that if matters were not looking like settling then the matter should proceed to hearing. It is possible that those indications have been retrospectively re-manufactured into the version that Mrs G and the wife now give.
In oral evidence, Mrs G said there was at least two and a half hours of shuttle negotiations with various drafts being provided back and forth. On Mrs G’s version, there was a lot of discussion. Mrs G said there was not a lot of reading done. They were told what the proposals were. She did however say that the wife was not allowed to read each of the proposals. She agreed there were a number of versions and that they had an opportunity to look at them. Although there were time pressures, there was time to read and in the end Mrs G agreed that the wife was given the orders to read. She agreed that the two and a half hours after lunch involved a considerable degree of “nitty gritty” negotiations and discussions. Her fundamental statement however is that papers were being passed around without, in her view looking back, an adequate opportunity to study them. She agrees the wife asked a lot of questions. Mrs G’s oral evidence is that Mr F responded to questions when asked, although Mrs G’s current memory is that it was in a reasonably dismissive way. Mrs G was asked whether or not she could give an example of Mr F brushing off a question from the wife. She was unable to give an example (notwithstanding her written evidence about the husband’s superannuation).
From my examination of that document it appears that in the column headed “Win” there are three types of figures, those with a minus sign in front of them, which I take to mean that the wife lost that money, those without a minus sign, which I take to mean that the wife won that money, and those where the figure is zero, which I take to mean that the wife neither won nor lost and instead came out even. Although there is no specific evidence as to how this document should be interpreted, the document gives some support to the Wife’s evidence that over time she won at the gaming tables. It appears the wife spent a significant amount of time playing table games and although she lost over half the times she played she seems to have come out in front in this form of gambling. Overall, however, I conclude the wife has lost significant monies in her gambling activities, when the more complete and accurate records generated electronically by the gaming machines and the ATM records are included in the assessment.
Conclusion on exercise of discretion
Even if I found that a ground existed under s 79A FLA I would not have exercised a discretion to set aside or vary the orders. This is because the orders as made in 2001 in my view were, at that time, a just and equitable alteration of the property of the parties. In relation to the ground under s 79A(1)(a) I found that any hardship of the husband having his current acquisition of assets since 2001 interfered with, after this amount of time, would on balance outweigh the hardship suffered by the wife.
For a ground under s 79A(1)(d) to have been established, hardship would have had to have been found to be suffered by the wife or a child or children if the court did not vary or satisfy the orders. I find that any hardship suffered by the wife or the children would be insufficient to persuade me to exercise my discretion to interfere with the 2001 property orders.
CONCLUSION ABOUT THE WIFE’S APPLICATION UNDER s 79A FLA
The wife has not established any basis to set aside the 2001 property orders and consequently her application for an order under s 79 FLA will be dismissed as will her consequential application for new orders to be made under s 79 FLA.
JUST AND EQUITABLE ORDERS AT DATE OF THESE REASONS FOR JUDGMENT
In the event that I had reached an incorrect conclusion in relation to the setting aside of orders pursuant to s 79A(1) FLA, I will proceed to consider what order I would have made had I found there was a ground under s 79A(1) FLA and that the discretion should be exercised to set aside the original orders and make new orders.
If a s 79 order is made today it needs to be made based on assets as they exist today in light of circumstances over the entire period from the commencement of cohabitation of the parties until now.
In this matter my task is to:
359.1.Identify and value the property, assets, financial resources and liabilities of the parties;
359.2.Identify relevant contributions and assess them;
359.3.Consider relevant matters referred to in Section 79(4)(d) – (g) of the Act;
359.4.Ensure my order adjusting the property, assets and liabilities of the parties is just and equitable.
BALANCE SHEET
The current assets and liabilities are as follows:
Item
Ownership
Value
Husband
H property
H
$340,000.00
Mortgage
H
($261,951.00)
Bank of Queensland No. …43
H
$3,000.00
Bank of Queensland No. …01
H
$300.00
Telstra shares
H
$1,740.00
2005 Ford
H
$12,200.00
Contents
H
$2,000.00
Loan – E Emmett
H
($10,000.00)
Bank of Queensland Visa
H
($2,000.00)
Telstra shares
H
($2,323.00)
Superannuation
H
$315,959.00
Husband’s assets
$398,925.00
Wife
Bank of Queensland No. 96…
W
$200.00
1994 Toyota Tarago
W
$4,000.00
Contents
W
$5,000.00
Host Plus Super
W
$3,000.00
Liabilities
W
E $11,030.00
Wife’s assets
$1,170.00
Total net assets
$400,095.00
CONTRIBUTIONS
The parties married in June 1986 and separated in November 2000, a period in excess of 14 years.
They had three children.
As I have not found the wife to be a credible witness and I have found her to be a witness who reconstructs events, I accept the husband’s version of the history of the marriage over the wife’s version where those versions are in conflict.
Throughout the marriage the Husband always contributed the whole of his salary to family and domestic expenses. The wife was in paid employment until 1990. She had eight months away from paid work after J was born and she was at home for the rest of the marriage after the second child R was born apart for 2 weeks in 1996.
The husband made a significant domestic contribution during the marriage and was actively involved in the children’s lives, including taking them to school and various extra-curricular activities, making school lunches and cooking family meals. He regularly contributed to cleaning the house, caring for the garden and other domestic duties as required.
The wife received monies from outside the marriage whilst the parties were together. In 1993 the wife’s father died and left a property to the wife and her sister. The wife received some cash. In 1994 the Wife purchased a new family car using monies she received in an amount of about $35,000 as an advance on her inheritance from her aunt.
Annexure J to the wife’s affidavit filed 3 March 2009 is a document produced by the CT Ltd dated 15 March 2001, setting out payment received by the wife from her late mother, both while she was alive and following her death. Between 15 July 1994 and 15 March 2001, those amounts totalled $168,609.87. The wife has failed to establish that there is any evidence whatsoever to indicate that the husband was primarily responsible for wasting or otherwise using these monies for his own personal purposes.
Between 22 September 1997 and 15 March 2001 the wife withdrew a total of $82,260.00 from ATM’s at Jupiter’s Casino in Townsville. The probabilities are that most of that money was spent on gambling. I do not accept the wife’s explanation that it was the most convenient ATM machine available to her and she spent much of the monies withdrawn from it on everyday living expenses. I accept the submission made by the husband that the wife gave an inconsistent explanation for her use of the ATM at the casino and that the reality is that applicant wasted the significant bulk of her inheritance on gambling.
Under the original property orders, the husband received $17,000 (or maybe $19,500) in Telstra shares and superannuation which then had an agreed value of about $102,000.
From 11 September 2001, (when the children were 10, 8 and 6 years of age), the husband was the parent responsible for looking after the three children with virtually no assistance from the wife. The only financial assistance provided was the original amount of $15,000 to cover the first two years of child support. The contribution made by the husband of looking after the children alone for a period of about six years is a very significant one.
Since the children have been back with their mother, the father has, subject to one small dispute, fulfilled his obligations in relation to child support. The wife has had the primary responsibility of caring for the children since they returned to her.
There are monies that have come into the hands of the wife which have not been added back onto the balance sheet.
Since separation the wife has had access to the following amounts:
373.1.$50,000.00 (investment of 27.10.00). The husband asserts that the wife has had access to much more.
373.2.The wife had AMP shares worth $3,307 and some Telstra shares. The wife withdrew $6,000.00 from her Commonwealth Super. She had land she inherited with an estimated value of $18,000.00. She received the balance of the proceeds of the property at W in the sum of approximately $43,000 after payment of all costs associated with the sale and $15,000 lump sum payment of child support to the husband for a period of two years.
Since June 2002 the wife has lost $82,067.00 while playing gaming machines, although I accept that the wife may be able to point to the gaming table records to indicate that she had some net gain on that form of gambling. As I have said elsewhere however, I am less than convinced that those records are complete and they were not interpreted during oral evidence from the expert.
The husband’s superannuation has increased from $102,240.00 at 30 June 2000 to $315,959.00. It appears that the reason for that increase has been statutory superannuation contributions by his employer over the period since 2001.
The wife states that following her redundancy package she gave a sum of $42,000 to the husband on 30 June 1997 to pay off the parties’ mortgage. The husband acknowledges this. Also with this money, the wife paid off credit card debts and bought a new bed and a guitar.
Conclusion in relation to contributions
If I had to make an assessment of contributions, given the period of time over which contributions have spanned, it would be usual to adopt a global approach to the assessment of contributions. Using that approach, having regard to the redistribution of assets in 2001 and the identity of the current items on the balance sheet, I would assess contributions at 95 percent in the husband’s favour and five percent in the wife’s favour. As a check to that, given that the assets have developed primarily since separation, an asset by asset approach could be considered. It can be said that the wife has made virtually no contributions to the equity in the husband’s home, a property that he has acquired since separation. The wife has made very little indirect contributions to the increase in the husband’s post separation superannuation. When the equity in the husband’s home and his superannuation are taken out of the balance sheet, there is very little value in the remaining assets to divide. I find based upon contributions, the current assets would have been divided as to 95 percent to the husband and 5 percent to the wife.
SECTION 75(2) MATTERS
There is some disparity in earning capacity between the parties but I do not consider that it is significant if the wife fully exercised her ability to work.
At paragraph 19 of the wife’s primary affidavit, the wife claims that she is “only allowed to work 15 hours per week” under the conditions of her disability pension and in oral evidence she said that she had been given this information by a psychologist at Centrelink.
In 2006 the wife gave information to an employment agency and added her own information for the purposes of preparing a resume of her job history and duties (document 6 from the hotel file). The wife agreed that the resume accurately recorded her job history. The wife represented to the Hotel that she was qualified to fulfil the roles of receptionist, office administrator, stock controller and secretary. She confirmed in oral evidence that she believed that she was qualified for these positions. Between July 2006 and 7 May 2007 the wife was employed full time as a night auditor. An internal probationary performance review in October 2006 was very complimentary. The wife agreed that on 7 May 2007 (shortly after the boys came back to live with her), she changed her working status at the Hotel from full time to part time. Although the wife was initially reluctant to concede it, I find that at a meeting with her supervisors on 13 October 2008 she told somebody in the management at the Hotel that she was only allowed to work 15 hours per week. This is consistent with what the wife says at paragraph 19 of her affidavit.
In cross-examination the wife asserted that she could work full time but for:-
381.1.her responsibilities as parent;
381.2.her health.
In relation to her responsibilities as parent, the wife is currently away from home from 10.30 pm to 6 am two days per week.
The mother has the care and control of the two children, R and A, aged 16 and 14. Both children are of an age which allows the wife to be in employment without the need to supervise the children. The wife says that she has got no difficulty in leaving them in the home overnight two nights per week. The wife did not explain why leaving the boys five nights a week rather than two nights per week would have a significant impact on her ability to fulfil her role of parent to them.
In relation to her health, the wife says that her conditions of fibro myalja and anxiety restricted her earning capacity but the wife has provided no medical evidence relevant to her earning capacity.
The wife previously had been in receipt of a disability pension. Then when the wife obtained full time employment she ceased to receive the disability pension. She changed her employment status and then re-obtained her disability pension.
The mother has demonstrated an ability to maintain regular employment.
The mother asserts that she is unable to extend her working hours because of her need to be at home and available to fulfil the role of parent to R and A. I do not put a great deal of weight on that submission. The wife had no difficulty in finding time to pursue her gambling activities at the casino over a significant period when she had the care of the children. I do not accept that her parenting duties, now that the children are substantially older, are now so onerous that she cannot extend her working hours.
The wife is currently assisted by pension and family tax benefits at a rate of almost $371 per week ($173 + $198 per week).
Neither party is cohabiting with another person.
There is clearly a difference in the assets that they currently have today which would need to be taken into account. The husband is paying regular child support and paying school fees.
I would assess appropriate adjustment pursuant to s 79(4)(d) – (g) to be in the order of 5 percent in the wife’s favour.
JUST AND EQUITABLE ADJUSTMENT
In the event that adjustment was being made today in the wife’s favour, I would assess that she would be entitled to a 10 percent adjustment of the overall pool. That would mean that she would be entitled to receive from the husband’s share of assets, an amount of approximately $39,000. It would in my view be just and equitable to have achieved that result by making a splitting order in relation to the husband’s superannuation entitlement where by the wife received a base amount of $39,000 from the husband’s superannuation interests.
The wife forwarded after the conclusion of the hearing under cover of a letter dated 20 April 2009, enclosing a letter sent to the manager of T Superannuation Fund on 17 March 2009 providing them with notice of the superannuation splitting orders sought by the wife. There is no indication that the husband received a copy of that letter. Notwithstanding that and notwithstanding that no formal leave was sought to tender that letter I have ruled that that letter can be part of the material before me and was made part of Exhibit QQQ. The wife subsequently made an application for leave inter alia to rely upon a letter from T Super dated 14 April 2009. Leave was granted to adduce that evidence and the response from T Super became part of Exhibit QQQ. I am satisfied that procedural fairness has been given to the Trustee of the husband’s superannuation fund in relation to the orders sought by the wife and consequently any order that is less than the order sought by the wife can be taken to be an order to which the Trustee does not object. The order that I would have made, falls within the parameters referred to in this correspondence.
I, of course, make no such order given the findings that I have made in respect of the finality of the 2001 property orders.
CHILD SUPPORT AND INJUNCTION
The orders sought by the wife for child support are set out in paragraphs 20.1, 20.2 and 20.3 above. The wife’s application is made pursuant to s 124 Child Support (Assessment) Act 1989 (Cth). The wife opposes the husband’s application pursuant to s 117 Child Support (Assessment) Act 1989 (Cth).
The wife seeks an order that the husband pay school fees and other educational costs for R and Q and that those payments not be credited against the husband’s child support liability.
The father fundamentally agreed to this order but asked that the amount of periodic child support for the boys be fixed. The orders the husband seeks by way of child support is set out in paragraphs 23 and 24 above.
Subject to a small amount of arrears referred to below, the father currently pays assessed child support for R and A. Except for a sum of approximately between $900 and $1,500, the father has paid the G School fees for 2009 for R and A. The father’s evidence is that he intends to repay R the sum of approximately $900 (or $1,500 as indicated in the document first shown to the husband on 14 April), but does not wish to do so in a way which would allow R to spend this money frivolously. Splitting the difference, I will order the father reimburse R the sum of $1,200.00.
The father paid all of the G School fees for the child J when he attended that school. The father paid all of the G School fees for R and A in 2008 and previous years.
The father’s proposal is to pay G School fees for R (2009 is his final year) and for A until both boys complete their secondary education.
Given the extensive history of litigation between these parties, there is a strong argument for making financial orders which will, as far as practicable, end the litigation.
When considering whether a particular order is just and equitable, those matters set out in s 117(4), (6), (7), (7A), (7B) and (8) of the Child Support (Assessment) Act1989 (Cth) must be taken into account.
I deal first with the issue of periodic child support.
The Court may make an order for child support departure from an administrative assessment in the special circumstances of the case if the liable parent or carer entitled to child support is a party to an application pending in the Court and the Court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the Court to consider whether orders should be made in relation to the child based on the special circumstances of the case (Child Support (Assessment) Act 1989 (Cth) s 116(1)(b)).
In Gyselman & Gyselman ((1992) FLC 92-279 at 79,060 (per the Full Court)) the Full Court identified that a trial judge must follow the clearly established three‑step process outlined in s 117 of the Child Support (Assessment) Act 1989 (Cth) – that is, assess whether in the special circumstances of the case a ground of departure has been established; assess whether it is “just and equitable” to make the proposed order; and assess whether it is “otherwise proper” to make the order. The Full Court also considered what constituted “special circumstances”, stating:[3]
a)Whilst it is not possible to define with precision the meaning of [special circumstances], as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary.
[3] Gyselman & Gyselman (1992) ¶FLC 92-279, 79,065.
The grounds of departure are outlined in s 117(2) of the Child Support (Assessment) Act 1989 (Cth). In the circumstances of this case, the relevant ground is found at s 117(2)(c)(ia) of the Child Support (Assessment) Act 1989 (Cth).
The respective financial position of the parties did not attract any particular focus during submissions. In the wife’s financial statement sworn 13 March 2009 and filed 16 March 2009, the wife calculates her weekly expenses for the two younger children at $961.09. The item “Education expenses, including fees and levies” of $317.30 is a reference, (if not entirely, almost entirely) to school fees which the husband has agreed to pay.
The weekly expenses for the two younger children as asserted by the wife are therefore $644 ($961 - $317). In addition, the wife pays rent in the sum of $330 a week but there is no evidence as to what amount of that rent would not have to be paid if the two children were not living with the wife.
The husband indicates his average weekly expenses for the children (averaged from amounts spent when they are with him) are in the sum of $78 per week (husband’s financial statement sworn 4 March 2009).
The husband’s gross salary is $1,340 per week. He pays tax of $354 per week. He has a negatively geared property at H. He has less than $1,000 per week to expend. He currently pays $307 per week in child support. He has committed to the payment of school fees for R and A at T School (which are not accounted for on his financial statement sworn 4 March 2009). He also seeks a fixed order for periodic child support in the sum of $284 per week ($1,230 per month), reducing to $230 per week ($1,000 per month) when R turns 18.
According to the wife’s statement, education expenses including fees and levies are in the sum of $317.30 per week.
Even allowing for the loss on the property at H, the husband’s personal expenditure exceeds his weekly income. He is committing to increase his expenditure as set out in his financial statement by increasing his expenditure in relation to the two children from $307 per week to about $601 per week ($284 + $317). I find that he does not have the capacity to pay more than that amount.
Assuming the wife does pay $300 per week for food for the two boys (and that proposition was not tested), the proposed payments by the husband leave the wife with the responsibility to pay $360 per week for the boys ($644 - $284; based upon her evidence about the children’s needs in her financial statement). That calculation does not take into account any allowance for the boys sharing in some of the wife’s rental expenditure.
When assessing R’s requirements for child support, I need to take into account his earning capacity (see s 117(4)(c) and s 117(7)(a) Child Support (Assessment) Act 1989 (Cth). The father submits that R is earning a significant income and he is not required to contribute towards household expenses. R was working in mid 2007. R first started to work at the wife’s place of employment (the Hotel) in October 2007. Between 1 July 2008 and 8 March 2009, R earned $12,151.27 gross ($9,627.27 net) and accumulated superannuation entitlements of $1,047. That is an average net weekly income of $260.20, with an average net superannuation entitlement of $28.30. The wife does not require R to contribute in any significant way to the costs of the household. The wife basically allows R to purchase with the money he earns anything that he feels like, although there is evidence that R is now commencing to make a contribution towards the costs of his private school fees. I accept that as the demands of R’s final high school year had intensified through 2009, it may be that R would not have been able to maintain the same level of earning.
I refer to earlier findings that I have made about the wife’s earning capacity which she is not currently fully exercising.
I conclude the orders the husband seeks in respect of payment of child support are just and equitable.
If the wife does not exercise her current earning capacity, the boys will need to be supported to some degree by public funds.
Taking into account the nature of the duty of a parent to maintain a child and the general effect of making an order on entitlements to income tested pensions, I find that an order in the terms proposed would be otherwise proper.
The wife seeks an order for provision of child support otherwise known in the form of periodic amounts. She wishes the husband to pay all school fees and all other education costs and private health insurance premiums. I have already discussed the terms to which the husband consents to an order. It follows from the discussion above that after the husband has fulfilled his responsibilities for paying school fees as he has agreed to and made the periodic payment for child support that I will order the father has no further capacity to make more extensive payments as sought by the wife and having regard to s 124(2)(b) Child Support (Assessment) Act 1989 (Cth) in particular I conclude that it would not be just and equitable to require the husband to make any further payment.
At the time of the hearing the husband was approximately $2,150 in arrears in child support that was generated primarily by the husband unilaterally deciding to reduce his level of child support on the basis that he was paying the children’s school fees. He lost that fight through the appeal process and I do not intend to revisit that decision.
There is no evidence that the husband intends leaving Australia either permanently or for a holiday. There is no evidence that the husband has a right to reside in any other country. When the husband went on an overseas trip in late 2006, he continued paying the assessed child support for the children notwithstanding that at that time he was without employment. Accordingly, there is no basis for an injunctive or restraining order against the husband and I will not be making one.
ADULT CHILD MAINTENANCE
Pursuant to s 69L(1)(a) FLA, the court is able to make an order for adult child maintenance to enable a child to complete his education. J has currently commenced the first year of a degree course at the University of Queensland.
The wife seeks that the husband make payments towards the maintenance of the child J who is over the age of 18.
In considering the financial support necessary for the maintenance of J, the court must take into account his age, the manner in which his parents expected him to be educated, published research in relation to the maintenance of children, J’s proper needs, the income earning capacity, property and financial resources of J.
I also have to take into account the income earning capacity, property and financial resources of each of the parties and the direct and indirect costs incurred by the parent with whom J lives (namely the wife for at least part of the time).
The husband has made payments for J separate from assessed child support (prior to when J turned 18) and separate from G School fees which the father had always paid for J. Those payments are set out at paragraph 87 of the father’s affidavit and include travel to France (organised by J’s school), travel to England during 2008 for J’s gap year and expenses for J’s support including university entrance.
In the husband’s most recent affidavit filed 17 March 2009, he has detailed expenses that he has paid for J in connection with J’s move to Brisbane and commencement at university.
There is no evidence that the father will cease making payments to or on behalf of J’s, for J’s support and/or incidental to his university attendance.
It is probable also that J will be in receipt of Austudy or some similar benefit (although s 66J(3)(b)(ii) FLA would require that I disregard any income from that source).
Evidence about income earning capacity, property and financial resources of both the parties has been referred to earlier in the Reasons.
I am satisfied that the father has not demonstrated any reluctance to pay an amount towards J’s proper needs and find that the father has, to the extent necessary, fulfilled any duty that he has to maintain J.
I am satisfied that the husband’s current commitments to support himself and the children take up all the income that he currently has available to him. Currently, J does not live with either parent, although he does return on holidays to his mother’s home. There is nothing in the facts of this case that would indicate that it would be appropriate in the event that J needed support, that the father would be the sole contributor of that support (as between he and J’s mother). The mother has actively sought to reduce her income by not taking up additional work. I am satisfied that documents produced by the Hotel evidence a greater earning capacity in the wife than the one that she is actually exercising. I am satisfied that fixing an amount of maintenance payable by the father to J will or may cause injustice or hardship to the father given his other commitments (including those created by orders I have made relating to child support for the two younger children).
For the above reasons I am not satisfied that it is necessary or proper to make an order for the provision of the husband to pay maintenance for J in order to enable J to be able to complete his education and accordingly I will dismiss the wife’s application for adult child maintenance.
SPOUSAL MAINTENANCE
Section 72 FLA provides that a party to a marriage is liable to maintain the other party to the extent that the first mentioned party is reasonably able to do so, if and only if that party is unable to support herself adequately whether:-
434.1.By reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
434.2.By reason of age or physical or mental incapacity for appropriate gainful employment;
434.3.For any other adequate reason
having regard to any relevant matter referred to in ss 75(2) FLA.
I refer to the discussion of ss 75(2) Family Law Act 1975 (Cth) matters set out above.
Each of the parties are of similar age and are in reasonable health. The wife’s health would not appear to prevent her from engaging in her current employment or increasing the level of that employment. The father has set out his income, property and financial resources in evidence before me. He presently has the physical and mental capacity for gainful employment.
As I have said, the mother has the care and control of the two children, R and A. Both children are of an age which allows the wife to be in employment without the need to supervise the children.
The father has commitments to support the children, R and A, by payment of assessed child support and G School fees. The father has also demonstrated a commitment to continue to support the child J (who is over the age of 18).
Apart from the children, neither party has the responsibility to support any other person. There is no significant difference in the standard of living of the parties. The mother gave no evidence that she needs any course or training to maintain or increase her earning capacity. The father asserts that the mother has substantially squandered funds which could have been expended by the mother on behalf of the family. There is some force in this submission, given my findings about the wife’s gambling losses.
I have not allowed the wife’s application pursuant to s 79A FLA. That means that the original consent orders remain. Under those orders, the wife received a majority of matrimonial assets, apart from the husband’s superannuation entitlements.
I find that the wife has not established that she is unable to support herself adequately.
If I am wrong about that, I find the husband has no capacity to make any payments of spousal maintenance after he has paid for his necessities and fulfilled his responsibilities in relation to child support for R and A and their school fees and assisted J with his needs.
SECTION 118 APPLICATION
The husband in his application for final orders filed on the 23rd December 2008 sought an order pursuant to s 118 of the Family Law Act 1975 (Cth). No written submissions were provided in support of that application and that application was not the focus of any discussion in the Wife’s written submissions. It was not mentioned in oral submissions. In the circumstances, I treat the application as one which was not prosecuted and dismiss it.
I certify that the preceding four hundred and forty-three (443) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.
Associate:
Date: 21 January 2010
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