Galeford and Galeford (No. 2)

FAMILY COURT OF AUSTRALIA

GALEFORD & GALEFORD (NO. 2)

[2007] FamCA 697

FAMILY LAW - PROPERTY – Property settlement – Whether miscarriage of justice by reason of grounds in s79A(1)(a) absent duress – Financial agreement – ss90K and 90KA.

Family Law Act 1975 (Cth)

Suiker and Suiker (1993) FLC 92-436
Livesey and Jenkins (1985) 1 All ER 106 at 199;
followed in Morrison and Morrison (1995) FLC 92-573
Clifton and Stuart (1991) FLC 92-194
La Rocca and La Rocca (1991) FLC 92-222

APPLICANT:	Mrs Galeford
RESPONDENT:	Mr Galeford
FILE NUMBER:	MLF	1675	of	2003
DATE DELIVERED:	13 July 2007
PLACE DELIVERED:	Sydney
JUDGMENT OF:	The Hon. Justice Rose
HEARING DATES:	5, 6, 7, 8, 9 & 12 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr J Levine
SOLICITOR FOR THE APPLICANT:	Isaac Brott & Co.
COUNSEL FOR THE RESPONDENT:	Mr D Brown SC; Ms S Johns
SOLICITOR FOR THE RESPONDENT:	Forte Lawyers

Orders

That the Amended Application of the wife filed 22 April 2005 is dismissed.
That in relation to the Application in a Case filed on behalf of the wife on 14 December 2006 counsel lodge with the Associate to the Hon. Justice Rose and serve written submissions endorsed on the front sheet with the date and time of service as follows:
(a)       Submissions for the wife on or before 5.00pm, 18 July 2007.
(b)       Submissions for the husband on or before 5.00pm, 23 July 2007.
(c)       Submissions for the wife in reply on or before 5.00pm, 26 July 2007.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

File number: MLF1675 of 2003

MRS GALEFORD

Applicant

And

MR GALEFORD

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings, applicant Mrs Galeford (who for convenience I shall refer to as “the wife”) by her Further Amended Application in a Case filed 22 April 2005 (treated in these proceedings as her application for final orders) sought that the orders made by consent on 30 April 2004 (“the consent orders”) be set aside or varied pursuant to section 79A(1)(a).
The wife also seeks an order that the Financial Agreement entered into between the parties on 30 April 2004 (“the financial agreement”) also be set aside pursuant to the provisions of “section 90K and/or section 90KA”.
It was made clear by counsel for the wife during the course of his opening as well as in his submissions that the ground of duress was not relied upon.
The consent orders were made by Carter J on the fifth day of the trial of property settlement proceedings.
Each of the parties was represented by senior and junior counsel during that trial.

Historical background

The following are brief relevant historical matters.
The parties cohabited for a period of approximately 17½ years which commenced on their marriage which took place on 18 July 1985 and continued until they finally separated on 24 December 2002.
There are no children of the marriage.
The trial between the parties before Carter J commenced on 26 April 2004 and concluded on 30 April 2004 (“the trial”) when the consent orders were made and the financial agreement was completed and executed.
On 30 August 2005 orders were made by Joske J which inter alia provided for the wife’s Further Amended Application earlier referred to, be deemed “a Form 1 application”; that there be a separate hearing in relation to the issues raised by that application, namely:
“(2)That pursuant to Rule 10.14 (and subject to the discretion of the Trial Judge) there be a separate hearing in respect of the following issues contained in the said Application:
A.(a) Has there been a miscarriage of justice within the meaning of s.79A(1)(a) of the Family Law Act 1975 in respect of the making of the Orders of 30 April 2004?
(b)If yes, should the Court, in its discretion vary or set aside the said Order, and
B.That the Maintenance Agreement entered into between the parties on 30 April 2004 be:
(a)set aside pursuant to s.90K(1) of the Family Law Act 1975, and
(b)declared not valid and neither enforceable nor effective.”
On 11 April 2006 orders were made by Carter J inter alia “that the hearing be conducted in accordance with the orders made by Joske J on 30 August 2005 subject to the discretion of the Trial Judge” and that certain affidavits may be relied upon.
On 10 July 2006 orders were made by Benjamin J that the hearing of the substantive proceedings be adjourned to 11 September 2006.
On 15 January 2007 an order was made that the Form 2 application filed by the wife on 14 December 2006 be consolidated with the substantive proceedings. That application sought orders that the husband complete and file a financial statement and that he pay $161,536.56 to the wife’s solicitors.
On 25 January 2007 orders were made setting aside subpoenas to produce documents filed by wife on 22 December 2006 and that the wife pay the husband’s costs in sum of $1,300.00 with leave granted to her to seek an abridgment of time to have the application listed me on 5 February 2007.
On 2 February 2007, I made orders that the wife’s application filed 14 December 2006 be consolidated and determined with her substantive applications fixed for trial to commence on 5 February 2007. Costs were reserved.

SECTION 79A(1)(a)

For the purpose of establishing a “miscarriage of justice” the case for the wife relied upon all of the grounds in this sub-section with the exception of “duress”.
Certain of the principal factual issues relied upon by the wife were common to a number of the grounds. I will now proceed to refer to the substance of the evidence, my findings of fact, and conclusion in respect of each of the grounds relied upon by the wife. Other factual issues had been struck out by me on the first day of the hearing in accordance with the Reasons given by me after submissions were made by counsel.

Grounds of suppression of evidence (including failure to disclose relevant information); the giving of false evidence and fraud

The following are the factual issues relied upon by the applicant for the purpose of establishing one or more of the above grounds.

The husband’s non-disclosure of offers to purchase the business known as “[T Company]”[1]

[1] Case outline for the wife, paragraph 6(g), 05.02.2007

The affidavit evidence relied upon by the wife is the Affidavit sworn by the husband on 16 April 2004 and the Affidavit of Ms S sworn 4 April 2005.
The other affidavits which I read pursuant to the case outline filed on behalf of the wife, namely her Affidavit sworn 30 October 2006 and the Affidavit of her solicitor, I A Brott sworn 12 December 2006 are not relevant to this factual issue.
In his abovementioned affidavit, the husband refers to the incorporation of the relevant companies, aspects of its financial operations and the valuations provided by Mr H. The husband also gives evidence relating to business activities and profitability as well as his views of the company’s market share and the conditions which are likely to be put forward by a potential purchaser.
In paragraph 10 of her Affidavit sworn 10 April 2005, Ms S alleged that following the settlement of proceedings with the wife on 30 April 2004 the husband said “in relation to [T Company], somebody had offered $5 million” and that “his […] company was bigger than [D Company], he would get at least $8 million for it” and “that the business was getting bigger and he had to employ more people”.
During the course of cross-examination, Ms S gave three inconsistent accounts in relation to the information that the husband had allegedly given her with respect to the value of the business following the settlement of the proceedings between the husband and the wife.
At one point in her oral evidence, Ms S confirmed her account in her affidavit that the husband said someone had offered $5 million in relation to the business. Elsewhere in her oral evidence, Ms S stated the husband had said he thought the business was worth $5 million. On another occasion in her oral evidence, Ms S stated the husband had said it was worth a “bit more” than $5 million and that may be he could get $8 million for it.
The husband denied having received an offer to purchase the business T Company for $5 million “or at any other price”, or that he would receive $8 million on a sale of that business. Surprisingly, there was little, if any, cross-examination by him in relation to any of those matters notwithstanding the reliance placed upon the evidence of Ms S to support the grounds of suppression of evidence and false evidence. Ms S was cross-examined in relation to those matters to which previous reference has been made.
I prefer the evidence of the husband to that of Ms S in relation to the factual issue. Ms S was a witness who gave materially inconsistent evidence in relation to information allegedly given to her by the husband with respect to the value of the business following the settlement of proceedings between the parties.
In summary, Ms S’s affidavit evidence, and initially her oral evidence, was that the husband had informed her of an unnamed person who had offered $5 million supplemented by his own estimate that he would receive at least $8 million for the company. Subsequently, during cross-examination, Ms S stated the husband had said to her that he “thought” the business was worth $5 million. At another point in her evidence, the witness provided a third version, namely that the husband had said it was worth “a bit more” than $5 million and he may get $8 million for it.
During the course of giving her oral evidence, I observed Ms S to be hesitant and not positive at all when pressed, even allowing for any anxiety or nervousness that she may have been experiencing. In contrast, the husband’s affidavit evidence was not departed from and not seriously challenged, if at all, during cross-examination.
Accordingly, I find the husband had not informed Ms S of an offer or offers to purchase the subject business as alleged by her in her affidavit evidence.

“The husband suppressed evidence and failed to disclosed relevant information pertaining to the level of financial support that the husband provided for [Ms S]”[2]

[2] Case outline, paragraph (f), 05.02.2007

The affidavit evidence relied upon by the wife in her case in chief includes the affidavits of the husband and Ms S sworn 6 April 2004 and 4 April 2005 respectively.
It is important to note that the Affidavit of the husband sworn 6 April 2004 was presumably filed and served prior to the trial absent any evidence or information from counsel to the contrary. That affidavit gives evidence of his relationship with Ms S and her child, J (“the child”). The child was born in April 1999. The husband was not the father of the child. There was no issue that the father had been a significant adult in the life of the child including providing for her financial support. He gave evidence of his past sexual relationship with Ms S.
In addition, the husband in that affidavit gave evidence of having informed the wife of his relationship with the child at the end of 2002, implicitly at or about the time of the parties’ separation. The husband also gave evidence of the wife’s knowledge of his past relationship with Ms S.
The evidence contained in the Affidavit of the husband which I have summarised in preceding paragraphs and which was relied upon by the wife in her case, was not the subject of challenge. That being the situation, I infer that prior to the trial the wife had knowledge of the nature and extent of the personal relationship between the husband and Ms S, as well as between him and the child.
The Affidavit sworn by the wife as part of her case in chief before me, surprisingly, did not refer to the relationship between the husband and Ms S and/or the crucial matter of her knowledge of both or either of those relationships prior to or as at the date of the consent orders.
Copies of affidavits sworn by the wife prior to the consent orders and the trial were tendered by counsel for the husband and are included in Exhibit 6.
In her Affidavit sworn 5 March 2003, the wife had deposed to the husband having informed her of his “involvement with a Filipino child called [J]” and that “in early December” (the year is not stated but inferentially it was the year 2002) the husband initiated the wife meeting the child. The wife proceeded to depose that the husband had not previously mentioned the child to her and that he had informed the wife the child did not have a father although the wife claimed “I was suspicious that the applicant/husband was the child’s father and therefore was suspicious of the applicant/husband’s relationship with the child’s mother”.
The wife then proceeded to give further evidence in that affidavit of the husband having provided her with “contact details” of the child’s mother Ms S and the wife’s subsequent meeting with her.
In addition, the wife gave evidence in that affidavit of the husband having told her of meeting Ms S nine years previously and that a mutual friend had informed the wife that the husband and Ms S had been “having an affair for around nine years”.
The wife further deposed in that affidavit that she did not accept the husband was “just a friend of [Ms S]” nor could she accept the husband’s involvement in the child’s life.
The wife further stated that on 24 December 2002 the husband ceased to live in the former matrimonial home after he had decided he wanted to continue his relationship with Ms S and the child.
The wife further deposed in that affidavit that she was “very hurt and angry after discovering that the applicant/husband had been having an ongoing relationship with another woman”. The wife further swore “I was also concerned that the applicant/husband was financially supporting this other family”.
The wife gave further evidence in that affidavit of steps she took to be further informed in respect of the relationship between the husband and Ms S. The wife states she engaged the “services of a private detective to establish the nature of applicant’s/husband’s relationship with [Ms S]” and that upon her return from overseas travel in 2003 that private detective showed her a videotape of the husband with Ms S “touching and kissing”. In addition, the wife states that she discovered a mobile telephone bill of the husband which indicated to the wife that the husband had been telephoning Ms S “at least five times a day”.
The wife proceeded to change the locks to the former matrimonial home on 18 February 2003.
Of significance to the factual issue is the knowledge that the wife had of the husband’s financial support provided for Ms S and her opportunity to investigate it prior to the critical date, namely the date of the consent orders. It is the wife’s further evidence in paragraph 37 of her Affidavit of 5 March 2003 in which she swore:
“I say further that I am concerned the husband is accessing company funds to support [J] and her mother. Since November 2002 the applicant/husband has:
37.1Hidden important company documents from the office.
37.2Removed the safety box from our home which contains property titles.
37.3Made arrangements so that his personal bank statements and mobile phone bills are no longer sent to the home or office address.
37.4Deleted MYOB relating to [T Company] New Zealand from my computer so that I am unable to access any of the accounts relating to the New Zealand branch of the business.”
In paragraph 40 of her affidavit, the wife stated that she attended the residence of Ms S in view of an assurance that the husband allegedly gave the wife that Ms S was “independently wealthy and lived in a double storey house and did not need his financial support”.
The wife clearly did not accept that statement following her attendance at the home of Ms S as she stated in her affidavit “I attended Ms S’s residence and saw that it was a simple house and not that of a wealthy woman”.
In her Affidavit sworn 6 June 2003, a copy of which is part of Exhibit 6, the wife states that in relation to the husband’s “very good lifestyle” he informed her and she believed that he supported “his girlfriend [Ms S] and her child [J]”.
A further affidavit was sworn by the wife on 15 October 2003, a copy of which is also part of Exhibit 6. It was also filed and served prior to the trial. In that affidavit the wife deposes to having examined certain quarterly reports of family companies and also a variety of the husband’s credit card statements for the period “since the date of separation”.
As a consequence of the inspection by the wife of the documents to which I last referred, the wife contended that she could identify purchases by the husband of furniture and kitchen appliances of $43,000.00 since separation. That excluded what the wife described as “the miscellaneous items” purchased from a department store. The wife concluded that:
“A number of purchases are from stores at [P] where the husband’s friend [Ms S] resides, which causes me to draw to the conclusion that he may be refurbishing his girlfriends’ home. There is also an item of $2,292.00 for payment of a school fee, which I believe is for [Ms S’s] daughter. There are numerous cash withdrawals from ATMs and restaurant and hotel expenses.”
In the same affidavit the wife swore that “the Miele kitchen appliances costing approximately $5,000.00 must be at the very least for his girlfriend’s house”.
The wife swore a further Affidavit on 26 March 2004, a copy of which is also included in Exhibit 6. That affidavit and other affidavits in Exhibit 6 were presumably also filed and served prior to the trial. This affidavit was filed and presumably served in accordance with the Rules on or about 26 March 2004 being approximately four weeks prior to the first day of the trial. The affidavit repeats much material that was in earlier affidavits. In doing so, it also includes evidence in relation to Ms S and her child J. Indeed, the wife swore that in relation to the husband’s “very good lifestyle” it included “supporting his girlfriend [Ms S] and her child [J]”.
Other relevant evidence was given by the wife in the last-mentioned affidavit. It included the wife’s knowledge that “the husband had become involved with a Filipino woman Ms S and that in relation to her child J “that he was and had been assisting her financially for some time”.
The wife further deposed in that affidavit to a telephone call that she said took place between herself and Ms S in July 2003 who allegedly stated:
“That the husband would be moving to the Philippines with her. She told me the business would cease trading and that all that would be left would be the debts of the business.”
In the same affidavit, the wife deposed to her knowledge that on 20 January 2003 the husband had issued cash cheques to himself for $2,000.00 and $5,000.00 and that there was also a cash cheque for $10,000.00. The wife stated in relation those transactions:
“I suspected that the husband was utilising the money to support the Filipino family and this upset me. I went into the husband’s office and told him I was concerned about this use of company money and told him that I also wanted a donation. I wrote out the cheque for $10,000.00 in his presence. The husband did not stop me or tell me not to do this.”
During the course of cross-examination the wife referred to her Affidavit sworn 5 March 2003 and that it set forth her knowledge of the relationship between the husband and Ms S.
Ms S swore an Affidavit on 4 April 2005 and was cross-examined.
In that affidavit, Ms S stated that she and the husband had a relationship for approximately 10 years which commenced in about mid-1994. The relationship was a sexual one and they also communicated with each other, often daily, as well as having holiday periods together and with her child J within Australia and overseas at the husband’s expense.

Ms S stated that, at the suggestion of the husband made at the commencement of the relationship, she obtain an American Express card. Ms S alleged that the husband provided money to her on a weekly basis as well as meeting her American Express accounts which included shopping at an exclusive store where she spent in total $25,000.00 to $30,000.00 or more over a ten year period.
In addition, Ms S stated that the husband had purchased a motor vehicle for her in December 2000 and subsequently met the difference in the trade-in of that motor vehicle and the price of a new motor vehicle in 2004.
Ms S also stated that the husband provided her with a St George cheque book in his name and paid for some of her household expenses.
As previously referred to, the child was born on 20 April 1999. Ms S claimed that following her birth the weekly amount the husband was providing was on average $500.00 per week which was subsequently increased to $700.00 per week.
Annexed to the Affidavit of Ms S sworn 4 April 2005, are copies of:
(d)her American Express card;
(e)her American Express statements as at 7 June 2004;
(f)National Australia Bank Flexi-card in the name of the husband for the period February 2004 to March 2006;
(g)several cheque butts for the period 11 December 2002 to 21 January 2003 which include but are not limited to payments to American Express.
During the course of her oral evidence, Ms S identified a bank credit advice dated 29 July 2003 which became Exhibit 7. Ms S stated that the amount of AUD$29,668.75 from a client company of the husband was remitted to her bank account. That is evident from Exhibit 7. The amount shown being $29,676.75.
Ms S further contended that in the ten year period from 1994 to 2004 the husband had made payments to her American Express card totalling $250,000.00 as reflected in the American Express reward points awarded to her. Indeed, annexure “RS-2” to Ms S’s Affidavit sworn 4 April 2005 shows the American Express reward points balance was 242,558 as at 2 June 2004.
During the course of cross-examination in relation to the funding of her American Express account, Ms S stated that she does not keep copies of her American Express statements and has not done so since 1994 other than recent statements that she had with her.
In that regard, Ms S stated that she does not have any such statements prior to 2003. When pressed in relation to the issue of the American Express card, her attention was drawn to annexure “RS-1” to her Affidavit sworn 4 April 2005 in relation to membership as it states “member since 97”. Ms S’s evidence was inconsistent, in that on the one hand she stated she did not really know whether she had obtained the American Express card in 1994 or 1997, or on the other hand that the copy of the card to which I have referred is her Gold card as opposed to an earlier Green card.
So far as other relationships were concerned, Ms S stated that she had had a relationship with a Mr C in 2002 to whom she had become pregnant but that the pregnancy was terminated. Mr C had paid for dinner expenses for the two of them.
Ms S stated that her husband died in 1999. She also stated that she was the beneficiary of late husband’s estate in that Ms S received $75,000.00 which was used to discharge the mortgage on their house and approximately $100,000.00 most of which was spent by her in renovating her house.
Ms S was also cross-examined in relation to telephone voicemail messages and text messages that she had allegedly sent to the husband during last year. Her evidence in relation to the sending of messages and their content was contradictory. Initially, the tenor of Ms S’s evidence was that she could not remember when or where the messages sent or left for him. Subsequently, she did remember at least some messages were sent during 2006. Ms S denied that she was angry with the husband but was disappointed with him. Subsequently, Ms S did agree that she was angry and upset and then gave evidence as to the reasons why she was angry and upset with the husband as well as conceding that she had implicitly sent angry messages to him including “You’re a nasty person”. She further explained that the content of the messages were not really meant by her.
In the husband’s case, he relied upon his Affidavits sworn 20 January 2005, 21 April 2005, 3 October 2005, 7 July 2006 and 25 January 2007.
The husband denied that he had paid $250,000.00 of American Express accounts for Ms S during the period alleged by her, namely 1994 to 2004. It was clear from the husband’s oral evidence that he denied paying that amount or implicitly anything approaching it for any period in relation to Ms S’s American Express accounts.
During the course of his oral evidence, the husband stated that he did not make direct payments to Ms S’s American Express account. Rather, he provided money to her to enable her to write a cheque for her American Express indebtedness from time to time or otherwise provided her with funds by way of reimbursement of expenses that she had incurred which the husband considered were appropriate that he pay either wholly or in part.
The husband further stated that he and Ms S lived together for the period from about May 2003 until approximately the end of June 2004 with intermittent periods of separation.
The husband stated that prior to the cohabitation between himself and Ms S, he did pay or contribute towards expenses that he considered appropriate for his payment including but not limited to financial support for the child. Other expenses met by the husband included school fees for the child and holidays for both Ms S and the child.
The husband acknowledged that he and Ms S travelled together both within Australia and overseas. The husband stated that he met the cost of accommodation and the majority of her air travel expenses.
The husband also acknowledged that during the period of his cohabitation with Ms S that she wrote cheques from time to time on his National Australia Bank cheque account with his approval in order to assist her in prompt payments she had to make, rather than her previous habit of paying cash to various places where she had incurred expenses. The husband stated that Ms S reimbursed him with cash for the amounts represented on the cheques.
The husband also acknowledged that the credit advance of about $30,000.00 being Exhibit 7 did indeed represent funds deposited at his direction to a bank account of Ms S in July 2003. The husband stated that it was repayment of a loan and that the funds so received were utilised by both Ms S and himself during the period in which they cohabited.
The husband denied he had funded the balance remaining to be paid by Ms S on the purchase of a Honda motor vehicle in 2003 after allowance had been made for her trading in a previous Honda motor vehicle. The husband did not deny having provided the latter motor vehicle.
The husband emphasised that Ms S was in employment and earned income as well as having other funds at her disposal and that from May 2003 she was in regular employment. The husband agreed that during the period of their cohabitation he met their household expenses.
Exhibit 11 contains copies of the husband’s cheques to Ms S for the sums of $10,000.00 and $400,000.00 dated 22 July 2004 and 29 July 2004 respectively. The husband’s evidence was that those cheques were in repayment to Ms S of funds he had borrowed from her together with interest on such borrowings. The husband stated that funds had been borrowed by him from Ms S at the time of settlement of the proceedings with the wife in April 2004 in order that he could meet various financial obligations. He further stated that the funds so borrowed were on a commercial basis and that approximately three months later the husband repaid the principal and interest owing to Ms S as evidenced by Exhibit 11.
The husband further agreed that Exhibit 10 is a copy of an undated Will made by him wherein he made substantial provision for both the child and Ms S as he was concerned for the future welfare of the child in the event that Ms S was not in a position at the time of his death to provide appropriate financial support for the child.
There is no issue that the husband provided financial support for Ms S and the child.
The issue is the level of such support. The wife’s case was that funds provided for the benefit of Ms S and/or the child comprised $250,000.00 over the period of their relationship apart from weekly sums, holiday travel, and lifestyle expenses.
The evidence relied upon by the wife was primarily that of Ms S.
The husband denied the level of support which the wife contended he provided to Ms S and/or the child in the amounts alleged by Ms S.
The evidence of Ms S was that she obtained an American Express card shortly after the commencement of the relationship between herself and the husband in 1994 and thereafter the husband made payments on her card and/or met expenditure incurred by her by use of her card which reached a total of approximately $250,000.00 over the 10 year period of their relationship which concluded in about June 2004.
There was an absence of evidence of the credit card provider whether documentary or otherwise that once a category of card issued by the credit card provider has changed, then that is reflected in membership.
It is clear from annexure “RS-2” to the same affidavit, that as at 2 June 2004 Ms S had accumulated a points balance of 242,558. The crucial factual question was whether or not that points balance reflected funds provided by the husband to the credit of Ms S’s account with American Express and/or provision of funds to her to enable payment of outstanding balances to be made. In the event it was not possible to analyse this important issue further. That was due to a number of reasons as follows.
Ms S was unable to produce copies of her American Express account statements prior to 2003. Her evidence, which I accept, is that she had discarded them and did not have a habit of keeping the credit card statements other than a few which she had produced.
For reasons best known to wife and/or her legal representatives no further American Express account statements for Ms S were tendered.
I would have expected that on such an important factual issue an appropriate subpoena to produce documents would have been served on the proper officer of American Express Int. Inc. to produce copies of the relevant American Express account statements for such of the period from commencement of Ms S’s membership to 30 June 2004 as were able to be produced. Yet, my attention was not drawn to any such subpoena having been issued and served. Nor was any evidence given to explain the failure to issue such a subpoena.
As a consequence, it was not possible for an analysis to be carried out, either by way of preparation or particularly during the course of the oral evidence of Ms S to determine:
(a)the number, nature and amounts of her American Express account transactions;
(b)the nature of such transactions; and
(c)to whom payments were made.
As a result, the factual issues rested upon the credibility of Ms S against the evidence of the husband.
Difficulties were further exacerbated upon my consideration of Ms S’s evidence that funds of approximately $100,000.00 which she received from the estate of her late husband who had died in 1999, that is, during the period under consideration, were spent by her on renovations to her house. That of course, raised the question of whether any of that expenditure had been met by use of her American Express account, and if so, reflected to any extent in her points balance of 242,558.
The husband did not deny providing Ms S with funds and/or payment of some of her American Express accounts, particularly during the period that they cohabited which was from early 2003 to the end of June 2004.
The husband denied providing funds which reflected approximately $250,000.00 or any amount even substantially close to that figure.
The husband readily conceded that he did provide regular financial support in one form or another for the child as well as holiday and travel expenses for Ms S and the child both within Australia and overseas, although not at the level contended by Ms S.
The husband did not dispute that the funds represented by the credit advice being Exhibit 7, to which earlier reference has been made, were funds he provided for the benefit of both Ms S and himself during the period of their cohabitation. He also readily conceded that he provided funds from time to time to Ms S both for her benefit (although principally for the child) during the years of their relationship prior to the commencement of their cohabitation.
It is clear that the husband had a real commitment to, and concern for, the welfare of the child as evidenced by a copy of his undated Will being Exhibit 10 and his evidence, which I accept, as to the circumstances and his motivation for making that Will.
I accept the evidence of the husband as opposed to that of Ms S wherever it conflicts. I found the husband to be the more impressive witness due to the consistency of his evidence, the plausibility of his evidence in relation to all contentious issues of fact which were not only consistent with his oral evidence throughout but which accorded with documentary evidence such as Exhibits 7 and 10 and the relevant parts of his affidavits which had been filed and served prior to the trial.
In contrast, the evidence of Ms S not only had the inconsistency and omissions in relation to her American Express membership and statements, to which I have made reference, but also showed her to be an unreliable witness coloured by the bitterness that she has demonstrated against the husband following the breakdown in their relationship in the middle of 2004. That was evidenced as recently as during last year when Ms S not only sent or left angry messages for the husband but also the veiled threat or attempted intimidation by reference to the court proceedings.
In regard to those matters, Ms S’s evidence was inconsistent in that at one point she could not remember messages she may have sent during last year, then upon further questioning she claimed she was not angry but disappointed, and then finally she informed me in considerable detail of her anger and upset so far as the husband was concerned.
Whilst I can understand that Ms S may have been embarrassed or and/or reticent to reveal the name of the father of the child, she then proceeded to give two different names. The early oral evidence on this point was that the father was her late husband. At a later stage, Ms S swore that the father was Mr R. This was yet another instance which has led me to find Ms S to be an unreliable witness.
It is clear from the affidavits sworn by the wife prior to the trial and otherwise part of Exhibit 6 that she had not only knowledge of the husband’s intimate relationship with Ms S but also that he had been providing financial support for her and the child. Indeed, as those affidavits demonstrate the wife carried out her own investigations in relation to Ms S’s lifestyle and pursued those investigations into the area of the husband’s use of company funds and/or his own funds by carrying out her own inspection of financial records of the relevant company and those of the husband including his credit card statements.
The wife was represented by senior and junior counsel instructed by a solicitor. Even allowing for her change of legal representation, on the evidence of Geddes QC considerable time was spent over several weeks in conferences and preparation for the trial and implicitly instructions having been given to all of her legal representatives.
Consequently, there was a reasonable opportunity for the wife through her legal representatives to investigate further the issue of the level of financial support that the husband had been allegedly providing to Ms S and/or the child by one of a number of interlocutory procedures well known to lawyers engaged in litigation. They included a request for particulars; asking of Specific Questions; and/or the issue and service of appropriate subpoenas to produce documents. There is no evidence to suggest that any of those steps by way of preparation took place. Whether that was due to the wife’s lack of instructions, or for any other reason which cannot be determined by me.

Miscarriage of justice due to “any other circumstance” due to “the failure to provide the wife with an interpreter and therefore provide her with a reasonable and/or proper opportunity to participate in the proceedings and to be in a position to properly comprehend or understand the consent orders of 30 April 2004 thereby vitiating her consent thereto”[3]

[3] Case outline for the wife, 05.02.2007, paragraph (i)

In support of this ground, the evidence for the wife comprised her own evidence as well as the evidence of Mr I and Ms J who is an English linguist.

The wife

During her oral evidence, including that given in reply, the wife stated on a number of occasions that the documents comprising the amended minutes of consent orders being Exhibit 5 (“BRG-1”) to the proof of evidence by Geddes QC and the financial agreement were neither read or explained to her by her legal representatives and in particular Geddes QC and junior counsel.
During the course of cross-examination, the wife agreed that a number of her affidavits sworn prior to the trial, copies of which are included in Exhibit 6 were sworn by her without the assistance of an interpreter. In that regard, the wife claimed she had given instructions to her then solicitor and relied upon him to prepare the affidavit implicitly in accordance with her instructions and accordingly swore the affidavits. Indeed, at one stage during the wife’s evidence, she stated that she did not have to read all the affidavits thoroughly as her instructions given about particular events were repeated from earlier affidavits. Presumably, the wife could not have known had unless she had read and understood that material.
The wife further agreed that she had fulfilled the role of interpreter for an acquaintance of hers for the purpose of translating an affidavit for that acquaintance from the English to Korean languages and sworn or completed a certificate to that effect. No doubt the wife would not have carried out that role unless she considered that not only that she had sufficient proficiency in English to do so for a document to be used in court but, was prepared to so certify whether on oath or otherwise.
There was no dispute that the wife’s case for the purpose of the trial was that she had fulfilled a substantial role in the business activities of the companies in which she and the husband controlled and which were the commercial entities for the carrying on of their business activities over many years. Indeed, the case was that the wife conducted the business activities without the husband at times during the periods he was overseas.
In one of her affidavits being part of Exhibit 6, the wife deposed to having inspected company quarterly reports as part of her investigation of funds the husband may have diverted for the purpose of providing financial benefits for Ms S. There was no suggestion in her evidence that the wife’s proficiency in English was at such an inadequate level for that purpose that she needed the assistance of an interpreter or translator.
The wife stated that she had written the document which is “BRG-1” to the proof of evidence of Geddes QC comprised in Exhibit 5. The wife stated that she gave it to Geddes QC on the second day of the trial. It is clear that

“BRG-1” is a document succinctly expressed in English for the purpose of giving instructions regarding settlement. The wife did not suggest at any time that she needed assistance in either expressing herself in English in a written form for that purpose and/or having a translation of the instructions that she proposed to give in that document from the Korean language to the English language from Mr I or any other person.

During the course of evidence given in re-examination by her counsel the wife demonstrated her understanding of terminology and concepts such “superannuation fund” and “restraint on entering premises”.

Mr I

The evidence of Mr I was given in his Affidavit sworn 25 January 2005 substantial parts of which was either not read or struck out on objection and otherwise supplemented by oral evidence permitted by leave.
Mr I is a signwriter by occupation. His affidavit evidence is that he was friends with the parties having known them for approximately 20 years. He was present with the wife at various stages during the hearing in the period 26 to 30 April 2004 as well as at other times, including when one or more of the wife’s legal representatives were also present.
Mr I’s affidavit also deposes to the fact that he asked the wife’s then solicitor “why isn’t there an interpreter?”. Further, when he, the wife and her solicitor were at a City Hotel discussing a proposed settlement the wife asked her solicitor to read and explain it which he then did.
Mr I further deposes that the wife also asked him about the proposed settlement to which he then asked Geddes QC the same question. Geddes QC allegedly yelled “You are not helping us, you’d better get out of here, I’d better talk directly to [the wife]”, “or something to that effect”. He further deposes to a conversation he had with the wife regarding keeping a particular property, namely “[Property U]” and giving the husband an option to buy it.
Oral evidence in chief was also given by Mr I. During the course of his evidence, he reiterated that he was present during part of the hearing in the period 26 to 30 April 2004.
Mr I could not recall if he was present at any conferences with the wife, her solicitor or counsel. Nor could he recollect whether Geddes QC had discussed with him any expectations of him or the role that he should implicitly fulfil in relation to the hearing.
Mr I stated that he was present during some of the discussions between the wife and Geddes QC relating to settling of the matter. He stated he was present during such a discussion on 26 April 2004 being the first day. He stated there was reference to “this house, about the settlement matter for the property”. Mr I further explained that Geddes QC tried to settle the matter “but I can’t remember which one they talk about, which property or whatever, I don’t know”.
Mr I further stated that:
“the one thing I can recall that is the [U Property] – that property – she wants to have one, because I thinks she needs to have a sort of income, like rent, that’s why she need that one for. That’s what [the wife] told me.”
Mr I also stated that in relation to what he heard the wife say to Geddes QC on the first day about settlement:
“I have to be honest as a witness. I can’t even remember if it was 26 of year 2004 April.”
He further gave evidence that:
“Only I can remember is that the – about the [Property U], that’s what she wanted and Geddes QC, he says he – he will, the negotiation with other party and they come back to her and she can have that. That’s all I can remember.”
Mr I was shown part of Exhibit 5 being “the RG-3”. That document is a copy of the minute of orders sought by consent ultimately made on 30 April 2004 being the consent orders. He said that he recollected seeing the document in the hotel “this is the end of the hearing so maybe 30^th of April”.
Not surprisingly, there was no cross-examination of Mr I.
I do not accept the evidence of Mr I on any matter of controversy as he was an unimpressive witness due to his lack of memory about events of substance and inability at times to give coherent or appropriate responses.

Ms J

Evidence was given on behalf of the wife by an English linguist, Ms J, a lecturer at a Melbourne University.
Ms J swore an Affidavit on 24 March 2005 and gave oral evidence.
Ms J is a qualified linguist with particular qualifications in French and German. Ms J has had many years experience as a lecturer and teacher of English as a foreign language. As Ms J explained during the course of her oral evidence, she does not have formal qualifications in the Korean language however, she is an applied linguist which includes studies in discourse features.
Annexure “MTJ-2” to her affidavit is Ms J’s report on the “Assessment of English language proficiency of the wife”. The report is dated 15 March 2005 being the date of her assessment of the wife in terms of her English language proficiency.
In relation to the wife’s reading level, Ms J’s conclusion was that she was:
“able to satisfy basic social needs, and routine needs pertinent to everyday commerce and to linguistically undemanding vocational fields. Able to satisfy limited recreational needs.”
Ms J’s conclusion in her report was as follows:
“Overall, [the wife] is able to understand every day spoken and written English. She has managed to work in a business in Australia and to maintain a limited number of social relationships through her use of English over 20 years. However, she lacks basic grammatical knowledge such as how to form a sentence with accurate sentence structure. Her knowledge of vocabulary is limited in range and register. Formal language is not part of this range. These gaps in her knowledge limit her ability to understand even short texts, even when they deal with topics which are somewhat familiar to her.”
During the course of her oral evidence, Ms J accepted that the wife was a responsive person. In relation to the time that Ms J spent with the wife in interaction following reading tasks, she agreed that it was a limited period.
With regard to the crucial document, namely Exhibit 5 “BRG-3”, Ms J’s opinion was that in terms of having explained to the wife, it would take considerable time and effort. Ms J emphasised that so far as the assessment that she carried out, the concern was the wife’s understanding of the purpose of the particular document which for the purpose of the assessment was an advertisement. With reference to “BRG-3”, Ms J’s opinion was that her experience with the wife was such that she would need considerable detailed help to understand this large document.
Ms J agreed that it was possible the wife would have the appropriate understanding on the assumption that she had considerable detailed help from her lawyers.
During the course of re-examination, Ms J emphasised that the focus on individual words was not the real point. Given that the wife would not be able to understand the document by simply reading it, the real emphasis in terms of the wife’s understanding is “we’re not talking about individual words so much as what is the thrust, what is the meaning of each of the paragraphs, and you would need to check her understanding in some way by asking her a comprehension check question which required more than yes and no”.
Ms J acknowledged that it is possible that the wife’s understanding of particular issues was derived from other sources “you’d need to know all the circumstances”.
With regard to appreciating the understanding of the individual, Ms J stated that a factor includes whether “somebody who had lived in an English-speaking environment for some years which comes into it”.
Ms J agreed that it is relevant to take into account the particular person’s use of the language and experience in commercial transactions which must be looked at on a case by case basis.
Ms J surmised that in the case of the wife the process of explaining implicitly the relevant document could take “a couple of hours”.
I accept the evidence of Ms J.
In doing so, I accept that her evidence had its limitations as clearly Ms J was unaware of the full extent of the wife’s proficiency with the English language both in terms of oral communication and understanding of it in a written form.
As Ms J stated “you’d need to know all the circumstances” so far as the wife’s understanding of particular issues were concerned, expanded upon by Ms J during the course of her oral evidence.
I found Ms J’s oral evidence to be of much assistance compared to her report annexed to her affidavit as it acknowledged factors in terms of the wife’s knowledge of events encapsulated in documents such as Exhibit 5 (“BRG-3”). Also, taking into an account an appreciation of the wife’s understanding based on having lived in an English speaking environment for some years.
In this particular case, on the wife’s own affidavit evidence, especially that sworn prior to the trial, the wife had not only gained a proficiency in English over a period of 20 years living in Australia but, had been substantially involved in the commercial activities of the husband and herself which presumably gave her the proficiency and knowledge to read and understand company quarterly reports to which she referred when endeavouring to consider the use of funds by the husband for ultimate expenditure for the benefit of the wife’s witness, Ms S.
In addition, Ms J did not make any mention of the wife having fulfilled the role of an interpreter in the translation of an affidavit from the English language to the Korean language prior to the trial. No doubt, Ms J would have referred to and commented upon that matter had she been aware of it as I found her to be a witness of integrity.

Geddes QC

Exhibit 5 contains a number of documents. They include proof of evidence of Geddes QC who was senior counsel for the wife at the trial before Carter J which took place from 26 to 30 April 2004. His junior was Teicher. There are a number of attachments to that proof of evidence designated as “BRG-1”; “BRG-2”; “BRG-3”; “BRG-4”; and “BRG-5”.
A summary of the proof of evidence of Geddes QC is as follows.
Geddes QC has practised exclusively in the family law jurisdiction since about 1980.
In about February 2004, he was briefed by the wife’s solicitor to advise and appear with Teicher on behalf of the wife in the relevant proceedings.
Subsequently, in March 2004 he carried out preparation which included conferences, reading, drawing and settling documents. In addition, he had a number of conferences with the wife, Teicher and his instructor in the weeks leading up to the final hearing carried out over six full days in April, apart from a further half day of preparation during the day prior to the first day of the hearing.
Geddes QC states that he spent many hours in conference with the wife during the course of preparation. Prior to his first conference with her, he was informed by Teicher that the wife wished to engage an interpreter. Both he and Teicher decided to see the wife initially without an interpreter to assess the need for such an interpreter. That decision was explained to the wife and she appeared to understand it. Further conferences were conducted on the basis that an interpreter was not needed, but in the event of clarification being required a friend would attend with the wife at court.
Geddes QC states that notwithstanding the wife’s accent and being at times difficult to understand, he was satisfied that she understood his advice, the nature of the proceedings and the issues to be determined. He further states that throughout conferences the wife:
“was an active participant in our discussions, which included discussions involving my instructor, junior counsel and forensic accountant. Other than the initial request for an interpreter, [the wife] did not request the assistance of an interpreter, either during our conferences or for the purposes of the final hearing.”
Geddes QC stated that during conferences the wife “was able to provide me with detailed instructions as to her role in the day to day operation of that business”. The business referred to was that of importing in which the wife had taken an active role.
So far as relevant events which occurred during the period of the hearing, Geddes QC states that the wife was present throughout the hearing. There were times when the matter was stood down for discussion and negotiation. It was his opinion that the wife understood the discussions and advice throughout the proceedings.
On 27 April 2004 the wife gave Geddes QC her signed written instructions in relation to the basis upon which she was prepared to resolve the matter. Those instructions related to her retention of certain specified real estate including U Property (“the [U] property”) and the Q property as well as a cash payment of $1 million.
“BRG-1” is a true copy of those written instructions. That document is clear and specific in its terms signed by the wife. I note that there was no evidence in the course of the hearing before me that the document was other than in the wife’s handwriting, or that it was not her signature or, that she needed to have a prior explanation of it or read to her at any time, whether in the Korean or English languages.
The proof of evidence of Geddes QC further states that Mr I, a friend of the wife accompanied her to Court each day during the final hearing and that Geddes QC included him in his discussions with the wife. However, during the latter parts of the negotiations, Geddes QC requested that Mr I absent himself due to the suggestion that Mr I made to the wife that her offer be withdrawn and be substantially increased by doubling the cash component from $1 million to $2 million.
The wife gave evidence and was cross-examined during the afternoon of 28 April 2004 and throughout the morning of the next day. No objections were made by Geddes QC due to a concern he that may have had as to the wife’s lack of understanding of questions or the nature of the proceedings.
Following further negotiations took place in the afternoon of 29 April 2004 and a settlement having been reached in principle, drafts of the proposed minute of order and binding financial agreement were emailed by counsel for the husband to Geddes QC about 7.10pm, 29 April 2004. Geddes QC was staying with his partner at a city hotel and he accepted the wife’s offer to obtain an upgrade of his room on his behalf.
On 30 April 2004 during the course of finalising the terms of settlement, Geddes QC observed the wife to read the relevant documentation which had been prepared in draft form. Negotiations then continued resulting in further amendments made to the terms of settlement in accordance with instructions given to Geddes QC to the wife.
The document “BRG-2” is a copy of the first draft orders sent to Geddes QC on 29 April 2004 to which earlier reference has been made.
The document “BRG-3” is a copy of the minute of orders made by Carter J on 30 April 2004 with handwritten amendments (“the consent orders”).
At one point on 30 April 2004 the wife became upset and left the precincts of the court. Upon her return, she gave instructions that she did not wish to proceed with the negotiated settlement. Carter J was so informed and adjourned the matter part-heard to 2 August 2004.
Following the order for adjournment the wife then reconsidered the position and instructed Geddes QC to seek a settlement in terms of the minute of orders that had been negotiated during the preceding afternoon and the morning of 30 April 2004.
Geddes QC then states that Teicher read the minute of proposed orders and the binding financial agreement to the wife. He then explained to the wife the:
“meaning and effect of the proposed orders. I explained the concept of finality that would be achieved by the making of the orders and entering into a binding financial agreement. I satisfied myself that the wife fully understood the meaning and effect of the orders and the binding financial agreement. The wife then signed the proposed orders and agreement and initialled the amendments thereto.”
I note that the wife’s initials appear in the margins of the relevant document being “BRG-3” ultimately the terms of the consent orders.
Following the consent orders being made, Geddes QC was of the view that the wife appeared pleased with the settlement and the work performed by him. He paid for all costs associated with his accommodation. Copies of the relevant invoice and credit card receipt are annexed to the proof of evidence and marked “BRG-4” and “BRG-5”.
Geddes QC states that he did not have any further contact with the wife until about 11 November 2004 when he found her waiting for him at his chambers. He was under the impression that her manner was friendly and she informed him that she was inviting him to the 150^th birthday celebration of an exclusive store scheduled for about 17 November 2004. He subsequently declined the invitation.
The proof of evidence also contains Geddes QC’s denial of pressuring the wife to settle or use of coercion as well as other of his alleged deficiencies or lack of explanation of particular matters as referred to in the wife’s Affidavit filed 10 January 2005. He denies the criticism of him contained in the Affidavit of Mr I filed 27 January 2005. In that regard, I note that much of that affidavit is not in evidence before me as it was either struck out or else not read.
It is important to note at this point that counsel for the wife expressly withdrew any allegation that the wife was coerced by Geddes QC or any of her legal representatives into accepting or signing the settlement and final documentation submitted to Carter J which resulted in the consent orders being made and the execution of the financial agreement.
Geddes QC also joins issue with the particular matters described in paragraph 43 of his proof of evidence.
During the course of his oral evidence, and in particular during the course of cross-examination, Geddes QC reiterated and confirmed the essential features of his proof of evidence in Exhibit 5 as well as providing more expansive detail.
Geddes QC stated the parties reached an in principle agreement on the fourth day of the trial, namely 29 April 2004. There were negotiations for most of that day as earlier in the week the husband had conceded the wife should retain the U property. Consequently, the negotiations that day were in relation to the quantum of the cash amount which commenced sometime during the morning and throughout the rest of the day. Most of that time was spent by him with the wife as he only spoke briefly to his opponent.
It was his clear view that the wife understood the terms and that was not only based on the session that day but also what the wife told him she wanted earlier on in the week and what they were trying to achieve.
There were a number of stages as to how he came to satisfy himself that the wife understood the terms reflected in the terms of settlement.
Geddes QC advised he had to spend considerable amount of time with the wife prior to the case commencing. There were three aspects of the case that presented problems. Firstly, the valuation exercise of the business as there had been significant discrepancy between the competing valuers. Secondly, the husband in his trial documents sought to belittle the extent of the contributions made by the wife to the acquisition and her contributions generally towards the business. Thirdly, there was the issue of whatever the wife was to get, how that would be achieved given that a significant amount of assets were owned by the self-managed superannuation funds.
The valuation exercise was the subject of discussions largely with Mr L, accountant retained by the wife directly.
In relation to contributions, Geddes QC had significant discussions with the wife who provided him with a business card prepared by the husband, and told him about the web page setting out her involvement in the business. The wife gave her instructions lucidly and clearly.
With regard to the third aspect, Geddes QC had the assistance of Mr L who had not only been the accountant engaged by the wife directly, but also prior to counsel being briefed.
On the second day of the trial, the wife provided Geddes QC with clear written instructions that formed “BRG-1” being the proof of evidence being part of Exhibit 5. That was at his request because he wanted to know specifically what her expectations were.

Accordingly, prior to the trial and during the trial, he had requested Mr L to discuss with the wife aspects of proposed settlement including the concept of the allocated pension and how she was going to survive financially. From his viewpoint, the wife fully understood. Indeed, the wife never led him to believe that she did not understand.
All discussions in conference and otherwise between Geddes QC and the wife were in English and also so far as he was aware between the wife and her accountant, Mr L.
Geddes QC reiterated the contents of his proof of evidence in relation to the wife raising the issue of an interpreter during the first conference he held with her and the approach subsequently taken in that regard. He did indicate that someone could attend at the trial to provide interpreter services, if necessary.
The first conference with the wife and subsequent conferences involved Geddes QC spending a lot of time with her and at no stage did he reach the position where he thought he did not understand her or the wife did not understand him.
Geddes QC’s confidence in the wife’s understanding was also because of her not only producing a business card tendered in evidence at the trial, and a web page setting out her skills, but on the wife’s instructions she had been living in Australia for 20 years, she had been a significant person involved in the business and that whilst the husband was overseas she ran the business herself. There was no suggestion to him by the wife that every time she had to deal with a client that it was only using the Korean, Mandarin or Cantonese languages. The wife’s instructions were quite clear. The wife had dealt in the business community and at times had run the business by herself. Indeed, subsequent to the first conference the wife never suggested an interpreter.
Geddes QC’s further evidence was that he invited the wife to raise the issue if she did not understand him or the process.
So far as settlement was concerned, there was a “template” in settlement arising from the 27 April 2004 that the wife wanted four properties. On the Monday, 26 April 2004 the wife wanted the U property as part of a group. The husband ultimately conceded that. On the Tuesday, Geddes QC had the document “BRG-1” and knew precisely what the wife wanted. Ultimately, the husband conceded the four properties. The negotiation only involved the sum of money. On the Tuesday, it was four properties plus $1 million. On the Friday, it had gone up to the four properties plus $2 million. As the wife’s cash proposal doubled, understandably that is why Geddes QC became cross with Mr I and asked him to absent himself.
On the second last day of the trial, namely 29 April 2004 the wife was given drafts of the minutes of consent orders and financial agreement to read. The following day the documents and the final drafts were read to the wife by junior counsel. His instructions to junior counsel were that those documents be read slowly to the wife so that the effect would be properly communicated to her. Geddes QC was present at times, although not throughout, when the documents were read to the wife by junior counsel. He had previously sat down with the wife and discussed the negotiated position that had been reached. He explained the effect of the documents to the wife over a period of about 20 minutes. However, that had to be seen in the context of what had taken place over the preceding few days of negotiations, obtaining instructions and stages of agreement. After his explanation, Geddes QC asked the wife if she was satisfied to sign and implicitly the wife was. No further questions were asked of him and an interpreter was not sought. Indeed, during the course of the wife’s oral evidence, especially cross-examination which occupied a considerable period of time the wife did not seek to have the assistance of an interpreter.
On the occasion of the wife’s unexpected arrival at his Chambers on 11 November 2004 to extend an invitation to him to attend the exclusive store function and their conversation at his Chambers, the wife communicated with him in the English language without difficulty.
The wife’s voluntary action in extending Geddes QC an invitation to that event is hardly the action of a client upset and disappointed that the relevant documents signed by him settling her property settlement case were neither read or explained to her.
It is clear from the evidence of Geddes QC that he has had substantial experience as both junior and senior counsel implicitly in trial work in the family law jurisdiction.
There was no suggestion that Geddes QC’s evidence in relation to the responsibilities that he carried out in careful and detailed preparation on behalf of the wife for the trial including obtaining all necessary instructions and concern that the wife fully understood the issues and process prior to the trial were remiss in any way.
Nor was it suggested to Geddes QC that the instructions he had obtained from the wife in conferences were in any way defective either in the understanding or, comprehension of those instructions by him or, as given by the wife without the assistance of an interpreter.
Geddes QC’s evidence was that considerable time had been spent by him not only in negotiations but with the wife in obtaining her instructions at the various stages of negotiations over a period of the last four days of the trial. I accept his evidence that he was able to do so.
Neither the wife nor Mr I gave evidence that for the purpose of giving those instructions to Geddes QC, it was necessary to use an interpreter or that a request was made to him that an interpreter be used to assist the wife. The fact that the wife had the comfort of the presence of her friend Mr I and no doubt spoke to him in the Korean language does not qualify the findings I have made.
I also accept the evidence of Geddes QC that the wife did not need the assistance of an interpreter during her lengthy cross-examination before Carter J. Apparently, the wife was able to furnish written instructions in English with clarify and precision regarding proposed terms of settlement on day two of the trial as evidenced by Exhibit 5 (“BRG-1”) to the proof of evidence of Geddes QC.
In addition, so far as the wife’s level of proficiency in understanding English language in a written form in formal documents, I have referred to and accept the oral evidence of the wife that she swore a number of affidavits prior to the trial, copies of which are set forth in Exhibit 6.
In addition, prior to the trial the wife had acted as the interpreter for an acquaintance for the purpose of that person having an affidavit translated from English to Korean languages and the wife gave the appropriate certification for that court document.
The wife has had considerable experience, on her own evidence, in the use of the English language both spoken and written in the conduct of the business activities of the relevant companies. The wife’s own evidence was that she was implicitly familiar with and could understand company quarterly reports which she read for the purpose of endeavouring to ascertain the use of funds by the husband for the benefit of the wife’s witness in these proceedings, Ms S.
I accept the evidence of Geddes QC regarding instructions he gave to junior counsel for the wife to read the minutes of consent orders and financial agreement to the wife and that it be done slowly to ensure appropriate understanding by the wife. Whilst Geddes QC was not present throughout the reading of those documents, his evidence is that he entered the room on a number of occasions whilst that process was being carried out by junior counsel. I accept Geddes QC’s evidence. Indeed, it was not put to Geddes QC that he had fabricated or exaggerated his evidence in that regard or in any other aspect of his evidence in general.
There was controversy in the evidence as to whether it was the wife rather than Geddes QC who had paid for his accommodation at the city Hotel. Geddes QC’s evidence is corroborated by copies of the relevant hotel invoice and credit card payment slip. I accept it in preference to the evidence given by the wife, although she did concede that it was possible that there had been a double payment. No documentary material was tendered in evidence to support that hypothesis nor was any adjournment sought for that purpose.
There is no doubt that the wife was familiar with the terms of settlement so far as property she sought to receive whether by way of real estate or cash amount. The real estate sought by the wife had been agreed to by about the middle of the week of the trial and the remaining days were spent in negotiations as to the lump sum payment as well as an option to the husband for the purchase of the U property. They are important aspects in terms of the manner in which the wife was already informed as to the contents of “BRG-1” and the financial statement as explained by Ms J.
I particularly accept the evidence of Geddes QC regarding not only the progressive information that the wife had over a number of days during the trial in relation to the progress being made in settlement leading up to “BRG-3” and the financial agreement being signed, but that it was against that background Geddes QC provided an explanation of the content of those documents to the wife on 30 April 2004. To that extent, Geddes QC carried out the exercise referred to by Ms J when she emphasised “so we’re not talking about individual words so much as what is the thrust, what is the meaning of each of the paragraphs”. [Emphasis added]
The uncontradicted evidence of Geddes QC, notwithstanding the opportunity to do so by the wife in reply, is that not only did the wife ultimately appear to be satisfied with the settlement reached on 30 April 2004 but that several months later, namely 11 November 2004 the wife provided an unsolicited invitation to Geddes QC to attend an exclusive store function. Implicitly, that was recognition of the wife’s appreciation of Geddes QC in his professional capacity on her behalf.
Finally, I found the wife to be an unimpressive witness on matters of controversy. Even allowing for the fact that English is not her first language and her obvious need to express herself as fully as possible about matters that she considered to be of importance. It was clear from the wife’s answers and the manner of her answering that she could not or would not concentrate on answering the question, even if not directly, on many occasions and her explanations for swearing a number of affidavits prior to the trial without an interpreter and the role she fulfilled as an interpreter for an acquaintance in the translation of an affidavit from English to Korean languages were fanciful. In addition, the wife’s blanket denial of the relevant documents having been read and/or explained to her by Geddes QC and/or junior counsel on 30 April 2004, in the face of the detailed evidence given by Geddes QC, was simply not credible.

Conclusion

The application of the wife is that the consent orders be set aside pursuant to s 79A(1)(a) in that there had been a miscarriage of justice by reason of the grounds set forth in that sub-section other than “duress” which was not relied upon. That was made clear during the opening of the hearing and again during oral submissions notwithstanding that “duress” was referred to in the written summary of argument prepared by counsel on behalf of the wife.[4]
[4] “Outline of case and summary of argument prepared on behalf of the wife”, page 1 (handed up in court, 12.02.2007)
There was no issue taken by senior counsel for the husband in relation to the exposition by counsel for the wife of the legal principles that apply for the purpose of determining whether or not there had been a miscarriage of justice or that parties to litigation in relation to financial issues have a duty to make full and frank financial disclosure.
I accept that “miscarriage of justice” is not limited to matters that affect the integrity of proceedings but has a more expanded meaning which encompasses circumstances which persuades a court that an order was obtained contrary to the justice of the case.[5]
[5] Suiker and Suiker (1993) FLC 92-436
As counsel for the wife emphasised during the course of his oral submissions “suppression of evidence” together with “any other circumstance” were the bases principally relied upon for the purpose of concluding that there had been a miscarriage of justice when the consent orders were made.
The case was conducted and submissions made in relation to the findings of fact that were necessary to be established on the balance of probabilities for the purpose of providing the factual platform upon which the grounds to which I referred could be established.
As counsel for the wife emphasised on a number of occasions at “the heart” of the case for the wife was the alleged suppression of evidence by the husband in relation to the extent or level of financial support or provision that he had made over a 10 year period for the benefit of Ms S and/or the child.
Crucial to that evidence was the allegation that apart from other financial provision made by the husband from time to time during the course of that relationship, he had funded the American Express account of Ms S for an amount totalling approximately $250,000.00. In that regard, Ms S referred to the American Express points she had accumulated to which I have made reference.
I have made findings of fact which have the result that the wife’s case based upon the evidence of Ms S, having regard not only to her evidence but that of the husband, that suppression of evidence has not been established based on the contentions as to the level of financial support provided by the husband to Ms S.
In addition, the wife relied upon the evidence of Ms S for the purpose of establishing that the husband had suppressed evidence of an alleged offer to purchase the business undertaking of the relevant company or companies for $5 million, quite apart from his own alleged view that he may be able to obtain $8 million.
I have not accepted Ms S as a credible witness in relation to those factual matters for the reasons explained by me.
I made findings accordingly. As a result, I conclude that the ground of suppression cannot be established as the factual basis for it is not the subject of findings made by me.
It is also submitted on behalf of the wife that the husband failed to make a full and frank financial disclosure at the trial of outstanding loans made by him. Those loans were in the sums of $30,000.00 as demonstrated by the repayment evidenced in the bank credit advice being Exhibit 7 and other loans of $5,000.00 to $10,000.00. The husband’s explanation for failing to mention those loans, especially the loan of approximately $30,000.00 in his relevant financial statement or in oral evidence at the trial was that he did not believe it would be paid. I found the husband to be a sincere witness who gave his evidence in a frank fashion without prevarication and I accept it.
Alternatively, should that finding of fact be in error, notwithstanding the particular advantage that a trial Judge has in observing a witness and the appellate principles that apply in relation to interference with findings of fact, I have concluded that those loans were relatively minor matters, the disclosure of which would not have made any substantial difference to an order which may have been made at the trial.[6]
[6] Livesey and Jenkins (1985) 1 All ER 106 at 199; followed in Morrison and Morrison (1995) FLC 92-573
The case brought to trial before Carter J was a multi-million dollar case involving inter alia allegations of a great deal of money spent on gambling and lifestyle. It is in that context that I have concluded that the omission to refer to the loans identified were minor, relatively speaking.
I have concluded that the wife has failed to establish her case in terms of relying upon the ground of “any other circumstance” which caused a miscarriage of justice due to the failure to provide an interpreter and as a consequence her inability to “properly comprehend or understand the consent orders of 30 April 2004 thereby vitiating her consent thereto”.[7]
[7] Ibid
The factual basis to support that ground has not been made out given the findings of fact made by me whereby I preferred the evidence of Geddes QC compared to the wife for the reasons previously given.
In terms of the alleged lack of appropriate explanation by Geddes QC to the wife in relation to the relevant documents, as are previously referred to, the explanation given by him cannot be seen in a vacuum. All of the relevant circumstances have to be considered, including:
(d)the wife’s prior knowledge;
(e)the negotiations that took place at various stages with substantial periods devoted to instructions since the second day of the trial;
(f)the acceptance by the husband that the real estate sought by the wife was to be part of the settlement;
(g)the wife’s knowledge that the real estate represented assets in the superannuation fund; and
(h)the concentration thereafter of negotiations and instructions as to the lump sum that the husband was to pay to the wife in the event that a compromise or settlement was reached.
It is against that background that the thrust of documentation was explained by Geddes QC to the wife.
The circumstances in a given case must be reality tested rather than simply applying a counsel of perfection in terms of explaining virtually each line as if the client concerned did not have any prior knowledge of the content of the document which ultimately was explained to her.
Indeed, it was difficult to discern what it was that the wife actually complained of, in terms of her lack of understanding of the relevant documentation. The wife certainly was aware of being placed in the position of control of the U property as otherwise it would have been pointless for her consider and give instructions regarding an option for its possible sale by her to the husband.
If the real complaint is that certain terms of the consent orders and/or financial agreement were not properly implemented then it was a matter for the wife to commence enforcement proceedings.
Should the wife’s complaint have been alleged incompetence of her legal representation then that does not constitute a miscarriage of justice unless it amounts to no representation at all, or of itself adversely affects the judicial process or the trial.
As has been emphasised, s 79A(1)(a) is concerned “with an unfair trial rather than an unfair result”.[8]
[8] Clifton and Stuart (1991) FLC 92-194; La Rocca and La Rocca (1991) FLC 92-222
Although the case for the wife was opened on the basis that the financial agreement be set aside pursuant to the provisions of ss90K and/or 90KA[9] no submissions were made specifically addressing those sections of the Act.[10]
[9] Case outline, paragraph 6, 5 February 2007
[10] Ibid, summary of argument on behalf of the wife, 12 February 2007
However, I have assumed in favour of the wife that the submissions made on her behalf in respect of various factual issues were also directed to the relevant grounds in s90K(1). “The principles of law and equity” referred to in s90KA were not addressed in submissions.
The issue of the exercise of discretion inevitably does not arise given that I have not been persuaded that a miscarriage of justice has occurred by reason of any of the grounds relied upon by the wife.

Application in a Case of the wife filed 14 December 2006

There has not been an opportunity for submissions to be made regarding this application in terms of payment of amounts by the husband which are outstanding pursuant to the consent orders and compliance by the wife with all of the consent orders.
Consequently, I will make directions for written submissions to be provided and I will then determine the matter on the Papers unless I receive a submission from either counsel that I should hear oral argument.

I certify that the preceding two hundred and thirty five (235) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Dated: 13 July 2007
(amended 16 July 2007 pursuant to the “slip rule”)

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GALEFORD & GALEFORD

[2007] FamCA 697

13 July 2007

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