Gason & Gason

[2007] FamCA 114

FAMILY LAW ACT 1975

IN THE FAMILY COURT
OF AUSTRALIA
AT PARRAMATTA

No. PAF.2035 of 2001

BETWEEN:

MR GASON

Applicant/Husband

AND

MRS GASON

Respondent/Wife

CORAM: Justice JPH Stevenson

DATE OF HEARING: 17 & 18 July 2006,
11, 12 & 13 September 2006
Written submissions 23 September 2006 &
3 October 2006

DATE OF JUDGMENT: 28 February 2007

JUDGMENT OF THE COURT

APPEARANCES : Mr Givney of counsel instructed by Goldrick Farrell Mullan, Solicitors, DX 28470 PARRAMATTA appeared for the Applicant Husband

Mr Kolomyjec, counsel, of Oatlands Chambers, PO Box 48 OATLANDS NSW 2117 appeared for the Respondent Wife

CATCHWORDS

FAMILY LAW - PROPERTY - ORDERS - Application to set aside

THE PROCEEDINGS

By an Amended Application filed on 24 June 2005 the husband sought orders pursuant to section 79A of the Family Law Act. He sought to set aside consent orders for settlement of property, made in the Local Court at B, on either 20 April 1998 or 22 April 1998. If these orders are set aside, he seeks that his former wife, Mrs Gason, sell the former matrimonial home D and effect an equal division of the net proceeds. The husband would also seek from the wife payment of a sum equal to 50% of the value of a Toyota motor vehicle alleged to be in her possession.
The wife sought a dismissal of the Application of the husband. In her Amended Response filed 7 March 2006 she also sought an order to “rectify” consent orders made in the Local Court on 20 April 1998. I was unsure of the meaning of that paragraph of the husband’s Response and, in any event, this relief was not pursued.
The hearing commenced on 17 & 18 July 2006, when the husband began to give his oral evidence. Real concerns arose as to the state of his health and his capacity to continue to give evidence, thus it was necessary for the proceedings to be adjourned. The hearing resumed on 11 September 2006 and proceeded on 12 & 13 September 2006. I received written submissions on behalf of the husband on 25 September 2006 and the wife on 3 October 2006. I apologise for the delay in my delivering judgment, which was due to the serious illness and death of a very close relative of mine in the intervening period.

BACKGROUND

The parties who are both 55, married in October 1986. There was a substantial dispute in relation to the date of their separation, which I will consider in detail later in these reasons. There were no children of the marriage.
In 1988 the parties purchased a home unit at L for approximately $40,000 or $41,000. It was common ground that a bank mortgage was obtained but there was a dispute as to the source of the balance of the purchase money. The wife maintained that the husband borrowed $10,000 from her sister-in-law and that the rest of the money came from joint savings. The husband said that he paid a deposit of 10%, using a credit card, and that the balance of the purchase money came from a joint bank loan.
In 1989 the parties purchased an investment property at W in Queensland. The husband maintained that the purchase price was $61,500, all of which was borrowed from a bank or charged to his credit card. The wife could not recall the details of the purchase. She claimed that the parties incurred a net loss on the sale of this property.
In 1989 or 1990 the parties purchased the former matrimonial home, D for $147,000. Again, there was a dispute in relation to the source of the purchase money. The wife said that they utilised the proceeds of sale of the Queensland and L properties and obtained a bank loan. The husband maintained that most of the money came from a mortgage advance, a loan from a friend and a charge to his credit card.
In 1994 the parties purchased an investment property in Perth. The husband said that the purchase price was $46,000, which came from a charge to his credit card and a loan from AMP Executive Housing. He claimed that the parties realised a profit of approximately $11,000 on the sale of this property. According to the wife, the transaction resulted in a net loss.
In 1992 the wife’s mother, Mrs D, began to live with the parties on a full time basis. On 3 November 1993 Mrs D paid $51,144 in reduction of the ANZ Bank mortgage on the D property. The payout figure then stood at $34,696.
In these proceedings, the wife alleged that the parties separated in March 1996 and never resumed cohabitation. She conceded that they occupied the D property simultaneously at various times after March 1996, until 2003. The husband conceded that he obtained a Housing Department flat at E in 2002 and that he has lived there permanently since November 2003. Ultimately, the husband submitted that the parties lived separately and apart between March and July 2002 and separated finally on 30 November 2003.
The husband has a lengthy history of psychiatric problems and admissions to mental health facilities. As I will set out below, the evidence in respect to his psychiatric condition was limited and unsatisfactory. It appeared to be common ground, however, that he has suffered from bipolar disorder for a number of years.
In July/August 1996 the parties travelled together to Poland. They returned to Australia separately and resumed occupation of the D property. This was a dispute as to whether the husband occupied a spare bedroom from that point.
The husband said that he experienced severe workplace stress in November 1997, which prompted him to make an impulsive trip to Perth. He was admitted to a psychiatric hospital in Western Australia as an involuntary patient on 23 November 1997, after the wife and his daughter travelled to Perth. Following his discharge from hospital in November 1997, the parties returned to Sydney together. They both then occupied the D property, again in disputed circumstances.
The husband began to consult a psychiatrist, Dr R, on 3 November 1994. He saw Dr R on 1 December 1997, a couple of days after he and his wife returned to Sydney from Perth. Dr R admitted him to a private psychiatric clinic at W in December 1997. The date of his discharge was not in evidence but, certainly, by early January 1998 he was living again in the former matrimonial home.
In January 1998 the parties executed documents which, on their face, were designed to bring about a property settlement between them. They signed a prescribed form entitled “Application for Consent Orders” which bore the date 13 January 1998. They also signed a document entitled “Minutes of Consent Orders”, which was annexed to that application. Both the application and the Minute were witnessed by solicitors, being Mr N for the wife and Mr O for the husband. The Application for Consent Orders was filed in the Local Court at B in April 1998. The evidence provided no explanation for this delay of about 3 months.
Orders were made by consent in the Local Court on 20 or 22 April 1998, in accordance with the Application and Minute executed by the parties and dated 13 January 1998. Effectively, these orders provided as follows:
·The wife was to pay a sum of $50,000 to the husband, being $22,000 upon the execution of a transfer of his interest in the D property to her and the balance of $28,000 within 3 years of the date of the orders.
·The wife was to indemnify the husband in relation to the mortgage on the D property.
The prescribed form of Application for Consent Orders contains a section headed “Statement of Independent Legal Advice”, referable to the applicant and the respondent individually. The form also contains a “tick-a-box” series of questions, to be verified by affidavit, for completion by each of the applicant and the respondent.
The originals of the “Application for Consent Orders” and the Minutes of Consent Orders” were not in evidence before me. I had only copies, or parts thereof, as annexed to the various affidavits of the parties. These copy documents indicate the following, inter alia:
·the box which states: “I have had independent legal advice on my relevant rights under the Family Law Act and the effect and consequences of the orders being made in the terms proposed” was ticked in the section of the form relating to the wife
·The wife signed the application but her signature was not witnessed by Mr N or any other person
·Mr N did not complete the “Statement of Independent Legal Advice” in relation to the wife
·Mr N and the wife both signed the “Minutes of Consent Orders”
·the box relating to the receipt of independent legal advice was ticked in the section of the form relating to the husband and signed by Mr O
·The husband and Mr O both signed the Application for Consent Orders and the Minute of Consent Orders
·“March 1996” was written in the box entitled “date of separation”
The husband executed a transfer of his interest in the D property to the wife on 8 April 1998. On 9 October 1998 Mr O wrote to the husband, noting: “we have not heard from you since January 1998”. This letter informed the husband that Mr O held the transfer, pending payment by the wife of the initial sum of $22,000.
The husband replied to this letter on 16 October 1998. He wrote:
“In response to your letter dated 9 October 1988, please hand over the Transfer document for [D property] to [the wife’s] solicitors. On 1^st of May I’ve received the sum of $22,000 from [the wife] as was agreed in the Terms of Settlement”.
I digress briefly to deal with a submission on behalf of the husband, relating to the credit of the wife. She referred to the solicitors who acted for the husband as “[B]”. On behalf of the husband it was submitted that this proposition is incorrect and illustrates a general unreliability in her evidence. In fact, it appears that Mr O was the principal of the firm B, as he was identified as such in the firm’s letterhead (annexure S to the wife’s affidavit sworn 6 March 2006). Further, the address of B, Solicitor, on this letterhead was P. The husband addressed his letter of instruction in relation to the handover of the transfer to B, solicitors, at the same place. This letter, dated 16 October 1998, was marked “att: Mr J. [O]”. Accordingly, this submission appears to be baseless.
In February 1998 the wife arranged to borrow $50,000 from A Loans. These funds were drawn down in April 1998. On 9 July 1999 the parties jointly borrowed $120,000 from the Colonial State Bank, using the D property as security. On 20 December 2000 the wife alone borrowed $73,000 from the Colonial State Bank. In fact, the D property was security for all of these borrowings
There was a substantial dispute as to whether any part of the money borrowed by the wife from A Loans and/or the Colonial State Bank was paid to the husband. I will consider the relevant parts of the evidence in this regard at a later time in these reasons. Unfortunately, this evidence was confusing and incomplete.
On 18 July 2000 the husband was retrenched from his employment as an engineer with A. It was common ground that he received a lump sum but there was no evidence of the amount. The wife maintained that the husband paid a sum of $30,000 to her and said “this should pay off most of my debt to you”. The meaning and context of this statement was never clarified.
The husband travelled to Europe late in 2000 and it seems likely that he paid for this trip with his retrenchment money. On his return, the parties both occupied the former matrimonial home in disputed circumstances. The wife maintained that they lived in a state of separation under one roof, whereas the husband alleged that they lived together as husband and wife.
After his retrenchment from A, the husband was employed by P Limited for about 4 months. He was retrenched by this company in November 2000 and has lived solely on a disability benefit since early 2001.
The husband suffered a manic episode while on a trip to Lightning Ridge in October 2003 and spent time in various country hospitals. In December 2003 he was scheduled to C Hospital, where he remained as an involuntary patient until mid January 2004.
Prior to the husband’s admission to C Hospital, there was an incident between the parties at the former matrimonial home in November 2003. As a result of this incident the wife suffered bruising to various parts of her body. The police obtained an apprehended violence order for her protection for 2 years from late January 2004.
The present proceedings commenced when the husband filed an Application Pursuant to Section 79 in the Federal Magistrates Court on 8 February 2005. He filed an Amended Application, invoking the provisions of section 79A, on 24 June 2005.

THE HUSBAND’S CASE PURSUANT TO SECTION 79A

The written submissions filed on behalf of the husband set out the basis of his case in the following terms:
“The husband seeks orders setting aside the orders pursuant to s.79A and consequential property orders.
There are two legs to the husband’s argument for setting aside the orders pursuant to s.79A being:
Pursuant to s.79A(1)(d) there has been a miscarriage of justice because one or all of the following:
The court was not informed at the time the orders were made that the husband shortly before signing the orders had had two periods of hospitalisation and was obviously under the care of [Dr R] at the time the orders were signed.
The Local Court at the time of the making of the consent orders was not made aware of the contents of [Dr A] reports dated 11 December 1997 (Annexure A of husband’s affidavit sworn 23 June 2005) and 8 April 1998 (Annexure C of husband’s affidavit sworn 23 June 2005.
The Local Court was not made aware that the parties had not separated.
The husband was not capable because of his mental state at the time of giving lucid instructions or understanding advice.
The husband on his own evidence did not receive independent legal advice.
There is no intention of monies being paid to the husband, and he received no consideration for the bargain.
The intention of the orders was to protect the parties from creditors.
There was not an intention to pay the husband monies pursuant to the orders by either party.
Pursuant to s.79A(1A) the orders should be set aside because:
The parties were not separated and/or conducted themselves in such a way as to give rise to an implied consent to the orders being set aside.
The orders that the parties entered into have no logical or causal connection with their marriage and did not arise in any way from the state of the marital relationship.”
I would summarise the basis of the husband’s case as follows:
·because of his psychiatric condition he lacked the capacity to understand legal advice and/or consent to the orders
·he did not receive independent legal advice
·the court was not made aware of his psychiatric condition
·the intention of the parties was to protect their matrimonial home from his creditors, not to effect a final distribution of their property between them
·the parties were not separated at the time when the orders were made and there was no nexus between the marital relationship and the orders
·all or any of these circumstances constitute a miscarriage of justice for the purposes of section 79A(1)(a)
Alternatively, the conduct of the parties after 13 January 1998 constitutes an implied consent to the setting aside of the orders, for the purposes of section 79A(1A).
Section 79A(1)(d) does not seem to be relevant to the present circumstances. That subsection provides as follows:
section 79A(1)(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;
There were no children of the marriage of the parties. It is thus impossible for the husband’s application to succeed by reliance upon this subsection. I infer that the husband relies upon a “miscarriage of justice” within the meaning of section 79A(1)(a), which provides as follows:
section 79A(1)(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;

MISCARRIAGE OF JUSTICE
The husband’s Psychiatric Condition and His Capacity to Consent to the Making of the Orders in the Local Court

As I have said, it was common ground that the husband has suffered from bipolar disorder for several years. There was, however, no medical evidence which addressed directly his psychiatric condition and his capacity to enter into the consent orders.
In his affidavit sworn on 8 February 1995 the husband said that he saw a psychiatrist, Dr R, on a regular basis from 1995. The husband’s evidence was inconsistent as to when these consultations commenced. Dr R reported, however, that he first saw the husband on 3 November 1994 and that date is almost certainly correct.
No evidence at all from Dr R was called in the case for the husband until concerns arose as to the state of his health and his capacity to continue the litigation. A report from Dr R dated 9 August 2006 was tendered on the resumption of the hearing on 11 September 2006. The contents of this report can be summarised as follows:
·The husband has a history of bipolar disorder dating back to the 1970’s
·Dr R first saw the husband on 3 November 1994 and has been treating him monthly for 4 to 5 years
·The husband continues to suffer from a recurrent bipolar disorder, with a predominance of swings into the depressed phase of the illness but with an occasional bounce into mood elevation
·The husband has been prescribed medication to control the illness, being mainly lithium and Zoloft.
The remainder of Dr R’s report addressed the issue of the husband’s capacity to continue to conduct the present proceedings.
The husband annexed to his various affidavits copies of two medical certificates from Dr A, a general practitioner. These two certificates were dated 11 December 1997 and 8 April 1998.
Dr A’s medical certificate dated 11 December 1997 stated as follows:
“This is to certify that…..[the husband]….is suffering from manic depressive illness and in a manic phase of it, may act irresponsibly as far as his financial matters go” and
“This letter has been issued to present it to American Express and, other Banking Institutions.”
This document contained no opinion as to the husband’s psychiatric state in December 1997 and, obviously, could not address his condition in January 1998.
Dr A’s medical certificate dated 8 April 1998 was addressed to “to whom it may concern” and the final sentence reads “I am aware of his current situation and ask you to reconsider it”. The doctor did not identify the husband’s “current situation”, nor offer any opinion as to his psychiatric state as at the date of the certificate or in January 1998.
Otherwise, this second medical certificate of Dr A contained a confirmation that the husband suffers from a manic depressive illness and stated that the symptoms “may include psycho-motor retardation, mood variation, poor appetite, feelings of guilt, worthlessness and hopelessness.” The doctor repeated that the husband may act irresponsibly in relation to his financial affairs in a manic phase of his illness.
It thus appears that there are two medical practitioners who would have been in a position to assist the court with evidence as to the husband’s psychiatric state at the time when he entered into the consent orders. No such evidence was forthcoming either from Dr A or Dr R. There was no explanation offered for the absence of such evidence in the case for the husband.

It was submitted that the contents of the two reports of Dr A are sufficient to justify a finding “on the balance of probabilities that [the husband] was suffering from manic depressive illness between mid-November 1997 and at least mid-April 1998”. In my opinion, such a finding is not open on the basis of the reports of Dr A. The fact is that Dr A offered no opinion as to the husband’s psychiatric condition as at the date of either of his two certificates.
I am of the view that there is no expert evidence which establishes, to the requisite standard, that the husband suffered from a psychiatric condition which impaired his capacity to enter into the consent orders on or about 13 January 1998. As I have said, it appears that either or both of Dr R or Dr A could have provided evidence of the husband’s psychiatric condition and his capacity to enter into the consent orders in January 1998. In these circumstances, I draw the inference that further evidence from these two medical practitioners would not have assisted the husband’s case.
In addition, it seems to me that the husband’s own evidence of his work history militates against the finding which he seeks as to his mental capacity at the time when he entered into the consent orders. He was employed as an engineer by A between March 1989 and July 2000. In his affidavit sworn on 8 February 2005 the husband said that he commenced work as a salaried building engineer in March 1989 and “a few years later” was promoted to area engineer with a “considerable” increase in salary. He said that “a few years later” he was again promoted and achieved a position of “facilities manager” with a further increase in salary to a range of $50,000 to $85,000 per annum, depending on bonuses.
The husband said that he was on sick leave between December 1997 and mid-February 1998. He went on to say that his work responsibility diminished by 30% to 40% in 1998, as he was moved from a work site in O to a simpler job at P. His retrenchment from A did not occur until July 2000 and he had another short-term job later in that year. He began to receive a disability pension only in 2001.
As I have said, I am not persuaded that there is evidence that the husband suffered from a psychiatric condition which impaired his capacity to enter into the consent orders. That being so, I am of the view that any failure to put before the Local Court evidence as to his psychiatric state does not assist his case in these proceedings.

The husband’s Evidence As To Separation And The Making Of Consent Orders

In his affidavit sworn on 24 February 2005 the husband said that he began to see Dr R in the early 1990’s and was prescribed medication. He referred to “manic episodes” which caused him to suffer “acute sleep disturbances and panicky fears causing [him] to sometimes get up in the middle of the night and spend the rest of the night away from the house”.
In his affidavit sworn on 24 June 2005 the husband deposed that “he suffered from manic depressive psychosis going back to the 1970’s”. He described his symptoms in the period before his first consultation with Dr R as “low mood, loss of interest, poor appetite, inability to sleep through the night, hiding away from people in the dark, loss of concentration and vague but not definite thoughts of suicide”.
In this affidavit the husband said that Dr R prescribed Prozac and lithium for him. He described a situation of workplace stress, which prompted him to make the impulsive trip to Perth in November 1997. He said that he was admitted to a psychiatric hospital in Perth as an involuntary patient in November 1997, following the arrival of the wife and his daughter. He was discharged from hospital on 29 November 1997 and returned to Sydney together with the wife.
The husband described his condition prior to his journey to Perth in these terms:
“I had worked 17 days more or less non stop. I lost about 12 kilograms in 2 weeks and was sometimes working 24 hours a day. I recall that on one occasion during this period I went for 46 hours without sleep. I was drinking a lot of coffee to stay awake at work and was smoking about 100 cigarettes a day when I would otherwise normally only smoke 10 to 15 cigarettes a day.”
After he returned to Sydney from Perth the husband saw Dr R on 4 December 1997 and again on 11 December 1997. On the second occasion Dr R admitted him to a private psychiatric clinic at W as a voluntary patient. The husband said that he “became overactive and spent some money freely” between the date of these two consultations with Dr R.
The husband deposed that the wife said to him, following the return from Perth in November 1997, words to this effect:
“I am worried that the debts may cause us to lose the house.”
She then said to him in December 1997 or early January 1998:
“I have been to a solicitor to make arrangements so we don’t lose the house.”
The husband alleged that the wife drove him to the office of a solicitor in January 1998 and said to him:
“I have made arrangements to protect the house as suggested by your doctor”.
He maintained that he has “little recollection of anything that [Mr [O]] said…..nor its meaning”. The husband said that he felt “an overwhelming urge to get the appointment over and done with so that I could be taken home and get back into bed”. He said that he recalled that Mr O read a document to him.
In his affidavit sworn on 8 February 2005 the husband said that during a manic episode he incurred large debts. The wife told him that she had arranged for his name to be removed from the title to the former matrimonial home and she drove him to the office of Mr O. The husband said that he signed documents which were put in front of him but that these “Minutes of Consent Orders” were “radically different from what we had discussed in the family solicitor’s office”.
The husband has given differing accounts of periods of separation and cohabitation in his various affidavits. In response to an Application for Divorce filed by the wife on 15 January 2004, the husband swore an affidavit on 4 June 2004. He deposed that he left the D property, at the request of the wife, in March 2002 and that the parties lived in separate residences until about July 2002. They then reconciled and lived together as husband and wife in the D property until October 2003. At that time, he left on a trip to Lightning Ridge and suffered a sudden onset of manic symptoms.
The husband said that he returned to Sydney late in November 2003, at which time the wife asked him to move out of the D property. He was committed involuntarily to C Psychiatric Hospital following the incident on 30 November 2003.
In an affidavit sworn on 8 February 2005 the husband deposed that he and the wife lived together continuously between July 1994 and July 2002. He said that he “impetuously filed for divorce” on two occasions but did not proceed, because there were no grounds for these applications. In this affidavit, the husband also said that the parties lived apart between March 2002 and July 2002.
In his affidavit sworn on 23 June 2005 the husband said that he attended to the needs of the wife’s mother between November 2000 and November 2003. He gave details of his assistance to the wife’s mother, which he claimed to have rendered while the wife was at work.
On 21 January 2001 the husband filed the first of four Applications for Divorce which have come before the court. He swore that the parties separated in March 1996 and lived in a state of separation under one roof between March 1996 and March 2001.
The husband placed in evidence a number of photographs of himself and the wife in a variety of situations between 1995 and 2001/2002. They were photographed during a trip to the snowfields which they took together in 1996-1997. The wife admitted that they occupied one bedroom in the home of friends. In these pictures they appear to be affectionate with each other and happy together.
Another photograph shows them together with a visitor from Melbourne in approximately 1997. The wife said that she thought that they were probably showing their friend the sights of Sydney.
Another photograph shows the parties together at a party in the former matrimonial home for an elderly man in 1997. A picture bearing the date of 8 November 1997 depicts them wrestling and nursing their dogs together in the lounge room at the former matrimonial home.
A series of photographs taken at Christmas 1998 shows the parties together at a party in Melbourne at the home of friends. The wife said that they stayed for approximately 1 week and occupied the same bedroom during this time. They both attended a birthday party for the husband in January 1999 at the home of their friends.
Another photograph shows the parties together in an apparently affectionate embrace on the harbour shore on Australia Day 2001. Another photograph taken in 2001 shows the husband and a friend working on a floor in a bedroom of the former matrimonial home. The clothing of both parties can clearly be seen in the wardrobe in this bedroom.
Another photograph shows the parties together at a little girl’s first communion in September 2001. A 1999 photograph depicts them apparently showing affection toward each other at the wife’s work Christmas party in 1999.

The wife’s Evidence as to Separation and the Making of the Consent Orders

In her affidavit sworn on 23 February 2005 the wife said that she received the divorce application mid November 2004 unsolicited, in the mail. The form had not been completed by her but, nonetheless, she signed and filed the document. She believed that the form had been completed by her husband, as he had asked her previously to agree to a separation date of early November 2003 for the purpose of a dissolution of their marriage.
Nonetheless, the wife said that she could not explain the separation date of … November 2003 in this divorce application. She deposed:
“I was not sure why anyone would select this date as the time of our separation because I always maintained that it was […] March 2002, when my husband had assaulted me, threatened to kill me and the police had to be called to our residence to intervene in our domestic violence.”
The wife claimed in this affidavit that, in January 1998, she and the husband were separated under one roof. She said that he occupied the third bedroom and that she and her mother had the use of the remaining two bedrooms in the D property.
The wife said that the husband gave to her $30,000 from his A retrenchment money in 2000. She said that this money was repayment of a debt to her, incurred by the husband when she paid credit card bills and other personal liabilities for him, “being approximately $34,000 when we finalised our property settlement on 13 January 1998.”
In this affidavit the wife said that the husband was allotted a Housing Department flat in July 2002 but lived in the spare room at the D property until the incident in late November 2003. She said that she permitted him to do so, as he had attempted to commit suicide in September 2002 and that she wished to help him. In addition, she said that he got on well with her mother, who was suffering from dementia. The wife acknowledged that he helped to care for her mother after her condition deteriorated.
In her affidavit sworn on 10 March 2005 the wife said that the parties “separated for the first time [in] March 1996”. She said that she told the husband that the marriage was over but that he said: “very well but I am not moving out for your sake”. They travelled together to Poland in July 1996 in an unsuccessful attempt to reconcile their marriage. The wife returned to Sydney alone on 28 August 1996 and the husband arrived approximately 2 weeks later. She agreed that he could live in the third bedroom at the former matrimonial home.
After the husband’s return from Poland in September 1996 he told the wife that he had $20,000 worth of debts. He said that there was a risk that their home would be sold to satisfy his creditors. She maintained that, in December 1997, the husband told her that he had spoken to Mr O and worked out an arrangement whereby the wife could buy his share in the property for $50,000.
The wife maintained in this affidavit that there were “lengthy discussions” between her and the husband about the property settlement and her payment to him of $50,000 by instalments. She said that the wife’s solicitors, B, prepared the documentation and that she and Mr N signed the “Minutes of Consent Orders”.
The wife went on to say that she and the husband “continued to live separated under the same roof” after he was retrenched from A in 2000. She said that she was concerned about his psychiatric illness. For this reason, she did not want to ask him to leave until she was satisfied that he was receiving proper medical care and had employment and accommodation. She said that the husband vacated the property in March 2002 but she did not indicate where he lived from that point.
In her affidavit sworn 6 March 2006 the wife deposed that there was no reconciliation in July 2002, as alleged by the husband. She said that he lived in a Housing Department flat after 4 July 2002, although he stayed in the D property for a short time from September 2003.
The wife annexed to this affidavit a copy of a form entitled “Assessment of Living Arrangements – Separated Under One Roof” issued by the Department of Social Security. This document bears the signature of the husband and was dated 23 September 1996. It was not suggested that another person completed this form for him.
The Department of Social Security form contained a question: “do you exclusively occupy any area of the house?” to which the answer was “one bedroom”. Another question was: “what are the arrangements for paying for food and housekeeping items for this household?” to which the answer was “separate”. The date of separation stated in this form was March 1996.
On 15 January 2004 the wife filed an Application for Divorce, in which she swore to a separation date of … March 2002. A decree nisi was granted in May 2004. The husband filed an application to set aside this decree on 4 June 2004. Both parties attended court on 11 June 2004, when the decree nisi was set aside by consent. This Application for Divorce contained no reference to any period of separation under one roof.
The wife filed her second Application for Divorce in November 2004. She deposed to a separation date of … November 2003 and made no reference to any period of separation under one roof. On 17 January 2005 the husband filed a Response Objecting to the Divorce. I was not informed of the outcome of this application.
The last Application for Divorce was filed by the wife in March 2006. In this application she deposed to a separation date of March 1996, with periods of living under one roof from March 1998 to October 1998 and from December 1998 until March 2002. Again, I was not informed of the outcome of this application.
This confusing mass of evidence makes it difficult to determine when the parties separated and during what periods they lived together as husband and wife or were apart under one roof. The evidence tends to suggest that there was a separation in March 1996 and an unsuccessful attempt at reconciliation during the trip to Poland in July/August 1996. In my view, the fact that they returned to Australia separately indicates that they were not together as a couple at that time. On 23 September 1996 the husband informed the Department of Social Security that he and the wife had separated in March 1996.
The Application for Consent Orders contained a separation date of “March 1996” and was signed both by the husband and Mr O. The husband swore to a date of separation of March 1996 in his Application for Divorce filed in January 2001. For these reasons I am satisfied, on the balance of probabilities, that the parties separated in March 1996. The evidence does not persuade me that they reconciled and lived together as husband and wife between that date and the time of the making of the consent orders. The status of their relationship subsequent to the making of the consent orders is relevant to the issue of “implied consent”, for the purposes of section 79A(1A), rather than the question of “miscarriage of justice” for the purposes of section 79A(1))a).

Did the husband Receive Independent Legal Advice?

Mr O completed and signed the section of the Application for Consent Orders headed “Statement of Independent Legal Advice”. He certified that he gave independent legal advice to the husband “as to the meaning and effect of the attached proposed orders”.
Mr O is an officer of the court. I am most reluctant to find that he failed in his duty to provide independent legal advice only on the word of the husband. There was no evidence called from either Mr O or Mr N. No documents from their files were tendered. In my opinion, the husband failed to establish that he did not receive independent legal advice.
In fact, there was no evidence as to what legal advice was given to the husband by Mr O. It is thus impossible for me to conclude that Mr O failed to act independently and/or to provide adequate legal advice to the husband.

Did the husband Give a True Consent to the Orders?

In my view, one of the main factors which militates against a finding that the husband did not give a true consent to the orders is the fact that he was represented by Mr O. There was only the husband’s evidence that the meaning and effect of the Application for Consent Orders and the Minute of Orders were not explained to him.
It may have been the case that either or both of the parties had a motivation to protect their home from the husband’s creditors. The issue is whether the husband entered into the consent orders with knowledge of their meaning and effect. As I have said, I am of the view that he has failed to establish that he received no or inadequate legal advice from Mr O in this regard.
The husband’s affidavit evidence contained an assertion that he and the wife discussed their financial affairs with “the family solicitor” before he saw Mr O in January 1998. He said that the Minute of Consent Orders was “radically different” to the arrangements discussed with the “family solicitor” in the case for the husband. No evidence was called from the “family solicitor” as to what arrangements had been discussed by that person with the parties. There was no evidence from this solicitor as to the stated intentions of either party. I thus infer that evidence from this person would not have assisted the husband’s case.
The husband alleged, as I have said, that the wife said to him in January 1998:
“I have made arrangements to protect the house as suggested by your doctor,” whom
the husband suggested was Dr A. He said that his general practitioner had “breached confidentiality”, thus he sought the services of a different doctor. No evidence was called from Dr A as to any of these matters. I thus draw the inference that such evidence would not have assisted the husband’s case.
for these reasons, it is my view that the husband gave a true consent to the making of the consent orders. I am fortified in this conclusion by his conduct following the orders. I will consider the relevant evidence in the context of section 79A(1A).

Did the wife pay to the husband all or any part of the sum of $50,000?

The husband steadfastly maintained that he received no part of the sum of $50,000 prescribed by the consent orders of April 1998. He alleged that The wife was unemployed between July 1996 and May 1998 and received Social Security benefits, despite living in a bona fide domestic relationship with him. He suggested that she was in no financial position to make any payment to him, as required by the orders.
It is clearly incorrect that the wife had no funds available to make a payment to the husband after 13 January 1998. She drew down the loan money from A Loans on 3 April 1998 and a sum of $37,629 was deposited into her AMP Credit Union account on 16 April 1998.

The evidence relating to the question of payments by the wife to the husband was far from complete or satisfactory. The wife was on clear notice that the husband disputed that she had paid all or any of the amount of $50,000. It might thus have been expected that objective evidence of payments would be presented in her case. It should be remembered that these events occurred in 1998 and 1999, thus the passage of time may account for the vagueness of recollection of each of the parties.
Nonetheless, concessions made in cross-examination by the husband and documentary evidence persuade me that it is more probable than not that the wife did make some payments to the husband after the consent orders were signed. If she did not pay the full amount of $50,000, I would regard the fact of any shortfall as a matter for enforcement of the orders.
The husband admitted that he wrote the document which is annexure N to the affidavit of the wife sworn 6 March 2006. This document reads as follows:
“Sydney 13/1/98
I [Mr Gason] of [D] had received today (13 January 1998) $5,000.00 (five thousand dollars) from [Mrs Gason] as a part of repayment of agreement of splitting asset which is part of total $50,000.000 (fifty thousand dollars).
13-01-98       50,000.00
13-01-98       -$5,000.00
$45,000.00 (owing)
16-01-98       -$5,000.00  13-1-98
$40,000.00 (owing)             16-1-98
2-3-98  -$2,600.00
$37,400.00 (owing)            2-3-98
16-4-98         -$12,000.00
$25,400.00 (owing)            16-4-98
20-4-98         -$13,000.00
$12,400.00 (owing)             20-5-98
All was payed off on 23/8/99”
It was obvious that a number of different pens were used to write this document. The husband’s unconvincing evidence was that the wife forced him to write the document, using different pens, at a time “when he was very sick” and in bed. He maintained that he wrote all the entries on one day, except for the words “all was payed off on 23/8/99”, which were written on that date.
The records in relation to the wife’s credit union account show that a cheque for $12,000 was written on 16 April 1998 and made payable to “American Express” . The statement shows a debit for that amount on 24 April 1998, bearing the same number as the stub in the cheque book. In cross-examination the wife said she may have received a cheque for $12,000 from A Loans, which she deposited into her credit union account. As I have said, a cheque for $37,629.63 was deposited on 16 April 1998, which was after the drawdown of the mortgage advance from A Loans.
Initially the husband “strongly denied” that he “directed [the wife] to pay this money to [his] AMEX, as part of the sum of $50,000 provided in the orders.” He then said “[The wife] was running his [finances] at this time” and that “she did right” if she had made this payment. The husband then conceded that the wife did pay $12,000 off his AMEX account, thus the entry dated 16 April 1998 in the document Annexure N is correct.
The wife maintained that the alleged payment of $13,000 on 20 April 1998 came from a Westpac personal loan taken out by her. No documents from the Westpac Bank were tendered in her case. It appears, however, that a Westpac Bank debt in the name of the wife was paid out in 1999 from funds advanced by the Colonial State Bank. Annexures H and I to the affidavit of the wife sworn 6 March 2006 and the husband’s concession that this debt was that of the wife support her contentions in regard to this payment.
When the parties jointly borrowed $120,000 from the Colonial State Bank in 1999, certain conditions were attached to the use of the loan funds (annexure 1 to the affidavit of the wife sworn on 6 March 2006). The distribution of money was set out in a letter dated 9 July 1999 to the parties from B and Company, a firm of legal agents who attended on the settlement. Taken together with the loan offer (annexure 1) and the oral evidence of the husband, this document shows that the money was distributed as follows:

The wife

Westpac Bank loan $10,740.64

The husband

GM Card $12,540.64

National Australia Bank loan $2,825.85

AMP Credit Union $8,191.98

Westpac Bank loan $6,183.95

National Australia Bank loan $1,955.00

AGC $5,971.10

AMP Asset Management $8,024.64

$45,693.16
It can be assumed that the remainder of the loan money was used to discharge the existing mortgage on the D property.

The wife alleged that she made 2 payments each of $5,000 each on 13 January 1998 and 16 January 1998 in cash to the husband. She said that she borrowed this money from some friends, Mr and Mrs S. Her evidence in this regard was corroborated by an affidavit sworn by Mr S. He said that he and his wife provided that sum of $10,000 to the wife in two cash bundles, each of $5,000. He said that she repaid the whole of this sum, by instalments over a lengthy period. Although Mr S gave his evidence in rather an unusual manner, I am inclined to accept that he and his wife did lend $10,000 to the wife.
It is thus my view that there was evidence of payments made, after the consent orders, by the wife to the husband. As I have said, any shortfall would be a matter for enforcement of the orders rather than a fact which would, prima facie, assist the husband in his application pursuant to section 79A.

IMPLIED CONSENT TO THE SETTING ASIDE OF THE CONSENT ORDERS

It is necessary to consider certain of the conduct of the parties prior to the making of the orders in order to give context to their subsequent behaviour. I am of the view that both parties acted in a manner which suggests that they regarded themselves as bound by the orders.
The husband denied categorically that discussions in relation to a property settlement ever took place between the parties. In my view, this evidence sits uncomfortably with the contents of the document which is Annexure R to the affidavit of the wife sworn on 6 March 2006. This document is headed “For the Purpose of Calculating the Division of Property Using the Agreed Value of $230,000 Based on Two Valuations from Agents $220,000 and $240,000”.
The husband conceded that he wrote the document, which was signed by each of the parties and dated 9 December 1997. The husband agreed that he was aware of the mortgage payout figure in respect of the D property in January 1998.
The wife alleged that the husband told her prior to 13 January 1998 that he had instructed Mr O to “draw up terms for our property settlement”. She said that she and the husband received draft orders from their respective solicitors and discussed various changes, on a number of occasions. She was not shaken in this evidence on cross-examination.
Annexure C to the affidavit of the husband sworn on 11 March 2005 was a copy of a memorandum of professional costs to the wife from Mr N. The memo included “preparation of application for property settlement, preparation of consent orders and transfer documentation”. The husband maintained that he received no memorandum of fees from Mr O. He denied a suggestion put in cross-examination that he made a cash payment to Mr O and took his file in October 1998.
The husband signed a transfer in respect of his interest in the D property on 8 April 1998. His signature was witnessed by Mr N. By 9 October 1998 the transfer document was in the possession of Mr O. On that date he wrote to the husband and sought further instructions, noting: “We have not heard from you since January 1998”. The husband replied by letter dated 16 October 1998 in these terms: “In response to your letter dated 9 October 1988 (sic) please hand over the transfer document for [D] to [the wife’s] solicitors. On 1 May I received the sum of $22,000 from [the wife] as was agreed in the terms of settlement.”
On 20 August 1999 the husband signed the document which is annexure “L” to the affidavit of the wife sworn on 6 March 2006. The document sets out the husband’s calculations as to “settlement of the loan of $120,000 taken on 9.7.99”. There is reference to “an outstanding sum from house settlement” of $12,400 and “a cheque deposited after loan settlement” of $12,454.32. There is also a statement:“I believe that until we settle I can stay in the house. If you think otherwise, I would like to know that too (the sooner the better)”.
The meaning and intent of this document was not clear on the evidence. It is apparent, however, that the husband had in his mind the notion of vacating the D property upon payment to him by the wife of an amount which he had calculated as necessary to bring about a “settlement” between the parties.

CONCLUSION

I can make findings and decisions only on the basis of the evidence before me. As I have indicated in the course of these reasons, the evidence was lacking in certain significant respects.
I have considered carefully all of the evidence and submissions put on behalf of the husband in relation to the proposition that there was a miscarriage of justice by reason of “any other circumstance” for the purposes of section 79A(1)(a). I am not satisfied that the matters upon which he relied, taken either individually or collectively, are sufficient to make out his case for relief under that subsection.
Likewise, I have given careful consideration to the evidence and submissions put on behalf of the husband in relation to the proposition that the conduct of the parties is sufficient to constitute an implied consent to the setting aside of the orders pursuant to section 79A(1A). I am not persuaded that the husband has succeeded in making out a case pursuant to this subsection.

ORDERS

I make the following orders:
That all outstanding applications and responses be dismissed.
That any outstanding application for divorce be transferred to the Federal Magistrates Court.
That all documents produced on subpoena be returned.

I certify that these pages are a true copy
of the reasons for judgment herein of
her Honour Justice Stevenson.
dp
Associate

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

[2007] FamCA 114

28 February 2007

Key Legal Topics

Areas of Law

Civil Procedure

Family Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Remedies

The wife
Westpac Bank loan	$10,740.64
The husband
GM Card	$12,540.64
National Australia Bank loan	$2,825.85
AMP Credit Union	$8,191.98
Westpac Bank loan	$6,183.95
National Australia Bank loan	$1,955.00
AGC	$5,971.10
AMP Asset Management	$8,024.64
$45,693.16