GDH & CEH

[2005] FamCA 1472

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. NA58 of 2005

(No. BRM1078 of 2005)

BETWEEN:
GDH

Appellant Husband

AND:
CEH

Respondent Wife

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 19 December 2005

Date of Judgment: 23 December 2005

Appearances: Mr B Blond of Counsel, instructed by Edwards Lawyers, appeared on behalf of the Applicant Husband

Mr M Byrne of Counsel, instructed by Hatzis & Associates, Solicitors, appeared on behalf of the Respondent Wife

GDH and CEH NA58 of 2005 (BRM1078 of 2005)

Heard: 19 December 2005
Delivered: 23 December 2005

APPEAL FROM FEDERAL MAGISTRATES COURT – SUMMARY DISMISSAL – SETTING ASIDE PROPERTY ORDERS – DURESS – In 2003, consent orders were made for property settlement between the parties providing, inter alia, that the parties’ property (including the family trust and a company) be divided 65/35 in the wife’s favour – In 2005, the husband brought an application under s 79A of the Family Law Act to set aside the consent orders – That application was summarily dismissed by the Federal Magistrate on the basis that it was ‘doomed to fail’ – The husband’s main argument on appeal was that he was under duress when he consented to the proposed orders from the wife’s legal representative (who allegedly threatened that domestic violence orders would be made if the husband did not agree to a higher amount for the wife) and his own solicitor (who said that the ‘doors would open’ in relation to seeing more of his children if he consented to the wife’s offer). Consequently, the husband asserted that his consent was not true consent – The Federal Magistrate considered that, if such statements were made, they were made at a conciliation conference and therefore were privileged – There was no error in approach by the Federal Magistrate.

COMPETENCE OF LEGAL PRACTITIONERS – The husband also argued on appeal that the Federal Magistrate failed to properly address the husband’s contention that his legal representation prior to entering into the consent orders was inconsistent with his instructions and that the legal representation amounted to no representation at all – The husband’s counsel at the summary dismissal hearing submitted the primary question to be considered is the degree or level of competence of the legal representation that the husband received – The Federal Magistrate found that the conduct of the husband’s solicitors was nothing more than the type of robust discussions that often take place between solicitors/counsel and their clients when the prospects of settlement or resolution are being ventilated – There was no error in the Federal Magistrate’s findings, particularly where it was found by the Federal Magistrate that the only ‘pressure’ that came from the husband’s solicitor was in saying that ‘doors will open’ in relation to the husband seeing his children.

Adamopoulos and Adamopoulos (1987) FLC 91-851
Beck and Beck (2004) FLC 93-181
Clifton and Stuart (1991) FLC 92-194

Appeal dismissed.

Against an order made in July 2005, by Baumann FM, summarily dismissing his application that a property settlement order made by consent nearly 2½ years beforehand, be set aside, the husband appeals.
Ultimately, the appeal was based on these assertions.
·   That, though the learned Magistrate had identified the “correct test relating to applications for summary dismissal” he failed to properly apply that test, in that he took into account irrelevant material and “previous submissions” put forward by the wife.
·   The learned Magistrate wrongly placed weight on the extent to which the orders which it was sought to set aside had been executed.
·   The learned Magistrate failed to take account of relevant material, namely the husband’s contention that his legal representation was inconsistent with his instructions, that he was under duress from the legal representative of the wife, and of the husband’s state of mind at the time of and leading up to the entry into an earlier alleged agreement for consent orders.
·   That the Federal Magistrate placed the onus on the husband to prove that his application should not be summarily dismissed.
·   That the Federal Magistrate had prejudged the application, prior to submissions.
I will return to the argument on appeal after a brief background and review of the reasons of the Federal Magistrate. Then, after consideration of the arguments I will say something of the applicable principles, before setting out my conclusion overall.

Background and summary of the reasons of the Federal Magistrate

In the first two paragraphs of the learned Magistrate’s reasons, he described the orders which the husband wished set aside:
“1. On 14 February 2003, Buckley J. made a final consent order in property proceedings between the (Husband) […] and the (Wife) […]. That order (“the said consent order”), was the culmination of many months of litigation in the Family Court of Australia. The said consent order identifies a gross property pool of over $2 million.
2. The said consent order provided at paragraph 1 that:-
“Subject to paragraph 4 hereof, all property (excluding property referred to in paragraphs 6, 7 and 8) including shares (in the party’s names), the four real properties at [HH], [R], [A] and [Y], [G] Pty Ltd trading as [RFF] and the [H] Family Trust be sold and the net proceeds of sale be divided 65% / 35% in favour of the Applicant Wife”
The remaining provisions were effectively machinery provisions which facilitated the sale and distribution of the assets and proceeds of sale.”
Shortly after, under the heading “Principles”, Baumann FM addressed the contents of Rule 13.10 of the Federal Magistrates Court Rules, which he said, relevantly provided
“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
(a) no reasonable course of action is disclosed in relation to the proceeding or claim for relief; or”
His Honour then addressed the principles enunciated in In the marriage of Beck (2004) FLC 93-181, and he expressed himself to be conscious of authority:
“…which observes that Applications under s 79A of the Family Law Act should generally be heard on their merits and with all evidence properly tested.…’
after which he set out the terms of section 79A(1)(a) of the Family Law Act 1975.
His Honour then addressed passages of the husband’s evidence. Firstly, where the husband asserted that, prior to the orders which he sought set aside, that:
“An agreement was made between myself and [the wife] and filed with the Family Court of Australia on 3 October 2002 as a Form 62 Acceptance of Offer of Settlement. This clearly set out the agreed settlement of property in the order of 60% / 40% in favour of the Wife”
Secondly:
“(b) With regard to the Orders made 14 February 2003, I was misinformed and pressured by various parties to the extent that my agreement to the contents of the orders cannot be described as voluntary, nor based upon the adequate provision of necessary information.”
and further submissions which had been made on behalf of the husband, about the contention that a miscarriage of justice had occurred because, as the learned Magistrate apprehended:
“a)The husband was the subject of duress at the hands of his own legal advisor in entering into the said consent orders; and/or
b)Alternately, the husband received advice or information from his solicitor that was so incompetent as to amount to no representation at all and this has caused justice to be miscarried.”
His Honour then dealt with “The Previous Alleged Acceptance of Offer” and then turned to consider the husband’s case as to the “Actions of His Solicitor”. His Honour said:
“19. In essence, the husband contends that he received incompetent advice in 2 respects:
a)Not to pursue the alleged offer (accepted) as a single issue; or
b)Advising, to accept, and in the process, using duress to secure his agreement to consent to the said order which split the then agreed pool (or really the pool established by sale of assets) in the proportions of 65/35 in the wife’s favour.
…
25. The only “pressure” which the husband asserts came from his lawyer and was when he said, words to the effect:
“If you agreed to a 65/35% settlement in favour of the wife then doors will open with regard to seeing the children””
In following paragraphs the Federal Magistrate addressed the husband’s description of his state of mind between 7 February 2003, when the settlement later enshrined in consent orders was reached, and 14 February 2003, the date the orders were made.
His Honour also noted a contention of the husband that he did not read the terms of the order when it was presented to him for signature and that it contained clauses that he would never have agreed to, had he known they existed. The Federal Magistrate observed that the husband gave no particulars of the clauses to which he referred.
His Honour then moved to his ultimate conclusions, saying:
“34. I am not satisfied that any “duress” which the husband alleges arose from any legitimate (sic) conduct on behalf of the wife or her legal advisors.
35.    As McHugh JA observed in the Crescendo Management case (supra):-
“Pressure will be illegitimate if it consists of unlawful threats or amounts to unreasonable conduct. But the categories are not closed.”
36.    I do not view the conduct of the husband’s solicitors, as he portrays it, as anything different that the type of robust discussions that often take place between solicitors/Counsel and their clients when the prospects of settlement or resolution are being ventilated. The husband does not, for example, say that he was so unhappy with the advise he was receiving that he decided to terminate (as was his absolute right), the retainer of his solicitor.
37. I do not view the conduct of his solicitor and Counsel as being capable of amounting to “any other circumstance” which founds the alleged “miscarriage of justice” under s79A. As Kay J observed in LA ROCCA (1991) FLC 92-222, if the husband had a complaint about the quality of the evidence that was led, or admissions made on his behalf, then “his remedies lay elsewhere than against the wife.”
38.    I have taken a similar view here. Of significant importance, in my view, is that this consent order has been substantially performed. The wife’s initiating proceedings seek to divide the remaining amount of $27,238.74 (out of a pool of over $2 million), less than 2% of the pool.
39.    The husband firmly seeks to assert that his consent to the order was not “informed consent”. Consent to an order is itself part of the judicial process on which the Court places reliance (See HARRIS v CALADINE (1991) FLC 92-217).
40.    But in this case, there is no suggestion the consent was based on false, misleading or inadequate information, nor on any suppression of evidence. Buckley J must have been satisfied that justice and equity were achieved by the order otherwise, notwithstanding the consent of the parties, he would have not made it.
41.    I am satisfied, for the reasons I give above, that based on the best view of the husband’s evidence, he has not disclosed a reasonable cause of action which should be tried. In so finding, I am conscious that I should only make this finding if I am satisfied the application is “doomed to fail”. I have formed that view.”

Arguments on appeal

General

A written summary of argument for the husband contained the arguments listed at the commencement of these reasons, as well as an assertion about “jurisdiction”. At the hearing, counsel handed up written submissions in support of the appeal and also handed up the written submissions he had made to the trial Magistrate on:
“…the issue of a “miscarriage of justice” with respect to the husband’s legal representatives prior to the entering of consent orders.”
The Notice of Appeal filed 5 August 2005 contained only five grounds, one of which was “Jurisdictional error”. At the commencement of the written submissions on appeal, counsel set out, under the heading “Grounds of Appeal”, six contentions. These did not include “jurisdictional error” which however, was addressed later in the written submissions.
Counsel for the husband abandoned the “jurisdictional error” ground, after discussion.
Counsel for the wife took no issue with the “grounds of appeal” one to six, as expressed in the written submissions and, as in any event, I consider that the six “grounds” in the submissions fit within the four remaining grounds in the Notice of Appeal, I deal with the contentions in the written submissions. Indeed, the grounds as formulated in the written submissions are more complete and cogent than the more general formulation contained in the Notice of Appeal. However, I do consider that the contention in paragraph 5 of the written submissions is best considered with one of the subparagraphs of paragraph 4, so, ultimately, I will address five contentions.

Contentions 1a. and b.

“1. That the learned Trial Judge having identified the correct test relating to applications for summary dismissal failed to properly apply that test to the facts of the case and the argument and submissions presented to him and thereby erred in the exercise of his discretion:
a.His Honour determined the summary dismissal application on material put forward by the Applicant;
b.His Honour determined the summary dismissal application on submissions presented to him by the Applicant’s representative, referring to the material of the Applicant.”

In support of the contentions contained in the subparagraphs above, counsel for the husband referred to parts of the transcript of the proceedings before the Federal Magistrate in which the Federal Magistrate indicated he had read some material, though that material is not further described. Counsel also referred to passages of transcript relating to the listing of his material by counsel for the wife and subsequent confirmation by the Federal Magistrate that he had read the material relied upon. Counsel further referred to discussion by the learned Magistrate of occasions when the matter had previously been before the Federal Magistrate. On some of those occasions submissions had been made by the solicitor then appearing for the wife in support of the making of an application for summary dismissal of the husband’s section 79A proceedings. There was also later in the transcript discussion of some of the content of the wife’s material, at least in broad terms.
Counsel also pointed to passages recording his own referral of the learned Magistrate to authority bearing upon the material to which regard is to be had in summary dismissal applications and to subsequent discussion between counsel for the wife and the learned Magistrate about that topic. These later references seem to be of no present significance because, as earlier noted, it is not contended that the learned Magistrate applied a wrong principle with regard to the material of which he was to take account. Indeed, it is expressly asserted that he identified the correct principle.
As earlier indicated, in the course of his judgment, the learned Magistrate set out the principles expressed in Beck’s case. The last passage quoted by him from that case is as follows:
“13. In determining an application of this nature I accept that the rule to be extracted from the authority is that if a version of the facts put forward by the respondent is not inherently incredible, then in the absence of any opportunity for cross-examination it is incumbent upon the court to proceed on the basis that the respondent’s version will ultimately be accepted at the trial of the action (see Webster v Lampard (1993) 177 CLR 598 at 608).”
As to his application of that principle, immediately following setting out the above passage, the learned Magistrate said:
“10. Counsel for the applicant wife, Mr Byrne sought to rely upon Affidavits filed by his client and some of the submissions sought to refer to evidence in those Affidavits. I ignored them for the purpose of this decision.” (emphasis added)
Counsel for the husband did not point to anywhere in the learned Magistrate’s reasons where he took account of any material which he had said he would ignore.
As to the assertion that the learned Magistrate determined the application on submissions that had been made on a previous occasion, counsel for the husband submitted:
“vi. It is respectfully submitted that his Honour did not intentionally consider the submissions and the material presented on behalf of the Respondent Wife but the material was considered by his Honour and on that basis would be inconsistent with the principles in Beck and Beck [2004] FamCA 92.”
This is a strange submission. Nothing in the judgment of the learned Magistrate indicates that he has been mindful of and relied upon some submissions made on behalf of the wife on any earlier occasion. The complaint, although obliquely expressed, seems to be that, simply because some submissions, perhaps touching upon issues relevant in the summary dismissal application, were made on a previous occasion and, during the hearing of the summary dismissal application, some reference was made to the fact of previous appearances in the matter and that submissions were then made, the decision of the learned Magistrate is somehow tainted.
In the circumstances, the contention presently under discussion can be seen to be without merit.

Contention 1c. His Honour placed weight on the extent to which the property proceedings had been completed

The second of the three paragraphs relating to this contention in counsel for the husband’s written submissions is:
“ii. It is also evident in the transcript of the hearing that his Honour places weight on the time as to which the consent orders were signed and when the application was made. (page 3, line 6 of transcript).”
No other comment has been made to show what the contention in this paragraph has to do with the question of the extent to which property proceedings had been completed. Perhaps it is because the matter is referred to only in the course of the hearing before the Magistrate, rather than in his reasons, that no further comment is made in counsel’s submissions now. I think it open to ignore the submission but add in passing that on the face of it the lapse of time would be a relevant matter in the exercise of a discretion whether to set aside or vary orders, a discretion that remains notwithstanding that a miscarriage of justice was made out.
As to the contention about the weight attached to the degree of execution of the property orders, as seen earlier, in paragraph 38 of his reasons, the Federal Magistrate said:
“38. …Of significant importance, in my view, is that this consent order has been substantially performed. The wife’s initiating proceedings seek to divide the remaining amount of $27,238.74 (out of a pool of over $2 million), less than 2% of the pool.”
Counsel for the husband submitted:
“iii. It is respectfully submitted that the principles established in the authorities relating to summary dismissal applications do not refer to the extent as to which consent orders have been performed as a a ‘significant’ factor. By placing significant weight on this point his Honour has erred in summarily dismissing the Appellant Husband’s application.”
I find this also a strange submission, as I am not aware of any authorities which purport to nominate, as a matter of principle, all of the circumstances which could be relevant to any application for summary dismissal.
The relevant question is whether the fact of substantial performance of the order in question is a factor pertinent to an application under s 79A of the Family Law Act.
The fact that the consent orders had been substantially performed, indeed virtually entirely executed is undoubtedly a circumstance relevant to the prospects of success of the husband’s application under section 79A. As noted a moment ago, it is to borne in mind that, though the question of a miscarriage of justice may be one determined by the application of legal principle to established fact, the decision whether to then set aside or vary, is a discretionary one.

There is no merit in these contentions.

Contention 1d. The learned trial judge placed the onus on the Respondent Husband to prove that his case should not be summarily dismissed

In support of this contention, counsel refers to the written submissions that he put before the learned Magistrate and argues that the authorities establish that the onus is on the applicant for summary dismissal to establish the grounds for an order.
Strangely though, there was no argument whatsoever to advance a contention that the learned Magistrate actually placed an onus on the husband to demonstrate that his claim should not be summarily dismissed. Looking at the husband’s case to see whether, if accepted at trial, it would support the cause of action, is not to place an onus on the husband in the summary dismissal application.
There is no merit in this contention.

Contention 2. His Honour did not properly address the contention of the Husband that the husband’s legal representation was inconsistent with his instructions and whether the legal representation amounted to no representation at all

The only reference in the written submissions on appeal in support of this contention is as follows:
“Counsel would seek to rely on the written submissions, titled ‘Submissions for the Respondent Husband’ before the learned Federal Magistrate.”
Again, this is a strange course of argument, given that, whatever the submissions made to the learned Magistrate before his decision, for an appeal to succeed it must be shown that in his decision, he erred. While it may be that a failure to consider or properly decide an argument put at the trial may amount to appellable error, it is a highly unusual approach in arguing that such an error has occurred, to make no reference to the reasons for the decision appealed.
In his written submissions before the Federal Magistrate, counsel for the husband, after referring to some general principles and the argument on behalf of the wife and its reliance on Clifton v Stuart (1991) FLC 92-194, said:
“The current matter before the court relates specifically to matters leading up to the entering of consent orders by the husband. The matters alleged by the husband are set out in his affidavit filed 20 June 2005. The husband’s position is that his consent was not true consent as it was not informed consent and was given under pressure.”
Counsel then referred to W and W (unreported, Baker J, 22-03-1996) and SH & DH (2003) FLC 93-164, a decision of Ryan FM in which, counsel said, her Honour had found that the applicable test for duress in a sec 79A context accords with the equitable concepts, formulated by McHugh JA in Crescendo Management Pty Ltd v Westpac Banking Corporation (1998) NSWLR 40 as to which McHugh JA said:
“The proper approach in my opinion is to ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed.”
Counsel for the husband also submitted to the Federal Magistrate:
“It is respectfully submitted based on the authorities with respect to representation and a miscarriage of justice, the primary question to be considered is the degree or level of competence of the legal representation that the husband received. If the representation was such a level as to constitute no representation at all, then the s 79A application will have a better chance of succeeding.”
And later:
“It is clear that this matter will be decided on a finding as to the level of competency of representation the husband received leading up to the signing of the consent orders. In order to make such a finding it will be necessary for the claims of the respondent to be tested under cross-examination.”
That the learned Magistrate dealt with these submissions is undoubted and demonstrated by paragraphs 13,14, 19, 25 and 34 to 41 of his reasons, most of which have been earlier quoted.
As well as the content of those paragraphs, his Honour also considered authorities referred to by both counsel.
“31. I am satisfied that the Full Court made it clear that the term “miscarriage of justice” should not be interpreted too widely. It held that the notion of miscarriage of justice concerns the integrity of the judicial process and does not go further to that (see [P & J] (2003) FAMCA 1632). This is the point relied upon by Mr Byrne for the wife to contend that:-
“the unprofessional conduct or neglect in handling one’s case by one’s legal representative must be so incompetent as to amount to not having legal representation at all but such incompetence or neglect does no affect the judicial process or the fairness of the trial”
32. The husband says this case is distinguishable from Clifton and Stuart because the present case really relates to matters leading up to the entering of consent orders by the husband and his contention that his consent “was not true consent as it was not informed consent and was given under pressure”.”
The learned Magistrate also considered the reference by counsel for the husband to “WEISS, SUKA, GILBERT and PRIOR” and, as seen, said:
“34. I am not satisfied that any “duress” which the husband alleges arose from any legitimate conduct on behalf of the wife or her legal advisors.”
It seems highly likely that the reference in paragraph 34 was to “illegitimate conduct” rather than “legitimate conduct”. His Honour then said:
“36. I do not view the conduct of the husband’s solicitors, as he portrays it, as anything different that the type of robust discussions that often take place between solicitors/Counsel and their clients when the prospects of settlement or resolution are being ventilated. The husband does not, for example, say that he was so unhappy with the advise he was receiving that he decided to terminate (as was his absolute right), the retainer of his solicitor.
37. I do not view the conduct of his solicitor and Counsel as being capable of amounting to “any other circumstance” which founds the alleged “miscarriage of justice” under s79A.…”
The observations that the learned Magistrate dealt fulsomely with the submissions made to him may be sufficient to dispose of this contention, since, as stated, there is no argument directly related to the terms in which his Honour dealt with the submissions made to him. However, least that approach appears unduly dismissive, I point out:
·Notwithstanding the breadth of submissions about and the husband’s own descriptions of, the competence of the husband’s legal advice at the time the orders were consented to, it was not shown that the learned Magistrate erred when he found:
25. The only “pressure” which the husband asserts came from his lawyer and was when he said, words to the effect:
“If you agreed to a 65/35% settlement in favour of the wife then doors will open with regard to seeing the children”
·As to the husband’s contention that he signed orders without reading them and would not have agreed to some, no further evidence was provided.
·As discussed next, there is no merit in the argument that the husband’s legal advice about the previous offer and acceptance was deficient.
I see no error in his Honour’s approach. There is no merit in this contention.

Contention 3. His Honour did not properly address the contention of the husband that a previous offer and subsequent acceptance was completed by the parties

As far as submissions are concerned, those in respect of this contention are in the same position as those in respect of the immediately preceding contention. In other words, counsel relies upon the submissions made to the Federal Magistrate and makes no submissions in relation to the reasons for the decision of under appeal.
The learned Magistrate considered “the previous alleged offer and acceptance” in paragraphs 15 to 18 inclusive. Again, that observation is probably all that this contention deserves. But again, in case that approach appears unduly dismissive, I make these observations. The learned Magistrate’s conclusion about the issue, was:
“18. In circumstances where his Counsel Mr McGregor advised that the issue of acceptance of the offer was not being pursued, I would not regard it as a reasonable course of action to pursue it now.”
There is no argument put forward to show that the advice not to pursue in the trial before Buckley J any issue about the earlier “agreement” was wrong or had any impact on the orders consented to.
Further, I find it difficult to understand how contentions about the consequences of an offer and acceptance in September/October 2002, which preceded the hearing before Buckley J in February 2003 which in turn culminated in the order by consent, can have any bearing upon whether there was a miscarriage of justice in relation to those orders.
In any event, as already stated and in short, there is no argument to suggest that the learned Magistrate’s dealing with the issue was flawed.

Contention 4. His Honour did not properly address the contention of the Husband that he was under duress and his consent was not true consent when he entered into the consent orders. The duress being:

a.The undue pressure from his own legal representative.
a.(sic) The undue pressure form the legal representative of the Wife.
b.The husband’s state of mind at the time and leading up to the entering of the consent orders.

The question of undue pressure from the husband’s own legal representative has already been discussed. The second point, the assertion of undue pressure from the legal representative of the wife, is much connected with the fifth contention in the written submissions which will also be discussed here and which is as follows:
“His Honour did not properly address the contention of the husband that there was undue pressure placed on him during a conciliation conference as the conference was of a confidential nature and statements made during this could not be considered.”
Paragraph 4(c) of the husband’s affidavit read:
“At this stage I recall Ms [MY], a lawyer for the Wife, also approaching me in a similar vein at the 2002 conciliation conference. At that time Ms [MY] had said words to the effect of, there is the possibility of further Domestic Violence orders being brought against you if you do not agree to a higher amount.”
During the course of the hearing, the Federal Magistrate stated that the statements allegedly made were described as made at a conciliation conference and therefore were privileged. He did not consider them further.
All that counsel for the husband submitted about this was the bald proposition that the statements are admissible. He presented no support for this proposition. He made no mention of s 19N(2)(a) of the Family Law Act, which provides:
“Evidence of anything said, or any admission made, at meeting or conference conducted by a person to when this section applies while the person is acting as such a person is not admissible:
(a) in any court…”
I do not accept counsel’s submission on this point.
In that circumstance, this being the only evidence suggested to be of “duress” by the wife’s solicitors, in my view, it is not open to counsel for the husband to argue that the learned Magistrate needed to consider the unlikely contention that the husband was under undue pressure from the legal representative of the wife at the time of the February 2003 orders, because of something said around September 2002.
As to the contention that the learned Magistrate failed to take proper account of the evidence of the husband’s state of mind at the time of and leading up to the entry into the initial consent orders (September/October 2002), counsel has not put forward any cogent argument as to why the circumstances surrounding any agreement for those orders have any bearing upon the likelihood of success of the husband in his application to set aside the February 2003 orders.
It might be that the argument is really as to the husband’s state of mind at the time of the February orders and, though somewhat confusingly in these circumstances, the written submissions on behalf of the husband do contain reference to the husband’s state of mind at the time of the February 2003 orders.
In paragraph 26 of his reasons, the learned Magistrate said:
“26. He describes his state of mind on 7 February 2003 as “exhausted, intimidated and confused”. He said that:-
“Faced with the possibility of having even less access to the children, I agreed to the new proposed amount. At this stage, I had not seen my children for some 14 months.””
As counsel for the wife has pointed out, it is difficult to reconcile the husband’s assertion that he was “Faced with the possibility of having even less access…” with his evidence that the pressure placed upon him arose from his solicitors’ statement that agreement on property division would see “doors…open with regard to seeing the children”.
Moreover, the learned Magistrate continued his consideration of the question of the husband’s state of mind in paragraphs 27 and 28 in which he said:
“27. It is not clear when the orders were actually prepared and signed by the husband during the 7 days between 7-14 February, 2003. It is not suggested he signed the orders on 7 February 2003. It is, as a result, reasonable to infer that the husband had some time for reflection – although he does say that:-
“I was so harassed and demoralised by the entire process that when I was told to sign the order document on 14 February 2003, I did so without reading the contents. I attempted to, but [M] would not allow it, citing time constraints. I have since read the document and know that it contains clauses that I would never had agreed to, had I known they existed.”
28. The husband gives no particulars of the clauses he refers to in this regard. It is not possible, considering the essence of the orders was really to sell everything, how any such clauses could have affected this broad agreement. It is not possible for the husband to assert that by 14 February 2003, the division had changed from his preferred position (of 60/40) to 65/35 in the wife’s favour, without him knowing.”
No error in this approach by the learned Magistrate has been shown.

Contention 5. That there was a miscarriage of justice by way of Judicial prejudice in that His Honour had prejudged the matter prior to the hearing of submissions.

This contention really rests upon discussion at the hearing about whether or not the Federal Magistrate had jurisdiction to entertain the application for summary dismissal, during which the learned Magistrate said:
“…It doesn’t sound like a very strong claim to me. I mean the reality is there was a final order made before a Judge by consent. He was legally represented.…If he alleges he was badly represented, he might have remedies somewhere else but not against this person and there is a (indistinct) of authorities for that proposition. So, I think I’ve convinced myself that I can hear the summary dismissal application today, that’s your application?…”
Counsel for the husband referred to only one authority, that is a statement by Wilson J in Adamopolous (1987) FLC 91-851 when his Honour said:
“…Conduct must raise a reasonable apprehension of prejudgment. A prima facie case was not established here because the reasonable listener would appreciate that his Honour had not prejudged the issue.”
That statement seems uncontentious.
A judge in an application “on the papers” is fully entitled to express a preliminary view. That that is all the Federal Magistrate was doing here is in my view clear from a passage that appears shortly after the section quoted above:
“If I don’t find in your favour in the summary dismissal then you can anticipate I’ll be sending a section 79A application as it is then back to the Family Court for the reasons I’ve indicated…”
There is no merit in this ground.

Principles applicable to the appeal and conclusion

The rule under which the Federal Magistrate considered the application is expressed in permissive terms, indicating a discretion. However, it seems to me that any discretion is narrower than the discretions more commonly exercised in s 79 property, in maintenance and in child-related proceedings.
I am satisfied that interference with the decision of the Federal Magistrate is justified if there is an error of principle, a mistake of fact, account is taken of an irrelevant matter or no account is take of a relevant matter.
In summary, the husband brought an application to set aside an order made:
·By consent
·When he was legally represented
·2½ years beforehand, and
·Which had been very substantially carried out.
These features strongly indicated that, even if a miscarriage of justice was made out, the setting aside of the orders was highly unlikely.
Moreover, consideration of whether a miscarriage of justice had occurred had to recognise the context that, on the husband’s own case, he had been prepared to consent to a division of assets 60/40 in the wife’s favour, but agreed to a 65/35 division in her favour only in “improper” circumstances.
This modest difference would render it difficult to establish duress productive of a miscarriage of justice, even if there was credible evidence of undue pressure.
Here, as discussed, the evidence of duress was paltry, as was the evidence of some disadvantaged state of mind. The arguments about the impact of the September/October 2002 agreement and about prejudgment were flawed, as discussed.
In combination, these circumstances rendered the Federal Magistrate’s conclusion that the husband’s s 79A application was “doomed to fail”, open to him. Accordingly, I intend to dismiss the appeal.

ORDER

That the appeal filed 5 August 2005 be dismissed.
I certify that the preceding 77 paragraphs
are a true copy of the Reasons for Judgment
herein of the Honourable Justice Warnick.
………………………………….
Associate
Date: 23 December 2005

[2005] FamCA 1472

23 December 2005

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Natural Justice

Consent

Remedies