GDH & CEH - [2005] FamCA 1472

[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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GDH & CEH

Details

AGLC: GDH & CEH [2005] FamCA 1472
Case: [2005] FamCA 1472
Decision Date: 23 December 2005

CaseChat Overview and Summary

This matter came before Warnick J on appeal from a decision of a Federal Magistrate. The appeal concerned an application by the husband to set aside consent orders made in property proceedings between the husband and wife. The husband contended that the Federal Magistrate erred in law by failing to consider relevant material and by determining the application on submissions made on a previous occasion.

The primary legal issue before Warnick J was whether the Federal Magistrate had properly considered the evidence and submissions before him when determining the husband's application to set aside the consent orders. Specifically, the court was required to assess whether the Federal Magistrate's statement that he ignored certain affidavits was inconsistent with his decision, and whether the husband's assertion that the Magistrate relied on prior submissions was substantiated.

Warnick J found the husband's submissions to be without merit. His Honour noted that there was nothing in the Federal Magistrate's reasons to indicate that he had relied on submissions made on a previous occasion. Furthermore, the Federal Magistrate's reasons clearly demonstrated that he had considered the extent to which the consent orders had been performed, noting that less than 2% of the property pool remained to be divided. Warnick J also commented that the lapse of time between the making of the orders and the application to set them aside would be a relevant factor in the exercise of discretion, even if a miscarriage of justice were established.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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. 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.”

Ratio Decidendi

Legal Principle Established

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