GDH & CEH

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.