Haines & Rader (No 5)
[2023] FedCFamC1F 132
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Haines & Rader (No 5) [2023] FedCFamC1F 132
File number: SYC 1641 of 2019 Judgment of: BRASCH J Date of judgment: 7 March 2023 Catchwords: FAMILY LAW – PROPERTY - Application pursuant to s 79A of the Family Law Act 1975 (Cth) – Where final orders were made following an undefended hearing – Where the husband chose not to participate in proceedings – Where the husband previously applied to set aside the orders pursuant to r 10.13(1)(a) - Where the husband now seeks the orders be set aside pursuant to s 79A – Where the husband contends there has been a suppression of evidence, failure to disclose and/or the giving of false evidence leading to a miscarriage of justice – Where grounds not made out - Where no miscarriage of justice found – Where discretion not exercised to set the orders aside
FAMILY LAW – ENFORCEMENT – Where final orders were made for the husband to vacate the former matrimonial home and it to be sold – Where the husband has failed to vacate the former matrimonial home – Where the wife seeks a warrant for possession pursuant to r 11.56 of the Rules – Where orders are made for enforcement and a warrant issued to the Marshal – Where the warrant will lie in the registry for 14 days
FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband seeks leave to issue further subpoena – Leave refused
Legislation: Administrative Appeals Tribunal Act1975 s 62C
Family Law Act 1975 (Cth) Part XIII, ss 4(1), 79, 79A(1)(a), 105
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 11.56, 11.56(2)
Cases cited: Allesch v Maunz(2000) 203 CLR 172; [2000] HCA 40
Badawi and Badawi (2017) FLC 93-784; [2017] FamCAFC 129
Barker & Barker (2007) 36 Fam LR 650; [2007] FamCA 13
Bigg v Suzi (1998) FLC 92-799
Ebner & Papas [2014] FamCAFC 229
Gitane & Velacruz (2008) FLC 371; [2008] FamCAFC 86
Haines & Rader (No 2) [2022] FedCFamC1F 685
Haines & Rader (No 3) [2022] FedCFamC1F 1007
Haines & Rader (No 4) [2022] FedCFamC1F 1008
In the Marriage of Kokl (1981) FLC 91-078
In the Marriage of Prowse (1995) FLC 92-557
In the Marriage of Rohde and Rohde (1984) FLC 91-592
Kingston & Field (No 2) [2022] FedCFamC1A 87
Lane & Lane (2016) FLC 93-699; [2016] FamCAFC 53
McMillan & McMillan [2016] FamCA 387
Official Trustee in Bankruptcy v B and G (decd) (2006) FLC 93-258; [2005] FamCA 1163
Patching and Patching (1995) FLC 92-585
Pelerman v Pelerman (2000) FLC 93-037; [2000] FamCA 881
Public Trustee v Gilbert (1991) FLC 92-211
Ramsey & Ramsey(1983) FLC 91-301; [1982] FamCA 42
Taylor & Taylor (1979) FLC 90-674; 143 CLR 1
Division: Division 1 First Instance Number of paragraphs: 136 Date of hearing: 3 March 2023 Place: Sydney Solicitor for the Applicant: Dettmann Phair Lawyers Counsel for the Respondent: Ms Rusiti Solicitor for the Respondent: Morson Law ORDERS
SYC 1641 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAINES
Applicant
AND: MR RADER
Respondent
order made by:
BRASCH J
DATE OF ORDER:
7 MARCH 2023
THE COURT ORDERS:
Subpoena - leave
1.That the leave sought by the husband to issue further subpoena is refused.
Section 79A application
2.That Orders 1 to 5 contained in the Application in a Proceeding filed by the husband on 13 February 2023 is dismissed.
Application - Enforcement
3.That within fourteen (14) days of the making of this Order:
(a)The husband, Mr Rader, shall vacate the property situated at and known as N Street, Suburb J in the State of New South Wales, being the land described in Certificate of Title … ("the Suburb J property") and thereafter not enter upon the Suburb J property; and
(b)The husband shall do everything in his power to assist any persons occupying the Suburb J property to similarly vacate the Suburb J property.
4.That pursuant to r 11.56(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court issues a Warrant for Possession of the Suburb J property authorising an Enforcement Officer to enter the Suburb J property and give possession of the Suburb J property to the wife or her nominated agent and such warrant is issued in the following form:
To the Marshall of the Court, to all officers of the Federal Police and to all officers of the Police Force of the State of New South Wales: Whereby by an order of this Court made at Sydney on 21 December 2022 it was ordered by the Court that Mr Rader should, on or before Wednesday 18 January 2023, vacate the matrimonial home, being the property situated at and known as N Street, Suburb J in the State of New South Wales, being the land described in Certificate of Title … and whereas the Court is satisfied that the said Mr Rader has failed to comply with such order, you are hereby directed for the purpose of giving effect to the said order at such time with such assistance as you may require, and if necessary by force, to enter the land described being the property situated at and known as N Street, Suburb J in the State of New South Wales, being the land described in Certificate of Title …, and cause the wife, Ms Haines to have vacant possession of it, and to cause the husband, Mr Rader, to vacate the said land.
5.That the warrant lie in the registry for a period of fourteen (14) days from the time of the service of this Order on the husband and thereafter be executed without further order of the Court.
6.That upon the husband and any other person vacating the Suburb J property pursuant to Order 3 of these orders the husband be and is hereby restrained by injunction from entering upon the Suburb J property and from causing any other person acting on his behalf or upon his instruction to enter the property for any purpose.
7.That the husband be restrained by injunction from doing any act or thing which has the effect of devaluing the Suburb J property or causing damage or destruction to the property or any part of it or its surrounds or causing or requesting any other person to do any such act or thing so as to devalue, damage or destroy the property.
8.That the husband be restrained from lodging or causing any third party to lodge on his behalf, a caveat and/or registering a mortgage against the Suburb J property.
9.That within fourteen (14) days of the making of this Order the husband remove all motor vehicles, personal effects and other items belonging to him which are located on the Suburb J property.
10.That failing the husband's compliance with Order 9, the wife be entitled to dispose of any and all items that may belong to the husband located on the Suburb J property.
11.That the wife do all acts and things and sign all documents necessary to cause the Suburb J property to be sold.
12.That the wife in her capacity as trustee for the husband and in respect of the sale of the Suburb J property is entitled to do any or all of the following for the purpose of effecting the sale of the Suburb J property on her own behalf and as trustee for the husband pursuant to these orders:
(a)instruct WW Company to undertake the conveyancing of the Suburb J property including signing any costs agreement and authorising any necessary disbursements for the preparation of a contract for sale;
(b)instruct Mr XX to conduct a sales and marketing campaign for the property and thereafter the auction of the Suburb J property including signing any agency agreement or authority for any reasonable disbursement for the sales and marketing campaign, authorise the acceptance of a sale price, and authorise such other action as may be required to effect the sale of the Suburb J property;
(c)sign any request to discharge the mortgage registered over the Suburb J property and give authority to discharge the same;
(d)sign any contract for the sale of the Suburb J property;
(e)sign any Memorandum of Transfer for the Suburb J property in favour of the purchaser;
(f)sign any other document required of the parties in order to give effect to the sale of the property;
(g)authorise the payment of funds in satisfaction of the mortgage debt secured over the title to the property and any rates and charges with respect to the property upon the settlement of the sale;
(h)authorise the payment of fees and disbursements to the real estate agent and lawyers engaged with respect to the sale of the property;
(i)authorise the drawing of cheques for the disbursement of the proceeds of the sale of the property pursuant to the Orders of the Honourable Justice Brasch dated 21 December 2022; and
(j)do any other act or thing necessary in order to effect the sale of the Suburb J property.
13.That upon the wife taking vacant possession of the Suburb J property she is authorised to:
(a)permit any other person to occupy the property for the purposes of effecting inspections, maintenance and repairs and to ensure that the Suburb J property is secure, clean and maintained and otherwise in an appropriate condition to effect a favourable sale;
(b)undertake reasonable maintenance and rectification of the Suburb J property for the purpose of the sale of the Suburb J property including but not limited to:
(i)removing any rubbish or abandoned items; and
(ii)removing any equipment and tools left by the husband at the Suburb J property.
(c)undertake any necessary repairs to the Suburb J property for the maintenance, rectification and repair of the Suburb J property;
(d)authorise any other person to attend upon the Suburb J property for the maintenance, rectification and repair of the Suburb J property; and
(e)do any other act or thing reasonably necessary to prepare the Suburb J property for sale and to maintain it pending settlement of the sale.
14.That any payments made by the wife pursuant to Order 12 and 13 herein are to be paid to the wife from the proceeds of sale of the Suburb J property simultaneously with the fees paid at Order 7.1 of the Orders of the Honourable Justice Brasch dated 21 December 2022 upon the wife producing to WW Company and the husband invoices for the works completed pursuant to Order 13 herein and providing any invoice in relation to anything paid pursuant to Order 12 herein.
15.The wife be at liberty to apply upon short notice to have the matter re-listed before the Honourable Justice Brasch in respect of the sale or implementation of these orders.
Costs
16.Any party wishing to agitate for costs do so by filing and serving written submissions within fourteen (14) days of the date of this order.
17.The other party is to file and serve written submissions in reply fourteen (14) days after the service of any written submissions provided for in Order 16 above.
18.The need to file an Application in a Proceeding with respect to costs is dispensed with.
19.The parties are agreed the issue of costs be determined in Chambers.
THE COURT NOTES THAT:
A.In the event either party files and serves written submissions, the parties are to email a copy to chambers …@...copied to the other party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Haines & Rader has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
INTRODUCTION
As noted in Haines & Rader (No 4) [2022] FedCFamC1F 1008 at [1] “the property dispute between the husband and wife has been in the Court since 2019. It has had a long and protracted history of litigation in this Court.”
That protracted history continues, notwithstanding that final property orders were made on 21 December 2022.
Ms Haines, born 1970 (“the wife”), initiated the proceedings on 15 March 2019 by filing an Initiating Application for Final Orders in the Federal Circuit Court as it was then. Mr Rader, born 1968 (“the husband”) joined issue with the proceedings by filing a Response on 7 April 2019.
The wife and the husband (“the parties”) commenced cohabitation in 2003. The parties married in early 2009. I have previously found they separated in August 2017. Both parties agreed the divorce order was made in early 2020.
The parties have two children; X, born 2005 (“X”), and Y, born 2006 (“Y”) (“the children”). It is common ground the children have not spent time with the wife since mid-September 2018.
The matter was listed before me on Friday just gone to determine the competing applications filed by the wife and the husband. They are:
(a)On 25 January 2023, the wife filed an application to enforce the final orders, especially that the husband vacate the former matrimonial home at Suburb J, a Warrant for Possession issue and, the property be sold. The wife sought orders to facilitate the sale. The husband’s Response, filed 13 February 2023, was that the application be stayed pending the outcome of his s 79A application, or in the alternate sought an order:
a stay of the Orders made on 21 December 2022 and the Application in a Proceeding filed by the Wife on 25 January 2023 be stayed pending the obtaining by the husband of legal advice in relation to prospects of success of appealing the Judgment of her Honour Justice Brasch dated 21 December 2022.
Entirely appropriately, that order about a stay pending advice was not pressed by the husband’s counsel;
(b)On 13 February 2023, the husband filed a s 79A application to set aside the final orders. He proposed the matter be set down for a new trial. The wife’s response was that the application be dismissed, and, the husband be declared a vexatious litigant; and
(c)The husband also sought leave to issue some subpoena.
I determined to hear the s 79A application first as that would have flow on effects to other issues. That is, if I was with the husband on the s 79A application, then, the question of leave to issue subpoena would arise, but, the wife’s enforcement application would fall away. Conversely, if I was against the husband on his s 79A application, then the question of leave to issue subpoena would fall away, but the wife’s enforcement hearing would arise. The parties’ legal representatives agreed on this approach. To save the parties coming back another day it was also agreed that I would hear submissions on the s 79A application and the enforcement hearing, again as I said so, the parties did not have to come back on another occasion to work out what next.
As the husband’s counsel agreed, this approach then rendered his Response, filed 13 February 2023 (the Response seeking stays) nugatory.
These are my ex tempore reasons with respect to the s 79A, subpoena leave issue and enforcement applications. I have corrected the transcript for grammatical errors and to make the spoken word more amenable to writing.
I will deal with the wife’s application that the husband be declared a vexatious litigant in separate reasons at a later date. The legal representatives agreed to this approach.
BACKGROUND
I will not repeat the extensive history of litigation; it is not necessary to the dispute that is before me. Rather I will give a brief overview. These Reasons should be read in conjunction with my previous judgments in this matter:
(a)Haines & Rader (No 2) [2022] FedCFamC1F 685 (“Haines & Rader (No 2)”)– this concerned the husband’s “application by email” to adjourn the trial, which I dismissed;
(b)Haines & Rader (No 3) [2022] FedCFamC1F 1007 (“Haines & Rader (No 3)”) – this concerned the husband’s application pursuant to r 10.13(1)(a) (his own absence) to set aside orders I made on 5 and 6 September 2022, which I dismissed; and
(c)Haines & Rader (No 4) [2022] FedCFamC1F 1008) (“Haines & Rader (No 4)”) – this is the Order and Reasons in the substantive s 79 proceedings.
The matter was set down for final hearing on 6 and 7 September 2022. The trial concluded in one day, with the husband not attending.
Following the undefended hearing, I made orders for both parties (but particularly for the benefit of the husband) to be provided with the transcript of the 6 September 2022 hearing and provided an opportunity for the husband to make written submissions:
2. Both the husband and wife will be provided with the transcript of the trial by the Court, and:
(a)Upon it being sent by the Court to the husband’s email address known to the court, the husband has 14 days thereafter to file and serve written submissions to the court; and
(b)Upon the husband providing any such written submissions within that 14 days, the wife has 14 days to file and serve any reply.
The following notation was included in the 6 September 2022 order:
B.In the event the husband does not file any such written submissions within the 14 days, the court intends to move to judgment, when Her Honour Justice Brasch can thereafter.
The transcript was emailed to the parties on 9 September 2022. The husband did not file any submissions, nor was there an application for an extension of time.
The husband was made acutely aware that should he not take up that opportunity to be heard, judgment would be delivered. In Haines & Rader (No 3) (at [37]-[38]), I referred to the steps taken by the wife’s solicitors to make sure the husband was alert to this. I accepted what he said then and still do now:
…the solicitor for the wife highlighted that the husband was afforded procedural fairness not once but twice. First, he was afforded the opportunity to attend at the trial, which I have already set out. I am well satisfied the husband knew of the trial dates.
Second, the husband was given a further opportunity to be involved in the trial by my making orders that he be provided with the transcript and provide written submissions. He did not do that. The solicitor for the wife listed the steps he took to ensure that my order about the submissions and the transcript were brought to the husband’s attention. I accept, as I said, what he said. It was not disputed by the husband…
As was said in in Allesch v Maunz(2000) 203 CLR 172 , Kirby J observed at [38]–[40]:
... Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted, the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation
As observed in Haines & Rader (No 3) at [26] the husband foreshadowed filing various applications after the due date of written submissions had lapsed.
Eventually, an Application in a Proceeding filed by the husband was brought to chamber’s attention on 9 December 2022. It sought a stay of the 5 and 6 September 2022 orders. These concerned, respectively, orders about a subpoena the husband had issued (and had largely been complied with by third parties on short notice), and, my order dismissing the husband’s “application by email” to adjourn the trial, along with the provision of the transcript as described above. The December 2022 application was heard on 19 December 2022 and ex tempore reasons were delivered on 20 December 2022 (Haines & Rader (No 3)). The application was dismissed.
On 21 December 2022, I then delivered reasons and made orders in the substantive proceedings (Haines & Rader (No 4)). The nett effect of those orders was:
(a)The husband was to vacate the property within 28 days;
(b)The Suburb J property was to be sold;
(c)The wife was to receive a 60 per cent share of the parties’ net assets and liabilities; and
(d)The husband was to receive the balance less amounts owing to entities subject to the subpoena, a costs order in favour of the wife and any further increase to the O Limited mortgage.
On 6 January 2022, the husband’s solicitor (who the husband now deposes was difficult to contact between 23 December 2022 to 16 January 2023) contacted chambers requesting a written copy of the ex tempore judgment delivered on 20 December 2022 (that was with respect to the husband’s application under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)). A copy of same was sent to both parties by chambers on that same day.
The husband was to vacate the Suburb J property on or before 18 January 2023 pursuant to Order 1 of the substantive s 79 order. On 22 December 2022, the wife’s solicitor sent correspondence to the husband’s solicitor confirming the husband was to vacate the Suburb J Property on or before 18 January 2023.
The husband did not vacate the Suburb J property as ordered. He still has not vacated the property. That is common ground.
Hence, the wife filed an Application – Enforcement on 25 January 2023 seeking enforcement of the 21 December 2022 orders. Upon that application being brought to the attention of chambers, it was listed for hearing on 16 February 2023 and directions for the husband to file a Response by no later than 4.00 pm on 10 February 2023.
The husband failed to file a Response by 4.00 pm on 10 February 2023. On 13 February 2023, the husband filed a Response to the wife’s Application – Enforcement he did not seek a dismissal of that application. Rather he sought the stays as previously described. He also filed an Application in a Proceeding seeking the orders of 21 December 2022 be set aside pursuant to s 79A of the Family Law Act1975 (Cth) (“the Act”) and r 10.13 of the Rules. In the husband’s outline and hearing of the application little, if anything, was said about r 10.13.
With competing Applications in a Proceedings on foot, orders were made in chambers vacating the 16 February 2023 hearing to allow the wife an opportunity to file material in response to the husband’s s 79A application. The wife’s Application – Enforcement and the husband’s s 79A Application were listed Friday just gone, 3 March 2023.
For the reasons already stated, I will first consider the s 79A Application which is also pleaded to be under r 10.13, but as I said, the Rules received very little attention, if any. That will then impact on what else is then before me to determine.
APPLICATION TO SET ASIDE FINAL ORDERS
Material
For the s 79A application the following was before me:
The husband relied upon:
·Application in a Proceeding filed 13 February 2023; and
·Affidavit of Mr Rader filed 13 February 2023.
The wife relied upon:
·Response to an Application in a Proceeding filed 27 February 2023; and
·Affidavit of Ms Haines filed 27 February 2023.
Across all issues in dispute, a total of four Exhibits came into evidence. Both parties filed helpful Case Outlines.
Legal principles
Whilst r 10.13 of the Rules was pleaded in the husband’s Application in a Proceeding, which ground of the rule was not identified in submissions or in the Outline. I have already heard and dismissed an application of the husband under r 10.13(1)(a) (absence of a party) and will not entertain that again. To be clear, counsel did not cover those grounds either and that was entirely appropriate. Doing the best I can, it may be that r 10.13(b) with respect to fraud is what is relied upon.
Fraud means a conscious wrongdoing or some form of deceit (Taylor & Taylor (1979) FLC 90-674). This brings with it a difficulty in proof, and may well explain why so few s 79A cases succeed on fraud alone. In any event, as no submission were directed at fraud (or indeed whatever ground the husband had in mind but not articulated) I will not guess. I will not therefore advance consideration on r 10.13 for a lack of prosecution.
Relevantly, s 79A of the Act provides:
79A Setting aside of orders altering property interests
1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(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; or
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
Section 79A of the Act is not a mechanism through which a person who is aggrieved with a final determination under s 79 of the Act may seek answers to outstanding queries or concerns (Kingston & Field (No 2) [2022] FedCFamC1A 87 at [29]).
Section 79A contains many more provisions than what I have extracted above, but s 79A(1)(a) is what the husband relied upon as set out in paragraph 3 of his affidavit with respect to his s 79A application:
3. I am seeking that the Orders dated 21 December 2022 be set aside on the basis of a suppression of evidence leading to a miscarriage of justice in respect of the following:
(a) Documents in my tender bundle contradicted evidence and submissions made by and on behalf of the wife.
(b) I have been informed that as at [late] 2022, the wife had full-time employment. There is potential that the wife’s forthcoming employment was known to or anticipated by the wife at the time of or prior to the final hearing, which matter was not disclosed and was in conflict with the wife’s evidence and submissions.
(Emphasis added)
I will call these the Tender Bundle ground and the employment ground.
Whilst the husband deposed to a suppression of evidence, his counsel made submissions more so about the giving of false evidence. No submissions were directed to “or any other circumstance”.
Suppression of evidence (including failure to disclose relevant information)
The term suppression of evidence (including failure to disclose relevant information) was discussed in Official Trustee in Bankruptcy v B and G (decd) (2006) FLC 93-258 at [102]:
The term “suppression of evidence” in s 79A was clarified by an amendment made 27 December 2000 by the addition of the phrase (failure to disclose relevant information). This then specifically spelt out what further conduct is covered by the ground of “suppression of evidence”. Prior to that amendment a simple failure to give relevant evidence was most probably excluded from “suppression of evidence” as had been held by the Full Court in cases such as Taylor and Taylor (1977) 15 ALR 266 at 281 ; 3 Fam LR 11,220 at 11,233 ; (1977) FLC 90–226 at 76,197:
… “[S]uppression of evidence” which, in our view, and in the context of s 79A which speaks of “fraud”, “duress” and “false evidence”, must go beyond the mere giving of one-sided evidence and amount to wilful concealment of matters which it was her duty to put to the Court …
(Emphasis added)
A suppression of evidence involves the wilful concealment of a fact that a party is under a duty to disclose (Taylor v Taylor (1997) FLC 90-226 at 76,197; In the Marriage of Kokl (1981) FLC 91-078 at 76,557 per Gee J; Pelerman v Pelerman (2000) FLC 93-037 at [75]; Lane & Lane (2016) FLC 93-699 (“Lane”) at [139]).
For suppression of evidence and a failure to disclose relevant information (as for all matters under s 79A(1)(a)), it will not be sufficient for the applicant to just establish that has happened on the balance of probabilities. What is necessary is for the applicant to establish that there has been a miscarriage justice for either of those reasons (or indeed any of the other reasons in s 79A(1)(a)). However, the husband’s grounds here were suppression of evidence (including the failure to disclose) and the giving of false evidence.
Importantly, failure to disclose relevant information will not be sufficient if the other party is aware of the information (Ebner & Papas [2014] FamCAFC 229 (“Ebner”) at [65]).
Giving false evidence
The High Court said “false” evidence is to be distinguished from fraud as that is separately mentioned in s 79A(1)(a). Instead, it is to be given its literal meaning (Taylor v Taylor (1979) 143 CLR 1 at [5] and [14]). “False” does not then mean wrong or incorrect. It cannot mean one-sided or a memory failure or a poor recollection of events. “False” suggests the giver of the evidence knows it to be false and gives it anyway.
In Taylor, Mason J added at [14]:
What s. 79A(1) does is to give the court a discretion to set aside an order when it has been obtained by false evidence. In such a case the court will be extremely reluctant to exercise its discretion in favour of setting aside the order unless something more appears than that false evidence has been given and has procured the making of the order. The importance of bringing an end to litigation and the evil of allowing cases to be retried on the same evidence are powerful deterrents against setting aside a judgment whenever it appears that it has been obtained by false evidence without more. Where, however, more appears, as, for example, that the judgment was obtained ex parte without the benefit of the evidence to be given by one of the parties, then the court will the more readily exercise its discretion in favour of setting aside the judgment…
The “without more” that is referred to in that quote would be the requirement that even if false evidence was given, did that produce a flaw in the judicial process; i.e. a miscarriage of justice.
A miscarriage of justice
In Public Trustee v Gilbert (1991) FLC 92-211 the Court found that “a miscarriage of justice can only occur by reason of a fact or event which occurs before or at the time of the making of the order which is sought to be set aside”.
In Barker & Barker (2007) 36 Fam LR 650 (“Barker”) at [120] and [123] the Full Court referred to Bigg v Suzi (1998) FLC 92-799 and the line of authority following it:
A miscarriage of justice under s 79A(1)(a) will occur if circumstances exist which “for some significant reason, make the order contrary to law and justice according to law as it relates to the integrity of the judicial process [original emphasis]” (Bigg v Suzi (above) at 84,982). See also Suiker (above); Public Trustee (as executor of the estate of Gilbert) v Gilbert (above)). Whilst cases such as Suiker (above), Holland v Holland (1982) FLC 91–243 and Gebert v Gebert (1990) FLC 92–137 indicate that the words “miscarriage of justice” should not be construed narrowly and the phrase “integrity of the judicial process” should not be taken only to refer to the hearing in the court, the circumstances creating the miscarriage must nevertheless have been such as to have had an influence on the outcome of the litigation …
…
As previously discussed, in order for a claim under s 79A(1) to succeed, the court must be satisfied that a miscarriage of justice has resulted. It is not sufficient to merely establish the existence of one or more of the stated grounds, such as suppression of evidence. In Livesey v Jenkins (above), Brandon LJ had this to say about the nexus between non-disclosure and setting an order aside (at 445–6):
I would end with an emphatic word of warning. It is not every failure of frank and full disclosure which would justify a court in setting aside an order of the kind concerned in this appeal. On the contrary, it will only be in cases when the absence of full and frank disclosure has led to the court making, either in contested proceedings or by consent, an order which is substantially different from the order which it would have made if such disclosure had taken place that a case for setting aside can possibly be made good. Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed, with costs against them, or, if they are legally aided, against the legal aid fund.
We agree with this statement.
The discretion to vary or set aside
It is not merely sufficient that a miscarriage of justice is established, the husband as it is here must satisfy the Court “not just that there has been a ‘miscarriage of justice’ but also that the appropriate exercise of the discretion is to so order” (In the Marriage of Prowse (1995) FLC 92-557 at 81,566):
we do not think it would be correct to say that there is even a prima facie entitlement to have the consent orders set aside once a miscarriage of justice has been established, because to do so would be to limit the discretion of the Court and to place an onus upon the respondent to show circumstances why the order should not be made. The better view, in our opinion, is that an applicant for an order under s. 79A(1) bears the onus of satisfying the Court that the original orders should be set aside or varied, and that includes the onus of satisfying the Court not just that there has been a “miscarriage of justice” but also that the appropriate exercise of the discretion is to so order.
Mode of hearing
In Patching and Patching (1995) FLC 92-585 (“Patching”) at 81,797 the Court said, referring to an application under s 79A(1)(a):
Here this involved four steps, namely whether there had been a suppression of evidence or “other circumstance” as alleged by the husband, whether that amounted to a “miscarriage of justice”, whether the Court, in its discretion, should “vary the order or set the order aside’” and whether it should make another order under s 79 …
…
In Oastler and Oastler (1993) FLC 92-390 the Full Court emphasized that it is generally preferable to deal with all of the steps in the one hearing. The reasons for that are obvious, namely that even if the Court concludes that there have been circumstances which amount to a miscarriage of justice it must then consider whether in all the circumstances it should exercise its discretion to vary or set aside the orders and/or make a new s 79 order. In exercising that discretion it will have regard to, inter alia, the degree and nature of the miscarriage in question, any delay, alterations in the parties’ positions in the meantime, and the extent to which, if at all, it is now appropriate to vary the original orders: [McIntyre and McIntyre (1994) FLC 92-468], provides an example of this. The last of those circumstances was important in this case for reasons which will subsequently become apparent. Of course there will be cases where it is convenient to divide the procedure into several hearings; for example, where there is a discrete issue under the first and/or second step and the property circumstances of the parties are complex.
(Emphasis added)
This is a matter where the applicant husband proposed that I would find relevant grounds causative of a miscarriage of justice, and then exercise my discretion to set aside the order. He proposed a new trial, which he estimated would take five days. It would be then, on his position, that another order would be made. I will follow the bifurcated process he proposed. For the wife’s part, her case was simply that none of the s 79A(1)(a) grounds were made out, hence there was no miscarriage of justice and nothing to exercise my discretion about with respect to setting aside or varying the s 79 order.
The Tender Bundle ground: A suppression of evidence (including failure to disclose relevant information) or giving false evidence?
The husband’s affidavit suggests that it was his Tender Bundle that was supressed, and if it had not been, then it would have “contradicted evidence and submissions made by and on behalf of the wife”. I will repeat what he deposed to in his affidavit at [3]:
I am seeking that the Orders dated 21 December 2022 be set aside on the basis of a suppression of evidence leading to a miscarriage of justice in respect of the following:
(a) Documents in my tender bundle contradicted evidence and submissions made by and on behalf of the wife.
The husband deposed that his Tender Bundle was filed on 2 September 2022 (Husband’s affidavit filed 13 February 2023, paragraph 4). It was not. It was never filed.
Rather, it was accepted, very appropriately by the husband’s counsel, that emailing a tender bundle to a registry email address did not make the Tender Bundle evidence, much less evidence before me at trial. It was also accepted, again entirely appropriately, that there was no evidence before me that the wife had read or engaged with the husband’s proposed Tender Bundle. Again, appropriately, it was accepted that the wife had no duty to bring any material in the husband’s proposed Tender Bundle to the Court’s attention. This was not an ex parte application; it was an undefended hearing.
If the husband’s affidavit is to be read that it was his Tender Bundle that was supressed and had it not been, then the wife’s evidence would have been contradicted, then, I do not accept that. By virtue of the husband’s own choices, the Tender Bundle was simply not in evidence before me. A party cannot rely on their own non-disclosure to have orders set aside (by analogy I refer to Badawi and Badawi (2017) FLC 93-784; In the Marriage of Rohde and Rohde (1984) FLC 91-592; Lane).
I am thus not satisfied the consequence of the husband’s decision not to participate in the trial, and thus not put his own Tender Bundle into evidence (subject to any evidential objections) constitutes a suppression of evidence. It is simply disingenuous of the husband to claim suppression of evidence when he is the one who failed to put his Tender Bundle before the Court. That is even more so, given he was sent the trial transcript and directions made for him to file written submissions, but he did not.
Counsel for the husband took a different approach though. Her submissions were not so much about suppression of evidence but about the wife giving false evidence when it came to the wife deposing “joint savings” were used to acquire the former matrimonial home. However, this submission links back to the husband’s Tender Bundle which was said to contain the contradictory information. I have already highlighted the problem with the husband relying either directly or indirectly upon his own failings to support his s 79A(1)(a) ground.
The gravamen of the submissions distilled to this (which the husband’s counsel confirmed) – when the wife deposed they acquired the Suburb J home with “joint savings”, that was “false”. It was further submitted that:
(a)It was implausible that the wife did not recall the purchase arrangements, albeit in 2006;
(b)It was implausible that the wife did not remember the purchase arrangements, albeit in 2006;
(c)The “joint savings” claim was “not truthful”;
(d)It was just not plausible that they used “joint savings”;
(e)There was an onus on the wife to be truthful; and
(f)the wife had a duty to “be truthful” and she could not have been.
A problem with these submissions (in addition to the link back to the husband’s Tender Bundle) is that they rest on the foundation of “joint savings”. It seems to be the husband’s contention that joint savings means joint or delineated contributions (for example he put in more, to put it very frankly). In any event, for all I know the wife was referring to the parties, having been together for three years, were an economic unit where each contributed to the family endeavour in different ways. Or, as I found in the substantive proceedings at [159]:
…I reject the husband’s contention that [Suburb J] was bought with his funds, because by the time of purchase, the couple had been cohabiting for several years. He also gave no evidence in support of the purchase being from his funds. [Suburb J] was plainly the home for the family unit, which by this time included [X] and [Y]. I accept the wife’s unchallenged evidence that matrimonial funds were used for its acquisition.
It is hard to see that when the wife deposed to “joint savings” being used to purchase the Suburb J property three years into the relationship and two children later, that she had supressed evidence in doing so, or failed to make disclosure about the issue, or gave false evidence.
As for giving false evidence (which was the emphasis in oral submissions), the wife’s use of “joint savings” may be her best recollection, or her view of the matter, or even one-sided evidence or maybe even wrong, but none of those come close to establishing false evidence under s 79A(1)(a).
It is the husband who must discharge the onus in this regard, and he has failed. Saying it is false, does not, in and of itself, make it so.
Nevertheless, I will go on to consider that if the wife’s reference to “joint savings” was false evidence or a suppression of evidence (including failure to disclose relevant information), whether that constitutes a miscarriage of justice.
The Tender Bundle ground: A miscarriage of justice?
I will start again with the husband’s affidavit about his Tender Bundle and it being the source of the suppression of evidence, or at least as it seems from his affidavit.
The transcript of the final hearing sent to the husband following his non-attendance, makes clear that his proposed tender bundle was not before me (see Transcript 6 September 2022, p.34-35). The husband did not address this in the opportunity he was given to provide written submissions, nor was it addressed in his application to set aside the orders of 5 and 6 September 2022 (Haines & Rader (No 3) [2022] FedCFamC1F 1007).
I have already said in the primary judgment (Haines & Rader (No 4) [2022] FedCFamC1F 1008 at [27]):
The Outline referred to a “Tender Bundle of [Mr Rader]”. That Tender Bundle was not put before me. Similarly, the husband’s affidavit referred to annexures, but nothing was annexed to his affidavit that was before me. It may be the Tender Bundle and Annexures were one and the same thing. I do not know. I will do the best I can on the evidence before me.
Frankly, the husband’s Tender Bundle was not before me, because the husband himself failed to participate in the proceedings.
Had the husband chosen to participate in the trial, and/or keep his solicitor and barrister retained, they would have had the opportunity to tender it in the usual way, subject to any evidential objections.
Further, the husband had the very clear opportunity to put on submissions after the evidence was closed, but did not. This was his choice.
There was no application prior to judgment to re-open the evidence (the prospects of which I make no comment).
I am accordingly not satisfied that the husband’s own actions (or inactions) constitute a miscarriage of justice, being a flaw in the judicial process.
Again though, the husband’s Counsel took a different path emphasising the evidence was false as outlined above. In the husband’s outline, it was said that if I accepted the joint savings claim was false (or a suppression of evidence), then it follows I would have given greater weight to the husband’s contributions to the purchase of the former matrimonial home - three years into the relationship and after the birth of two children.
I have not found the wife gave false evidence or that she supressed evidence with respect to the “joint savings” claim. Even if the husband had actually put on evidence to demonstrate he had applied more money to the purchase than the wife, it is still but one contribution during the relationship which by this time had produced two children.
It remains, (again) that the husband was given the opportunity to make submissions, but did not. It remains (again) that having received the transcript and seen what the wife said, he could have applied to re-open. But he did not.
I do not accept that the husband sitting on his hands, well-armed with the wife’s position constitutes a defect in the judicial process.
Even if the wife’s evidence about “joint savings” was false it is but one contribution during the relationship. I refer to my findings at [159] of the substantive judgment about matrimonial funds.
The Tender Bundle ground: A discretion to set aside or vary the order?
The exercise of discretion involves doing justice between the parties. Matters which may affect the exercise of the court’s discretion include any delay in seeking relief under s 79A, and significant prejudice or hardship that might be caused to the other party and the desirability of final orders made under s 79.
Equally, where a miscarriage of justice is agitated, the degree and nature of the miscarriage of justice can be relevant to the discretion (Patching). The factors, when I exercise my discretion, are nevertheless are at large (Gitane & Velacruz (2008) FLC 371).
However, it flows that having not found a suppression of evidence or false evidence, and having found no flaw in the judicial process, I will not exercise discretion to set aside or vary the order on the Tender Bundle ground as formulated by the husband in his affidavit, or, re-formulated by his Counsel.
Ultimately, if there was any defect in the matter, it was the husband’s choices to not participate and not take advantage of the procedural fairness opportunities that were afforded to him. Sitting on ones hands, and complaining after the fact, does not make for a defect in the judicial process.
Even if I am wrong on all of that, I accept the husband has not delayed in bringing this application but there would be significant hardship and prejudice to the wife if the matter started again. I accept what she says in her affidavit at [8(a)-(c)] that the applications in these proceedings is “severely affecting [the wife’s] mental health” and “have drained [the wife’s] limited financial resources”. I accept submissions from the husband’s counsel that all litigation is stressful, but the wife is saying something different there. It is also the case that this matter started in 2019 and has been long and protracted with 21 applications in a proceeding (I was told 11 by the husband and 10 by the wife) including a number of reviews and appeals brought by the husband; there is a compelling desirability of final orders made under s 79.
The employment ground- suppression of evidence (including failure to disclose relevant information) or giving false evidence
To give context to this ground, it must be recorded that the husband’s Case Outline relied upon information, which had been used contrary to a s 62C Administrative Appeals Tribunal Act1975 prohibition order. To the husband’s Counsel’s great credit, when this prohibition was brought to her attention, she did not press the tender of documents which were referred to in her Outline. I therefore disregard what was said in the husband’s Case Outline that relied upon the prohibited material.
It is then worth repeating the evidence put on by the husband about the wife’s possible employment at his paragraphs [3(b)] and [13]-[15]:
3. …
(b) I have been informed that as at [late] 2022, the wife had full-time employment. There is potential that the wife’s forthcoming employment was known to or anticipated by the wife at the time of or prior to the final hearing, which matter was not disclosed and was in conflict with the wife’s evidence and submissions.
…
13. In [late] 2022, I did not receive the regular child support payments from Centrelink. I called Centrelink to enquire as to why they may have not been received. When the call was answered by a Centrelink representative, we had a conversation in words to the following effect:
Me: Hello, I am chasing up my child support payments, my last fortnightly payment was due recently and I haven’t received it.
Centrelink representative: The reason it hasn’t come through is because your wife has found employment.
Me: OK, thank you.
14. From this conversation with Centrelink, I understand the wife has now found employment.
15. I am concerned that the Court may have been misled in relation to the wife’s employment prospects and future earning capacity if it transpires that, at the time of the hearing, the wife was aware of the possibility of her commencing the employment she commenced very soon after the completion of the hearing.
(Emphasis added)
The highest the evidence goes is that well before my judgment, someone told the husband something about the wife having some kind of job, and there was “potential” the wife knew or may have “anticipated” this prior to the final hearing. Consequently, the husband is “concerned” the Court “may have been” misled “if it transpires” the wife was aware of possible employment.
That is it.
The husband’s counsel quite rightly accepted the husband’s paragraphs constituted rank hearsay and would attract little weight. I agree. On that basis, I would conclude my consideration of this ground at this point. However, for completeness, I will continue.
In her affidavit, the wife denied she has misled the Court as to her earning capacity (Wife’s affidavit filed 27 February 2023, paragraph 3). She denied having a job at the time of trial nor did she have an offer of employment (wife’s affidavit filed 27 February 2023, paragraph 3). There is nothing in the evidence before the Court that leads me to conclude the wife has supressed evidence, failed to provide full and frank disclosure or gave false evidence. All I have is the husband’s speculation about a potential or possible job based on rank hearsay. The currency of a court is evidence; I have very little, if any.
Suffice to say, if the husband had chosen to participate in the trial, and/or not withdrawn his retainer of counsel and instructions to his solicitor, the wife’s employability and the doctor’s opinion could have been tested. But he did not do so.
Nevertheless, it was submitted that the wife had a duty to disclose information about possible jobs – but there is no evidence before me now of any potential or possibility that actually existed (if a possibility or potential can be evidenced) at trial. As for disclosure when the trial ended, it is plain from the husband’s affidavit that he acquired some information in any event.
It was submitted that it was “implausible” that the wife did not know of offers of employment that were made, apparently, after trial, when she was before me at trial. The wife denies this to be so. I do not accept the submission about implausibility because it is a bald assertion with no evidence to support even an inference being drawn of the variety contended for. Respectfully, it elevates the husband’s hearsay speculation about a potential or a possible to a level that is not open on his evidence.
It was also submitted that the wife should have disclosed the employment information to the husband after trial. That is, respectfully, rather redundant – the husband had the information himself in late 2022. The wife does not have a duty to disclose that which is already in the hands of the husband. Perhaps the wife should have disclosed the apparent employment to the husband sooner, but the reality is, he was armed with the information in late 2022, well prior to my delivering judgment. That is, he was aware of the information (Ebner at [65]).
Similarly, in Barker at [124] it was said:
But s 79A is a remedial section designed to avoid a miscarriage of justice. Where there is some intervening factor known to one party, but not the other, this may lead to a result which is unfair and unjust and can be characterised as a flaw in the judicial process by which the orders were made.
(Emphasis added)
On the husband’s own evidence, such as it is, he had information of the wife’s apparent employment in late 2022. I did not deliver judgment until 22 December 2022. The husband did not apply to re-open to bring this information to my attention, and certainly not in an admissible form. Instead, he now complains via a s 79A application after the pronouncement of Orders and reasons. The “intervening factor” of the wife’s apparent employment was known to both parties, and specifically the husband, well prior to my delivering reasons.
Accordingly, on the basis of the husband’s own frail and feeble evidence (and objectionable evidence, had objection been taken), I do not accept the wife supressed evidence, failed to disclose or gave false evidence.
Notwithstanding, I continue with the exploration of this ground and the steps to which I will turn my mind.
The employment ground- a miscarriage of justice?
The expression “miscarriage of justice” refers (as I have laboured) to the judicial process. It may be the action of a party or a judicial officer, but it must be integral to the process of obtaining the orders. It is difficult for the husband to claim a miscarriage of justice when he was privy to some form of information well prior to judgment and did nothing about it.
It was submitted that the husband did not know that the parties’ disparity of income or the wife’s poor employment prospects would result in an adjustment to the wife. I do not accept that submission. The husband had the transcript from the hearing where it was clear that the wife plumped for an adjustment in her favour on the basis of, inter alia, income disparity or poor employment prospects. The husband did not take up the opportunity to make submission as was provided to him.
It is also the case that my adjustment in favour of the wife on s 75(2) factors did not rest just on these factors. As the husband deposed at his paragraph 12(e), I found this:
Taking into account all relevant matters , and acknowledging the husband has the care and control of the children who are almost adults, his superior financial position over the wife, her poor employment prospects and the husband’s woeful non-disclosure and conduct impeding the Single Expert, I find that an adjustment of 10 per cent in the wife’s favour is warranted. (emphasis added)
The emphasis is the husband’s, but it serves to highlight the wife’s poor employment prospects was but one consideration. The husband’s “woeful non-disclosure” and conduct impeding the single expert were others.
I do not accept that the husband’s decision to sit on his hands and await the final outcome constitutes a miscarriage of justice. The husband’s choices to sit back, armed with the information about which he now points to, does not make for a flaw in the judicial process.
The employment ground- a discretion to set aside or vary the order?
It follows that I will not exercise my discretion to set aside or vary the s 79 property order. The husband has failed to discharge his onus.
I repeat what I said about the exercise of discretion under the Tender Bundle ground about the timing of the application, prejudice to the wife and desirability of a final s 79 order.
Orders 1 to 5 of the husband’s application filed 13 February 2023 seeking the orders be set aside are dismissed. That leaves his costs application alive. I say more about that later.
Subpoena – leave needed
The husband sought leave to file some subpoena. As said, the parties agreed that if the s 79A application was dismissed, then the subpoena issue died with it.
As I will dismiss the s 79A application, the issue about leave to issue subpoena is redundant.
Once I make the orders in relation to the s 79A application, it may be I have no property jurisdiction enlivened. Hence, I will dismiss the request for leave to issue subpoena first and then dismiss the husband’s s 79A application at Orders 1 to 5.
APPLICATION – ENFORCEMENT
Legal principles – enforcement
The court’s power to enforce its own decrees and order derives from Part XIII of the Act, and in particular s 105 of the Act which provides that:
Subject to this Part, to the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act.
Consequently, this Court may, in the exercise of discretion (Ramsey & Ramsey[1982] FamCA 42; (1983) FLC 91-301 at 78,061) determine to enforce the 21 December 2022 order, which is included in the definition of “decree” (Family Law Act 1975 (Cth) s 4(1)).
Chapter 11 of the Rules deal with the enforcement of orders.
What is sought to be enforced here are, in summary, the orders that the husband vacate the Suburb J property, a r 11.56(2) warrant for possession authorising the Enforcement Officer to enter the property and give possession to the wife or her nominated agent. The wife then seeks to cause the sale of the property as trustee of the husband. Asset preservation injunctions are also sought, as are sale process orders.
The various orders sort fall within:
(a)Rules 11.01–11.09: grouped within Division 11.1.1, which is entitled “General”, including an order entitling the person to the possession of real property, an order in aid of the enforcement of an obligation; an order to prevent the dissipation or wasting of property; and
(b)Rules 11.55–11.58: grouped within Division 11.1.7, which is entitledEnforcement of obligations other than an obligation to pay money”, including an order to enforce possession of real property; an order for the transfer or delivery of property; and a Warrant for possession of real property.
I am satisfied I have the power under s 105 of the Act and the relevant rules referred to above to make the orders sought by the wife. The husband did not suggest to the contrary.
That said, the wife sought the Warrant be stayed for 24 hours from the time of service of the Enforcement Order. However, I raised with the wife’s solicitor that on a reading of r 11.56 that the husband needed 7 days’ notice of the order to be enforced before the warrant is issued, not seven days’ notice of his application for the order. The wife’s solicitor was content to proceed on that basis.
11.56 Warrant for possession of real property
(1) An order for the possession of real property may be enforced by a warrant for possession only if the respondent has had at least 7 days notice of the order to be enforced before the warrant is issued.
Justice Tree helpfully discussed the principles to be applied in the exercise of the discretion provided by s 105(1) of the Act in McMillan & McMillan [2016] FamCA 387 (“McMillan”) at [38]-[60] and are summarised as follows:
(a)the discretion will be informed by only facts or circumstances which have arisen since the date of the order sought to be enforced;
(b)the question for the court is whether, in all the circumstances, it is inequitable (having regard to general notions of fairness and any equitable remedies which may exist) to enforce the order;
(c)the party who contends that the order should not be enforced bears the onus of establishing that it is not equitable to enforce it; and
(d)delay in the nature of laches is a relevant consideration (albeit one in respect of which the further considerations of the absence of any Commonwealth limitation period forenforcementand the existence of any relevant State limitation period for theenforcement of judgments are relevant).
Material - Enforcement
The wife relied upon:
·Application – Enforcement filed 25 January 2023;
·Affidavit of Damian Phair filed 25 January 2023; and
·Affidavit of Ms Haines filed 27 February 2023.
The husband relied upon:
·Response filed 13 February 2023; and
·Affidavit of Mr Rader sealed at 11.58 am 13 February 2023.
As said, across all issues in dispute, a total of four Exhibits came into evidence and Case Outlines were filed.
On 13 February 2023, the husband filed a Response to the wife’s Application – Enforcement that sought various stays, the first two of which are redundant because I have determined the s 79A application and the third (about a stay to get advice about appealing out of time) was, properly, not pressed.
Curiously, the husband does not ask for the Enforcement Application to be dismissed.
Quite rightly, his counsel said that if the s 79A application was dismissed, then there was very little she could say to resist the enforcement application. I accept her positon to be appropriate and, in the circumstances, correct. Her submission was made in the true traditions of an officer of the court with her first duty to the Court.
Nevertheless, the husband said in his affidavit that:
I resist these orders on the basis of my Response to the Application in a Proceeding and the evidence set out in this Affidavit, but in the event that the Court is minded to make such orders, the time provided of 24 hours is not sufficient in circumstances where I need to find a new home for myself and the children, organize removalists, not to mention also uprooting my children from their home. I anticipate that I would need at least 14 days within which to make the necessary arrangements for myself and my children to move house.
(Affidavit of Mr Rader filed 13 February 2023, paragraph 9)
The husband also deposed that his solicitor was hard to contact over the Christmas period, but she was nevertheless able to email the wife’s solicitors and the Court during the time referred to by the husband. Nothing really though turns on this if it be offered as an excuse for non-compliance with the s 79A order or why the husband was late in filing material in this matter. In any event the s 79 orders were clear. The husband himself gives a good summary of them in his affidavit before me on the enforcement application.
The husband also notes the order was made just before Christmas. That is correct and why I made the vacation to occur in 28 days from the date of my order:
306 I have made some amendments to those orders as follows:
(a)The wife’s Further Amended Initiating Application sought the husband vacate the property and it be listed for sale within 14 days. In her updated Minute, she said 21 days. Given the time of year, I will order the husband to vacate the property and it be listed for sale within 28 days;
As said, the husband’s Response did not seek a dismissal of the wife’s enforcement application but sought stays which are either now redundant or not pressed.
The husband was aware prior to the final hearing that the Suburb J property might have to be sold (see Haines & Rader (No 4) [2022] FedCFamC1F 1008 at [302]-[303]) and even deposed that he understood that was an option and indicated he would move into a three-bedroom apartment. But my discretion is only informed by events that have arisen since the s 79 order (McMillan)
Pursuant to the orders made 21 December 2022, the parties have already taken steps to place the Suburb J property on the market through the wife nominating a panel of real estate agents and conveyancers and the husband selecting one. However, the husband has not signed the agency agreement (Exhibit 4). It is said, and is not in dispute by the husband, that he has refused or otherwise declined to engage with the agent for the conveyancing solicitor to enable the property to be sold.
The bottom line is that the husband has not complied with the order to vacate the Suburb J property on or before 18 January 2023. He deposed to this in his affidavit:
I am currently still residing in the [Suburb J] property with my two children aged 16 and 17
(Affidavit of Mr Rader filed 13 February 2023, paragraph 6)
He has also frustrated the sale process to be embarked upon for example, by not signing the agency agreement which is Exhibit 4. It is upon the sale proceeds being realised that both parties are paid their main entitlements.
It is also the case that the husband’s Response did not seek a dismissal of the wife’s enforcement application. As his counsel very properly submitted, there was very little that could be said to resist the application.
The wife proposed the husband vacate the home within 24 hours of my order. I accept all she says that the husband ought have complied with the order within the time frame ordered. If the husband lived alone in the Suburb J property, I would make the 24 hour order to vacate. But he does not. I am conscious that the parties’ children reside in that household too. I do not know what they know about the need to move out, but what I do know is that they do not need to be relocated within 24 hours because of their father’s non-compliance. I will not visit the non-compliance of the husband on the parties’ children by the short time frame proposed by the wife.
The husband – but more so the children – can have the 14 days to vacate to which he deposed.
The timeframe for the warrant for possession lying in the registry will accordingly be adjusted to 14 days after its service upon the husband.
The balance of the wife’s orders were really machinery orders facilitating the sale. No submissions were made in opposition to these orders.
Turning to the considerations which inform whether to exercise the discretion in favour of enforcement or not, I find:
(a)the facts or circumstances which have arisen since the date of the order sought to be enforced are simple – the husband was ordered to vacate the home and a sale process take place, but he has not done the former on his own admission and not advanced the latter as Exhibit 4 makes clear;
(b)is it inequitable to enforce the order – it is not. The parties’ main property adjustment will be sourced from the sale of the home. To the contrary, enforcing the order does equity to both parties, as a general notion of fairness, that they both receive their entitlements from the proceeds. Mindful that the parties’ children live in the Suburb J property I consider it fair to the children that the vacation occur in the 14 days mentioned by the husband in his affidavit, not the 24 hours sought by the wife;
(c)the party who contends that the order should not be enforced bears the onus of establishing that it is not equitable to enforce it – the husband did not seek the enforcement application be dismissed in his Response and I have already referred to his Counsel’s very appropriate concessions. The husband says nothing in his material which discharges the onus that it is not equitable to enforce it. For reasons given under the previous consideration, I conclude it equitable to enforce the order; and
(d)delay in the nature of laches is a relevant consideration - this does not arise and no submissions was made that it did.
I will thus make the wife’s orders, but allow for a 14 day period for the husband to vacate the home and the warrant to lie in the registry accordingly.
Costs
The parties agreed that any costs orders arising out of the above be determined in chambers after the provision of written submissions on same. I repeat I am content to receive submissions by way of dot points or similar summary.
I will make orders for the making of costs submission, if any, and dispense with the need for the filing of an Application in a Proceeding.
I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 8 March 2023
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