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…
Continue reading Haines & Rader (No 5)
Sign in free to access the full text
Details
- AGLC
- Haines & Rader (No 5) [2023] FedCFamC1F 132
- Case
- [2023] FedCFamC1F 132
- Decision Date
CaseChat Overview and Summary
The case of Haines & Rader (No 5) involved proceedings before the Family Court of Australia where the wife sought a declaration that the husband was a vexatious litigant. The matter had a long history of litigation, which was not necessary to detail for the current dispute. The court had already addressed several applications made by the husband in previous judgments, including an application to adjourn the trial and an application to set aside certain orders. The substantive proceedings were heard and concluded, with the husband not attending. The court made orders for both parties to be provided with the trial transcript and for the husband to submit written submissions within 14 days. The husband did not file any submissions, and the court intended to move to judgment. The husband was aware that his failure to submit written submissions would result in judgment being delivered.
The legal issues before the court were whether the husband's failure to file written submissions after being provided with the trial transcript amounted to a failure to disclose relevant information, and whether this failure resulted in a miscarriage of justice. The court considered whether the husband's failure to file submissions constituted false evidence or a suppression of information, and whether this led to a miscarriage of justice. The court noted that failure to disclose relevant information would not be sufficient if the other party was already aware of the information. The court also considered that giving false evidence meant that the person giving the evidence knew it to be false and still provided it. A miscarriage of justice could only occur if circumstances existed that made the order contrary to law and justice according to law as it related to the integrity of the judicial process. The court held that it was not sufficient to merely establish the existence of one or more of the stated grounds, such as suppression of evidence, for a claim under s 79A(1) to succeed.
The court found that the husband's failure to file written submissions did not amount to a failure to disclose relevant information, as the wife was already aware of the husband's absence from the trial and his failure to attend. The court also found that there was no miscarriage of justice as the husband's failure to file written submissions did not produce a flaw in the judicial process. The court held that the husband's failure to file submissions did not lead to a miscarriage of justice as the wife was already aware of the husband's absence from the trial and his failure to attend. The court exercised its discretion to refuse the husband's application to set aside the orders made on 6 September 2022. The court ordered that the husband pay the wife's costs of the application on an indemnity basis.
The legal issues before the court were whether the husband's failure to file written submissions after being provided with the trial transcript amounted to a failure to disclose relevant information, and whether this failure resulted in a miscarriage of justice. The court considered whether the husband's failure to file submissions constituted false evidence or a suppression of information, and whether this led to a miscarriage of justice. The court noted that failure to disclose relevant information would not be sufficient if the other party was already aware of the information. The court also considered that giving false evidence meant that the person giving the evidence knew it to be false and still provided it. A miscarriage of justice could only occur if circumstances existed that made the order contrary to law and justice according to law as it related to the integrity of the judicial process. The court held that it was not sufficient to merely establish the existence of one or more of the stated grounds, such as suppression of evidence, for a claim under s 79A(1) to succeed.
The court found that the husband's failure to file written submissions did not amount to a failure to disclose relevant information, as the wife was already aware of the husband's absence from the trial and his failure to attend. The court also found that there was no miscarriage of justice as the husband's failure to file written submissions did not produce a flaw in the judicial process. The court held that the husband's failure to file submissions did not lead to a miscarriage of justice as the wife was already aware of the husband's absence from the trial and his failure to attend. The court exercised its discretion to refuse the husband's application to set aside the orders made on 6 September 2022. The court ordered that the husband pay the wife's costs of the application on an indemnity basis.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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…
Evidence
Evidence Before The Court
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
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.