Hann and Green
[2012] FamCA 113
•12 March 2012
FAMILY COURT OF AUSTRALIA
| HANN & GREEN | [2012] FamCA 113 |
| FAMILY LAW – PROPERTY - Application to set aside final property orders pursuant to s79A – change in primary residence of children – circumstances of an exceptional nature – hardship - discretion |
| Family Law Act 1975 (Cth) – s 75(2), s 79A, s 79A(1), s 79A(1)(d), s 81 |
| Sandrk & Sandrk (1991) FLC 92-260; (1991) 15 Fam LR 197 Simpson & Hamlin (1984) FLC 91-576; (1984) 9 Fam LR 1040 Stanic & Stanic (2007) Fam CA 1492 Whitford & Whitford (1979) FLC 90-612; (1979) 4 Fam LR 754 Yousseff & Yousseff (1995) Fam CA 102 |
| APPLICANT: | Mr Hann |
| RESPONDENT: | Ms Green |
| FILE NUMBER: | PAC | 3101 | of | 2009 |
| DATE DELIVERED: | 12 March 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 15 August 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Watkins |
| SOLICITOR FOR THE APPLICANT: | Watkins Tapsell |
| COUNSEL FOR THE RESPONDENT: | Mr Cook |
| SOLICITOR FOR THE RESPONDENT: | Patrick Lim & Associates |
Orders
That the husband’s application filed on 27 October 2010 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hann & Green has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC 3101 of 2009
| Mr Hann |
Applicant
And
| Ms Green |
Respondent
REASONS FOR JUDGMENT
These proceedings involve an application to set aside final property orders pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”).
The Applicant is Mr Hann and the Respondent is Ms Green. For convenience I shall refer to them as “the husband” and “the wife” respectively.
The husband seeks orders to the following effect:
·That the orders made on 7 July 2005 be set aside pursuant to s 79A (1) of the Act.
·That the wife pay to the husband the sum of $268 000 within forty two days; and
·Various enforcement and machinery orders.
On the other hand the wife seeks orders to the effect that the application be dismissed.
Background
The husband, 43 years of age and the wife, 39 years of age commenced cohabiting in 1992 and married in April 1993. They separated on 17 June 2004 and their divorce became final in November 2005.
There are two children of the marriage. They are C born in January 2001, who is 11 years of age and S born in January 2003, who is 9 years of age.
At the commencement of cohabitation the wife was employed by Business A. The husband was unemployed initially. Then in approximately mid-1992 he commenced work for BB Security on a casual basis.
The parties commenced their cohabitation in the wife’s parents’ home and continued living there for approximately 10 months with free board, until their wedding in April 1993. At this time neither party had any assets of significant value.
The wife’s parents paid for most of the costs of the wedding.
After their wedding they stayed at the Gold Coast home of the husband’s parents for 2 weeks.
In July 1993 they travelled to the USA with the husband’s parents who paid for their fares. They stayed mainly with the husband’s relatives although they spent some time in hotels for which the husband’s parents paid.
The parties returned to Australia in late October 1993.
The parties moved into a property at D Street, Suburb J owned by the wife’s aunt. They lived there for 12 months rent free.
In 1993, the husband commenced working full-time with a security company, CC Security.
In January 1994, the wife obtained employment as the receptionist with Dr F. The wife became ill and resigned after approximately 3 months.
In June 1994, the wife obtained employment as receptionist with Business DD.
In October 1994, the parties moved into a property at C St, Suburb Z.
In April 1995, sadly, the husband’s father passed away.
In approximately 1996, the parties purchased the property at I Street, Suburb Y. The purchase price was approximately $260 000, of which the parties borrowed approximately $137 000 from St George Bank. The wife’s parents and aunt contributed $100 000 towards the purchase price. The parties were able to discharge the mortgage over the property approximately five or six years later.
In mid 1997, the wife commenced employment with Business EE.
In February 1998, the wife commenced employment with Business FF.
In 2000, the parties carried out renovations to their Suburb Y home.
The wife ceased working shortly before C’s birth in January 2001.
In February 2001, the husband left his employment at GG Security. He said that he wanted to enjoy spending time at home with C and the wife. He was unemployed for 5-6 months then he undertook some night work at Business HH.
In 2002, the husband commenced work in the security industry at Business HH for approximately three months.
In 2003, the husband commenced work with X Pty Ltd. He continues to work with this company currently.
In January 2003, as indicated above, the parties’ daughter S was born.
The husband conceded that, throughout the parties’ marriage, the wife did the majority of caring for the children and attending to household chores.
On 17 June 2004, the wife left the former matrimonial home at Suburb Y with the children. The husband remained living in the home.
On 7 July 2005 consent orders were made for division of the parties’ property between them. The former matrimonial home was to be sold and the net proceeds of sale were to be paid 75 percent to the wife and the balance to the husband.
An order was also made that the husband pay to the wife a sum of $150 per week by way of spouse maintenance until the completion of the sale of the home.
The husband was also to pay the wife on completion of the sale of the home a further sum of $26 250 by way of adjustment for the Commodore motor vehicle and savings as at separation.
Parenting orders were also made by consent on the same date. These provided in effect that the children were to live with their mother and have contact with their father each alternate weekend from Friday afternoon to Sunday afternoon, one afternoon in intervening weeks, half school holidays and certain specified special days.
The former matrimonial home was subsequently sold and the proceeds paid as set out above.
In 2005, the wife purchased the property at V Street, Suburb Q.
On 15 November 2005, the parties’ divorce became final.
In 2007, the husband received $173 000 from his mother. The purpose of this advance was to assist the husband to purchase a home. At this time the husband had between $90 000 and $100 000 in addition to the $173 000. As things turned out the husband did not purchase a home. He said this was because within months of receiving the money the wife commenced the proceedings to vary the parenting orders.
In about February 2008 C started to have some problems at school involving alleged incidents of bullying.
On 11 June 2009, the wife stopped contact between the children and the husband. She alleged that he had been physically violent and verbally abusive towards the children. The husband denied the allegations.
On 6 July 2009 the wife filed an Initiating Application seeking an order for sole parental responsibility for the children and for a significant reduction in contact between the children and their father.
On 30 October 2009 interim orders were made by Stevenson J which provided for the husband to spend supervised time with the children.
On 28 November 2009, the husband spent supervised time with the children.
In March 2010, the parties attended family therapy as recommended in the Family Report prepared in February 2010.
In May 2010, the wife stopped attending therapy. The husband and the children continued with the therapy.
Between 26 and 28 July 2010, the proceedings for variation of the substantive parenting orders were heard before Cleary J.
On 25 August 2010, Cleary J made orders which had the effect of changing the primary residence of the children from their mother to their father, providing the father with the sole parental responsibility for the children and for the children to spend time with their mother on alternate weekends and half school holidays.
On 27 October 2010, the husband filed his Initiating Application seeking in effect that the orders made on 7 July 2005 be set aside pursuant to s 79A(1)(d) of the Act and that a new set of property orders be made.
The children and husband currently live in rental accommodation.
Credit
Each of the husband and the wife were cross examined although not extensively. There was really very little in issue between the parties in terms of their evidence.
Each of them gave me the impression that they were witnesses of the truth.
Contributions
49A.There was an issue about contributions made by the wife’s mother and her aunt to the purchase of the former matrimonial home. The wife said that these came to a total of $100 000. The husband said that the total was $90 000.
49B.The wife was not cross-examined about this and no other evidence was before the Court about this matter. In these circumstances I accept the wife’s version.
The Husband’s Case
As I have said, the husband’s application is brought pursuant to s 79A(1)(d) of the Act. This provides as follows:
S79A(1)(d) Where, on application by a person affected by an order made by a court under s79 in property settlement proceedings, the court is satisfied that:
… (d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in sub section (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order … 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.
It was submitted that circumstances of an exceptional nature have arisen since the making of the final property orders on 7 November 2005.
Circumstances of an Exceptional Nature
It was conceded by learned counsel for the husband that a change in the custodial arrangements for the children from the wife to him was not of itself sufficient to constitute exceptional circumstances. This was conceded to be on the basis of the principles set out in the decision of the Full Court of this Court in Simpson & Hamlin (1984) FLC 91-576; 9 Fam LR 1040 to which I shall refer again below.
The circumstances in the present case which it was submitted were of an exceptional nature were as follows:
·During 2008 C was having behavioural issues at school;
·The mother made allegations that he was being bullied at school;
·During the trial Cleary J made a number of findings in relation to the mother as follows:
(a)She had been an overwhelming presence for C at school and in the playground and the incidents of bullying involving C were unlikely to cease until there was a change in his relationship with his mother;
(b)The mother was unable or unwilling to challenge her own ideas, or to accept any apparent criticism of C nor to participate in the family therapy process for the benefit of the children;
(c)The mother did not have a capacity to meet all the responsibilities of parenthood. She had been unable to manage the children’s behaviour and had been unable to maintain objectivity to any extent about her children’s behaviour, particularly C’s behaviour at school, and the behaviour of both children in relation to their father. There was a very real risk of the children having disruptive personalities and failing in their own relationships unless there was a change in circumstances;
(d)The mother has since 2008 been unable to facilitate a relationship between the children and their father for reasons which may relate to her psychological and mental health;
(e)The mother’s capacity to meet the children’s needs had become impaired; and
(f)The children were being adversely affected by their mother’s incapacity to set limits and to promote healthy relationships so that their personal development was at risk.
·In June 2009 the mother alleged that the children had been subjected to both physical violence and verbal abuse from the father, and the mother made various other serious allegations of misbehaviour by the father towards the children and her, none of which allegations were found by Cleary J to have been supported by the evidence.
·The father did not see the children between June 2009 and November 2009 and then spent only supervised time with them until April 2010.
The overall submission was that the children were at risk living with their mother and that such a development was well beyond the expectations of the parties when they consented to the making of the property orders. The circumstances by which the children came into the father’s care amount to exceptional circumstances within the meaning of s 79A(1)(d) of the Act.
On the other hand it was submitted on behalf of the wife that the matters relied on above by the husband are irrelevant and that the only relevant matter is the fact that Cleary J made the orders changing the children’s primary residence from their mother to their father.
I must say I am not persuaded that such matters are irrelevant. In my view it is more a question of whether such matters in the context of the history of the case are sufficient to constitute the “circumstances of an exceptional nature relating to the care, welfare and development” of the children necessary as part of what is required under s 79A(1)(d) of the Act for a setting aside of the property orders..
I say this because it is clear from the Full Court case of Yousseff & Yousseff (1995) Fam CA 102 that the Court will take a broad approach in determining what can constitute circumstances of an exceptional nature in this context. In that case the Full Court referred to the following passage from Simpson & Hamlin (above) at page FLC 79,657; Fam LR 1045:
… the question therefore was whether the change which occurred in this case was such as to “take it out of and beyond the ordinary circumstances in which such change might be reasonably expected to occur”.
The Full Court (in Yousseff) went on to say (at pages 5 and 6):
We do not think the Full Court intended to limit the test of exceptional circumstances to circumstances which cannot reasonably be expected to arise. This was made clear when the Court said:
“What amounts to exceptional circumstances is very much a question of fact and degree.”
With respect, we agree. The Court should not limit itself to matters relevant only to expectations. It should consider all relevant facts and matters when deciding whether there have been circumstances of an exceptional nature.
Learned counsel for the husband also referred to the finding by Stevenson J in the case of Stanic & Stanic (2007) Fam CA 1492 that a change of the primary care of three children from that of the mother to that of the father constituted exceptional circumstances. Property orders had been made in November 2003 and the children lived with their mother pursuant to earlier parenting orders. In May 2005 the mother sent a text message to the father threatening to kill him and the children. The Department of Community Services removed the children from the care of their mother in November 2005 and placed them with their father. Due to mental illness the mother was unable to care for them. Stevenson J found that the change in the children’s circumstances was “completely outside the contemplation of either party when the orders for property settlement were made on 13 November 2003” and that “the events which led to the children’s move to live with their father could not described as part of the “ordinary vicissitudes of life” which occur after the breakdown and restructure of families.”
Learned counsel for the husband also referred to the case of Sandrk & Sandrk (1991) FLC 92-260; (1991) 15 Fam LR 197. In that case two boys aged seven and twelve years who had been living with their mother pursuant to orders of this Court, quite unexpectedly and within four months of the making of property orders left their mother’s residence of their own volition and lived with their father from that time. Gee J found that this was not within the contemplation of the parties and was not contributed to in the sense of “consciously creating that situation” by either party. Gee J regarded those circumstances as being of an exceptional nature.
It was submitted on behalf of the wife that as the Full Court said in Simpson & Hamlin (above) what amounts to exceptional circumstances in this context is a matter of fact and degree in every case and that a simple change of custodial arrangements for a child after the making of a property order would not constitute such circumstances. It was submitted that the change of circumstances in this case was not sufficient to enliven the operation of the section. It was submitted that a change in custodial arrangements some five years after the property orders should not be regarded as not being within the reasonable contemplation of the parties at the time of the original orders especially having regard to their youthfulness at that time. C was then four years of age and S was then two years of age.
In my view, the general thrust of the submission on behalf of the wife is correct in this case.
In Simpson & Hamlin (above) the Full Court approved the following conclusion of the trial judge (at FLC 79,657; Fam LR 1045):
The occurrence of a change in the responsibility for the daily care and control of children of a marriage, after the making of a property order under sec 79 of the Family Law Act could not be held of itself to be an unusual circumstance. The ordinary vicissitudes of life coupled with the difficulties that parties to a marriage often experience in the task of restructuring their lives following the dissolution of their marriage and the division of their assets, and their obligations to the support of each other and the support, care and control of their children, frequently creates situations in which it is desirable having regard to the children's welfare that such a change occurs.”…
“What amounts to ''exceptional circumstances'' is very much a question of fact and degree.
The Full Court went on to say (at FLC 69,658; Fam LR 1046) as follows:
As Mason J. made clear in the passage in Taylor v. Taylor (1979) 25 ALR 418 at 429:
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. Then the setting aside of the judgment will not result in a retrial on the same evidence but in a trial on the evidence given by both parties.
This passage relates of course to the original version of sec 79A(1) under which the grounds for setting aside an order were severely restricted. The amendments in 1983 certainly extended the range of situations in which orders could be set aside or varied. However, it did not alter the nature of sec 79 orders as orders which cannot normally be altered. This conclusion is fortified by the operation of s 81 of the Act.
I note in Yousseff the Full Court also said about Simpson & Hamlin (above) as follows at pages 4 and 5:
… Although concluding that His Honour was entitled on the evidence to make this finding (that what occurred did amount to circumstances of an exceptional nature), the Full Court made it quite clear that a court should be circumspect before concluding that a change of custodial arrangements is so exceptional that it would not be expected as a normal vicissitude of life.
In my view the circumstances of the present case are quite different from those in Simpson & Hamlin, Sandrk, Yousseff and Stanic. In Simpson & Hamlin the children’s primary residence changed within a couple of weeks of the property orders. In Sandrk the children “voted with their feet” and changed their own primary residence from that of their father to that of their mother within four months of the property orders. In Yousseff the children changed their own residence (encouraged by their father) from that of their mother to that of their father within two months of the making of the property orders. In Stanic the children were removed from the mother’s care by the Department of Community Services and placed into the primary care of the father just on two years after the making of the property orders. This followed the mother threatening to kill him and the children and some months later sending him a text message asking him to come and take the children.
In the present case the children’s primary residence changed more than five years after the making of the property orders.
This is not to suggest that undue weight should be given to the period between the making of the property orders and the change of residence. But in my view it must be regarded as one of many relevant factors. So much was conceded by learned counsel for the husband.
Of all the authorities referred to above the facts of the present case probably most closely resemble those in Stanic. But there are differences. In Stanic, Stevenson J noted that it appeared that officers of the Department of Community Services had played a pivotal role in the change of the children’s circumstances. And the fact that the mother threatened to kill the father and the children must have contributed to the circumstances being regarded by her Honour to have reached the point where she considered them to be exceptional in my view.
This does not equate with the circumstances in the present case where the change simply was as a consequence of the litigation between the parties based on increasing concerns by the husband about the wife’s capacity to care for the children, particularly in circumstances of the difficulties C was having at school.
Bearing in mind all these matters, can it reasonably be concluded in the present case that a change in the mother’s capacity to care for the children and difficult behaviour by the children five years after the property orders were made fell within the meaning of exceptional as it has been interpreted by this Court? In my view it cannot be so concluded.
Accordingly, in my view, the husband’s application fails at this point.
If I have reached an erroneous conclusion about the requirement for “circumstances of an exceptional nature”, however, it would become necessary to consider whether the children or their father would suffer hardship if the Court did not vary or set aside the property orders.
Hardship
It was submitted by learned counsel for the husband that hardship would be caused by the fact that as a consequence of Cleary J’s orders, the husband is now the children’s primary parent and he has the burden of providing the primary financial support for the children including accommodating them and also providing for the costs of their continuing therapy. Yet it is the wife who enjoys most of the property being the sole owner of her home. And the husband no longer has sufficient funds to purchase a home because he spent approximately $135 000 on legal costs in the proceedings to remove the children from a situation of risk in their mother’s case.
To facilitate an understanding of these and subsequent submissions about financial matters I shall include a list of the property which is currently available to the parties. This is as follows:
$
1. The wife’s home at v Street, Suburb Q
580,0002. Wife’s St George Bank account …
2,221
3. Wife’s motor vehicle Hyundai Elantra
3,000
4. Wife’s household contents
2,000
5. Wife’s Advance Superannuation
19,785
6. Wife’s 681 IAG shares
2,029
7. Husband’s paid legal fees in children’s case
135,000
8. Husband’s Commonwealth Bank account
100
9. Husband’s Commonwealth Bank account
22,000
10. Husband’s Commonwealth Bank account
110,000
11. Husband’s Holden Commodore
3,000
12. Husband’s superannuation
46,553
_____________
$925,688
Each of the parties asserted that they have liabilities, the husband alleging that he owes his mother $100 000 for legal costs paid by her. It was also clear that his mother is not pressing for repayment.
The wife has a personal loan for $5000.
The husband has full time employment of several years standing from which he derives weekly income of approximately $800. In addition he is in receipt of family assistance of $246 per week, child support from the wife of $35 per week, a car allowance of $200 per week and interest earned on money in bank accounts of approximately $120 per week. This gives him total average weekly income of $1401 per week. In addition he has savings in Commonwealth Bank accounts with the total of $132 100 as well as a motor vehicle and the contents of his home. He also has superannuation with a current value of approximately $46 500.
The husband estimates his weekly expenses as being $1,498 which, on his estimates, would be a shortfall of $97 per week. I note that with some belt tightening the husband could probably reduce this by approximately $40 per week which would leave him approximately $37 per week short. However, in my view the answer to making up this shortfall lies in the paltry amount of child support which the wife is paying of $35.
In my view, it cannot be said that at $35 per week, the wife is paying any where near a reasonable amount of child support. In circumstances where she owns, unencumbered, a property with an agreed value of $580 000, payment of a mere $35 per week towards the costs of her children is not consistent with the objects set out in the child support legislation or in any way reasonable for the children. In my view, the husband ought to be able to make up at least his shortfall of available income to pay the reasonable costs of himself and the children by a review of the child support which the wife is paying.
In these circumstances, in my view, the husband cannot establish hardship based on his income and expenses.
But there was another head to the argument on behalf of the husband about the relevant hardship. This was that a hardship to him and the children results from him not having opportunity to revisit the property orders in the light of the changes which have come about. It was submitted on behalf of the husband that support for this submission comes from the decision of the Full Court of this Court in the case of Whitford & Whitford (1979) FLC 90-612.
I must say I am unpersuaded by this part of the submission. Whitford was a case involving an application for leave to file a property application out of time pursuant to s 44(3) of the Act based on hardship. It was said in that case that a hardship would be constituted by the loss of the right to bring a property application. But in my view that is a very different circumstance from the circumstances in the present case. In the present case the parties have had their property dispute determined by the consent orders made on 7 July 2005. So in my view it cannot be said that the husband has been denied his opportunity for the making of property orders.
What is really being submitted is that if the Court does not set aside the orders then he will not have opportunity to argue for a variation in the orders. I must say I do not accept Whitford as being any authority for such a proposition. In any event, as was submitted by learned counsel for the wife, if the Court accepted such a submission, then arguably there would be a hardship in most cases where there had been a change of circumstances relating to the care, welfare and development of children following the making of property orders.
It was also submitted that a hardship would be suffered by the husband and the children on the basis that if the orders were not set aside and a reasonable sum of money was forthcoming to the husband then he would not have available to him sufficient funds in order to be able to purchase a home for himself and the children. I must say I do not regard lack of ownership of a home for a father and children to constitute in itself a hardship in the context of s 79A(1)(d) of the Act. It must be the case that any number of rented styles of accommodation would be appropriate for the circumstances and needs of the children and the husband.
As the Full Court also said in Simpson & Hamlin at page FLC 79,659; Fam LR 1047:
The importance of bringing an end to litigation remains an important consideration and the remarks of Mason J remain applicable to para (d) mutatis mutandis. To paraphrase his Honour’s remarks: it is not sufficient that it appears that circumstances have arisen of an exceptional nature resulting in hardship to the applicant, the court must consider in the exercise of its discretion whether that hardship is of such a serious nature and results in such inequity that it can only be rectified by the extreme step of setting aside or varying an existing order of the Court.
In all these circumstances, in my view, the husband has not been able to establish the hardship requirement in s 79A(1)(d) of the Act.
But even if I am also incorrect in my finding in this regard, I move on to consider whether if each of the above matters has been satisfied the Court would exercise its discretion under s 79A(1) to set aside the property orders. In my view it would not.
Discretion
In excess of six years have now passed since the making of the property orders. Both parties have moved on with their lives since that time. The wife has restructured her financial circumstances in reliance on the orders. She had the primary responsibility for the children for in excess of five years since the making of the orders and accommodated them in her home.
In the July 2005 property orders, there was an imbalance of property awarded in favour of the wife which involved her in receiving 75 percent of the net proceeds of sale of the former matrimonial home and the husband receiving 25 percent thereof. A relevant factor must have been the fact that when the home had been purchased approximately nine years prior to the orders, out of the purchase price of $250 000 that $100 000 was provided by the wife’s parents and her aunt. This was a very considerable imbalance in the contributions by the parties.
In my view, another relevant factor in considering whether to exercise the Court’s discretion to set aside the orders, must be the fact that the wife used her proceeds of the sale of the former matrimonial home to purchase her property at Suburb Q. And this property was purchased now approximately six years ago. It was submitted on behalf of the husband that through a tracing exercise the Court would be able to make a finding about the indirect financial contributions made by the husband to this property.
That might be possible. But given that the parties’ contributions to the former matrimonial home involved such an imbalance in favour of the wife, given the period which has transpired since the wife purchased her property and what must have been significant contributions made to its acquisition, conservation and improvement by the wife, one would have thought that the contributions of the husband to the Suburb Q property could only be modest indeed. There would of course be relevant s 75(2) matters including the fact that the husband used the major part of his net proceeds of sale of the former matrimonial home ultimately to fund his legal costs in the recent parenting proceedings and the fact that he has become the children’s primary parent.
In my view, upon consideration of the prejudices to the parties relevant to the exercise of the Court’s discretion, the prejudice to the wife would be such as to make it inappropriate to exercise the discretion in favour of setting aside the property orders.
In my view, for the above reasons, the husband has been unable to establish any of the three fundamental requirements in s 79A(1)(d) of the Act to enable the Court to set the property orders aside.
In these circumstances, in my view, the husband’s application must be dismissed.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 12 March 2012.
Associate:
Date: 12 March 2012