Hannigan & Pascal
[2021] FedCFamC2F 25
•13 August 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Hannigan & Pascal [2021] FedCFamC2F 25
File number(s): DGC 4321 of 2020 Judgment of: JUDGE MCNAB Date of judgment: 13 August 2021 Catchwords: FAMILY LAW – property – final property orders made by consent on 7 July 2021 – applicant failing to cooperate with the operation of the orders – orders varied to give the respondent carriage of the sale of property – application made by applicant to set aside current orders – application dismissed – contravention application made by the applicant – application dismissed. Legislation: Family Law Act 1975 ss 79A, 90SN, 117 Division: Division 2 Family Law Number of paragraphs: 41 Date of hearing: 13 August 2021 Place: Melbourne The Applicant: Appearing in Person Counsel for the Respondent: Ms V Sweet Solicitor for the Respondent: Pearsons Lawyers Pty Ltd ORDERS
DGC 4321 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HANNIGAN
Applicant
AND: MS PASCAL
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
13 AUGUST 2021
THE COURT ORDERS THAT:
1.The De facto Husband’s Application in a Case filed 9 August 2021 be dismissed.
2.The De facto Husband’s Contravention Application filed 13 August 2021 be dismissed.
3.Paragraph 1 of the Final Orders dated 7 July 2021 be varied to the extent that the Applicant De facto Wife (“Ms Pascal”) forthwith have the sole conduct of the sale of the real properties therein mentioned, namely:
(a)B Street, Suburb C (“the B Street, Suburb C property”); and
(b)D Street, Town E (“the Farm”),
including but not limited to:
(i)The appointment of F Real Estate as the agent for the sale of the B Street, Suburb C property;
(ii)The appointment of an agent for the sale of the Farm;
(iii)The method of sale;
(iv)The setting of the reserve, the terms of which are set out in the Orders;
(v)The application of the net proceeds of sale, the terms of which are out in the Orders; and
(vi)The appointment of a conveyancer.
4.Pursuant to s. 106A of the Family Law Act 1975 an officer or Registrar of this Honourable Court is appointed to sign any such documents as required by Mr Hannigan for the execution of these Orders.
5.The De facto Husband pay the De facto Wife’s costs of this day fixed in the sum of $6682.00.
6.All extant applications otherwise be dismissed.
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 under the pseudonym Hannigan & Pascal is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Delivered Ex Tempore – Revised From Transcript)Judge McNab:
INTRODUCTION
In this matter, I must make a decision in respect of an interim property application filed by the Respondent Wife on 29 July 2021, an interim property application filed by the Applicant Husband on 9 August 2021 and a contravention application filed by the Husband on 13 August 2021. This matter returned before me after final property orders were made by consent on
7 July 2021.
BACKGROUND
On 7 July 2021, the Court made final property orders by consent, which provided for, amongst other things:
1. Each party do all acts and things and sign all documents necessary to place the properties situate at:
(a) B Street, Suburb C (“the B Street, Suburb C property”), and
(b) D Street, Town E (“the Farm”);
by sale method as recommended by F Real Estate with respect to the Suburb C property and by market sale by Mr G of H Real Estate, Town J, with respect to the farm, or such other agents as the parties may agree, on terms and conditions as the parties may agree, with a reserve price of $790,000 with respect to the B Street, Suburb C property for 60 days and thereafter as the parties may agree or as recommended by the agent and a reserve price of $490,000 with respect to the Farm for 60 days and thereafter as the parties may agree or as recommended by the agent, and the net proceeds of sale be applied as follows:
(c) Firstly, to the payment of the costs, commission and expenses of the respective sales (including payment or reimbursement of any agreed maintenance or improvements made to prepare the property for sale as agreed or recommended by the agent);
(d) Secondly, to discharge mortgages with numbers ending …05 (“the B Street, Suburb C liabilities”), and …21 (“the Farm liability”), and …87 (“the overdraft facility”) with the ANZ, and
(e) Thirdly, the balance equally between the parties.
At the hearing on 7 July 2021, both parties were represented by experienced Counsel and both parties filed written submissions prior to the hearing.
The Applicant is a professional who has now retired and the Wife is a public servant.
The Wife filed an urgent application on 29 July 2021, by which she sought the following orders:
1. That all times in this matter be urgently abridged to enable the urgent hearing of this matter.
2. That paragraph 1 of the Final Orders dated 7 July 2021 be varied to the extent that the Applicant De facto Wife (“Ms Pascal”) forthwith have the sole conduct of the sale of the real properties therein mentioned, namely:
a) B Street, Suburb C (“the B Street, Suburb C property”); and
b) D Street, Town E (“the Farm”);
including but not limited to:
i. The appointment of F Real Estate as the agent for the sale of the B Street, Suburb C property;
ii. The appointment of Mr G as the agent for the sale of the Farm;
iii. The method of sale;
iv. The setting of the reserve, the terms of which are set out in the Orders;
v. The application of the net proceeds of sale, the terms of which are out in the Orders; and
vi. The appointment of a conveyancer.
2. Pursuant to s. 106A of the Family Law Act 1975 an officer or Registrar of this Honourable Court is appointed to sign any such documents as required by Mr Hannigan for the execution of these Orders.
3. That Mr Hannigan pay Ms Pascal’s costs of and incidental to these proceedings, on an indemnity basis.
4. Such further or other Orders as this Honourable Court deems appropriate.
By an affidavit filed on 29 July 2021, the Wife records the fact that orders were by made consent, and sets out the relevant parts of the consent orders. At [12] – [16] of that affidavit, the Wife states:
12. The reserve prices in the orders were informed by the joint sworn valuations obtained. I live in the B Street, Suburb C property with my children.
13. Accordingly, I immediately contacted Mr G ("Mr G"), after the final orders were made, inquiring about a potential purchaser whom he had mentioned to me previously. On 8 July 2021, Mr G confirmed with me that a purchaser was interested in the farm and had made an offer to purchase it for $600,000, $110,000 higher than the reserve set in the final orders. I forwarded Mr G's email to Mr Hannigan that same day. Mr Hannigan replied stating "I can't take this deal unless you solve some problems for me". Annexed hereto and marked with the letters "-2" is a true copy of the email exchange between Mr Hannigan and I dated 8 July 2021. I then telephoned Mr Hannigan to discuss these matters. During that telephone conversation, Mr Hannigan told me that he would not agree to anything in relation to the sale of either of the real properties pursuant to the final orders, until I retracted the statement I had made to the police during our Intervention Order proceedings, as Mr Hannigan has been charged as a result of the family violence he subjected me to. The family violence charges are next listed before the Magistrates' Court for a contested mention on 16 November 2021. I refused to do so and accordingly, Mr Hannigan is obstructing the sale of the real properties.
14. I am aware that Mr G also forwarded the offer on the farm to Mr Hannigan on 12 July 2021. Mr G then asked me to follow up a response from Mr Hannigan as he did not respond. Annexed hereto and marked with the letters "-3" is a true copy of the email from Mr G to Mr Hannigan dated 12 July 2021.
15. On 14 July 2021, I then emailed Mr Hannigan to provide him with further details regarding the offer on the farm. I expressed that during our phone call I had felt threatened, intimidated and blackmailed and that the whole process would be made easier if he worked together with me to sell the properties. I also discussed in the email the sales proposal that had been put forward to me by F Real Estate in relation to the sale of the B Street, Suburb C property and asked that he accordingly agree to officially engaging F Real Estate pursuant to the final orders. Mr Hannigan's response to this was "Please provide evidence for your accusations of threats, intimidation and black mail (sic). Until I receive satisfactory evidence or admissions that they are false I will not be agreeing to any of your proposals". I am aware that Mr Hannigan has now signed the engagement correspondence for F Real Estate, however given Mr Hannigan's attitude towards me, I am concerned he will obstruct the sale.
16. I then emailed Mr Hannigan again on 14 July 2021, expressing that I did not wish to engage in a 'titfor-tat' argument about what had been said and urging him to provide a meaningful response so that we could progress the sales. I received no response and accordingly emailed him once more on 18 July 2021. Mr Hannigan finally responded on 19 July 2021 stating "As I said in my last email I do not necessarily agree with anything. Until you apologise for the false accusations and start communicating like an adult I will not be communicating with you at all." Annexed hereto and marked with the letters "-4" is a true copy of the email exchange between Mr Hannigan and I between 14 July 2021 and 19 July 2021.
The Wife notes that, in response to a letter from her solicitors, the Husband asserted that his refusal to agree to the offer for the farm was on the basis that he felt the offer was under market value. He also indicated he was not satisfied with Mr G as the agent for the sale as he believed Mr G to be acting as the buyer’s agent. At [17] of her affidavit the Wife states:
17. […] the assertion Mr G is acting as the [buyer’s] agent is not the case. Mr G was approached by the buyer and asked whether we were interested in selling the farm. Mr G then conveyed that to me, and I to Mr Hannigan. Both of these matters had not been previously communicated to me however in my view are in any event irrelevant.
In relation to the choice of agent, the Wife states that she does not agree to another agent being appointed as Mr G has been of great assistance and procured an offer greater than the reserve price.
The Wife also relies on an affidavit of Mr G which was filed on 11 August 2021. By that affidavit, Mr G confirms at [3] that he was engaged by the parties to act as the agent for the sale of the farm. At [4], Mr G deposes to been approached by a Mr K, who owned a property across the road from the farm belonging to the parties, who inquired as to whether they would be interested in selling the farm as Mr K’s land was extremely wet after heavy rain and creek flooding. Mr G says that he immediately emailed the Wife to see if the parties were interested on 5 July 2021. At [5] – [7] of his affidavit, Mr G deposes to the following correspondence between him and the Wife:
5. Ms Pascal responded to me stating “Yes maybe, do you have any idea how much he would offer?: I then replied stating, “Around $500,000 it is worth now Ms Pascal, I would suggest asking $520000 the bush part brings the overall price back a bit. He is cashed up so it would be a quick settlement”. I stated that I would need to inspect the property to confirm the value.
6. Ms Pascal then responded stating, “Thanks Mr G, Do you think he would consider 600k? We have improve the pasture and fences.” I replied, “Hi Ms Pascal, I am happy to ask. I will take him out there for a look and get back to you. Thanks.”
7. After I conducted the inspection, I had a discussion with Mr Hannigan over the phone as to the way forward. Mr Hannigan agreed and I accordingly emailed a sale authority to Mr Hannigan and explained to him that I am a licenced Estate Agent with over 17 years’ experience in the rural sector and that I was required by law to work for the parties to obtain the best price for the property, which I believed to be $600,000. I stated that I had introduced the buyer (Mr L), which is the duty of the agent and that it was now up to the parties to decide to take the offer or not. Annexed hereto and marked with the letters “-2” is a true copy of the email from Mr Hannigan to me dated 9 July 2021.
Mr G refers to concerns raised by the Husband regarding a contract who had sown a crop on the property, and he states at [8]:
8. […] I emailed Mr Hannigan with proposed wording for a clause to be included in the contract of sale, for what I understood the agreement was between [the contractor] and the parties, my suggestion was as follows, “The sale is subject to the purchaser allowing the current contractor [name] to remove his silage crop when it is ready to be harvested in October and the said contractor is to at his own cost, fertilise and re-sow the entire crop area on the property immediately back to pasture.” I clearly stated in my email that I was happy for Mr Hannigan to email me any changes he required. I was subsequently informed by Mr Hannigan that there was no arrangement with [the contractor] about re-sowing of the cropped area and that I was to remove this, which I did. Annexed hereto and marked with the letters “-3” is a true copy of the email from Mr Hannigan to me dated 12 July 2021.
Mr G states at [9] – [10] of his affidavit that:
9. I am aware that [Mr K] is still prepared to purchase the farm at $600,000 and has secured finance.
10. I deny any suggestion I have not acted independently or that I have acted as the buyer’s agent. It is clearly set out in all my correspondence with the parties that my interests were in achieving a good sale price for [the parties] as well as a quick settlement.
The Husband filed a response to the Wife’s application on 9 August 2021, as well as an affidavit in support of his response. He also filed an application in a case on 9 August 2021 seeking orders that:
(1)the application filed by the Wife on 29 July 2021 be dismissed as vexatious and without foundation;
(2)the Court declare the Wife in contempt for failing to comply with the court’s orders of 3 June 2021;
(3)the Court take any action it sees fit in relation to the Wife’s failure to comply with the court’s orders of 3 June 2021;
(4)the consent orders of 7 July 2021 be set aside pursuant to section 90SN of the Family Law Act 1975 and the matter proceed to trial;
(5)the Wife vacate the property at B Street, Suburb C (the house) within 30 days of this order and hand over all keys to the house to Mr M of F Real Estate;
(6)the Wife not remove any of the Applicant’s property from the house;
(7)the Husband be permitted access to the house to retrieve his property and facilitate the sale thereof;
(8)until the mortgage on the house is discharged, the Respondent make the payments of monies due arising from mortgage on the house as they fall due;
(9)the sale of the house and the property at D Street, Town E in the state of Victoria (the farm) proceed;
(10)the Husband be solely responsible for selling the farm and the house and have powers to make decisions with respect to the sales;
(11)Mr N, stock and station agent, be appointed as selling agent for the farm; and
(12)the Registrar of the Court at City O be empowered to execute documents on behalf of the Respondent.
(13)the Secretary of the Department of Industry deduct $1,000 per fortnight from the Respondent’s salary and pay that amount into a ANZ bank account until the mortgages on the house and farm are discharged.
As set out above, the Husband relies upon an affidavit filed on 9 August 2021 Relevantly, at [5] of that affidavit, he states that:
5. I do not believe Mr G is an appropriate agent to sell the farm. On Monday, 5 July 2021 at 1:46 pm Mr G sent an email to the Respondent asking if she wanted to sell the farm. Mr G later told me that the Respondent’s solicitor had written to him prior to this asking him how much he could sell it for. On Tuesday 6 July 2021, at 7:48 pm, the Respondent asked how much the potential buyer would offer. At 7:54 pm Mr G said “Around $500,000” and suggested asking $520,000. On Wednesday 6 July 2021, at 11:16 pm, the Respondent offered $600,000. On 7 July 2021, at 8:12 am, Mr G said he would ask. At 5:59 pm that day the Respondent sent the emails to me. 7 July 2021 was the day of the trial and the consent orders had been sealed at around 3:30pm that day. The Respondent did not reveal her communications with Mr G until after the consent orders were sealed. The emails between Mr G and the Respondent are attached at Annexure 2 to this affidavit.
The Husband deposes that, during the negotiations that resulted in the consent orders as made by the Court, he did not know that the Wife was negotiating with Mr G or that the farm was potentially worth $600,000. The Husband deposes to his belief that the farm was worth $445,000 which was the value placed on it by the joint valuer. The Husband raises doubts as to whether Mr G is independent, and he says that he has contacted some agents who told him that the farm could sell for anything up to $750,000, but does not produce evidence from them.
In his affidavit, the Husband says that on 22 July 2021, Mr P, another prospective agent, came out to inspect the property. On 28 July 2021, the Husband received a proposal from Mr P in which he allegedly said “I believe if the property were to be sold it would be placed on the market at $748,000 and offers should be forthcoming in the $685,000 to $748,000 range.” The Husband sent the proposal to the Wife’s solicitor on 29 July 2021, asking whether the Wife would consent to engaging Mr P to sell the farm (see annexure 3 to the Husband’s affidavit, which is a market appraisal together with a marketing proposal for the property), and he says that he did not receive a response. The Husband states at [9] of his affidavit that:
9. The Respondent’s proposal to sell it for $600,000 is $85,000 below the minimum Mr P thinks we could achieve. I do not know why the Respondent is so keen to engage Mr G when Mr P says he can achieve a sale price of almost $150,000 more than the Respondent proposes.
The Husband raises the issue that he is concerned about the Wife having control over the sale process, in particular, the proceeds of sale, and simply states at [13] that:
13. […] If the Respondent has control to appoint another conveyancer I am fearful that she will attempt to gain control over the sale proceeds.
However, there is no basis for the Husband’s view, in particular, in circumstances where the Wife is seeking orders that the proceeds of the sale be divided in accordance with the final orders that have been made by the Court.
The Husband claims at [14] of his affidavit that:
14. Regarding paragraph 12 of the Respondent’s affidavit of 29 July 2021, the reserve price for the farm in paragraph 1 of the consent orders is $490,000. At the time I thought the farm was worth$445,000 as assessed by the joint valuer. For the respondent the value of the farm was the $600,000 she had offered the night before. For reasons explained below I was unable to read the consent orders before agreeing to them. Under normal circumstances, if I had seen that paragraph I would have asked questions.
At [15] – [16] of his affidavit, notwithstanding that the email has been exhibited in the Wife’s affidavit, the Husband states:
15. In paragraph 13 of her affidavit the Respondent claims I sent her an email which is attached at Annexure 2 to her affidavit. I have no record that I sent an email to the Respondent on 11 July 2021. At Annexure 4 to this affidavit I have attached a screenshot of my outbox for that period as well as the email I sent to the Respondent in response to her email of 8 July 2021. In my email I outline some of the problems with selling the farm and asked for her help.
16. I experimented with my email program and have learnt that it is possible to edit the details when forwarding a message. I cannot exclude the possibility that I might have deleted this email, however, I believe this is unlikely.
Despite his claim at [16] of his affidavit, the Husband however does not dispute that he sent emails to the Wife and/or her solicitors on 14 July 2021 to the effect that he would not be cooperating until various allegations made by the Wife were withdrawn.
At [20] of his affidavit, the Husband states:
20. It was the Respondent who made the offer of $600,000 in her email of 6 July 2021 which is at Annexure 2. At that stage I was no longer willing to engage Mr G as an agent and began contacting other agents as described above. If there is no obligation on the buyer to allow the harvesting of the crop Mr Q would have to be compensated for the time and money he has put into it. The Respondent is suggesting that we should sell the land out from under the crop and Mr Q would lose what he has put into it. I am not willing to do that.
That evidence is at odds with the evidence of Mr G and the exhibits to Mr G’s affidavit, in particular, exhibit 2. Exhibit 2 is an email from the Husband to Mr G which, in the context of the Husband claiming that he would not engage with Mr G, states:
Hi Mr G,
I’ve spoken to Ms Pascal and she says yes so let’s proceed on the basis of what we talked about earlier.
Just to reiterate, the big issue is that Mr R and I have a crop growing which will not be ready until October. Mr R is not keen on being compensated for this as he is planning his fodder and he needs that silage to feed the hungry cows over summer. You said that [Mr K] is willing to be flexible about this so that’s great.
That evidence is completely at odds with the Husband’s evidence at [20] of his affidavit that, as at 6 July 2021, he was not willing to engage with Mr G as an agent. The Husband actively communicated with Mr G and raised issues, and those issues were then subsequently dealt with by Mr G.
The Husband then makes allegations in his affidavit that the Wife is making false accusations against him, and I presume those are the allegations are that the Husband says he wants to be withdrawn before he will cooperate in any way with the sale process fixed by the orders of the Court. In my view, those matters are largely irrelevant, save for the responses of the Husband in terms of refusing to cooperate, because they are not matters before the Court. The Husband then spends a considerable amount of time in his affidavit dealing with the subject of intervention orders, which, in my view, do not impact on the question that the Court has to determine. He raises an issue that the Wife has failed to make certain loan repayments and that the Wife’s application was served late. The Wife has not had the opportunity to respond to these matters in her written material, however, I am told by her Counsel that the loan repayments have been largely rectified.
At [42] and following of the Husband’s affidavit, under the heading ‘Preparations for Trial’, the Husband gives evidence that, following an interim hearing on 3 June 2021, the matter was set for final hearing on 7 July 2021 and that there was orders for the service of further affidavits. He then sets out a reference to draft submissions drafted by his Counsel, and then sets out various offers that were made in the course of negotiations leading up to the final hearing. In my view, that evidence discloses arm’s length negotiations that frequently occur in these types of proceedings. He deposes at length to the discussions that he was having with his Counsel, but again there was nothing revealed that suggests that this is anything other than the ordinary course of proceedings.
He raises the issue of his health on the day of the final hearing, and says at [64] – [66]:
64. On 7 July 2021 the trial was due to start. I was in very poor health and was barely functioning. One of the issues with my condition is that I cannot predict how I will be on any particular day and the day of the trial was a particularly bad one. The pain and the brain fog were worse than usual and I had very little energy. I could not read properly and could not use my computer to make calculations. I was not happy with the way negotiations progressed especially that my contributions were ignored. I was too unwell to take over the negotiations myself. At various times during the day my solicitor expressed an opinion that we should progress to trial. I agreed with my solicitor’s advice but Mr S insisted that we should continue to attempt to reach a settlement.
65. In the afternoon I spent some time sleeping on the floor. When I woke up Mr S had negotiated the consent orders and told me his proposal. I told him I was not happy with it and I would prefer to go to trial. Mr S then told me that if I did not agree, it was likely I would have $100,000 costs awarded against me. I agreed on this basis. In my submission, I explained the chances of having costs awarded against me in this case was negligible. I was too unwell to research and explore or even read the draft orders, so I acted on advice. The next morning, after some sleep, I realised that I should not have agreed. If I had been well enough to look after the issues of costs on the day of the trial, I would not have consented to the orders. Furthermore, if I was not legally represented I would have agreed to the orders.
66. The consent orders split the main asset pool 50/50. Mr S’s submission predicted an outcome of 65 to 75% to me based on the evidence. The objective evidence from the bank statements show that I contributed 55% of the assets over the course of the relationship, plus another 5% for the cars. I believe that any result where I receive less than my contributions is not just and equitable. I believe the only way to achieve a just and equitable result in this case is to proceed to trial so the court is able to listen to the evidence and make findings of fact.
CONSIDERATION
The Husband’s and Wife’s Applications in a Case
In his submissions filed as part of the response on 9 August 2021, the Husband makes reference to s90SN of the Family Law Act 1975 (Cth) (‘the Family Law Act”) and also relies on s79A. At [66] of his submissions, he submits that the consent orders are not based on reality, and that, had the matter proceeded to final hearing, a different result would have been obtained for him. He submits there has been a miscarriage of justice, and in considering whether there is a miscarriage of justice asks the Court to consider the following matters:
(1)the Husband’s health on the day of final hearing;
(2)the quality of legal advice, especially the advice that the Husband was likely to have costs awarded against him;
(3)the shortness of time and the confusion between the penultimate Court event and the final hearing;
(4)the Wife’s negotiation of the sale of the farm during the trial; and
(5)that the consent orders were not based on reality.
In relation to each of those matters there is no evidence before the Court, by any qualified person, which can provide expert opinion evidence as to the Husband’s health on the day of the final hearing and whether his health was such that the consent orders that were made produce evidence of a miscarriage of justice or that the Husband’s health materially contributed to the terms of the consent orders that were agreed and made. Nor is there any evidence that the Wife was aware of these alleged issues and sought to unconscionably take advantage of them.
Prior to me giving judgment in this case I asked the Husband (who, as noted above, is a lawyer), whether he is aware of the issues in these types of cases (where a party places reliance on ill health and/or other such grounds to set aside orders) and whether he wished to proceed with his application. He indicated that he did and that is apparent from the submissions he has filed. Importantly, he also indicated that the evidence that he had submitted is the full body of evidence that he relies upon in support of the application to set aside the consent orders. The Husband did not seek an adjournment, but the question of whether he wanted an adjournment was raised with him, and that was not sought or pressed by the Husband. In those circumstances there is no admissible evidence before the Court that the Applicant’s health contributed to any miscarriage of justice.
In terms of the quality of the legal advice he received, there is no evidence from any independent legal practitioner that the advice provided to the Husband was negligent or, indeed, that the consent orders as made, are indicative of poor-quality legal advice. As was noted when the orders were made at the hearing, the substantive proceedings were of considerable complexity, both in terms of the Court being in a position to properly assess or accurately assess the contributions that had been made by each of the parties and that there were issues of the future needs of each of the parties, both of which involved considerable disputes in relation to the evidence. The ultimate question of where or how, and what percentage the assets of the relationship/marriage would be distributed, was at large to some extent, and the parties, as was explained to me when the minute of proposed orders was put to the Court, had reached a pragmatic and economic compromise on the first day of a final hearing which may have taken three or four days to hear.
In my view, there is no basis in the Husband’s evidence to support a finding that a miscarriage of justice has been brought about by poor-quality legal advice. Before I leave that issue, as set out above, the Husband raises that he was given certain advice in relation to costs by his legal representatives. As to precisely what that advice was has not been set out in any particular detail in the evidence. But in circumstances where there had been a number of hearings, where the parties were facing a three or four-day hearing and where Calderbank offers had been made which put the Husband on notice in relation to an application for costs, then the nature of the proceedings may have resulted in an application for costs being made by the Wife. The question of costs is subject to s117 of the Family Law Act and to the discretion of the Court, but an application for costs was a risk that was faced by the Husband at that time, and I do not see that the issue of costs being raised is evidence of any miscarriage of justice, as arising from the advice he received from his legal representatives.
The claim regarding the short period between the last directions hearing in June 2021 and the final hearing July 2021, and the supposed confusion caused by that, is a claim without merit. There was ample time for the parties to prepare for the final hearing to make whatever offers of compromise the wished to make. The fact that offers were made (and there seemed to have been a flurry of offers made shortly before the final hearing and during the course of the first day of the final hearing) does not give rise to any basis for a finding there has been a miscarriage of justice.
In terms of the Wife’s enquiries regarding the value of the property, there was no negotiation for the sale of the farm and no offer made by the Wife. There was a question as to whether a prospective purchaser (being Mr K) might offer $600,000. In circumstances where there had been a valuation of approximately $430,000, the reserve price having been agreed at $490,000, and that the agent expressed a view that the property might be worth $530,000, those matters, in my view, do not give rise to any basis for the Court to find that the order should be set aside pursuant to either s79A or 90SN of the Family Law Act.
In terms of the Husband’s fifth ground as raised in his submissions, being that the consent orders are not based on reality, that ground, in my view, fails because there were sensible reasons for the orders being made in the terms of the now sealed final orders, after a lengthy negotiation and where the parties were assisted by competent and experienced Counsel. Certainly, the Wife was initially seeking orders for a percentage of the asset pool well in excess of 50%, as was the Husband. On that basis, each party had very strong views about their entitlements, were prepared to undertake a long final hearing, put detailed reasons as to why their positions should be preferred, and that ultimately resulted in the compromise and resolution of the matter, as set out in the final orders.
For these reasons, I will dismiss the Husband’s application in a case filed on 9 August 2021 and allow the Wife’s application filed on 29 July 2021, subject to the amendment that rather than specifically appoint Mr G, the Court will simply order the appointment of an agent for the sale of the farm.
On the basis of that amendment, the issue of whether Mr G or some other agent is appointed is at large. I wish to make clear that it is matter for the Wife as to whether she chooses to proceed with Mr G and appoint him as the agent. I will not impose that as a requirement upon her, but she will not be in breach of any orders if she does or does not appoint Mr G, and I am of the view that there is no evidence that shows Mr G has acted improperly or is not in a position to obtain the best price for the parties.
I am also of the view that it is appropriate for the Wife to have sole conduct of the property and for the appointment of a conveyancer because of the clear evidence that has been filed by the Wife, as set out in large part above. In particular I refer to emails he sent to the Wife on
12, 14 and 19 July 2021. By way of the email sent on 19 July 2021, the Husband stated:
As I said in my last email, I do not necessarily agree with anything. Until you apologise for the false accusations and start communicating like an adult, I will not be communicating with you at all. Please ask your solicitor to contact me. Ms T is no longer acting for me, and I will not respond to any communications via third parties other than your solicitor.
The Husband has unequivocally stated that unless he receives an apology for what he claims are false accusations or, alternatively, a retraction of the accusations as is set out in his email of 14 July 2021, he will not be agreeing to any proposal. The Husband’s demand puts the parties in the position that the performance and completion of the final orders becomes impossible, and the performance of any further orders for joint-performance and decision-making also becomes impossible. It is therefore in the interests of the parties for one of them to be responsible for the sale, and in my view it is appropriate that be the Wife.
The Husband’s Contravention Application
As set out above, the Husband filed a contravention application on 13 August 2021, being the day of this hearing. By that application, the Husband alleges that the Wife contravened order 1 of the orders made on 3 June 2021, in that the Wife did not make mortgage payments on the farm as they became due. The Husband did not file an affidavit in support of his contravention application as required.
That application has been short-served, and I do not see any utility in determining that application at this point in time, given the assurances made by Counsel for the Wife that those matters have been brought into order. In any case, those are matters that can be dealt with at the final division of the proceeds.
CONCLUSION
For these reasons, I will allow the Wife’s interim application filed on 29 July 2021 and will make orders in the terms sought by the Wife, subject to the amendment set out above in relation to the appointment of an agent. I will also make orders dismissing the Husband’s interim application filed on 9 August 2021 and contravention application filed on 13 August 2021.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 9 September 2021
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