HENRICKSEN & JANZ
[2008] FMCAfam 866
•15 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HENRICKSEN & JANZ | [2008] FMCAfam 866 |
| FAMILY LAW – Parenting orders – application to vary consent final parenting orders – determination of matter as a preliminary issue – application dismissed. FAMILY LAW – Property settlement orders – application under s.79A Family Law Act. |
| Family Law Act 1975, s.79A Evidence Act 1995 (Cth) s.128 |
| Janz & Janz (2007) FMCAfam 876 In the Marriage of Sulker (1993) FLC 92-436 In the Marriage of Pelerman (2000) FLC 93-037 In the Marriage of Gebert (1990) FLC 92-137 |
| Applicant: | MS HENRICKSEN |
| Respondent: | MR JANZ |
| File Number: | BRC 2587 of 2007 |
| Judgment of: | Wilson FM |
| Hearing dates: | 27, 29 November 2007 & 6 August 2008 |
| Date of Last Submission: | 6 August 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 15 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Hirst & Co |
| Counsel for the Respondent: | Mr Curran |
| Solicitors for the Respondent: | Mylne Lawyers |
ORDERS
On the determination of the preliminary issue, paragraphs 5 and 6 of the father’s amended Response filed 17 July 2006 are dismissed;
That the balance of the funds held in the trust account of Clive Speakman Solicitors, Suite 2 188 Stratton Terrace, Manly in the State of Queensland, be forthwith released to the mother provided that she deal with the said amount only in accordance with these orders;
That the mother utilise the amount only as follows:
(a)To be held in an interest-bearing account in her name with the best possible interest rate as determined by the mother; or
(b)To be contributed to the acquisition of a house property to be registered in the sole name of the mother.
That should the mother purchase a property in her sole name and contribute part or all of the amount to the acquisition of that property, then the mother be restrained and an injunction be granted restraining her from selling, further mortgaging or otherwise encumbering or dealing with the property, provided that the mother shall be permitted to borrow a sum of not more than $500,000 for the sole purpose of acquiring such property.
That the following applications be listed for hearing on 11 September 2008 at 10 am:
(a)The mother’s application filed 8 March 2007;
(b)The mother’s amended application filed 23 April 2007;
(c)The father’s Response filed 11 May 2007 seeking a variation of Order 21 made in the Family Court of Australia on 30 March 2006;
(d)The mother’s application to summarily dismiss the father’s application pursuant to s. 79A Family Law Act 1975.
Any further affidavit evidence to be relied upon by either party on the hearing of such applications be filed and served by not later than
29 August 2008;
Any affidavit evidence in reply be filed and served by not later than
4 September 2008;
Each party file and serve written submissions addressing the four applications by not later than 9 September 2008.
IT IS NOTED that publication of this judgment under the pseudonym Henricksen & Janz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 2587 of 2007
| MS HENRICKSEN |
Applicant
And
| MR JANZ |
Respondent
REASONS FOR JUDGMENT
The parties before the court, whom I shall respectively refer to as the father and the mother, reached a compromise of their respective applications for property settlement and parenting orders in the Family Court of Australia, that was recorded in consent orders dated 30 March 2006.
On 8 March 2007 the mother filed an application in this Court effectively seeking to enforce order 21 made in the Family Court. The effect of that application has seen the proceedings blossom such that the court now has before it, in addition to the mother’s application just referred to, applications:
a)By the father, pursuant to s.79A Family Law Act to set aside the earlier property settlement orders in their entirety;
b)By the father for quite different parenting orders to those earlier agreed to;
c)By the mother to summarily dismiss the father’s application for parenting orders, and the father’s s.79A application;
d)By the mother for orders permitting her to use monies presently held on trust from the sale of the former matrimonial home.
The parties are the parents of two children: [X] born [in] 1998, and [Y] born [in] 2000.
Consent orders were made in the Family Court on 30 March 2006 that:
(1)The children live with the mother;
(2)The children spend time with the father, in one week from after school Friday until Saturday afternoon, and in the alternate week from after school Friday until before school on the following Monday, and for half of the school holidays;
(3)The parties have what was then called joint parental responsibility;
(4)The matrimonial property be adjusted in terms of detailed orders.
Included in the detailed property settlement orders was order 21, which the mother alleged that the father breached. It provided:
“That provided that the mother sign all necessary documents and do all necessary things to enable the father to file a tax return on her behalf in respect of income to be attributed to her from the business [S] for the financial year ending 30th June 2006 to which income the mother will have no recourse save for the payments to be made under the terms of these Orders, the father indemnify the mother in respect of all tax liabilities arising to her as a result of her involvement in the business [S] and indemnify the mother for any tax liability incurred by her son [Z] in respect of his involvement in the said business to the 30th June 2006.”
The property settlement orders also provided that the former matrimonial home be sold, and that after discharge of the mortgage, the father receive $100,000 of the proceeds (clear of certain mortgage payments made by him) and that the mother receive the balance thereof.
The matter first came before the Court on 17 April 2007, when it was allocated a date for hearing on 26 April. At that time, the only matter in dispute between the parties was the interpretation of order 21 made by consent in the Family Court. Before the date for hearing, the father filed three affidavits. In his affidavit filed 13 April 2007 the father raised an allegation that the mother had physically abused both children, and that her partner had physically threatened him. The father did not descend into any detail of the allegations at that time. The father did not seek to agitate parenting issues before the court. In neither that affidavit nor those filed on 20 April 2007 and 24 April 2007 did the father raise any issue with the property settlement orders other than paragraphs 20 and 21 thereof.
By an amended application filed 23 April 2007, the mother sought a variation of order 20 of the consent orders, relating to the BMW motor vehicle owned by the parties.
When the matter came before the court on 26 April it became evident that the father wanted to apply under s.79A Family Law Act (“the Act”). Directions were made for the filing and service of affidavit evidence.
In the father’s Response filed 11 May 2007 the father sought orders that the wife’s applications be dismissed and that order 21 made in the Family Court be varied. No parenting orders were sought, and no more general orders under s.79A of the Act were sought.
The parties were ordered to attend mediation. On 29 May 2007 the father was ordered to file any further evidence upon which he intended to rely in his application pursuant to s.79A of the Act. At that stage, the application related only to Order 21.
The father put before the Court the evidence that he had previously filed in the Family Court. From that evidence, I note that:
a)In the earlier application for parenting orders, the father had sought an order that both children live with him;
b)The consent orders were made some two months after separation;
c)The father contended that the former matrimonial home was worth $1.3 million on the current market;
d)The father was primarily concerned about the behaviour of the mother’s son [W], and sought an order that the two children of the marriage not be left alone with him;
e)The father makes reference to the mother’s inappropriate behaviour in front of the children;
f)No allegations were made of any inappropriate physical discipline of the children by the mother.
In his affidavit filed 12 June 2007 the father raises for the first time a further issue regarding the valuation of the former matrimonial home. The father contends that the consent orders of March 2006 were based upon a valuation of the former matrimonial home provided by [T] Valuers dated 16 March 2006. The father says the valuation, which valued the former matrimonial home at $850,000, was inaccurate. The father says that he raised with his solicitors at the time that the valuation did not properly reflect the true or realisable value of the property. The father says the mother listed the property for sale on
12 August 2006 in the sum of $1,395,000.
At paragraphs 14 and 15 of his affidavit filed 12 June 2007 the father says:
“I maintained with my solicitor at that time that the valuation produced by [T] was seriously wanting, but at that time I was suffering a very severe bout of shingles, and the stress of maintaining the case was fatiguing, debilitating and was worsening the condition.
Suffice it to say that at all material times the wife was aware that the valuation did not reflect the true or realisable value of the property. On a date that will be disclosed in the documents yet to be received by subpoena from Westpac Banking Corporation, the wife was aware of a bank valuation to the order of $1.1M. From memory this valuation was conducted on or about January 2004.”
The matter came before the court again on 19 June when orders were made for the husband to file affidavit material in support of his s.79A application. The matter was adjourned to 18 July 2007. On the day before the matter was next to come before the court, the husband filed an amended Response, in which he sought, for the first time:
(1)parenting orders;
(2)
that the whole of the property settlement orders made on
30 March 2006 be set aside;
(3)property settlement orders whereby the assets of the marriage be divided 60% to the husband and 40% to the wife.
When the matter came before the court on 18 July 2007, the parties were invited to consider whether the matter should be transferred to the Family Court. Neither party wished for that to occur. The wife foreshadowed an intention to apply to summarily dismiss the husband’s application for parenting orders. Directions were made to facilitate the bringing of such an application.
By Reply filed on 16 August 2007, the mother sought orders that the husband’s amended Response be dismissed. That is, the mother sought dismissal not only of the application for parenting orders, but also the application under s.79A of the Act.
By his affidavit filed 12 July 2007, the father asserted that:
a)Since the making of the consent parenting orders on 30 March 2006, a number of incidents have concerned him;
b)On 9 March 2007 when he collected the children from school [Y] complained of being sore. The father took her to the doctor who contacted the Department of Child Safety, who in turn contacted the police;
c)In the father’s police statement dated 22 June 2007 he says that [Y] had bruising on her left and right upper arms, lower back and buttocks. He says [Y] told him that the mother had struck her with a wooden spoon. [X] also complained of being hit and had bruising on his bottom;
d)On 14 March 2007, the mother’s partner Mr B threatened him with physical harm;
e)He is concerned about Mr B’s behaviour, especially when he is around the children;
f)That events had occurred prior to the making of the consent orders that concerned him, including the mother allowing the children to view pornographic material, and inappropriate sexualised behaviour of [Y];
g)That the mother had asked him to care for the children for three months from 27 April 2007 until 16 July 2007. The children’s clothes were delivered in a bag, which when opened had broken glass in it;
h)When the children were in the father’s care in June 2007, and he had booked to take them on a holiday, the mother decided to take the children back into her care, and shortly thereafter took them to South Africa;
i)The mother leaves the children at home alone and goes out drinking or to the casino, and gives an example of the evening of 12 April 2007;
j)He enjoys a very close relationship with his children, helps them with their homework and attends all school functions, whereas the mother attends only a few;
k)At paragraph 61 that at the time the consent orders were made he was suffering from shingles, and says that in combination with the stress that he was under he was not in any condition to fully understand the proposed orders at the time he entered into them.
By her affidavit filed 16 August 2007, the mother asserted that:
a)At the time the consent orders were made in the Family Court, both parties were legally represented, and there had been disclosure made by both parties;
b)The father has physically disciplined the children, “sometimes far worse than myself”;
c)When the children were returned to her care on 12 March 2007, they asked if she was going to jail, because that is what the father told them was going to happen;
d)She asked the father to look after the children for six weeks, because she had to have an operation and was not allowed to drive or pick up heavy items;
e)She denies allowing the children to watch inappropriate or pornographic material;
f)She denies putting broken glass in the children’s bag;
g)She denies going out without ensuring children were cared for;
h)She did renovations to the former matrimonial home after the consent orders were made and before the property was sold;
i)When the consent orders were negotiated the father appeared to be in good health and was no more stressed than she was.
On 18 September 2007, I heard the mother’s application to summarily dismiss the father’s application to vary the earlier parenting orders.
I dismissed that application. My reasons for doing so were given on
26 October 2007: see Janz & Janz (2007) FMCAfam 876. In my reasons I set out the authorities dealing with the circumstances in which the Court will re-examine parenting orders. I do not propose to repeat my reference to the authorities. The over-arching consideration of the court on such applications is whether it is in the best interests of the children to again embark on a consideration of appropriate parenting orders.
I ordered that the threshold question of whether the court ought re-examine the parenting orders be determined as a preliminary issue, with both parties being cross-examined.
The hearing of the preliminary issue took place on 27 and 29 November 2007. That hearing was confined to parenting issues. Both the mother and the father gave evidence and were cross examined. At the time of the hearing the mother had been committed to stand trial on two charges, arising out of events on 7 and 8 March 2007. The transcript of the committal proceedings was put before me.
The pending criminal proceedings gave rise to some forensic issues at the hearing of the preliminary issue, particularly with cross examination of the mother. Ultimately they were circumvented by my granting the mother a certificate under s.128 Evidence Act 1995 (Cth).
Counsel for the father also tendered the file of the Department of Child Safety and referred me to certain parts thereof in addresses.
In my earlier reasons, at paragraph [20] I summarised those matters relied on by the father as warranting the court revisiting parenting orders. After evidence was adduced on the hearing of the preliminary issue, counsel for the father indicated that she no longer relied on subparagraphs (c) and (d) identified in my earlier reasons.
In my view the events of 14 March 2007 when there was a confrontation between the father and the mother’s partner do not warrant the court revisiting parenting issues. There was a factual conflict in what occurred. Whichever version is accepted would not lead me to conclude that it is in the best interests of the two children concerned to re-open parenting issues.
Counsel for the mother also sought to add a further event that it was submitted justifies the court re-examining parenting issues. In April 2007 the mother underwent a cosmetic surgery procedure. She asked the father to care for the children whilst she recuperated. The mother said she could not drive nor lift anything heavy during her recuperation. The father agreed to look after the children. If he had not, the mother would have arranged for friends to do so.
Counsel for the father submitted that in undergoing this procedure when she did not have to, the mother was self focussed, and did not act in the children’s best interests. I reject the father’s submission that this event is of a type that warrants the court again looking at the parenting orders that are in the children’s best interests. The children were with the father for six weeks. The mother gave evidence why she required the procedure to be performed. She was not meaningfully challenged about that. In undergoing the procedure, I do not consider that the mother has acted in a manner that was contrary to the children’s best interests. She ensured that they were properly looked after.
Therefore, the determination of the preliminary issue comes down to the events of 7 and 8 March 2007, and the mother’s use of physical discipline generally. I find that on 7 March the mother physically disciplined [Y] by striking her firmly with a wooden spoon a number of times, so as to leave bruising on her arms, back and buttocks. I find that on 8 March the mother physically disciplined [X] by striking him with a wooden spoon a couple of times, so as to leave bruising on his buttocks.
The mother did not deny these actions. She says that she used the wooden spoon to discipline the children who had been misbehaving. The mother denied using the wooden spoon to discipline the children previously, and there was no evidence that she had. The mother admitted to physically disciplining the children by smacking them with her hand, usually on the bottom. She gave evidence of her regime of disciplining the children which, until the events of early March 2007 did involve the threat of, and the use of physical discipline.
The mother was committed to stand trial on two charges:
(1)That on 7 March 2007 she unlawfully assaulted [Y] and thereby did her bodily harm and at the time she was armed with an offensive instrument;
(2)That on 8 March 2007 she unlawfully assaulted [X] and thereby did him bodily harm and at the time she was armed with an offensive instrument.
Ultimately the Crown did not proceed with the second charge. The mother pleaded guilty to the first. She was placed on a six month good behaviour bond, and no conviction was recorded.
By consent, on 6 August 2008, the preliminary issue was re-opened, and the transcript of the sentence of the mother was tendered into evidence (exhibit 3).
In sentencing on 25 January 2008 Judge Wall QC said:
“I accept that the discipline meted out by you to the child was not intended to be excessive, and in fact, it was unintended. It is said to be excessive by reason of the fact of the nature and extent of the bruising caused to the child.
The discipline, though is, I accept, at the lower range of seriousness for cases such as this. The nature and extent of the bruising suffered by [Y] may have been due, not to the severity so much of blows administered to her, but to the softness of her skin . . .
It is in my view an isolated instance . . . In my view, this present offence should be seen as an isolated instance of momentary excessive discipline, and it should not be seen in circumstances that would adversely affect the present custodial arrangements in relation to the children. In fact, according to the report of Dr S, when he examined [Y] on the 12th of March 2007, the child showed no evidence at all of any fear towards you; in fact the opposite. That seems consistent with the view which was taken at the time by the Department of Child safety
. . .
I accept that you have already undergone counselling in respect of this incident, and there is no likelihood in my view of any repetition of this type of behaviour. In my view, in the circumstances, because of the absence of any likelihood of repetition, and the counselling already undertaken, no point would be served in ordering any further counselling. It is not irrelevant to take into account also in the circumstances that [Y] at this particular time was, in fact, deserving of some form of discipline because of the way she was behaving and had behaved for some time.”
At the committal proceedings both Dr H (to whom the father initially took the children) and Dr S (to whom the mother took the children on 12 March 2007) gave evidence. Their reports were not put before me. In his evidence Dr H said that [Y] required no medical treatment, and did not suffer any serious injury. Dr H said that [X] had superficial bruising consistent with a reprimand beating.
Dr S examined both children on 12 March and found no evidence of any major bruising. With [Y] he found the sort of sort of trauma you would expect from a smack from a mum trying to provide some discipline to children.
The mother gave evidence before me that she has undertaken a parenting course in April 2007 with Centacare and has come to believe that smacking is not appropriate. No other evidence of inappropriate physical discipline by the mother was put before me.
Under cross examination the father accepted that both he and the mother physically disciplined the children.
The mother said the children’s behaviour has worsened since the court proceedings and they were difficult when they returned from spending time with their father.
I reserved the question of admissibility of the file of the Department of Child Safety. I consider that I should receive the file, as it contains probative evidence concerning the mother’s treatment of the children. The departmental officers record the children reporting physical discipline more frequently than was admitted to by the mother in her evidence.
The question for my determination becomes whether the mother’s method of disciplining the children is such as to warrant the court reconsidering parenting orders that the parties themselves agreed to. In determining that question I must bear in mind a number of relevant matters:
a)Parents may reasonably differ about the style of discipline to which their children should be subjected;
b)This court should not be the arbiter of what is and is not appropriate discipline;
c)Physical discipline by a parent is not, per se, unlawful;
d)In this case, both parents accept that physical discipline might be appropriate;
e)Children should be protected from physical abuse;
f)What the mother did on 7 and 8 March 2007 probably amounted to physical abuse, under the guise of discipline;
g)The mother has been dealt with by the criminal courts for her behaviour on 7 March, 2007;
h)The father was aware of the mother’s behaviour from 9 March 2007, and had the children in his care from 16 April 2007, yet brought no application before this Court until 17 July 2007;
i)The father’s application to re-open parenting orders was made in the context of an ongoing dispute between the parties as to the meaning of property orders previously agreed to by them.
Having found that the specific incidents of physical abuse alleged by the father did occur, does not mean a fortiori that it is appropriate to revisit the existing parenting orders. It must be demonstrated that it is in the children’s best interests to do so. I am not persuaded that it is. The children have been in the mother’s care since March 2006. I accept the mother’s evidence that she has addressed her propensity for physical discipline. She has undertaken counselling. I accept that the mother is remorseful for what happened, and there is no unacceptable risk that it will happen again. I accept that what occurred on 7 and 8 March was an isolated incident of excessive physical discipline. I accept that both parents believe in physical discipline of their children, and that they should be smacked for inappropriate behaviour.
In my view, given the Department of Child Safety involvement in the incidents of 7 and 8 March 2007, which included interviewing the children, the criminal proceedings brought against the mother, which involved interviewing the children, there is no warrant for subjecting the two children to further court proceedings. In my view, the best interests of the two children lie in their parents containing their hostility and animosity for each other and allowing the existing parenting orders to run their course.
Accordingly, in my view the paragraphs 5 and 6 of the father’s amended Response filed 17 July 2007 should be dismissed.
There remains on foot the mother’s application to summarily terminate the father’s application pursuant to s.79A of the Act. Although when the matter was before the court on 6 August 2008 the parties seemed to accept that I would determine that issue as well, I do not think I should do so in the absence of hearing from the parties.
By an application filed 2 May 2008 the mother seeks the following orders:
(1)That the balance of the funds held in the trust account of Clive Speakman Solicitors, Suite 2 188 Stratton Terrace, Manly in the State of Queensland, be forthwith released to the wife provided that she deal with the said amount only in accordance with these orders;
(2)That the wife utilise the amount only as follows:
(a)To be held in an interest-bearing account in her name with the best possible interest rate as determined by the mother; or
(b)To be contributed to the acquisition of a house property to be registered in the sole name of the mother.
(3)That should the wife purchase a property in her sole name and contribute part or all of the amount to the acquisition of that property, then the wife be restrained and an injunction be granted restraining her from selling, further mortgaging or otherwise encumbering or dealing with the property.
(4)That leave be given to the wife to re-open proceedings heard by this Court on 27 November 2007 and for the Court to receive the evidence set out in paragraphs 79-84 and the transcript of sentencing remarks from his Honour Judge CF Wall, QC, District Court at Southport.
(5)That the husband pay the wife’s costs.
(6)Such further or other orders as this Honourable court may deem necessary.
At the hearing of the mother’s application, the father proposed the following orders:
(1)That the funds presently held in the Solicitors Trust Account of Clive Speakman pursuant to an agreement to that effect between the parties on 11 March 2008 be transferred to the Solicitors Trust Account of Hirst & Co and be invested in the names of the parties hereto to be held on the same terms as the said agreement.
(2)That the wife be granted leave to introduce the transcript of committal and the whole of the transcript from proceedings in the District Court at Southport before Judge CF Wall on 25 January 2008.
(3)That the wife pay the husband’s costs of this application as agreed or assessed.
As I have said previously, the consent orders made on 30 March 2006 required the former matrimonial home to be sold, and the proceeds distributed in accordance with those orders. The mother is entitled to the bulk of the sale proceeds.
Although the property was listed for sale in 2006 it did not in fact sell until July 2007. The father lodged a caveat. That necessitated an application to the Family Court. An agreement was reached that the balance sale proceeds would be held in trust pending determination of the father’s application pursuant to s.79A of the Act.
It was agreed that the mother be paid $275,000. That occurred. The mother still has $150,000 of that sum on a term deposit. The amount of $385,439.95 is retained in the mother’s solicitors’ trust account. It has not been invested.
The mother seeks an order that the trust monies be released to her so that she can purchase a house for her and the two children to live in. The mother is currently renting premises. The father resists the application asserting that to make such an order may prejudice him if he succeeds in his application under s.79A of the Act.
What the mother effectively seeks to do is to replace one asset ($385,439.95 in cash) with another (real property). She intends to contribute the monies held by her on term deposit to that purchase. The mother will then own a house in which she has substantial equity. It is difficult to see how, in those circumstances, the father’s position is prejudiced. It is the mother who runs the risk that if the father’s application under s.79A of the Act is successful, and if the property has to be sold according to property settlement orders then made, that she may lose money paid for stamp duty, interest repayments etc.
In deciding whether to make the orders that the mother seeks, I must make some assessment of the father’s prospects of success in his s.79A application. I am mindful that although the parties have put on their affidavit evidence, I have not yet had the opportunity to hear argument on the mother’s application to summarily dismiss the father’s application.
The father seems to rely on three bases to set aside all or part of the property settlement orders previously made by consent:
(1)At the time the orders were agreed to the father was unwell and did not understand the orders that he was agreeing to;
(2)The orders were agreed to on the basis of a valuation of the former matrimonial home at $850,000, whereas it was subsequently sold for in excess of $1.3 million;
(3)Order 21 was based on a misunderstanding of what tax liabilities were being referred to.
The third matter raised by the father can be immediately disposed of. The mother has paid the tax liability, and the argument about Order 21 is whether the father is obliged to indemnify her against this payment. The outcome of this argument is irrelevant to the ownership of the trust monies.
The grounds upon which an order under s.79 can be varied under s.79A are quite narrow. So far as the father’s application is concerned only one of the five grounds provided for in s.79A could even arguably apply. Section 79A(1)(a) provides:
(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.
This is the widest of the grounds. As Dickey, Family Law, 5th ed., points out at page 611 the kernel of subparagraph (a) is that “there has been a miscarriage of justice”. The learned author points out that authority has not favoured an interpretation that this means an unjust result. It is accordingly irrelevant that a property order is unfair. Authority has emphasized that the notion of miscarriage of justice in s.79A(1)(a) is essentially concerned with the integrity of the judicial process. This includes the content of discussions leading to consent orders (citing In the Marriage of Sulker (1993) FLC 92-436 at 80,471; In the Marriage of Pelerman (2000) FLC 93-037 at 87,584-6).
It has been held that there is no miscarriage of justice where a spouse agrees to orders that result in an improvident or unfair division of property between them: In the Marriage of Gebert (1990) FLC 92-137 at 77,935.
The father was legally represented during the course of negotiations leading to the making of the consent orders. If he did not understand any of the orders proposed, it was open to him to seek legal advice. The father has not put on any evidence of his mental or physical health that supports an argument that he lacked capacity to understand or agree to the orders that were made. The fact that the father agreed to what he regarded as unfavourable terms because he did not want the ongoing stress of legal proceedings is not sufficient, in my view, to constitute a miscarriage of justice as required by s.79A(1)(a) of the Act. The first basis of the father’s application under s.79A(1)(a) lacks any meaningful prospect of success.
The second basis of the father’s application is that the wife knew the property was worth more than the value ascribed to it by [T]. The difficulty with this argument is that the father himself says that before the consent orders were made he questioned the accuracy of the valuation, and expressed the belief in his affidavit filed in the Family Court that the property was worth $1.3 million. There is nothing in the father’s evidence that demonstrates that he relied on the valuation in his decision to compromise the proceedings. There is nothing to show why it was necessary for the father to agree to the consent orders without getting his own valuation if he was unsure as to the accuracy of that obtained from [T].
The second basis of the father’s application in my view does not enjoy good prospects of success.
In her affidavit filed 2 May 2008 the wife says she spent $80,000 repairing the former matrimonial home and a substantial amount of time cleaning up the property and presenting it for sale. If correct, that would amount to a further reason why the court, in the exercise of its discretion, may not interfere with the existing property settlement orders.
In circumstances where the mother is entitled to the monies presently held in the trust account, unless and until the previous property settlement are set aside or varied; where the father’s application under s.79A of the Act must be viewed as having limited prospects of success; and where the mother proposes purchasing an asset with the trust monies that can be realised if necessary to satisfy any obligation found to exist to the father in the future; I cannot see why the mother should be prevented from acting as she proposes.
The mother will have $535,000 to contribute towards the purchase of a property. She may have to borrow a further sum to enable her to acquire a suitable property. She should not be permitted to borrow too much, such that her equity in the property is diluted too much. I consider that it adequately protects both parties’ interests if the mother maintains 50% equity in the house property.
The mother’s application for enforcement of Order 21 made on 30 March 2006, the mother’s application for a variation of Order 20 made on
30 March 2006, the father’s application for a variation of Order 21, and the mother’s application to summarily dismiss the father’s s.79A application still need to be dealt with. I will make directions to that end.Otherwise, the orders will be as set out at the commencement of these reasons.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 15 August 2008
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