HILL & JASPER

[2016] FamCA 41

FAMILY COURT OF AUSTRALIA

HILL & JASPER [2016] FamCA 41

FAMILY LAW – Reasons for judgment made on 30 June 2015 – anomalies in sworn affidavits – forwarding of particularised documents to the Attorney-Generals’ Department, the Queensland Law Society and the Legal Services Commission, Queensland for their consideration

APPLICANT: Ms Hill

RESPONDENT: Mr Jasper

FILE NUMBER: CSC 83 of 2013

DATE DELIVERED: 4 February 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 30 June 2015

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Dr Sayers

Mr Cameron, Williams Graham Carman

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hill & Jasper 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 BRISBANE

FILE NUMBER: CSC 83 of 2013

Ms Hill

Applicant

And

Mr Jasper

Respondent

REASONS FOR JUDGMENT

1. On 30 June 2015, I made Orders, by consent, which then disposed of the matter before the Court. I also ordered that a Registrar of the Court forward particularised documents to the Attorney-Generals’ Department, the Queensland Law Society and the Legal Services Commission, Queensland for their consideration.

2. I indicated then that I would provide reasons later for the latter Orders. These are those reasons.

3. The Order made on 30 June 2015 set aside an Order made, by consent, on 26 March 2013. 

4. Ordinarily, an agreement by parties that the Court make an Order in agreed terms setting aside an Order earlier made by agreement would not trouble the Court for long. However, the circumstances in which the March 2013 Order was made takes this matter out of the ordinary.

5. The evidence establishes that the parties were in a de facto relationship which commenced sometime in 2005.

6. The parties’ most recent affidavit material contains the respective sworn assertions that final separation occurred in May 2009 (according to Mr Jasper)[1] or in November 2008 (according to Ms Hill).[2]

   [1]          Paragraph 2, Affidavit of Mr Jasper filed 28 April 2015.

   [2]           Initiating Application filed 22 December 2014.

7. Each of these assertions contradict the parties’ previous assertions to the Court that their de facto relationship broke down on 10 March 2011: this information having been jointly conveyed in an Application for Consent Orders filed on 22 February 2013. This Application contains, at Parts J and L, the parties’ respective assertions that, relevantly, “the matters stated in this application that are within my personal knowledge are true and all other facts are true to the best of my knowledge, information and belief”.

8. On 26 March 2013 - on the basis of the information contained in the  Application for Consent Orders filed on 22 February 2013 - Registrar Boyd made the March 2013 Order by consent. His determination that its terms were just and equitable can only have taken place on the basis that the information contained in that Application, including the material particular of the date on which the de facto relationship broke down finally, was both accurate and truthful.

9. The consequence of the evidence each party has subsequently provided – if accepted - establishes that this was not the case.

10. The concern associated with this apparent divergence of account is magnified when regard is had to the fact that the Court would not have had jurisdiction to make the Order sought by the parties if, as has later been asserted by Ms Hill, their de facto relationship broke down finally before 1 March 2009.

11. Authority[3] makes it clear that:

    a)whilst possessing the power to do so, the Court is not always under a duty to report the fact of the commission of possible offences to relevant authorities; and

    b)questions of degree are relevant; and

    c)minor issues relating to taxation, social security and other matters are often revealed  during proceedings and it is unreasonable for the Court to burden itself with a duty to report all such matters; but

    d)different considerations may apply in relation to more blatant and substantial irregularities.

    [3]           Malpass and Mayson (2000) FLC 93-061; 27 Fam LR 288

12. Given the obvious concern that the parties may have colluded in providing false information relevant, particularly, to jurisdiction for the purpose of obtaining the benefit of orders sought to be made (and made) by the Court by consent, and also in relation to the duration of their de facto relationship I am persuaded that the circumstances in this case mean that, prima facie, it involves more blatant and substantial irregularities and that it is appropriate that an order referring the papers to the appropriate authority is made.

13. Additionally, as Ms Hill’s affidavit[4] contains assertions that Mr Jasper’s legal representative:

    [4]           filed 22 December 2014.

    a)authored correspondence, dated 23 November 2011, containing the assertion that the parties separated in “late 2008 or early 2009”; but subsequently 

    b)was responsible for drawing the Application for Consent Orders filed on 22 February 2013, which contains the assertion that the parties relationship broke down on 10 March 2011; and

    c)advised her that the easiest way to effect a settlement with Mr Jasper was to say that they separated in 2011[5],

    [5]           Paragraph 25, Affidavit of Ms Hill filed 22 December 2014.

    I consider it appropriate that the documents also be referred to the Queensland Law Society and the Legal Services Commission Queensland for their consideration.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 4 February 2016.

Associate:     

Date:    4 February 2016