Hurst and Hurst

FEDERAL CIRCUIT COURT OF AUSTRALIA

HURST & HURST

[2016] FCCA 3217

Catchwords:
FAMILY LAW – Property – s.79A Application – where final orders made in the absence of the husband who was overseas – whether the husband was aware of the proceedings – whether there has been a miscarriage of justice – whether there might have been a different outcome had the husband had the opportunity to be heard – husband’s application to have Orders set aside dismissed.

Legislation:

Family Law Act 1975, ss.79A(1)(a), 79A, 75(2), 79(4), 79

Evidence Act 2008, s.91

Cases cited:

Allesch v Maunz (2000) 26 FLR 237

Applicant:

MR HURST

Respondent:

MS HURST

File Number:

DGC 2438 of 2014

Judgment of:

Judge Small

Hearing date:

7 July 2016

Date of Last Submission:

19 August 2016

Delivered at:

Melbourne

Delivered on:

21 December 2016

REPRESENTATION

Counsel for the Applicant:

Mr McIntyre

Solicitors for the Applicant:

Verduci Lawyers

Counsel for the Respondent:

Ms Sudholz

Solicitors for the Respondent:

Burrell Family Law

ORDERS

The Court not being satisfied under section 79A(1)(a) of the Family Law Act 1975 that there has been a miscarriage of justice by reason of any of the circumstances specified therein, the Initiating Application of the husband filed 3 February 2016 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hurst & Hurst is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 2438 of 2014

MR HURST

Applicant

And

MS HURST

Respondent

REASONS FOR JUDGMENT

Introduction

These are property proceedings arising from the breakdown of the marriage between Mr Hurst (“Mr Hurst” or “the Husband”) and Ms Hurst (“Ms Hurst” or “the Wife”).
Final property Orders were made in this matter on 20 May 2015 (“the Final Orders”), and the Husband’s application is to have these Orders set aside under section 79A(1)(a) of the Family Law Act 1975 (“the Act”), and for a further property settlement to be ordered under section 79.
This one day Trial was heard on the threshold issue of whether the Final Orders should be set aside.

Background

The husband is now 57 years old, having been born on (omitted) 1959 in (country omitted).
The wife is approaching her 55^th birthday having been born on (omitted) 1961, also in (country omitted).
The parties married in (country omitted) on (omitted) 1989 and, after several periods of separation and reconciliation, separated finally in Melbourne on 21 December 2012 after a marriage of 23 years. They were divorced on 26 December 2014.
There is one child of the marriage, Ms N, who is now 23 years old.
The parties purchased the property at Property A (“the Property A property”) in 2002.
The wife is a (occupation omitted) and works in (omitted) at (employer omitted). She lives in the Property A property with the parties’ daughter.
The husband lives in rented accommodation in (omitted) and has not worked full-time since 2008. There is dispute between the parties about whether his lack of employment is due to choice or lack of capacity to work.
As far as the court is aware neither party has repartnered.

Procedural History

The previous proceedings leading to the Final Orders

The wife filed her Initiating Application in the previous proceedings on 13 August 2014, where she sought the transfer of the Property A property to her subject to its mortgage, and that otherwise the parties retain all their current property.
The matter first came before me on 15 October 2014 in the Duty List at Dandenong where I made procedural orders for service of documents by registered mail to an address in (country omitted) and by email to 2 addresses, one at Hotmail and one at Yahoo, as it was unknown at that time exactly where the husband was living. I then adjourned the matter to the next available duty list so that service could be effected, that adjournment being to 10 March 2015.
On 5 March 2015 the wife filed an affidavit sworn 3 March 2015 deposing that her Initiating Application, Affidavit in support and sworn Financial Statement filed on 13 August 2014 had been mailed to the (country omitted) address specified in the order of 15 October 2014 on 21 October 2014, that address being (omitted), (country omitted) (“the husband’s (country omitted) address”), and that the documents had also been emailed to the two email addresses (omitted) (“the Hotmail address”) and (omitted) (“the Yahoo address”) as mandated by those orders.
On 10 March, there having been no response from the husband, and he having filed no responding material, I made further orders that the matter be adjourned to 20 May 2015 for mention, and that the wife’s solicitors again serve the Application documents and a copy of the Orders made that day to the postal and email addresses as set out above.
I made a Notation to that Order that if the husband did not appear at the next adjourned date the wife may have leave to proceed on an undefended basis at the next hearing.
On 20 May 2015, there was some concern as to whether the orders of 10 March 2015 had been served by the means ordered and the matter was stood down so that evidence of such service could be found. Counsel for the wife subsequently provided evidence of registered post receipts and emails having been sent. The court then being satisfied that the orders for service had been complied with, and the husband making no appearance, either in person or by counsel, I asked counsel for the wife to make submissions as whether the proposed orders were just and equitable in all the circumstances.
In circumstances where the evidence before the court was that the wife had worked throughout and subsequent to the marriage, and had made all financial contributions to the parties’ property since 2008, where the husband had not worked (and had therefore made no financial contributions to the parties’ property) since 2008, where the wife alleged serious family violence from the beginning of the marriage, and where the proposed orders provided a settlement of about 58% to the wife and 42% to the husband, I made Final Orders in terms of the Wife’s application.
For the sake of convenience of reference I will set out the Final Orders in full:
THE COURT ORDERS THAT:
1. The wife has leave to proceed this day on an undefended basis.
2. The Husband do all acts and things and sign all documents to transfer to the Wife the expense of the wife all of his right title and interest in the real property situate at Property A, more particularly described in Certificate of Title volume (omitted).
3. The wife indemnify the husband against all payments and liability pursuant to the mortgage registered number (omitted) to the (omitted) Bank (“the mortgage”) and all apportionable rates, taxes and outgoings of or with respect to the real property of what so ever nature and kind.
4. The Wife do all acts and things and sign all documents to transfer to the Husband at the expense of the Husband all of her right title and interest in the wife’s real estate in (country omitted).
5. In default of the Husband doing all acts and things and executing all such documents as are necessary to give effect to these Orders within 14 days of the date on which the obligation to do so is set under these Orders, and on the Registrar being satisfied of such failure or neglect or default by the Husband by way of an Affidavit evidence only (sic), a Registrar of the Family Court of Australia (sic) at Dandenong is appointed pursuant to section 106A to execute all such documents in the name of the party in default and do all such acts and things necessary to give validity and operation to the said orders and the party in default shall pay to the other party to this Application that party’s costs and disbursements on an indemnity basis.
6. Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these any subsequent orders:
a. Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date. The chattels in the matrimonial home are considered to be in the position of the Wife;
b. Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;
c. All insurance policies to become the sole property of the owner name (sic) thereunder;
d. Each party to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
7. All extant applications be otherwise dismissed and the matter removed from the pending cases list.
AND THE COURT NOTES THAT:
A. The husband was called outside the court at 9:45am and made no response to the call.
While those Orders were made by the court, they were made on an undefended basis in terms of the wife’s Initiating Application filed on 13 August 2014.
The current proceedings
On 3 February 2016 the husband filed an Initiating Application seeking orders that there be “a just and equitable division of the assets of the parties, inclusive of superannuation, pursuant to section 79 of the Family Law Act 1975”. He sought a further order excusing him from particularising his claim “pending the completion of discovery and valuations”. The husband also filed an Affidavit in support and a sworn Financial Statement.
The husband’s Initiating Application did not include an order seeking that the Final Orders be set aside.
On 6 April 2016 the wife filed her Response and Affidavit in support seeking that the husband’s application be dismissed. She also filed a sworn Financial Statement.
On 11 April 2016 the matter came before Judge Wilson in the Duty List, where it was transferred to my docket for further hearing. This was the first hearing in any proceedings where both parties were present.
On 23 May 2016 the matter came before me for Directions and I adjourned it so that the interlocutory issue of whether the Final Orders ought to be set aside could be properly heard. I ordered the parties to file any further material in preparation for this hearing by 30 June 2016.
On 27 June 2016 the wife filed an affidavit sworn on 24 June 2016 and the husband swore and filed a further affidavit on 29 June 2016.
On 7 July 2016 the parties came before me for a one day hearing on this issue and I heard evidence from both the Husband and the Wife in the witness box. Both parties were subjected to cross-examination by counsel.
I ordered the parties to file written submissions and otherwise reserved judgment.
The wife filed her submissions on 28 July 2016 and the husband filed his on 19 August 2016.

Issues and Evidence

The overall issue before the court in these interlocutory proceedings is whether the Final Orders ought to be set aside under section 79A of the Act.
The predominant issue of fact to be decided before the court can make that decision is whether the husband was aware of the proceedings filed by the wife on 13 August 2014 at any time before the Final Orders were made on 20 May 2015.
There are several sub-issues to decide before the court can be satisfied as to that matter. They are:
(a)Did the husband receive the wife’s Initiating Application, sworn Affidavit and sworn Financial Statement (“the initiating documents”) and subsequent court orders by way of email to the addresses (omitted); (omitted); and/or (omitted)?
(b)Did the husband receive the initiating documents by way of a letter sent by the Wife’s lawyers to the Civil Court in (country omitted) that was hearing the husband’s divorce petition?
(c)Did the husband receive the initiating documents and subsequent court orders by way of post to his address in (country omitted)?
(d)Did the wife know the husband’s (country omitted) telephone number?
(e)Could the wife have discovered the husband’s (country omitted) address by any other means?

The Husband’s Initiating Application

I note that in the husband’s Initiating Application filed 3 February 2016, he makes no mention of setting the Final Orders aside. His application is simply for a just and equitable division of the assets of the parties pursuant to section 79 of the Act as though no previous orders had been made at all.
He did not file an Amended Initiating Application in these proceedings and it would appear that while the husband refers to his wish to have the orders set aside in his affidavit material, the first mention of anything like a formal application to set the Final Orders set aside is found in his submissions filed on 28 July 2016, where he states:
Introduction
1. The Applicant Husband has filed an Initiating Application in this Court dated 3 February 2016. The Applicant Husband seeks a just and equitable property settlement pursuant to section 79 of the Family Law Act (“the Act”).
2. Final property orders were previously made by this Court on 20 May 2015 (“the previous orders”).
3. It is necessary, in order for the Applicant Husband’s application for a property settlement to be heard and determined, for the Applicant Husband to make an application to set aside the previous Orders pursuant to section 79A(1)(a) of the Act.
4. The Applicant Husband makes that application herein.
I find it extraordinary that the husband waited until filing of submissions, some six weeks after trial, to state with any legal precision what it was he wanted the court to do. Even then, the way the matter was put does not comply with the Rules of this court.
This issue was mentioned during trial, but as the point was not pressed by the wife’s counsel, and because requiring the husband to file an Amended Initiating Application would simply have delayed the proceedings, I allowed the application to proceed as though it were formally before the court as a matter of practicality and common sense.
Nevertheless, it would have been open to the court to dismiss the application because of its technical deficiencies, and it is surprising how many deficient Applications, Responses and other documents are filed in this court by legally qualified practitioners.
Such deficiencies only serve to raise questions in the mind of the court about practitioners’ competence.

The unchallenged evidence

The parties agree that when the wife initiated her proceedings for a property settlement on 13 August 2014 (“the previous proceedings”), and indeed until after the Final Orders were made on 20 May 2015, the husband was residing in (country omitted).
They are agreed that the parties were engaged in negotiations in relation to property matters through their respective solicitors before the husband left for (country omitted) on (omitted) 2014.
It is a matter of fact that the husband did not file any material in the previous proceedings.
On 19 June 2014, the husband filed a Divorce Petition in the Family Court at (country omitted) and the wife received that Petition in the post on or about 13 August 2014, the very day on which she filed her Initiating Application, sworn Financial Statement and Affidavit in support in this court.
The parties were divorced as a result of the husband’s Petition in the City Civil Court at (country omitted) on 12 January 2015. The wife was aware of the proceedings and did not contest the Petition or make any appearance in those proceedings.
On 27 February 2015 the husband transferred property in (country omitted) registered in the name of the wife to his own name using a General Power of Attorney dated 30 July 2007.
On 22 July 2015 the Property A property and its associated mortgage were transferred into the wife’s sole name pursuant to the Final Orders.
On 11 August 2015 the husband returned to Australia.
The husband instructed his solicitors in January 2016 and these proceedings were initiated on 3 February 2016.

A Preliminary Point

Before hearing evidence at trial, the court was required to rule on the admissibility of certain of the wife’s evidence contained in her affidavit material.
In 2008, the husband issued proceedings in the (then) Australian Industrial Relations Commission (“the AIRC”) seeking relief in relation to the termination of his employment.
The wife annexes the transcript of the hearing of those proceedings in the AIRC on 4 June 2009 to her affidavit sworn 24 and filed 27 June 2016.
Mr McIntyre, for the husband, sought to have that evidence excluded in these proceedings under section 91 of the Evidence Act 2008.
Section 91 of the Evidence Act states:
91 Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
In his submissions on this point, Mr McIntyre said the following:
[…] my submission would be section 91 of the Evidence Act in relation to previous proceedings, in my submission, the matter in issue in the Industrial Relations Commission hearing was, in fact, the reliability of Mr Hurst’s evidence or credibility as a witness. Now, the purpose that evidence is tendered in this hearing is to prove that very same fact. It would be my submission that, having regard to section 91, the wife couldn’t do it and that evidence would be excluded.
Ms Sudholz, for the wife, informed the court that the transcript was tendered for two reasons: first, in relation to tendency evidence with respect to evidence the husband had given to this court about his difficulties with email; and second, to show an inconsistency between the husband’s evidence given to the AIRC and his evidence before this court.
The following exchange then took place between the bench and the bar table:
Her Honour:[…] how do you say that applies, Mr McIntyre? We are not talking about evidence of a decision or a finding of fact, are we?
Mr McIntyre: Well, in my submission, we are, your Honour, because it’s a finding of fact in relation to the version of events given by Mr Hurst in another tribunal – I won’t say court, but a tribunal.
Her Honour: Wait a minute. This is what it says:
Evidence of the decision or of a finding of fact […] in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
Mr McIntyre: Yes. And, in my submission, the---
Her Honour: Well, where in the evidence – it’s not the evidence of a decision and it’s not the evidence of a finding of fact.
Mr McIntyre: Well, in my submission, it’s evidence relevant to the finding of fact.
Her Honour: But that’s not what the Act says, is it?
Mr McIntyre: Well, I can’t take it any further than that, Your Honour.
Her Honour: My interpretation of that – and unless you have any – I would be very grateful if you had […] other judicial interpretations of that section, but my understanding of that would be that if the wife sought to say, “Well, the IRC found X and therefore I think that’s proof of X” it would be covered.
Mr McIntyre: Yes.
Her Honour: Or if she said, “Well, the decision of the tribunal was Y and therefore I rely on Y,” then that would be covered.
Mr McIntyre: Yes.
Her Honour: But the evidence given I don’t think does cover it.
Mr McIntyre: As Your Honour pleases. I can’t take it any further than that. I don’t have any other authority.
Her Honour: […] I think the issues are relevant in terms of credit, and credit is what this case is all about. This is very much a “he said/she said” case, and the credit of both parties is at issue here, and therefore any evidence that is admissible that goes to credit I think is acceptable. And I don’t read section 91 in the way that Mr McIntyre does, as I’ve just said. The evidence sought to be included is not evidence of a decision or of a finding of fact. It’s simply evidence of what Mr Hurst said to the Industrial Relations Tribunal or Commission at that time. […]And I take it it’s no higher than that.

I then ruled that the transcript of the AIRC hearing held on 4 June 2009 was admissible, but only for the purposes stated by counsel.

Issue (a): Did the husband receive the wife’s Initiating Application, sworn Affidavit and sworn Financial Statement (“the initiating documents”) by way of email sent to the addresses (omitted); (omitted); and/or (omitted)?

The husband’s evidence

The husband’s evidence is found in his affidavits sworn and filed on 3 February 2016 and on 29 June 2016, and in his oral evidence given at trial.
In his affidavits the husband deposes that he never received the Initiating Application, Affidavit, or Financial Statement of the wife, nor any orders of this court until he arrived back in Australia in August 2015.
It was his evidence that while a copy of the Final Orders had arrived in his email Inbox when they were sent, those orders being annexed to a letter from the wife’s lawyers dated 12 June 2015, he had not opened this email until he returned to Australia in mid-August 2015.
In his affidavit sworn and filed 3 February 2016 the husband deposes to the following:
16. I then received a letter (by email) from Burrell Family Law dated 12 June 2015, who apparently acted for the Respondent. This letter told me that orders had been made by this Court without my knowledge on 20 May 2015, inter alia, transferring the property to the Respondent. Now shown to me annexed hereto and marked “H-2” is a copy of that letter.
17. This was the first time at which I knew about the proceedings in this Court.
In his affidavit sworn 29 June 2016, the husband deposes that he had taken his Australian mobile phone with him to (country omitted) in May 2014, but that:
18. […] this only worked for about three months because I had not used it. This phone was linked to my email. Hence I was not able to read my email on my phone, or access my “one-time password” in order to reset my email because it had apparently been accessed by an unauthorised third party. Usually a temporary password is sent by text message, however it was this old phone number that was linked to my email account, hence I could not receive text messages on this phone number. I had to obtain a new Australian SIM card upon returning to Australia, which I could then use to restore email access. I also had my “secret question” answers (in order to access my email) here in Australia, hence so was not able to use these while in (country omitted).
The Husband deposed that he did not have regular email access when in (country omitted), that he experienced technical difficulties with his email from time to time, and he adamantly denied that he had received the emails sent in the previous proceedings, or been aware of the Final Orders earlier than mid-August 2015.
Under cross-examination at trial, Mr Hurst clarified that the telephone number to which his email was connected was his Australian mobile telephone not his (country omitted) telephone. It was his evidence that he could not use his Australian mobile telephone while he was in (country omitted) as he did not have his “secret answers” with him as he had left that information in Melbourne in written form.
He said he had written the answers to his “secret questions” down because from the time he had first had his email address, it had been “hacked about 50 to 60 times”, and he had changed the answers to his “secret questions” so that they were actually the wrong answers to the questions in an attempt to increase the security of his access to his email. However, because the answers were not the correct answers, he had had to write them down. He had then gone to (country omitted) in 2014 without taking the answers with him.
When asked why he had not taken them with him, the husband said that he had been “thinking that I was going to come back, but it didn’t happen, and my mail was hacked”. In other words, it was not an accident that the “secret answers” did not travel with him to (country omitted) in May 2014.
He confirmed that he had booked only a one-way ticket to (country omitted) and said that he usually booked his return flight once he had arrived.
During her cross-examination, after referring to the AIRC proceedings, counsel for the wife asked the following questions:
Ms Sudholz: […] You had email issues then as well, didn’t you?
The husband: I have it every time.
Ms Sudholz: Yes?
The husband: Most – most of the time.
Ms Sudholz: And you have never considered changing your email address?
The husband: No.
At the conclusion of the husband’s cross-examination by counsel for the wife, I asked the husband several questions about the “secret questions” he had set up to allow secure entry to his email account when he had forgotten his password. The reason for those questions was that the husband had said that his email did not work in (country omitted) because he had no access to it. The following somewhat frustrating exchange then ensued:
Her Honour: […] About the secret answers. You set the questions yourself, don’t you, to those?
The husband: Yes.
Her Honour: So, for instance, on one of my many things that require secret answers, the question I have asked is: what was the name of your sister’s cat? Now that’s the kind of thing that nobody but I would know, or my sister perhaps, right?
The husband: Yes.
Her Honour: What kind of questions did you ask – did you set in that circumstance?
The husband: There are hint questions which we can always change with our own.
Her Honour: But when you set it up […] you set the questions don’t you?
The husband: Yes. At the start.
Her Honour: […] So what kind of questions did you set as questions to which your secret answers would be the answers?
The husband: But every time when the computer is hacked, we have to set different one so I couldn’t get anything right up. So it took me a little while from…
Her Honour: But when it’s – see, what I don’t understand is my – and, you know, please put me right if I have got it wrong. But my understanding is that when you log in and you can’t log in because you don’t know your log in password, […] what comes up is a series of questions. And the question is one that you, yourself, have set earlier and it says something like, you know, what is the name of your sister’s cat. And if I don’t write the proper name, I can’t get in […] Now what I’m asking you is when you set it up, initially, what kinds of questions did you ask?
The husband: It ask for your mother’s name, father’s name and where did you study and all this kinds…
Her Honour: But you can choose those can’t you?
The husband: I didn’t choose those because I put my own. There is an option to put your own.
Her Honour: Yes. So what questions did you put?
The husband: A number of times, when it was hacked, I put my own so…
Her Honour: I’m asking you what kinds of questions you put, not whether you put them but what did they say, what questions were they for instance?
The husband: It ask you for the mother’s name or anything like that so I just put different […] names at times.
Her Honour: Yes. So it would ask you what is your mother’s name and you would put a wrong name?
The husband: Yes. I put a wrong name.
Her Honour: And then you forgot what the wrong name was?
The husband: That’s - that’s the problem which happened. So every time I used to note down that.
Her Honour: So you didn’t choose to put another – to choose other questions?
The husband: Choose my own correct answer. I put another one.
Her Honour: But there was an option for you to choose your own questions; is that right?
The husband: Yes. Yes.
Her Honour: And you didn’t take that option?
The husband: No.
Her Honour: Why not? […] Wouldn’t it have been easier?
The husband: […] that would be harder, in fact.
Her Honour: Isn’t that the point?
The husband: That would be harder.
Her Honour: That would be harder?
The husband: Yes.
After further questioning, it became clear that the husband’s evidence was that his email had not been working from about October 2014 to August 2015, coincidentally, the very period during which the wife’s solicitors attempted to serve documents upon him in the previous proceedings by email and post.
He confirmed under cross-examination that when he had finally opened his emails in mid-August 2015, upon his return to Australia, all the emails, with the documents for service attached, were in his Inbox.
However, it was his evidence that the first email he had read was that from the wife dated 27 August 2015. He did not respond to that email he said because he never responded to the wife’s emails because they “didn’t mean anything much” and were “not really important”.
Given that statement, it is difficult to understand why the very first email he opened after more than a year’s absence was the only one from the wife.
I found the husband’s evidence about his email access evasive, contradictory and at times simply unresponsive. In addition, I found his evidence about his intention to return to Australia somewhat unconvincing in light of his evidence about his flight bookings.

The wife’s evidence

The wife deposes that after the hearing in this court on 15 October 2014 when I made orders for substituted service of the wife’s initiating documents, she caused a letter dated 21 October 2014 to be mailed to the husband’s address in (country omitted) by registered post, and by email to two email addresses: (omitted) and (omitted). A copy of that letter, indicating that it had been sent to the husband’s (country omitted) address and to those two email addresses, is annexed to the wife’s affidavit together with a copy of the Registered Post International Customer Receipt dated 22 October 2014.
Ms Hurst deposes that the email addressed to (omitted) had bounced back with a message that the recipient could not be reached but the email addressed to (omitted) had been delivered. She annexes to her affidavit sworn 24 June 2016 a copy of an email in the following terms:
From:            Microsoft Outlook
To:                 ‘(omitted)’
Sent:                  Tuesday, 21 October 2014 2:51 PM
Your message
To:        ‘(omitted)’
Subject:            Family Law Matter
Sent:         21/10/2014 2:48 PM
was delivered to the following recipient(s):
‘(omitted)’ on 21/10/2014 2:51 PM
The wife then sets out the procedural history of the previous proceedings in similar terms to that set out in paragraphs 14 to 18 of these Reasons and deposes that the orders made in this court had been sent to the husband’s (country omitted) address and to the two email addresses set out above.
Again she deposes that the email sent to (omitted) bounced back, while the email sent to (omitted) had been delivered and she annexes to her affidavit a copy of the letter accompanying the orders, the Registered Post International Customer Receipt and the delivery status notification for the email sent to the hotmail address showing that the message and its attachments were “undeliverable”, the reason given being “mailbox unavailable”.
That evidence was not challenged at trial.
On the basis of the above evidence, and being very sceptical about the husband’s evidence on this issue, I find, on balance, that the husband is more likely than not to have received the wife’s initiating documents by email to his (omitted) address before the Final Orders were made.

Issue (b): Did the husband receive the initiating documents by way of a letter sent by her lawyers to the Civil Court in (country omitted) before which the husband’s divorce petition was heard?

In her affidavit sworn 3 and filed 5 March 2015 in the previous proceedings, the wife deposes that upon receiving the husband’s Divorce Petition on 13 August 2014, she had instructed her solicitors to write to the (country omitted) court to explain that she would not be contesting the divorce, that she would not be attending any hearings in (country omitted), and that there were proceedings on foot in this court for a property settlement between the parties. She annexes a copy of the letter to her affidavit and deposes that it was accompanied by a copy of her Initiating Application. The letter is dated 13 August 2014.
At trial, it was put to the wife that she had no proof that the (country omitted) court had received the letter.
Ms Hurst’s reply was that her solicitors had sent that letter to the address from which the Divorce Petition had come – that of the Civil Court in (omitted), (country omitted), which, she stated was the only Civil Court in (omitted). It was her evidence that if the address was correct, and it was, the court would have received that letter.
She was, however, forced to concede that there was no proof that the court in (omitted) had ever received that letter. There was no response to it, and it is not mentioned in the document containing the divorce decree.
Further, even if the court had received the letter, she could point to no evidence before this court that any reference to it was made in the (country omitted) court when the divorce decree was made or at any of the interlocutory hearings leading to it.
In his Affidavit material, the husband deposes that there was never any mention of the letter in the (country omitted) court, and he essentially says he doubts that the letter was ever sent.
Mr Hurst was not cross-examined about that issue at trial.
At trial, it was put to the wife that she had received the husband’s Divorce Petition from his (country omitted) lawyer in August 2014 and that she had also received two pieces of mail from the husband’s lawyers in March and April 2015, the import of that question being that if Ms Hurst had known the husband’s (country omitted) lawyer’s address, she ought to have served the documents in the previous proceedings by sending them to that lawyer. Ms Hurst’s response was that she had received the Divorce Petition but not the other pieces of mail. I will return to those matters later in these Reasons.
Ms Hurst denied under cross-examination that the Divorce Petition had been sent by the husband’s (country omitted) lawyer, and that she therefore was aware of the husband’s lawyer’s address, and was adamant that the document had been sent to her by the Civil Court.
A perusal of the document reveals that the Federal Express label affixed to the envelope which was delivered states in the space next to “sender” the address of the court. It does not show any name or address of any lawyer or law firm.
I accept Ms Hurst’s evidence in relation to the Divorce Petition. That is that the Divorce Petition was sent to her by the (country omitted) court and not by the husband’s lawyers.
When I consider all the evidence available to the court on this particular issue, while I am satisfied that the letter was sent, I cannot be satisfied that Mr Hurst became aware of the previous proceedings via that letter.

Issue (c): Did the husband receive the initiating documents by way of post to his address in (country omitted)?

In relation to the wife’s evidence that her application documents had been sent to his (country omitted) address, the husband deposes to the following in his Affidavit sworn and filed 29 June 2016:
17. […] I cannot confirm or deny that Ms Hurst in fact sent the documents to my (country omitted) address as deposed in therein. However I can categorically state that I did not receive any document or documents from Ms Hurst or her lawyers at that address. The property at that address in (country omitted) is an old, dilapidated and rundown house, which is about 55 to 60 years old. I do not stay at that house when I go to (country omitted), as it is not safe. There are serious structural issues with the house, as it is an old limestone building and the roof is threatening to collapse.
Mr Hurst asserts that his wife knew that he was not staying at that property and says he only uses it as his (country omitted) address because it is the only property in (country omitted) which he “owns outright”.
Under cross-examination at trial, he was questioned about this issue and the following exchange took place:
Ms Sudholz: So there were documents sent to that address, but you say you never received them?
The husband: No, I didn’t receive them.
Ms Sudholz: Does it have a mailbox?
The husband: No.
Ms Sudholz: Did it ever have a mailbox?
The husband: No, it doesn’t.
Ms Sudholz: The wife will say it had a metal mailbox welded onto the gate when […] she lived there with you.
The husband: Yes, but that has no lock, and it can be accessed by anyone […]
Ms Sudholz: So anyone can access that box?
The husband: Yes, anyone can take away things.
Ms Sudholz: So why do you use that address as a point of contact then?
The husband: Because I have always had – lived in that house.
Her Honour: Because you’ve always?
The husband: Previously, many years back, we lived in that house.
Ms Sudholz: But if anyone can access the post, then why would you give that address out on your divorce documents, for example?
The husband: I – I gave it there, but the divorce documents never replied to that address. The divorce document – they always replied to me on my phone, and if I needed to meet them, they call me to their office.
Ms Sudholz: So before when you said it had no mailbox you were not telling the truth, because you’re now saying it does have a mailbox?
[…]
The husband: Mailbox which is open, which is – you know, anyone can access it.
Ms Sudholz: So have you ever received mail there recently?
The husband: Maybe a – a letter or two or something like that, just an ordinary post […] Not registered.
The wife’s evidence on this issue was that while the house in (country omitted) was dilapidated and run down, the husband stayed there while he was in (country omitted) during the marriage, and that she believed he still stayed there when he was in (country omitted) in 2014-2015.
I note that Mr Hurst did not say, and was not asked, why he had not given the address at which he was then living on the divorce documents he filed with the court in (country omitted). Indeed, he never provided that address to this court.
The husband’s contradictory evidence in that regard is most unsatisfactory and the court has no confidence in his assertion that he did not receive the wife’s documents by post at that address.
I therefore find that it is more probable than not that the husband received the wife’s initiating documents, and the orders of this court in the previous proceedings, at his (country omitted) address.

Issue (d): Did the wife know the husband’s (country omitted) telephone number?

It was Mr Hurst’s evidence at trial that Ms Hurst had called him in (country omitted) several years before while the parties were still married, although he could not be more specific about when she had called him in (country omitted). His evidence was that his number “was a very old number and everyone knew about it”, and that “even my family, friends and relations also know about it”.
I note that that number is some 10 digits long and that at the time of filing her initiating documents in August 2014, it was Ms Hurst’s uncontradicted evidence at trial that she had had no direct contact with the husband since separation in December 2012.
It therefore, in my view, unlikely that she would remember the husband’s (country omitted) telephone number at the time her initiating documents needed to be served. In any event, there was an Intervention Order in force at that time and she would not have been wise to contact the husband directly by telephone, although had she known his number, she could have given it to her lawyers.
Ms Hurst was questioned on that issue at trial and it was her evidence that the number had been in the parties’ “telephone diary” and that the husband had taken the telephone diary with him when he had left the family home in 2012.
It was the wife’s evidence that that she had not called him when he was in (country omitted) during the marriage because she had tried several times and he simply “never used to pick up the phone so I never called him ever. I never tried calling him because he would never pick up the phone”.

Again it was put to the wife that she did know the husband’s (country omitted) telephone number and her answer was a clear “No, I didn’t […] I didn’t have the number”.
On the evidence before me, I am not satisfied that the wife knew the husband’s (country omitted) telephone number in or after August 2014, and find, on balance, that she did not.

Issue (e): Could the wife have discovered the husband’s whereabouts in (country omitted) by any other means?

The husband’s evidence

It was the husband’s affidavit evidence that the wife could otherwise have discovered how to contact him in (country omitted) via two specific means: first in that she had received two pieces of mail from his (country omitted) lawyers which contained their address; and second that she had called the husband’s sister-in-law on 12 August 2015, and she could therefore have obtained his address from her.
The wife’s evidence
At trial, it was put to the wife that she had received the husband’s Divorce Petition from his (country omitted) lawyer in August 2014 and that she had also received two pieces of mail from the husband’s lawyers in March and April 2015, the import of that question being that if Ms Hurst had known the husband’s (country omitted) lawyer’s address she ought to have served the documents in the previous proceedings by sending them to that lawyer. As previously stated, Ms Hurst’s response was that she had received the Divorce Petition but not the other pieces of mail.
As also stated above, I accept Ms Hurst’s evidence in relation to the Divorce Petition. That is that the Divorce Petition was sent to her by the (country omitted) court and not by the husband’s lawyers and she could not have obtained the contact details of the husband’s (country omitted) lawyers by that means.
I now turn to the wife’s evidence in relation to the two pieces of mail she is alleged to have received in early 2015.
In his affidavit sworn and filed 29 June 2016 the husband states as follows:
19. [….] I deny that Ms Hurst actually received the divorce application from the (country omitted) court, as many of the letters from the court and my (country omitted) lawyer returned unopened. Two of those letters were sent by my lawyer in (country omitted) on 25 March 2015 and 7 April 2015.
Mr Hurst then annexes two pages to his affidavit. The first is a copy of an envelope addressed in typewritten script as follows:
To,
Ms Hurst, (sic)
Property A,
Vic – (omitted), Australia.
There are several handwritten notes and/or comments written on the envelope as follows:
By (omitted) Post
By AIR MAIL
“DIVORCE CERTIFICATE ENCLOSED”
Final 29/4
(omitted)
10/04
There is a barcode on the envelope, above which is a symbol and under that symbol are the words “(country omitted) Post”.
There are two lines drawn by hand through the name and address on the envelope and the letters “RTS” written next to the address.
In the bottom left hand corner of the envelope there is a stamp whose details are not easily decipherable, but from what I can decipher states the following:
(omitted) LEGAL ASSOCIATES
(omitted)
(indecipherable) Chambers, (omitted)
(indecipherable) (country omitted)
(indecipherable but appears to be a series of numbers ending in (omitted))
There is then the number “(omitted)” written by hand below the stamp.
From the above information I infer, on balance, that the husband’s (country omitted) lawyer sent a copy of the divorce certificate to the wife at the address stated. Australia Post attempted to deliver that mail on 10 April 2015 and was unable to do so. Australia Post then made some effort to discover whether there was a number Property A but again were unable to deliver the envelope. Australia Post made another attempt at delivery to the address on the envelope on 29 April 2015 and was again unable to deliver it. They then drew two lines through the address and wrote the letters RTS on the envelope before returning it to (country omitted).
The second page of that annexure appears to be a receipt containing the (country omitted) Post logo dated 25 March 2015 and bearing a stamp which lists nine reasons why a piece of mail might not be delivered. None of those reasons appear to be marked in any way, but that stamp is overlaid with another stamp which obscures part of the original. The overlaid stamp appears to be that of a post office in (country omitted) although I cannot decipher any further information from it.
That document also bears a very clear stamp containing the following information:
(omitted) LEGAL ASSOCIATES
(omitted)
(omitted) Chambers, (country omitted)
[small telephone icon] (omitted)
The next Annexure to Mr Hurst’s affidavit is a copy of what appears to be a receipt from the courier company DHL WorldNet Express.
In the section marked “From” the following information is typed in quite a small font:
(omitted) LEGAL ASSOCIATION (sic)
(omitted) CHAMBERS
(country omitted)
(omitted)
In the section marked “To”: the document states, in larger font:
Property A,
MS HURST (sic)
Property A
(OMITTED) AUSTRALIA
The date on that document is 7 April 2015 written “2015-04-07”.
At the top of the document are the following words:
*ARCHIVE DOC*
Do not attach to package!
From that information I infer that documents of some kind were sent by the husband’s lawyers in (country omitted) to the wife in Australia.
As it is a receipt and marked “Do not attach to package!”, I cannot see its value as evidence that such documents were ever received by the wife.
At trial it was put to Ms Hurst no less than three times in unequivocal terms that she had received those two pieces of mail. Her answers were respectively: “No, I promise you I didn’t receive it”, “No, I didn’t, I promise you”, and “No, I didn’t”.
Later in his cross-examination, counsel for the husband again referred to “the envelopes on 25 March and 7 April 2015”, to which the wife replied: “As I said, I didn’t receive anything, I promise you”.
In those circumstances and with no forensic evidence in relation to the envelope addressed to the wife, I cannot be satisfied, on balance, that the wife obtained or could have obtained the address of the husband’s (country omitted) lawyer from the envelope, and as the only evidence in relation to the second envelope is no more than the sender’s receipt, I cannot be satisfied that she received any other mail.
Even if the wife did receive the first envelope, the stamp containing the address of the husband’s (country omitted) lawyer was all but indecipherable as a means of obtaining that address.
In those circumstances I am not satisfied that the wife could have obtained the address of the husband’s (country omitted) lawyer from those documents.
The second issue raised by the husband in his affidavit sworn and filed 29 June 2016 is put as follows:
9. Instead of contacting my (country omitted) lawyer, I am told by my sister-in-law (my brother’s wife) Ms M that Ms Hurst telephoned her on 12 August 2015 (sic) at around 8:30 PM (country omitted) time (2:00am 13 August Australian Eastern standard Time). She further told me that Ms Hurst did not once mention that she was trying to contact me for the purpose of serving the court documents from this court, and also did not ask me (sic) for any of my (sic) contact details.
He then annexes an email from his sister-in-law confirming that the wife had called her but stating that the call was made on “12^th of August 2014” (sic). Ms M’s email then states the following:
[…] Mr Hurst does not live in that house daily.
As Mr Hurst was in touch with me by his phone No: (omitted).
If Ms Hurst wanted Mr Hurst phone number (sic) i (sic) would have given it.
If Ms Hurst wanted me to give Mr Hurst any information regarding the court papers which was sent from Melbourne Family Court by Post.
I would have done so but she did not say anything.
I note that the husband says that this call was made on 12 August 2015, about six weeks after the final orders were made, while Ms M’s email indicates that the call was made on 12 August 2014, the night before the initiating documents were filed.
At trial under cross-examination it was put to Ms Hurst that she had had a telephone conversation with Ms M on 12 August 2015 and she agreed with that assertion. I note that the date of that conversation was stated by the husband’s counsel to have been 12 August 2015 on three occasions during his cross-examination.
When I questioned whether a conversation that took place after the final orders were made in 2015 was relevant to the proceedings, Mr McIntyre for the husband essentially said that if Ms Hurst had known the telephone number of Ms M in August 2015, then she must have known it before that date, and therefore she could have contacted Ms M to discover the whereabouts of Mr Hurst.
In answer to that proposition Ms Hurst said that she did not remember the date of the conversation but that she remembered speaking to Ms M because her (Ms M’s) mother had been ill or had passed away and that she had not thought it appropriate to speak to Ms M about the previous proceedings because Ms M had “never interfered in our affairs even though we had our trialling times we never discussed with her, so why should I tell her about the court?” She said she had simply never thought of it and that she had made the call to “find out how she is doing but not enquire about my husband or to find out his whereabouts or what’s happening here”.
On the basis of that evidence, which was unable to be shaken, I cannot find that the wife could or ought to have obtained the husband’s address from her sister-in-law before the Final Orders were made.
Therefore the answer to the question of Issue (e) is no.

The credit of the parties

At the beginning of the trial it was agreed between bar and bench that this case was primarily one of credit, and in addition to the evidence already discussed above, two matters were investigated specifically in that light.
They were the evidence given to the AIRC by the husband in June 2009; and the related questions of whether, on 30 July 2007, the wife had signed a General Power of Attorney in favour of the husband, and the circumstances under which the husband had used that document to transfer the wife’s (country omitted) property into his own name in February 2015.
As already discussed, the AIRC evidence was admitted only on the issue of what Mr Hurst had told that tribunal and not on that tribunal’s findings.
The background to those proceedings was that Mr Hurst had gone to (country omitted) in late November 2007 and had not responded to an email from his employer on 18 December 2007 asking him to explain why he was not at work. As a result of his failing to respond to that email, he was deemed to have abandoned his employment as at 3 December 2007, the date when he was to have returned from work after a period of leave.
In the AIRC proceedings, the husband gave evidence that he had not received an email sent by his employer on 18 December 2007, and that he was unaware that he had been dismissed until he arrived back in Australia on 14 January 2008.
The transcript of those proceedings, annexed to the wife’s affidavit sworn 24 June 2016, shows that Mr Hurst told the AIRC that he had hundreds of emails in his inbox and that he never checked them.
He stated that while in (country omitted) he had not contacted his employer by email because he had been in a remote location and had had no access to an Internet connection.
In other evidence before the AIRC, Mr Hurst claimed that he had not received a letter from his employer while he was in (country omitted), and that there was no such letter in his letterbox when he returned on 13 January 2007. His evidence was that other letters, which he described as “personal bills”, were in the letterbox when he arrived home and that no one had collected the mail while he was away because the wife and the parties’ daughter had gone to Perth for Christmas. I note that the wife disputes that evidence in these proceedings.
One of the features of the evidence given to the AIRC is that whenever Mr Hurst was challenged about evidence that contradicted his own, he stated that other parties were lying and that there was a conspiracy against him among his former employers to dismiss him because he had been injured at work in January 2007.
Another feature of that evidence is that Mr Hurst was unable to produce to the AIRC any corroborative evidence about telephone calls he claimed to have made to his employer while in (country omitted).
These features are strikingly similar to the evidence given by the husband in these proceedings, although they hold much less weight as evidence about his credit than the evidence I heard from the husband himself at trial in these proceedings.
The evidence about the signing of the General Power of Attorney on 30 July 2007 is less clear.
At trial, counsel for the husband tendered a copy of was said to be a General Power of Attorney signed by the wife on that date.
When asked, the husband stated that the document was a copy, and that the original General Power of Attorney was in (country omitted).
The husband was then subjected to cross-examination by the wife’s counsel.
At first, it was the husband’s evidence that at the time the General Power of Attorney was allegedly signed, on 30 July 2007, he and the wife had been living together. However he then stated that “maybe she was not, but I – I remember at that time she came down and – and she signed it and handed it over to me”.
When I asked him whether he had been living with the wife or not at that time he said: “I think no, I was not”.
It was his evidence under cross-examination that he and the wife had attended at an office “where they do the Notaries in Dandenong” on 30 July 2007 between 3 and 4:00 p.m. and when asked whether he could confirm the exact time the husband said: “I [go] down to the office. I think they were – he’s on – he’s overseas, so I – I think I could get it for you”.
Of course, there was no time for him to do so and no such evidence was ever provided.
The husband did however produce a business card which he said was that of Mr A who is the Notary before whom he alleges the General Power of Attorney was signed.
The wife’s counsel then informed the court that her instructions were that the wife had recently gone to Mr A’s office in an attempt to retrieve the file and the General Power of Attorney, but that the file, being more than seven years old, had been destroyed, although the original document alleged to have been signed by the wife was, of course, in the possession of the husband.
I note that the original document has never been tendered in this court, although a copy of the tax invoice for the appointment is annexed to the husband’s affidavit sworn and filed on 29 June 2016.
That tax invoice is issued by a firm of solicitors in Dandenong, is dated 30 July 2007, and states that it relates to the “Notary Services” of:
- Witnessing document
- Additional parties at one time
- verifying copy documents
- duplications
- preparation and completion of Notary Certificate
The words “(omitted country)” are written in handwriting under that, and under the heading “Identification”, the words “Driver’s Licence” are underlined and the word “Medicare” is handwritten.
The “Issuing country” is stated as “Vic” and the “No.” is written as “(omitted)”. The “Date of Birth” is stated as “(omitted)”.
The fee for those services is stated as $70 plus $7 GST with a total of $77 being payable.
The wife’s counsel then tendered a copy of the wife’s timesheet for the period 30 July 2007 to 12 August 2007 showing that she had been working until 3:30 PM on 30 July 2007.
The husband then said the following:
One more thing I want to tell Your Honour. If I’m not mistaken, I think she has been taking permission at that time to come. I – because it has been quite some time now.
I had the impression during this evidence that Mr Hurst was making up his evidence as he went along as evidence contradicting or questioning his own was placed before the court.
He was then asked why the wife would have signed a General Power of Attorney one month after she had obtained an Intervention Order against him.
He responded:
Because there was a lot of money being taken from some of the (country omitted) people against that house.
After a short series of clarifying questions, it appeared that Mr Hurst’s evidence was that the wife had borrowed money from (unnamed) people in (country omitted) and it was necessary for her house in (country omitted) to be sold in order to repay that money. He said that “she has mortgaged practically the house”.
He stated that as the property was registered in the wife’s name, he needed the General Power of Attorney in order to sell the property and repay the wife’s purported creditors.
I note that this was the first time in any of the written or oral evidence provided by the husband that this issue, that of the wife owing money to (country omitted) creditors, had been mentioned. No documentary evidence in support of that assertion was produced and again, I gained the impression that the husband was making up his evidence as he went along.
When the wife’s counsel pointed out that the purported General Power of Attorney contained several miss-spellings of the wife’s middle name, the husband said: “I don’t know about that, but I think the signature is put on top”.
When it was put to him that the signature on the General Power of Attorney was not “the way the wife would normally sign her name”, the husband simply said: “That’s her signature”.
Questioning then turned to moneys the husband alleged he had paid to the wife for the (country omitted) house and the following exchange took place:
Ms Sudholz: According to that – the sale that you effected yourself, which is, arguably, a breach of fiduciary duty, it says that you paid the wife a certain sum of (country omitted) money. When did you pay that to her?
The husband: Continuously when I came down, every time I brought the money and came in.
Ms Sudholz: And where is the evidence of that, because that payment […] was made in approximately February 2015, according to the contract. Can you prove any payments to the wife after February 2015?
The husband: There’s no evidence […] No, because it’s the money which I brought in cash.
Her Honour: How much was that?
The husband: Every time $10,000.
Her Honour: $10,000 in (omitted)?
The husband: Yes, in Australian dollars.
Her Honour: You brought into Australia in Australian dollars?
The husband: Yes.
Her Honour: And you declared that every time you came in?
The husband: No. Below 10,000 you’re not – you don’t need to. Above 10,000 you have to.
Ms Sudholz: How much did you pay her in Australian dollars? […]
The husband: 10,000 […] A little less than 10,000.
Ms Sudholz: Except that the conversion on that is actually 60,000 isn’t it?
The husband: Yes.
Ms Sudholz: So why only 10,000?
The husband: 60,000 what?
Ms Sudholz: 60,000 Australian dollars is the equivalent of what you say in the contract?
The husband: Yes, but every time I came down, that’s why I made a number of trips to Australia.
Ms Sudholz: How many trips did you make to (country omitted) between February 2015 and now?
The husband: From ’15 – ’15 – I didn’t make – I – I not made any.
Ms Sudholz: So you are saying that you paid her before you even transferred the property?
The husband: Before. This has been going on from long time. That’s why the GP […] was made in 2007.
The husband was then asked why, in his affidavit sworn and filed on 3 February 2016, he had included that (country omitted) property in the marital property pool as an asset of the wife when he knew that the property had been transferred to him approximately one year prior to the swearing of that affidavit.
His answer to that question was: “Well, I – I can’t prove it that I brought the money and came and gave it to her”. He was then forced to concede that in February 2016, when he swore his affidavit, the wife did not have any property in (country omitted).
In later questioning about the source of the payments the husband alleged that he had paid the wife in cash on his return to Australia, the following exchange took place:
Ms Sudholz: And who did you get the money from to pay her?
The husband: From the (country omitted) people.
Ms Sudholz: Which (country omitted) people?
The husband: Over there in that…
Ms Sudholz: Which (country omitted) people? Name them.
The husband: There are some people over there.
Ms Sudholz: Who?
The husband: There are people…
Ms Sudholz: Who?
The husband: … who have – what do you want?
Ms Sudholz: Who?
The husband: You want me to name them?
Ms Sudholz: Yes please.
The husband: Because I have taken it from a reliable source.
Ms Sudholz: Who?
The husband: I can’t get it at this moment that there are people over there that I’ve issued letters over there.

In further evidence Mr Hurst claimed that the wife did not know who she had borrowed money from because she had “issued letters over there, stamped papers, saying that she has the house over there and if the money can be given to me to be brought to her”.
It was his evidence that these monies had not been borrowed from banks but from “ordinary people”. He said further that the wife had not travelled to (country omitted) in order to borrow the money because “she hasn’t been there because she will be in trouble”.
Again, the husband’s evidence about the reason for the transfer of the wife’s (country omitted) property into his name, and the money he alleged that he paid her for that transfer was contradictory, evasive, unconvincing and less than satisfactory.
The wife’s evidence about the General Power of Attorney was that she had not attended the Notary’s office on 30 July 2007, which she had never been there until the week previous to trial when she attempted to retrieve the file, and that she had not signed the General Power of Attorney whose copy was before the court.
Ms Hurst stated that her signature is “different” and that she would “like that thumb impression to be checked because it wasn’t me”.
It was her evidence that she had taken out an Intervention Order against the husband only weeks before that date and that she would not have attended the appointment because it would have meant that she would be in breach of her own Intervention Order.
While that is a misstatement of the law, it is a compelling reason why Ms Hurst might not have thought to provide a General Power of Attorney to her (then) estranged husband at that time.
Under cross-examination, counsel for the husband put to Ms Hurst that she had in fact attended the solicitor’s office on 30 July 2007 to execute the General Power of Attorney. In response the wife said:
No, I didn’t. Your Honour, I promise you that’s one thing I won’t lie. I rather be honest and say I – even if I kill somebody and say, “I’m sorry, I did it”, and I be punished.
Later in her response to the same suggestion she said:
I’m not going to lie and say that I did something when I didn’t do it because to cover – to lie – to say one lie, I have to cover – I have to say 10 lies. I’d rather be honest.
When the question of the signature was being examined, the following exchange took place:
Mr McIntyre: And that’s your signature at the bottom of the first page? […]
The wife: That’s not mine […] because I don’t sign that way.
Mr McIntyre: Okay. What about the second page?
The wife: All the pages. I checked it out.
Mr McIntyre: So you say on all the pages you didn’t sign it?
The wife: Yes.
Mr McIntyre: […] Did you sign this timesheet?
The wife: Yes.
Mr McIntyre: When one is to compare the signatures they look identical, don’t they? […]
Her Honour: Are you an expert in that field?
Mr McIntyre: Well, the […] wife should be, your honour, if it is her signature.
The wife: No, I […] will answer that. It’s not.
In relation to the tax invoice annexed to the husband’s affidavit of 29 June 2016, the wife acknowledged that she had seen it before (I note that she had the husband’s affidavit at that time), and that she had attended at the solicitor’s office the previous week in order to obtain the original General Power of Attorney. She said:
I went on Tuesday and I tried to get in evidence and I told that gentleman – I said, “God’s honest truth, I have never met you Mr A”. And he said, “Somebody else could be brought in who looked like you”.
When asked about the information stated under the heading “Identification” on the tax invoice, Ms Hurst was adamant that while the number quoted was her Medicare card number, she did not know how that information had been obtained.
She was not asked any questions in relation to her driver’s licence being used as proof of identification in that context.
Of course, I am not an expert when it comes to handwriting identification, and it would be imprudent of me to say whether I thought the signature on the copy of the purported General Power of Attorney was that of the wife when compared to her signature on the worksheet, which she adopted as her own.

Conclusion as to credit

Overall, I did not find the husband to be a credible witness. His evidence was contradictory, confusing, at times extremely self-serving, especially in relation to whether he had access to his email while in (country omitted), and, as I have previously stated, he appeared to be making up his evidence when questions put his prior evidence in doubt.
Overall, I was much more satisfied with the wife’s evidence. She gave that evidence in a forthright manner and was unable to be shaken on it when questioned. Her evidence was consistent throughout her cross-examination and she did not give the impression that she had anything to hide.
While I cannot be satisfied on the appropriate test that she did not sign the purported General Power of Attorney on 30 July 2007, nor can I be so satisfied that she did so, and I make no findings as to that issue.
For those reasons, where the husband’s evidence is in conflict with that that of the wife, I prefer the wife’s evidence, save on the issue of the General Power of Attorney, where I cannot be sure, on the balance of probabilities, that she did not sign that document, although her evidence on that issue was quite compelling.

Conclusion as to the issues examined

Based on the above findings and given my lack of confidence in Mr Hurst’s overall credibility as a witness, I find on the balance of probabilities that he did receive notification of the previous proceedings by way of emails and letters sent to him pursuant to orders made in the course of those proceedings.
I therefore find that Mr Hurst was appropriately served with the wife’s Initiating Application and accompanying documents in the previous proceedings, and that therefore he was aware that those proceedings were on foot.

The Law

As stated above, the law in relation to setting aside property orders is found in section 79A of the Act, which states:
Setting aside of orders altering property interests
(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
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(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 subsection (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; or
(e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
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.
Until written submissions were received, it must be said that it was difficult to determine how the husband based his claim in legal terms.
In all the evidence given by and adduced from him, it would have been reasonable to assume that he based his claim on the provisions of section 79A(1)(a), that is, that there has been a miscarriage of justice on the basis of “any other circumstance”, that circumstance being that the husband was not properly served in the previous proceedings.
However, in his written submissions, the husband says that he bases his claim on his absence at the time the Final Orders were made being the “other circumstance” under s.79A(1)(a).
Of course, the reason for the husband’s absence is said to be that he was not properly served.
As submitted in written submissions on behalf of the husband, the High Court, in Allesch v Maunz, [1] said:
There can be no doubt that the expression “any other circumstance” is wide enough to encompass the situation in which an order has been made in the absence of a party. Accordingly, s79A must now be construed as applicable to that situation.[2]
[1] (2000) 26 FLR 237
[2] Ibid at paragraph 47
I accept that the absence of the husband when final orders were made on 20 May 2015 falls within the terms of the phrase “any other circumstance” under s79A(1)(a).
However, in paragraph 28 of that judgement the majority (Gaudron, McHugh, Gummow, and Hayne JJ) stated as follows:
The consideration which informs the power conferred by s 79A of the Act is that the court must be satisfied that there was “a miscarriage of justice”. And whether exercising inherent power or power of the kind conferred by s 79A of the Act, a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that re-hearing would work an irremediable injustice to the other side.[3]
[3] Emphasis added.
I have already found that Mr Hurst has not provided an adequate explanation for his absence at court on 20 May 2015, as he had been properly served.
Therefore, in my view, I am not bound to consider whether a different result might have been reached if he had appeared.
However, as it is my view that the outcome would not have been different if the husband had taken part in the previous proceedings, and in the event that I am wrong on that point, I will address that issue.
In his affidavit sworn and filed on 3 February 2016, which accompanied his Initiating Application, the husband deposes that the parties moved to Australia from (country omitted) in 2002.
It is his evidence that both parties obtained work on arriving in Australia.
He says that they bought the property at Property A in 2003 for a purchase price of $256,000.
It is his written evidence that he paid the deposit on the property and the parties borrowed the sum of $240,000 from the bank in order to complete the purchase. He says that he paid all mortgage payments until he ceased to work in 2008.
Under the heading “Section79(4) Factors”, the husband states as follows:
31. I was the primary income earner in out household from the date of marriage until 2007.
32. I paid the deposit for the purchase of the Property A property, and was responsible for payment of the mortgage until I stopped receiving income from work.
33. I paid all the rates, bills and other outgoings until I stopped deriving an income from work.
34. The Respondent worked at times throughout the marriage, and her income formed part of our savings. It was my income that was used to pay bills.
35. The cooking, cleaning and other household duties were shared between the Respondent and I, though I say that I did most of it.
36. The responsibility for caring for Ms N was shared between the Respondent and I.
37. I made a significant contribution by allowing the Respondent completed (omitted) qualification. I paid for the course and supporting her and Ms N while the Respondent was undertaking the course. The Respondent was only working part-time as a (occupation omitted) in (employer omitted) while studying.
Under the heading “Section 75(2) Factors”, the husband deposes as follows:
38. […] I am 56 years of age and in poor health. I am not able to earn an income from my trade because of injury and I am solely reliant on Centrelink disability support pension as my income.
39. The Respondent is 54 years of age and is a (occupation omitted). I believe that the Respondent’s earning a good income as a result of her ability to work, though I do not know how much she is earning.
40. My Centrelink income is about $600 per fortnight. I pay rent of $500 per calendar month and have other day to day living expenses of about $500 to $600 per month, after I pay bills and buy food. This leaves me with little to no disposable income. I have times had to seek help from the Salvation Army and St Vincent Paul, and also ate free food being given out at Lentil as Anything in (omitted).
41. Given that Ms N is now aged over 18, neither the Respondent nor I have a duty to maintain her. In any event, I cannot afford to. Ms N is currently working at the (omitted).
The husband then sets out the “matrimonial asset pool” as follows:
Property A             $500,000
(omitted) Bank mortgage  (130,000)
Term deposit ((country omitted))              16,500
Respondent’s gold jewellery  20,000
Respondent’s Subaru motor vehicle                  3,000
My superannuation ((omitted) Super)     26,000
Respondent’s superannuation  95,000
Furniture  10,000
Respondent’s property in (country omitted)                   30,000
NET ASSETS   570,500
I note that the item “Respondent’s property in (country omitted)” is the property which the husband transferred to his own name in February 2015 using the General Power of Attorney. When questioned on this issue at trial, the husband could give no reason for referring to that property as belonging to the wife in February 2016.
Mr Hurst also deposes to there being two properties in (country omitted) registered in his name, but says he does not believe that they should be included in the matrimonial asset pool because:
(a) one property was gifted to me (and me only) in 1990; and
(b) the other property I am holding on trust for the benefit of my mother in (country omitted), and have no interest in this property apart from in name only.
In those circumstances he does not value those two properties.
It was the wife’s evidence in the previous proceedings[4] that the parties had married in (country omitted) on (omitted) 1989 and had separated in Australia on a final basis on 19 December 2012.
[4] The wife’s Affidavit sworn 12 and filed 13 August 2014
She deposes that the parties were living and working in (country omitted) between 1996 and 2002 when they immigrated to Australia. Ms Hurst says that when the parties arrived in Australia they had $10,000 in savings from their work in (country omitted).
She concurs with the husband that both obtained work in Melbourne relatively quickly.
It is her evidence that the parties initially rented accommodation and that they bought the Property A property in August 2003, she says for a purchase price of $250,000. She says further that the parties borrowed $260,800 from the bank to cover the purchase price and the applicable stamp duty of $10,660 and legal costs.
There were several periods of separation during the marriage, and the wife deposes that during those periods of separation (some said to be 12 months long) she was solely responsible for the payment of the mortgage and all household expenses as well as for the support of the parties’ daughter.
The wife deposes that those periods of separation were the result of significant family violence perpetrated upon her and the parties’ daughter by the husband.
She says further that each time she obtained an Intervention Order against the husband he returned to (country omitted), coming back to Australia only when that Order expired.[5]
[5] I note that the husband did not deny that evidence when asked about it under cross-examination.
Ms Hurst deposes to their having been four separate Intervention Orders against the husband in the 10 years between the parties’ migration to Australia and their separation in December 2012.
The husband ceased to work at the end of 2007. It is the wife’s evidence that he has made no contributions towards the mortgage, the rates, insurance or maintenance of the property since that time. She deposes that “there is no impediment to the husband working but he chooses not to do so”.
Ms Hurst deposes that both parties are in good health.
In her affidavit filed 13 August 2014, the wife sets out the parties assets and liabilities under the heading “Property Pool” as follows:
1. Property A     E$370,000 (midpoint)
2. Two properties in (country omitted) in husband’s name         E$110,714
3. Property in (country omitted) in wife’s name             E $67,260
4. Shares sold by (omitted) husband and retained proceeds E $18,000
5. Husband’s motor vehicle       E $6,000
6. Wife’s motor vehicle  E $2,000
7. Superannuation:    Husband  E $27,174
Wife  E $83,524
E $684,672
8. Less mortgage on Property A  E $139,000
E $545,672
The wife’s proposal at the time of swearing that affidavit was that the husband should retain all the assets in (country omitted), his motor vehicle and his superannuation, and that she should retain the former family home subject to its mortgage, her motor vehicle and her superannuation. She deposes that that settlement would result in her retaining 58% of the parties assets and the husband 42%.
As can be seen from the above affidavit material, the parties were apart by less than $25,000 in their estimates of the value of their assets and liabilities.
In very broad terms, and acknowledging that none of the above evidence was ever tested before the court, the settlement proposed by the wife at the time of filing her Initiating Application in August 2014 was essentially the same as that covered by the Final Orders.
I note that at the time the husband swore his affidavit on 3 February 2016, he had been in possession of the wife’s affidavit of 12 August 2014 for at very least some six months[6], but he makes no attempt to answer the wife’s evidence as to the property pool, the parties’ contributions or those factors that might be said to fall under s.75(2) of the Act.
[6] That is the husband's evidence, although I have found that he was properly served in August 2014.
On the basis of the affidavit evidence of the parties I am not satisfied that a different outcome would have been reached if Mr Hurst had participated in the previous proceedings.
That is particularly so when I note that I am unconvinced of the husband’s tendency to tell the truth about certain matters, and his evidence as to the contributions to the marriage differ somewhat from those of the wife.
Further, in his affidavit the husband deposes that he is in receipt of a “disability support pension”. When questioned on that issue at trial, he was forced to concede that he is not in fact in receipt of a Disability Support Pension but of a Newstart allowance. That evidence provides further support to the wife’s evidence in relation to the husband’s health and I note that the flavour of his claim is that he is unable to work in order to earn a living.
In his written submissions, counsel for the husband quotes several passages from the judgement of Kirby J in Allesch v Maunz in which His Honour says that while there is no “special rule of law, universally applicable” that “governs the setting aside of a judicial order made in the absence of a party (or perhaps a witness) where that absence is adequately explained and promptly brought to the notice of the court”, he notes that “in such a case it is said justice ordinarily ‘demands’ a rehearing”.
While the statements quoted are from a dissenting judgement, the court finds it prudent to deal with them in this case.
First, the court has made findings on the balance of probabilities, that the husband did receive the initiating documents and court orders either by email or by post at his (country omitted) address, or both, and that therefore he was properly was served in those proceedings in August 2014.

In those circumstances and in circumstances where he made no attempt to participate in the previous proceedings, his absence from the court on 20 May 2015 cannot be said to have been “adequately explained”.
Second, the issue of whether his absence was “promptly brought to the notice of the court” is answered by the husband’s own evidence.
In his affidavit sworn and filed on 29 June 2016 the husband sets out the following:
Explanation as to Delay in Bringing Proceeding
34.    As I deposed to in my previous affidavit, I became aware of the proceeding because I received the email letter from Ms Hurst’s lawyers annexed to my previous affidavit. I did not receive this email until September 2015, because had trouble accessing my email.
35.    Since September 2015, I had discussions with mutual friends and family in an attempt to negotiate an amicable resolution to the matter, given that I was not granted the opportunity to be heard in the proceeding before final orders were made. Ms Hurst did not answer my request for negotiation, through mutual friends and family.
36.    In December 2015 I made enquiries with the Law Institute of Victoria as to an appropriate lawyer to handle this matter on my behalf.
37.    I instructed my current lawyer in early January 2016.
38.    I say that, since I found out about the previous court orders, I have endeavoured to act on them and have not delayed in either attempting to negotiate or bringing this proceeding.
He further deposed that he had not actually done anything in response to receiving the Final Orders until he received an email from the wife on 27 August 2015, the contents of which caused him to make further enquiries about the ownership of the Property A property.
As a result of those enquiries he obtained a copy of the Transfer of Land in relation to the Property A property, which confirmed that the property had been transferred to the wife.
Mr Hurst further deposed that he had instructed his lawyers in January 2016 to seek the consent of the wife, through her lawyers, to having the Final Orders set aside. In that regard he deposed as follows, under the heading “Section 79A Application” in his affidavit sworn 3 February 2016:
28. I am told by my lawyer, and verily believe it to be true, that he returned a telephone call from Ms Susanne Stewart of Burrell Family Law on 25 January 2016. In that conversation, my lawyer tells me, and I verily believe it to be true, that Ms Stewart said she believed I had been afforded procedural fairness in the proceeding and, when asked by my lawyer if she would supply copies of court documents, Ms Stewart replied with words to the effect of “if Mr Hurst wants copies of the documents he should attend the court at Dandenong and make copies himself”.
29. Without these documents, I do not understand the basis of the Respondent’s previous application to the court, nor can I establish if the Respondent established that I was properly served with her Initiating Application, Affidavit and Financial Statement.
30. I am consequently left with no other option than to make this application to the court.
Mr Hurst did not say whether he made any attempt to attend the court at Dandenong in order to obtain the documents in relation to the previous proceedings.
The husband was cross-examined on this issue at trial.
In relation to his evidence that he had “had discussions with mutual friends and family in an attempt to negotiate an amicable resolution to the matter” contained in his affidavit sworn and filed 29 June 2016, the husband’s oral evidence was that he had in fact spoken only to two people, one being the wife’s brother-in-law and the other being a friend of hers. He could not say whether either of those people had ever spoken to the wife about the matters currently before the court.
When asked why he had not contacted the wife’s lawyer between August 2015 and January 2016, the husband stated that he had not done so because he was “getting my own”.
The situation in August 2015 was, on the husband’s own evidence that he had just discovered that his family home had been transferred into the wife’s name pursuant to the orders made in this court on 20 May 2015, in his absence and allegedly without his knowledge.
He and the wife had been in negotiation about property matters through their respective solicitors before he went to (country omitted) in May 2014, so he knew that those matters were in issue between him and the wife.
Even if I ultimately accept the husband’s evidence that he did not know about the previous proceedings until August 2015, and I do not, it is difficult to understand why he waited until January 2016, a period of some five months, to instruct solicitors to act for him in these proceedings.
I do not accept, therefore, that the husband brought the issue before the court promptly.
That circumstance, together with the court’s finding that the husband was properly served in the previous proceedings, brings me to the conclusion that the husband has not given the court “an explanation, reasonable to the circumstances”[7], as to why the court should exercise its discretion under section 79A(1)(a).
[7] Allesch v Maunz paragraph 48
In Allesch v Maunz, further quoted by the husband in his written submissions, Kirby J then said the following:
If no reasonable explanation is given for the default, it is not an injustice to deny the party in default a second opportunity to be heard. That opportunity is taken to have been waived or forfeited. Nowadays, the consideration of the reasonableness of an explanation will take into account the legitimate interests of any other party affected by the court’s order (including any innocent third parties) as well as the general public.[8]
[8] Ibid paragraph 49
I note that in these proceedings the former family home has been transferred to the wife as a result of the orders made on 20 May 2015, and the wife has had the mortgage, too, transferred into her sole name.
On the basis of the court’s finding that the husband has not made adequate explanation for his absence from the court because the court has found that he was served with documents filed in the previous proceedings, I cannot find that the final orders have resulted in “a miscarriage of justice” under s.79A(1)(a) of the Act.

Conclusion

Therefore, in the circumstances of the current case as set out above, the husband has fallen at the first hurdle raised by s.79A(1)(a).
However, if I am wrong on that point, on the basis of all the above evidence, I find that he has failed to discharge the onus placed upon him as the Applicant in these proceedings, which of persuading the court to exercise its discretion under section 79A.
I will therefore dismiss the husband’s Application.

I certify that the preceding two hundred and sixty two (262) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 21 December 2016

[2016] FCCA 3217

21 December 2016

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness