HYDE and JOLLIFER

[2017] FCWA 98

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: HYDE and JOLLIFER [2017] FCWA 98

CORAM: O'BRIEN J

HEARD: 3-4 JULY 2017

DELIVERED : 7 AUGUST 2017

FILE NO/S: PTW 1259 of 2014

BETWEEN: MR HYDE

Applicant

AND

MS JOLLIFER
Respondent

Catchwords:

PARENTING - where during the course of the trial the parties reached agreement as to final orders determining most matters in dispute and interim orders determining the balance of matters in dispute, subject to a finalisation order.

SETTING ASIDE OF ORDERS - where the Applicant sought to set aside consent orders for the alteration of property interests - turns on own facts.

Legislation:

Family Court Act 1997 (WA), s 205ZH(1)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant

Respondent: Mr A Godecke

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Griffiths & Godecke

Case(s) referred to in judgment(s):

Barker and Barker (2007) 36 Fam LR 650

Bigg v Suzi (1998) FLC 92-799

In the marriage of Holland (1982) FLC 91-243

Lane and Lane (2016) FLC 93-699

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Mr Hyde] (“the father”) and [Ms Jollifer] (“the mother”) have been unable to finally agree the arrangements to be made for the care of their son, [R], who was born [in] 2008 (“the Child”).

2There is also a financial dispute between the parties, as the father seeks to set aside orders which were made by consent on 23 September 2015 for the alteration of property interests.

Background

3The father is 53 years old. He is presently employed as a [tradesman] on a fly-in, fly-out basis.

4The mother is nearly 37 years old. She works as a [financial planner]. Her hours of employment are 7.00 am to 4.30 pm Monday to Friday.

5The parties lived together in a de facto relationship from 2009 until February 2014. Their relationship was maintained during a period from 2010 until December 2011 when the father was imprisoned for drug related offences. After their initial separation in March 2014, and urgent proceedings in this Court that were commenced under disputed circumstances surrounding the father taking the Child to Adelaide, the parties reconciled in April 2014. Their relationship finally ended in January 2015.

6The Child remained primarily in the care of the mother. Interim orders were made by consent on 5 November 2015 for the parties to have equal shared parental responsibility and for the Child to live with the mother and spend supervised time with the father each Saturday. Concerns were expressed by the mother as to the risk of the father failing to comply with court orders, his alcohol consumption and his alleged association with members of a bikie gang. The mother had obtained a violence restraining order (“VRO”) against the father on an interim basis on 13 March 2015 and made a further application in September 2015.

7The financial dispute between the parties was resolved following a conciliation conference on 23 September 2015 and orders for the alteration of their property interests were made by consent that day (“the property orders”). Their property at [Suburb A] had by that time been sold and the property orders effected the division of the proceeds of that sale and the retention by each party of their own chattel property.

8The parenting proceedings continued. On 3 February 2016 an additional order was made by consent for the father to communicate with the Child by telephone each Wednesday evening. After receipt of a positive report from the supervised contact service, further orders were made by consent for the Child to spend time with the father, subject to the father’s work roster and availability, every second weekend from 5.00 pm Friday until 5.00 pm Sunday, and for the father otherwise to have reasonable telephone communication with him.

9Those orders remained in force, and reflected the present arrangements for the Child to spend time with the father, at the commencement of trial.

Matters not in issue

10To their credit, on the first morning of trial the parties were able to agree the orders to be made in relation to the parenting case. They agreed that only interim orders should be made for the Child to live with the mother and to spend defined time on alternate weekends with the father. They further agreed that those orders should be made final if no request for a relisting is received by the court before the close of registry on 1 December 2017.

11Apart from the matters covered by those interim orders, the parties were able to agree on a final basis a complete suite of parenting orders. The agreed final and interim parenting orders were made by consent on the first day of trial.

12The parties were not able to resolve their financial dispute.

Matters in issue – relief sought

13The father sought an order varying the property orders. In short, he sought an order that the mother pay him the sum of $52,032. He asserted that $38,032 was payable to him by virtue of what he considered to be discrepancies in the values attributed to various assets at the time the property orders were made, and that the balance of $14,000 was payable to him by reference to a credit card debt for which he was left responsible.

14The mother sought the dismissal of the father’s application.

The father as a self-represented litigant

15The father represented himself at trial. The mother was represented by counsel.

16I explained various matters to the father at the commencement of the trial so as to ensure that he properly understood the process.

17I explained the steps that I was required to take to ensure procedural fairness. I informed him of the manner in which the trial was to proceed, the order in which the parties would give their evidence and make submissions and their right to cross-examine. I explained to him the importance of cross-examination and the likelihood that evidence that was not challenged on cross-examination would be accepted.

18I explained that the parties would be permitted to give updating evidence-in-chief as to facts arising after the date on which their trial affidavits were sworn and I explained the nature and purpose of re-examination.

19I spent some time clarifying at the outset of the trial the relief being sought.

20Prior to the parties reaching agreement I had explained the principles to which the court is required to give effect in conducting child-related proceedings. In particular, I explained the principle requiring me to actively direct control and manage the conduct of the trial. I confirmed my earlier explanation that the trial would be run in a manner that would ensure that the parties had all the time properly needed to explore matters genuinely in issue and ensure as far as possible that the best information was before the court to allow parenting orders in the child’s best interests to be made, but that they would not be permitted to spend time on matters that were irrelevant to the issues.

21I explained that the formal rules of evidence did not apply in the child-related proceedings other than in certain limited and specific circumstances. I confirmed with counsel for the mother that there was no consent to the financial aspect of the case being dealt with as a child-related proceeding, and explained to the father that the rules of evidence accordingly applied in that regard.

22At the status hearing, I ensured that the father had the handbooks prepared by the court for the assistance of self-represented litigants. At the commencement of the trial, I provided him with a copy of s 205ZH(1) of the Family Court Act 1997 (WA) (“the Act”). By that mechanism, the relevant law was drawn to his attention.

23I also explained my obligation to attempt to clarify the substance of each party’s submissions, so as to ensure that I properly understood their cases as they wished them to be put.

24After discussions between the parties had led to agreement in relation to the parenting orders to be made, it was suggested by counsel for the mother that the financial dispute could be determined “on the papers”, with each party making submissions but without the need for oral evidence or cross-examination.

25I explained that suggestion to the father and in particular explained to him the potential ramifications of choosing not to cross-examine the mother on the content of her affidavit. On reflection, having received that explanation, the father withdrew his tentative agreement to the course of action proposed by counsel for the mother.

26Both parties therefore gave evidence and were cross-examined.

27I am satisfied that the trial proceeded in a manner which afforded procedural fairness to both parties.

Evidence relied upon at trial

28At the status hearing listed of the court’s own motion on 27 June 2017, the father confirmed that his financial circumstances had changed since he swore his financial statement. An order was made extending the time within which he was to file either an updated financial statement or a short affidavit as to the relevant changes; he did so, but there was very little detail in the affidavit.

29The father relied on:

(a)his trial affidavit filed on 7 February 2017, to which were annexed various documents including an earlier sworn affidavit;

(b)his financial statement filed 7 February 2017; and

(c)his short affidavit filed on 27 June 2017, updating his employment status.

30The mother relied on:

(a)her trial affidavit filed on 9 December 2016; and

(b)her financial statement filed the same day.

31Neither party called any witnesses.

Observations as to the oral evidence at trial

32The father gave his evidence in a generally straightforward manner although his answers in relation to the ownership of a boat were somewhat less than convincing. While he holds strongly to the view that the property orders were not fair to him, he made admissions against interest without apparent hesitation. While some of his evidence was vague, I did not attribute that to any lack of honesty on his part. He was frank in his responses to questions from me, both during his evidence and in the course of his submissions.

33I am satisfied that he endeavoured to give his evidence honestly.

34The mother was more inclined than the father to be argumentative in the course of her evidence, even allowing for the difficulties associated with being cross-examined by a self-represented former partner. That same inclination led her to give some answers without appearing to give proper consideration to the actual question, and the father’s observation in submissions that she was at times “evasive” was not entirely without merit. She was firm in her rejection of a number of factual propositions put to her by the father. While he clearly disagreed with her position in that regard, in the absence of independent evidence to contradict her position there was nothing to demonstrate that she was being untruthful.

35For the reasons which follow, nothing turns in any event on any assessment of the credibility of the parties.

The law

36As the parties reached agreement in relation to the parenting orders to be made, it is not necessary to set out in these reasons the law in relation to parenting proceedings. It is sufficient to say that I am satisfied on the evidence presented that the agreement reached by the parties is appropriate, and in the Child’s best interests, while acknowledging the possibility that either party might yet seek to relist the proceedings in relation to the time the Child is to spend with the father.

37The father’s application to vary the property orders is brought pursuant to s 205ZH(1) of the Act, which is in the following terms:

(1)Where, on application by a person affected by an order made by a court under section 205ZG in proceedings with respect to the property of de facto partners, or either of them, 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 de facto relationship, the child or, where the applicant has caring responsibility for the child (within the meaning of subsection (3)), 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 criminal confiscation order has been made in relation to property of the de facto partners or either of them;

the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 205ZG in substitution for the order so set aside.

38The father confirmed that he relied solely on sub-s 205ZH(1)(a), alleging that there has been a miscarriage of justice by reason of suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance.

39The law in that regard was recently summarised by the Full Court in Lane and Lane (2016) FLC 93-699 (“Lane”). While that case dealt with an appeal arising from an application pursuant to s 79A of the Family Law Act 1975 (Cth) that section is identical to s 205ZH of the Act and the same principles apply.

40The determination of the husband’s application requires what the Full Court described as the “resolution of a three part enquiry”:

(a)whether the husband has established that there was in fact “fraud, duress, suppression of evidence (including failure to disclose relevant information), or the giving of false evidence”;

(b)if that fact is established, whether it amounted to a miscarriage of justice; and

(c)if a miscarriage of justice is established, whether the court in its discretion should vary the order, or set it aside and, if appropriate, make another order in substitution for it.

41It is important that the three parts of the enquiry are not conflated.

42A miscarriage of justice and an unjust and inequitable order are not synonymous concepts: Lane at [79]. A miscarriage of justice will be found if there are facts proven which “for some significant reason, make the order contrary to law and justice according to the law as it relates to the integrity of the judicial process (original emphasis)”: Bigg v Suzi (1998) FLC 92-799 at [6.37].

43Agreement to a consent order, which may not adequately reflect a party’s entitlements, does not of itself show that there has been a miscarriage of justice, although there may be cases where the order consented to is so far removed from justice and equity that a court may infer that a miscarriage of justice occurred: In the marriage of Holland (1982) FLC 91-243.

44As Murphy J observed in Lane at [138] (footnotes omitted):

In short, absent fraud, duress or other such vitiating factors, parties of full capacity are free to make whatever agreement they choose in settling their financial affairs. Important to the instant context, they may do so for whatever (idiosyncratic) reasons they might choose.

45In the context of a claim that a miscarriage of justice has occurred by virtue of suppression of evidence, His Honour went on to say at [139] (footnotes omitted):

The parties’ consent to an order must be a free and informed consent. Consequently, the authorities seek to emphasise that the province of [the relevant section], in the relevant context of asserted suppression of evidence occasioned by non-disclosure, is one party’s failure to disclose matters “which were peculiarly within [the] knowledge” of that party or omissions which knowingly engendered, or permitted, a mistaken understanding on the part of the other party. Within that context, it has been said, for example, that suppression of evidence must “amount to wilful concealment of matters which it was [the party’s] duty to put to the Court” and that “the ground is not available to a party who simply fails to give relevant evidence either by choice or inadvertence… ‘[t]o withhold facts is not to reveal them or suppress them’”.

46The establishment of a miscarriage of justice does not automatically result in the varying or setting aside of orders. The applicant must satisfy the Court not only that there has been a miscarriage of justice, but also that it is appropriate for the Court to exercise its discretion to vary or set aside the order: Barker and Barker (2007) 36 Fam LR 650 at [134].

Financial case – the relevant evidence

47The property orders were made by consent, at the conclusion of a conciliation conference before a Registrar. Both parties were represented at that conference, and the orders made were in the terms of a minute of consent orders jointly drafted by their solicitors and signed by the parties.

48The father placed into evidence a schedule of the assets and liabilities of the parties, prepared by the mother’s solicitors for the purposes of the conciliation conference. While counsel for the mother initially considered an objection to that document being admitted into evidence, the objection was withdrawn at trial.

49The schedule suggested the following values for certain assets:

(a)$8,000 for [Vehicle A] in the possession of the mother;

(b)$12,000 for a [Vehicle B] in the possession of the father;

(c)$10,000 for a boat and trailer asserted to be in the possession of the father;

(d)$2,500 for a Jet Ski and trailer in the possession of the father; and

(e)$30,000 for [sporting memorabilia] in the possession of the father.

50The father argued that those values were inflated in the case of assets being retained by him, and underestimated in the case of the asset being retained by the mother. He accordingly argued that there was a shortfall in the amount calculated to be paid to him pursuant to the property orders.

51There are a number of difficulties with that argument.

52Firstly, there is no calculation incorporated in the property orders themselves. Rather, agreement was reached on the basis that the father would receive a fixed amount from the proceeds of sale of the home in circumstances where a contract for the sale of the property had already been executed and the sale price was, therefore, known.

53Secondly, the father readily admitted, and the mother confirmed, that the figures attributed by the mother to the various assets were no more or less than her personal estimates of their values. There was no suggestion at any time that those estimates were based on valuations or appraisals, and the father did not dispute the mother’s assertion that no such valuations or appraisals had been obtained at any relevant time. Accordingly, there could be no relevant non-disclosure or suppression of evidence. The father’s contention that the mother well knew that the values she personally estimated for chattels in his possession were inflated cannot, even if proven, amount to suppression of evidence. Self-evidently, the inclusion of figures in an unsworn schedule produced for discussion purposes cannot amount to the giving of false evidence.

54The only document which the father suggested was potentially relevant, and not disclosed, was an insurance policy for household contents. His recollection was that the insurance policy, which was obtained by the mother and was in her sole name, attributed a specific value of $10,000 to the sporting memorabilia. The mother’s evidence was that it did not, and that no specific value was attributed.

55For the reasons which follow, nothing turns on that issue.

56The father readily acknowledged that the view he now holds as to the inaccuracy of the attributed values was already firmly held by him at the time of his consent to the property orders, and that he made that view known. He further acknowledged that his solicitors had in their possession at that time the documents upon which he would now seek to rely as establishing that inaccuracy. He was not in any way misled by, nor did he act in reliance upon, the figures proffered by the mother.

57The father also acknowledged that his solicitor made it clear to him that the alternative to an agreed settlement was to progress towards trial. His solicitor advised him, no doubt in fairly robust terms, that the likely costs of proceeding to trial could outweigh the amount in dispute. The father acknowledged that on receiving that advice, he chose to accept what he regarded as an unsatisfactory settlement rather than pursue the matter. To his credit, he accepted responsibility for his own decision in that regard. While he gave evidence that he felt pressed by his solicitors into agreeing to a settlement, and rightly pointed out that the conciliation conference document produced by the mother’s solicitors was made available only very shortly prior to the conference, he did not suggest that his will had in any way been overborne.

58In those circumstances, the father cannot establish a case that there has been a miscarriage of justice by virtue of the values attributed by the mother to the various chattels.

59The second element of the father’s case is his assertion that he was unfairly left responsible for a credit card liability in his sole name. He gave evidence as to the circumstances in which he says that liability was incurred and as to his version of the informal agreement between the parties during their cohabitation that informed how they were to each contribute to repayments on the home loan and household expenses.

60I accept that the father genuinely feels that his retention of responsibility for that credit card liability is unfair. He did not, however, suggest that his agreement to orders which had that effect was in any way induced by fraud, duress, the suppression of evidence or the giving of false evidence. He did not suggest that his agreement to that aspect of the property orders was vitiated by any other relevant fact or circumstance; rather, his complaint was that the settlement to which he agreed saw him receive less than what he would assert was his proper entitlement.

61For the reasons already articulated, that complaint, even if made out, would not result in findings that are necessary for the property orders to be set aside or varied, unless it was clear that the effect of the orders was so far removed from a just and equitable result as to permit an inference that a miscarriage of justice had occurred.

62The evidence does not permit such an inference to be drawn.

63It follows that the father’s application must be dismissed.

Proposed orders

64I propose to make the following orders:

1.The amended application of [Mr Hyde] filed on 19 April 2016, insofar as it seeks orders pursuant to s 205ZH of the Family Court Act 1997 (WA), be and is hereby dismissed.

I certify that the preceding [64] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
7 August 2017