J and J

[2008] FCWA 91

[2008] FCWA 91

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	J and J [2008] FCWA 91
CORAM	:	PENNY J
HEARD	:	24 JULY 2008
DELIVERED	:	15 AUGUST 2008
FILE NO/S	:	PT 4578 of 2005
BETWEEN	:	J Applicant/Husband
AND
J Respondent/Wife
Catchwords:

Property settlement - husband's application to have consent orders set aside - application dismissed

Legislation:

Family Law Act 1975 - s 75(2), s 79A(1)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Mr M Tedeschi

[2008] FCWA 91

Solicitors:

Applicant	:	Not Applicable
Respondent	:	Self-Represented Litigant

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

Clauson and Clauson (1995) FLC 92-595
Fox v General Medical Council [1960] 3 All ER 225
Gebert and Gebert (1990) FLC 92-137
Holland and Holland (1982) FLC 91-234
Mitchell and Mitchell (1995) FLC 92-601

[2008] FCWA 91

1 The husband seeks to set aside, pursuant to s 79A of the Family Law Act 1975, orders made by consent whereby he transferred to the wife all his right, title and interest in the former matrimonial home, being the only asset of substance owned by the parties.

2 He says these orders should be set aside as his consent was not an informed one

because at the time he signed the consent orders he was smoking too much cannabis, drinking too much alcohol and was depressed. Some months after signing the consent orders and the Transfer of Land document he reduced his intake of cannabis and alcohol, ceased feeling depressed and weaned himself off mood stabilising medication which had been prescribed for him by his general practitioner. He says it was at that time he realised the effect of what he had done by signing the consent orders and obtained legal advice. However, it was not until eighteen months after signing the consent that the husband commenced these proceedings.

3 The respondent wife opposes the setting aside of the orders and says that the grounds for setting aside the order pursuant to s 79A have not been established.

Background and history of the parties and the proceedings

4 The parties commenced living together in about 1974 and married in 1977. They separated on 13 May 2005. There is one child of the marriage who is over the age of 18 years.

5 When the relationship commenced the parties had no assets. The wife suffers

from a medical condition known [as an autoimmune disease]. During the marriage she [worked] in hotels and restaurants approximately once per week. She received little in the way of income for this activity. The husband worked full-time from time to time. During the course of the marriage they bought and sold various properties and accumulated modest amounts of equity in them.

6 In 2001 the husband attended upon his general practitioner complaining of

depression and irritability with symptoms having occurred for the two years before. He described some suicidal ideation. He was prescribed anti-depressant medication. In September 2003 he was referred to a psychiatrist, [Dr W], and saw her on two occasions that month. She diagnosed him as suffering from a bipolar illness. He commenced on the medication Epilim, a mood stabiliser. He continued on that medication until April 2005 when the medication was changed to Lithium. In November 2005 he had ceased all mood stabilising mediation and has not taken any since that time.

7 The parties separated on 13 May 2005 when the husband left the former

matrimonial home. Prior to this time the marriage had been unhappy. The husband was suspicious of the wife’s friendship with [Mr M], who was frequently at the former matrimonial home. He was also unhappy with the hours she was keeping either when she was [working] at hotels or [out with her friends].

8 The husband says that he attempted to commit suicide by gassing himself in his

motor vehicle in January 2004 and again in April 2005. The day after separation the
husband, in a letter, described his mental condition as follows:

[2008] FCWA 91

“In my mind is a war going on with another person, the medication helps, only a little, I have good days a few, but I have bad days quite often. Working helps my mind stop arguing with itself.

I can’t live in the house any longer, I need space where you and your life don’t interfere with my problems.

…

In relation to the property he said:

I give you the property as a gift. I want nothing, all you have to do is pay to get my name off everything, that is the morgage [sic] – electricity – phones – etc.

I will sign any papers just SMS ME and I will tell you where to send them.”

9 He went on to say:

“PS please don’t make this anymore difficulty than it is, no hassles please, take the property and get on with your life and forget me please. The house and land are worth ¼ of a million dollars. Don’t blow it.”

10 The wife then attended upon solicitors who prepared consent orders to reflect the

husband's stated wish to give the property to the wife. It appears from annexure “BJ2” that a number of drafts of this document were prepared. The husband signed the final form of orders. In August documents were sent back to the husband, addressed to the former matrimonial home asking him to have the Justice of the Peace fill in his full name and address. This request was complied with. The application for consent orders was filed on 24 August 2005 and the final orders were made on 19 September 2005. The effect of the orders was to transfer the entirety of the former matrimonial home to the wife. Contemporaneously with the transfer of the property to the wife, the husband was to be released of his obligations pursuant to the mortgage.

11 The following month the husband signed an authority to the settlement agent and the Transfer of Land forms.

Discussion

12 This application is brought pursuant to s 79A(1) of the Family Law Act 1975. Pursuant to this section any person affected by an order made by a court under s 79 may apply to have that order varied or set aside in the following circumstances:

“(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose further information) the giving of false evidence or any other circumstance.

…

[2008] FCWA 91

the court may, in its discretion, vary the order or set the order aside and, if it considers it appropriate, make another order under section 79 in substitution for the order so set aside.”

13 It is the husband's case that his mental state at the time he signed the consent

orders, coupled with his excessive consumption of alcohol and cannabis, meant that he did not give an informed consent. He says these factors amount to “any other circumstance” pursuant to s 79A(1)(a).

14 As to what is meant by the phrase “any other circumstance” the Full Court in

Gebert and Gebert (1990) FLC 92-173 stated at p 77,935:

“… We consider that the words ‘any other circumstance’ appearing in s 79A(1)(a) whilst not to be read ejusden generis with fraud duress suppression of evidence or the giving of false evidence, are intended to cover other situations where, for one reason or another, a miscarriage of justice has occurred…

The important matter that must be established before an application under this part of the section to succeed is that there has been a miscarriage of justice…”

15 In Holland and Holland (1982) FLC 91-243 the Full Court acknowledged that in relation to a consent order a party may be able to establish a miscarriage of justice if that party’s consent was for any reason not a true consent.

16 The Full Court went on to say in relation to the issue of a miscarriage of justice

at p 77,341:

“… To succeed in an application under sec. 79A, the wife must show some circumstances leading to a miscarriage of justice. Agreement to a consent order which may not adequately reflect a party’s entitlement under sec. 79 does not, of itself, show that there has been a miscarriage of justice. There may be cases where the order consented to is so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice. This is not such a case. It is not outside the bounds of what is reasonable to conclude that the wife may have accepted half to avoid further delay and expense and to have the matter resolved.”

17 It is the husband’s case that even if the court is not satisfied that one of the

grounds have been made out pursuant to s 79A(1)(a), that the result of the consent orders are so outside the ambit of what is just and equitable, that a miscarriage of justice has occurred.

Was the husband’s consent true consent?

18 The husband said that he offered the wife the equity in the former matrimonial

home at the time they separated in May 2005 because he intended to commit suicide and wanted to have his legal affairs in a tidy state. He says this state of mind

[2008] FCWA 91

continued until August 2005, when he signed the consent orders, and into October, when he signed the Transfer of Land documents and the authority to the settlement agent.

19 The husband was treated by [Dr D] for depression, irritability and suicidal

ideation in 2001. [Dr D] prescribed the anti-depressant treatment Cipramil for him. According to [Dr D]’s evidence the husband ceased his treatment shortly thereafter. From 2002 to 2004 the husband attended a number of medical practitioners and was prescribed the drugs Efexor and Epilim.

20 In September 2003 he was referred to [Dr W], a psychiatrist. In her summary of

his attendance upon her she described him as suffering from low periods, which generally last for about 3 to 4 days. He described his thoughts as being “sped up” and preoccupied with concerns about the future. He became irritated with small things, including the buzzing of a computer. She described that “during these periods, he has intense suicidal thoughts”. She described him as often thinking of “gassing” himself or slamming his car into a tree. She stated that he had stopped acting on these thoughts because of his love for his family. He described there being no clear precipitating factor in these episodes and they seemed to come out of the blue and he suddenly became manic. After a period of depression he usually had about a two week period when he felt fantastic. He described using the wife’s dexamphetamine medication to try and stabilise his depression. He described tending to drink, but limited his drinking to about quarter of a bottle of whiskey before he fell asleep.

21 [Dr W] agreed that the husband was suffering from a bipolar illness which

appeared to have affected him for most of his life, but had worsened over the year before he saw [Dr W]. She prescribed a mood stabiliser rather than the anti- depressants which the husband had been taking previously. She started him on Epilim. It was her view that the mood stabiliser should significantly reduce his risk of self harm. She also thought it was appropriate that he have a MRI scan to discount any physical reasons for the difficulties suffered by him.

22 [Dr W] saw him some two weeks later when the husband reported feeling better on the Epilim. On 29 September 2003 his dosage of that drug was increased.

23 [Dr W] confirmed in evidence that the MRI scan was clear. She stated that

when she saw him the on the second occasion she was still worried about him. He had indicated to her that he had problems with concentration, but not with memory loss. [Dr W] stated she was expecting to see the husband again, but he did not return to see her after September 2003.

24 [Dr D] states that sometime between March 2004 and April 2005 the husband

ceased taking Epilim. On 20 April 2005 he commenced the husband on the
medication Lithium, a known treatment for bipolar disorder.

25 On 13 May 2005, some two days before the parties separated, his Lithium

dosage was increased. He reported to [Dr D] that he was not coping with his wife’s
late night activities.

[2008] FCWA 91

26 On 18 May 2005, three days after the parties separated, he attended upon [Dr D]

and told him he was much happier now that he had moved away from the wife’s
chaotic band lifestyle. [Dr D]’s notes on his condition are as follows:

“Other than possible bipolar/mixed affective disorder I see no evidence of
major pathology or psychosis. dropped Li(thium) from bd to daily…”

27 [Dr D] was to see the husband again in a month for review. He did not attend

again until November 2005, a month after he signed the Transfer of Land document and two months after he had signed the consent orders. He described himself to [Dr D] as being “really well”. He had taken himself off the medication and stated that he was “fine” now he was not with the wife. He has not taken any medication since that time, nor been prescribed any. He has not attended a medical practitioner complaining of any mental health issue.

28 In support of his contention that he was suicidal at the time he signed the consent

orders, the husband attached a note written by him some time after the parties separated. In that note he sets out the history of the two suicide attempts by him. The wife’s counsel objected to the admissibility of this evidence on the basis that it was not known when the note was written, and that the note was self-serving. (see Fox v General Medical Council [1960] 3 All ER 225 at 230) When cross-examined about when the document was produced, the husband stated that he was not sure, but it could have been in June or July 2005.

29 In my view, the document is inadmissible. While the wife’s case is that the

husband has not told the truth about these alleged suicide attempts, there is no allegation that the statements are a recent invention. (see Fox v General Medical Council supra)

30 I accept the fact that the husband was suffering from some mental health issues

at the time the parties separated. I am not satisfied, however, that this condition caused the husband to suffer from a disability such that he would not understand the effect of the consent orders, the Transfer of Land or the other documents signed by him to give effect to the transfer of the former matrimonial home to the wife.

31 In September 2003 when seen by [Dr W], the husband reported increased

suicidal ideation both to [Dr W] and to [Dr D]. At that time he told [Dr W] that he would never act on these thoughts because of his love for his family. The husband’s medication was changed from Cipramil and Efexor, which was said to increase suicidal ideation in patients with bipolar disorder, to Epilam. On 23 September 2003 the husband reported to [Dr G] improvement in mood since starting Epilam, as well as stopping drugs and alcohol.

32 The month after the husband’s alleged suicidal attempt in January 2004 he

attended upon [Dr D]. He made no complaint about any symptoms to do with his bipolar disorder, nor did he mention the alleged attempted suicide. In March 2004 he described feeling well on the Epilam and his mood was stable.

33 On 13 May 2005 the husband did not refer to any attempted suicide made by

him the month before when he spoke to [Dr D]. The husband said he did not tell his

[2008] FCWA 91

general practitioner of these attempts because he was too embarrassed to do so. In 2003 the husband had discussed with both his general practitioner and [Dr W] his suicidal ideation. In my opinion, it is highly unlikely that he would not have told [Dr D] if he had genuinely attempted suicide.

34 I do not accept the husband's evidence that these documents were signed because

he was suicidal.

35 In relation to the issue of his excessive use of alcohol and cannabis, there is very

little evidence of this excessive use apart from the husband’s evidence. In September 2003 there is a note in his medical records that he was to decrease his alcohol intake. In September 2003, after commencing on Epilam, he stated that he had stopped drugs and alcohol. While it is possible that the husband was using alcohol and cannabis after separation and at the time he signed these documents, I am not satisfied that his intake of these substances was such that it affected his ability to understand the documents he was signing, or to give his consent.

36 In evidence the husband stated that at the time he signed the consent orders he

did not read what he was signing. In the husband's affidavit he stated that he did not recall signing a Form 11 application for consent orders. The evidence revealed that not only did the husband sign the consent order, but he gave to the wife a significant amount of correct information which is reflected in the application. There are a number of details shown in the application for consent orders where the information could only have come from the husband.

37 After separation the husband had bought [a motor vehicle]. The value of that

motor vehicle was $28,000. That value is reflected in the document prepared by the wife’s solicitors. The husband's ANZ bank account number and the balance in the account is also shown in the consent order. After separation the husband obtained an American Express credit card. The amount owing on that card of $1,500 is shown as a liability of the husband in the consent order form. The fact that the husband owed $28,000 for the [motor vehicle] to Esanda was also shown as a liability in that document. Also included is the husband’s entitlement to superannuation of $4,000.

38 It is clear that the husband co-operated with the wife in providing the above

details to her in order that the application for consent orders could be prepared correctly. This is in conflict with the husband's evidence in which he attempts to give the impression that he did not read what he signed, nor did he care much what it said, as long as it transferred the property to the wife.

39 After separation the husband made no mortgage payments on the former

matrimonial home, nor any other expenses associated with the home. During the course of the relationship the husband worked on and off, but between them the parties had earned very little. They had never been able to afford expensive cars, have an extravagant lifestyle and always lived in modest housing.

40 After separation the husband purchased a car for $28,000 and borrowed all that

sum. He was working at a [business] six days a week. He obtained an American Express credit card and eventually accumulated a significant debt on that card. The husband was only able to afford to purchase a new car and accrue expenses on the

[2008] FCWA 91

credit card because he no longer had an obligation to pay the mortgage and other
expenses associated with the former matrimonial home.

41 In 2006 the husband, when his income increased, purchased [a more expensive car] and borrowed $50,000 to purchase that vehicle. His debt on the American Express card increased to over $10,000. He incurred a loan from the Bendigo Bank to fund his lifestyle. In the meantime, the wife’s lifestyle changed very little. She took over the obligation for the entirety of the mortgage and continued to meet those payments.

42 It was put to the husband that since separation he had “been living the life of

Riley”. The husband’s response to this was “so what”, it was his income and he could spend it as he pleased.

43 In my opinion, the husband's conduct in signing the consent orders to transfer his

interest in the former matrimonial home to the wife was consistent with his desire to get rid of the responsibility he had for the payment of the mortgages and other expenses associated with the former matrimonial home. This meant he was able to be able to spend his income on himself and have a lifestyle which he had not been able to afford during the course of the marriage.

Has there been a miscarriage of justice?

44 The effect of the orders made whereby the husband’s interest in the former matrimonial home was transferred to the wife, was that she retained:

the former matrimonial home valued at $220,000

furniture 10,000

funds in the bank 318

$230,318

She was responsible for the entirety of the mortgage	$140,940
Total assets received by the wife	$89,378
The husband retained:
New motor vehicle	$28,000
Furniture	10,000
$38,000
Liabilities:
Loan for car	28,000
Credit card	1,500

$29,500

Net Assets $8,500

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45 The husband received only 8.6% of the assets of the parties, after a marriage of

more than 30 years, where the only real asset of the parties, their equity in the former matrimonial home, had been built up during the course of the marriage. The wife suffered from [an autoimmune disease] and had worked only on a part-time basis and earned a very meagre income. The husband had always had the capacity to earn a reasonable income, but had not exercised that capacity. After separation he chose to do so. He has earned in the last few years between $40,000 and $50,000, a significant improvement on any income earned during the course of the marriage. The wife receives a Disability Support Pension, $12 a week doing occasional [work] and some rent income paid by [Mr M].

46 On the limited information available, it appears that the parties’ contributions

during the course of the marriage would be said to be roughly equal. If that is the case, the wife received an adjustment in her favour to take into account s 75(2) factors of slightly more than 40%. The issue is whether an apportionment in this sum was so far out of the ambit of reasonable discretion as to result in a miscarriage of justice. Taking into account the wife’s medical condition, together with her history of little or no employment apart from occasional [paid work] and some voluntary work, it is highly unlikely that the wife would have any ability to earn any sums of significance in the future. Between the time of separation and now her financial circumstances have changed little.

47 The husband, on the other hand, has always had the capacity to earn a reasonable

income which, since separation, he has chosen to exercise. Within a year of separation he was earning $50,000 per year as a truck driver and maintains an income earning capacity in that range.

Adjustment for s 75(2) factors

48 The adjustment in the wife’s favour of 41% resulted in her receiving an

allowance for s 75(2) factors in the sum of $40,439, a sum less than the husband’s
income for the year following separation.

49 The Full Court in Clauson and Clauson (1995) FLC 92-595 stated that an adjustment under s 75(2) had to be looked at in monetary terms, rather than strictly percentage terms. At p 81,911 they stated:

“There is, we think, at times a tendency to assess s. 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s. 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.”

50 In Mitchell and Mitchell (1995) FLC 92-601 the net asset pool of the parties at
trial was approximately $300,000. The trial judge ordered that the wife receive 90%

[2008] FCWA 91

of it. The marriage was of long duration, the children were over the age of 18, the wife was a qualified nurse, but had been out of the workforce for many years. The husband was a barrister with a significant income. On appeal, the Full Court increased the wife’s property settlement from 90% to 100% of the available assets.

51 The wife has utilised her interest in the former matrimonial home to obtain a

rental payment from [Mr M], but has an obligation to meet the mortgage payments and
other expenses associated with this property.

52 In my view, given the reasonable earning capacity of the husband and virtually

no income earning capacity of the wife, an adjustment in the sum of $40,439 for
s 75(2) factors while high, was not so high as to result in a miscarriage of justice.

53 The husband's application to set aside the consent orders should be dismissed.

I certify that the preceding [53] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate