Kimber and Kimber

[2016] FCCA 3252

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIMBER & KIMBER [2016] FCCA 3252

Catchwords:  
FAMILY LAW – s.79A application – failure to disclose.

Legislation:

Family Law Act 1975, s.79A.

Applicant: MR KIMBER

Respondent: MS KIMBER

File Number: LNC 769 of 2011

Judgment of: Judge McGuire

Hearing dates: 24 & 25 October 2016

Date of Last Submission: 25 October 2016

Delivered at: Launceston

Delivered on: 15 December 2016

REPRESENTATION

Litigant in person
Counsel for the Respondent:	Mr Grant Tucker

Solicitors for the Respondent:	Grant Tucker
Counsel for the Independent Children's Lawyer:	Mr Peter Briffa
Solicitors for the Independent Children's Lawyer:	Legal Aid Commission of Tas

ORDERS

1. That the applications of alteration of property interests pursuant to section 79 of the Family Law Act 1975 be listed for submissions as to final orders on 15 December 2016 with an estimated hearing time of 1 hour.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 769 of 2011

MR KIMBER

Applicant

And

MS KIMBER

Respondent

REASONS FOR JUDGMENT

1. The application before me is by the husband seeking orders under section 79A of the Family Law Act1975 (“the Act”) to vary orders made for property settlement on 26 August 2013 by Judge Roberts. 

2. This matter has an unfortunate and lengthy litigious history.  The parties have litigated in respect of matters both financial and in relation to their daughter.  The proceedings appear to have commenced as long ago as 2011. 

3. Significantly, orders were made by consent by Judge Roberts on 26 August 2013 providing for what are titled “partial property settlement” orders.  It is clear to me that those consent orders anticipated a full and final alteration of the parties’ interests in their tangible assets and liabilities including at [15] the following:

   that unless otherwise specified in these orders;-

   a)Each part be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of order and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof,  insurance policies are deemed to be in the possession of the policy owner thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions of the payment out of such entitlements; and

   b)Each party 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.

4. Notations to those orders follow and including:-

   That it is the intention of the parties is that there be a superannuation split from the husband’s scheme being (omitted) Superannuation ((omitted)) to the wife in the sum of twenty four thousand dollars.

5. The matter appears then to have stagnated for well over three years before being listed on the section 79A application before me on 24 October 2016. Children’s matters were also agitated on that day and effectively resolved. The Court file does not assist me in understanding why this matter was not urged towards its conclusion over the period since March 2013. Indeed, my understanding of the “partial property settlement” orders and the parties (somewhat vague) material suggests that only evidence of procedural fairness on the husband’s relevant superannuation fund was required to bring this matter to an end.

6. The husband now represents himself although he was represented by solicitors in March 2013.  The wife is represented by her solicitor. 

Relevant Legislation

1. Section 79A (1) of the Act provides, interalia:

   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 …

   the Court may. In its discretion, vary the order or set the order aside and, if it considers it is appropriate, make another order under section 79 in substitution of the order so set aside. 

2. The husband’s argument here is a simple one.  He says that the consent orders of March 2013 were entered upon on the acceptance and reliance of the wife’s sworn Financial Statement of 21 August 2012.  He says that this document fails to reference a (omitted) Bank account of the wife with a balance of $5,013.  His affidavit also refers to other accounts with lesser sums but which he was unable to prove on the balance of probabilities. 

3. Secondly, the husband refers again to the wife’s statement of financial circumstances disclosing a liability to the Taxation Office of $5,000.  He says that no such liability was current of the time of the swearing of the Financial Statement and, in fact, the wife was a beneficiary of a tax return of $9,000 for the relevant financial years.

4. Whilst the husband was unable to prove to the requisite satisfaction the existence of the minor bank accounts, the wife in her evidence candidly admitted the following:-

   1.That the sworn Financial Statement was wrong in referencing the taxation liability of $5,000;

   2.That she indeed receive a taxation return of $9,000 for the relevant periods;

   3.That she did have a (omitted) Bank account with a balance of $5,013 which was not included in her list of assets.

Consideration and Findings

1. Given the unfortunate litigious history of this matter, it is arguably unnecessary for the husband to bring an application under section 79A of the Act in that the property proceedings have not finalised and the current orders expose only a “partial property settlement”. Nevertheless, I accept that it is clear from those orders that the parties intended to finalise a distribution of their tangible assets and the orders disclose that intention was on a basis of sixty percent of such property to the wife and forty percent to the husband.

2. The best evidence before me suggests that the property pool of the parties at the relevant time had a net value of little more than $450,000.  Consequently, the admissions of the wife in respect of the three errors in her sworn Financial Statement would constitute in total a further nineteen thousand dollars being added to the value of the property pool.  This is not an insignificant amount within the context of the value of the pool itself constitutes 4.25 percent of that pool.

3. On the husband’s evidence and the wife’s concessions, therefore, I am satisfied that the wife has not made full disclosure in the documents relied upon in reaching the consent orders of 26 August 2013.  It is proper, therefore, that the husband have his relief sought being a variation of the orders.

4. The matter is further complicated, however, in that it is obvious to me that the parties had separated some considerable time prior to the making of the partial property settlement orders in August 2013 and perhaps as long ago as 2011 or earlier.  Issues of contribution to the relevant bank account of the wife and her tax return are therefore relevant to the final orders that I make for property settlement between these parties.  There is, of course, also the remaining issue of the husband’s superannuation and what, if any, splitting order is appropriate. 

5. Consequently, I intend to make the orders under section 79A in favour of the husband varying the property orders but will hear submissions from the parties and/or further evidence in respect of what final orders would be just and equitable.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 15 December 2016