Kingston & Jayden

[2007] FamCA 309

FAMILY COURT OF AUSTRALIA

Kingston & Jayden [2007] FamCA 309

FAMILY LAW – Vexatious litigant – Rule 11.05(4) – leave to commence proceedings for parenting orders and to vary property settlement orders – principles of natural justice – duty of disclosure to the Court – information and documents by a party and lawyers – Rules 13.01-13.07 – consideration of s79A(1)(a) miscarriage of justice due to “suppression of evidence” and “the giving of false evidence” and “any other circumstance”.

Family Law Act 1975 (Cth)

Zabaneh and Zabaneh (1986) FLC 91-766;
Harrington v Lowe (1986) FLC 92-668;
Finlayson and Finlayson and Gillam (2001) FLC 93-068 at 88,214-88-216;
Taylor v Taylor (1979) FLC 90-674;
Allesch v Maunz (2000) FLC 93-033 at 87,516-87,518;
Suiker and Suiker (1993) FLC 92-436 at 80,472;
Clifton and Stewart (1991) FLC 92-194 at 78,337;
Dupont and Dupont (No. 3) (1981) FLC 91-103;
Burgoyne and Burgoyne (1978) FLC 90-467;
Re: Watson; ex parte Armstrong (1976) FLC 90-059;
Official Trustee in Bankruptcy and Bryan & Anor (2006) FLC 93-258

APPLICANT: Mr Kingston

RESPONDENT: Ms Jayden

FILE NUMBER: BRF 5132 of 2003

DATE DELIVERED: 4 April 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 14 March 2007

JUDGMENT AMENDED PURSUANT TO THE SLIP RULE (RULE 17.02): 16 April 2007

REPRESENTATION

APPLICANT: The applicant in person

COUNSEL FOR THE RESPONDENT: Mr R Hamwood

SOLICITOR FOR THE RESPONDENT: Robbins Watson

Orders (3 April 2007)

1. That the applicant is granted leave to file an application to seek orders setting aside or varying the orders for property settlement made 22 August 2005 pursuant to section 79A(1)(a) limited to the grounds of suppression of evidence, the giving of false evidence, or any other circumstance PROVIDED THAT such application is filed and served on or before 4.00pm, 24 April 2007.

2. That the application of the applicant referred to in Order 1 be filed in the Brisbane Registry of the Family Court of Australia.

3. That the Orders made on 5 October 2006 providing powers to the receivers are stayed until further order PROVIDED THAT the receivers may in the interim receive and hold on trust for the parties the balance of monies payable by the applicant to the respondent pursuant to orders for property settlement made 22 August 2005.

4. That the receivers appointed pursuant to Orders made on 5 October 2006 promptly send the applicant and the respondent copies of all reports, correspondence and memoranda prepared by them and which they receive in relation to all funds paid or payable to them including the source of such funds in their capacity as receivers of the estate of the applicant pursuant to the Orders made 5 October 2006.

5. That the respondent cause the receivers to be served with a sealed copy of the Orders made this day on or before 5 April 2007.

6. That the respondent file and serve an affidavit of service deposing to her compliance with Order 5 on or before 13 April 2007.

7. That until further order the parties file and serve any further documents in proceedings between them in the Brisbane Registry of the Family Court of Australia.

8. That on or before 17 April 2007 the respondent cause the applicant to be furnished by prepaid post with the precise written details of the contact centre on the Gold Coast at which he may spend time with the two children of the parties or either of them in lieu of the R Contact Centre, including a list of the first three available dates and times for that purpose in accordance with Order 3(a) made on 22 August 2005.

9. That the applicant send a written reply to the respondent in relation to the information provided by her pursuant to Order 8 on or before the expiration of seven (7) days from the receipt of that information by pre-paid post or facsimile transmission to the respondent’s solicitors at the following address:

   Robbins Watson Solicitors

   
   

   …

10. That all outstanding applications of the applicant are dismissed.

Orders (4 April 2007)

1. That the proceedings be removed from the Active Pending Cases List.

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number:  BRF5132 of 2003

MR KINGSTON

Applicant

And

MS JAYDEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 5 October 2006, the Hon. Justice Barry made the following order binding the applicant in the proceedings before me, who was the respondent in the proceedings before His Honour:

   “2.The respondent shall not, without leave of the court having jurisdiction under the Family Law Act 1975 (As Amended) institute proceedings pursuant to the said Family Law Act 1975 (As Amended) in any court, either State or Federal in respect of financial relief, stay applications or child related proceedings against the applicant, PROVIDED THAT, any application for leave be applied for at first instance on an ex-parte basis.

   3.That [Mr S] and [Mr V] be appointed jointly and severally to act as receivers of the estate of the payer, [the applicant] of [B], New South Wales, date of birth […] May 1950.” [“the Orders made 5 October 2006”]

2. The receivers were granted standard powers of receivership pursuant to the Orders made 5 October 2006.

3. By his Application in a Case filed 22 January 2007 the applicant sought leave to file an application which was for the purpose of setting aside or varying orders for property settlement that had been made between the parties;  a stay of proceedings in relation to the home unit on the Queensland Coast and home units in B;  as well as parenting orders.

4. The drafting of the orders so sought were inappropriate.  However, the substance of the application is clear, particularly when one peruses the applicant’s Application for Final Orders filed 29 January 2007.

5. I did not take a formal approach to the applicant’s applications to which I have referred so far as its inappropriate drafting, given that he is a self-represented litigant.

6. In any event, I am in no doubt that during the hearing the issues which required determination were clear to the parties and the respondent’s legal representatives, and they addressed those issues.

7. On 22 August 2005, the trial Judge dismissed the application of the applicant for the proceedings for property settlement and parenting orders to be adjourned.  His Honour also dismissed the application of the applicant that he be permitted to participate in the substantive hearing by telelink.

8. On 22 August 2005, the trial Judge proceeded to hear and determine the substantive proceedings between the parties in relation to all issues on an undefended basis.

9. On 22 August 2005, parenting orders, orders for property settlement, injunctive relief and ancillary orders were then made (“the Orders made 22 August 2005”).

10. In substance, the Orders made 22 August 2005 provided inter alia that the two children of the parties’ reside with the respondent;  that she have sole responsibility for their long-term and daily care, welfare and development;  and that the applicant have supervised contact during each alternate weekend at the R Contact Centre as well as telephone contact.

11. The Orders made 22 August 2005, by way of property settlement, provided inter alia for the applicant to pay to the respondent $1,652,959.00 by the applicant transferring to the respondent the property C, Queensland valued at $470,000.00 and payment to her of the balance of $1,182,959.00 within 30 days.  The applicant was ordered to pay the respondent’s costs.

Historical background

1. The parties have had an intensive and lengthy period of litigation between them in this Court.

2. The following are further brief relevant historical matters.

3. The trial Judge found that the parties commenced to cohabit in about 1998 and such cohabitation ceased when they separated under the same roof in about January 2003 before the applicant finally ceased living in the former matrimonial home in September 2003.

4. The parties married in June 2002.  That marriage has been dissolved by decree absolute in July 2004.

5. There are two children of the marriage, namely a son who is 6 years of age having been born in October 2000, and a daughter who is 4 years of age having been born in July 2002 (“the two children”).

6. The two children have lived with the respondent continuously since the parties separated.

7. The applicant has spent periods of time with the two children, at times on a supervised basis.  The last of such periods of time occurred in about May 2005.

8. It is not clear to me when telephone communication between the applicant and two children or either of them last occurred in accordance with the Orders made 22 August 2005.  However, the applicant claimed he was not informed of, or did not have the respondent’s telephone numbers.  Consequently, an order was made unopposed finally on 14 March 2007 to ensure the applicant had the telephone numbers.

9. On a date unspecified in the evidence, the applicant appealed against the Orders made 22 August 2005 (“the appeal”).

10. On 28 September 2005, orders were made by the trial Judge granting a stay in relation to the Orders made 22 August 2005 in relation to payment by the applicant to the respondent of $1,100,000.00.  That stay was granted on certain terms and conditions.  The applicant was ordered to pay to the respondent the sum of $80,000.00 within 21 days.  It is common ground that such payment was made by him.

11. On 5 May 2006 the applicant filed a Notice of Discontinuance in relation to the appeal.

12. On 8 May 2006, being the date fixed for hearing of the appeal, the applicant appeared in person unrepresented.  The applicant confirmed he sought to discontinue the appeal.  An order was made that the applicant pay the respondent’s costs of the appeal.

13. On 29 January 2007 upon hearing the applicant on an ex parte basis in accordance with the Orders made 5 October 2006, I made orders fixing the hearing of the applicant’s applications before me on 14 March 2007 in relation to the issue of leave to proceed and stayed the orders made on 5 October 2006 in relation to provision of powers to the receivers.  Directions were also made by me in relation to service of relevant documentation upon the solicitors for the respondent and the receivers as well as providing an opportunity for the respondent and the receivers to file and serve any affidavits upon which they may seek to rely.

14. On 14 March 2007 the applicant appeared unrepresented.  The respondent was represented by counsel and his instructing solicitor.  There was no appearance by or on behalf of the receivers.  Submissions were made on the basis that the applicant’s applications would be determined on the Papers.

15. On 3 April 2007 orders were made by me determining the proceedings.  A sealed copy of those Orders is attached.

Relevant legal principles in relation to granting of leave to file an application otherwise prohibited by an order made pursuant to section 118 of the family law act 1975 as amended (“the act”)

1. Family Law Rule 11.04 sets out the practice and procedure to be followed by the Court in its discretion “if the court is satisfied that an applicant has frequently started a case or appeal that is frivolous, vexatious or an abuse of process”.

2. The Orders made 5 October 2006 are in accordance with Rule 11.04 as the trial Judge had determined that the applicant was a vexatious litigant implicitly exercising the power provided in s118.

3. It is in that context the issue arises as to the ground that must be established for the purpose of granting the applicant leave to institute proceedings by the filing of an application seeking parenting orders and orders setting aside or varying the property settlement orders which were part of the Orders made 22 August 2005.

4. Whilst the Act itself does not contain any provision in relation to this particular issue, the relevant Rule is 11.05(4) which is in the following terms:

   “The court must not grant permission to start or continue a case unless it is satisfied that the case has a reasonable likelihood of success.”

5. The need to establish to my satisfaction that the proposed application of the applicant, to which I have referred, “has a reasonable likelihood of success” represents a greater hurdle for the applicant to overcome in contrast to the approach taken by the Full Court in Zabaneh and Zabaneh.[1]

   [1] Zabaneh and Zabaneh (1986) FLC 91-766

6. In referring to the practice and procedure to be followed when leave is sought by an applicant who has been declared and made the subject of appropriate orders pursuant to s118, Evatt CJ (with whom the other two members of the court agreed) stated as follows:

   “The purpose of the section is to protect the respondent to the application from being brought to the court in the first instance, however if the court is satisfied on the material before it that there is an issue – that there is a possible ground – on which leave should be given, then it seems to me totally appropriate that the other party should be given an opportunity to put forward reasons against the granting of leave before that order is finally confirmed.”[2]

   [2] ibid at 75,586

7. The approach by Evatt CJ in Zabaneh, namely that there is an issue – “that there is a possible ground” may be open to being interpreted that an applicant needs to establish there is an issue in the context of “a possible ground” for the purpose of leave being granted.  The Full Court did not consider the matter further.

8. The power to make “Rules of Court” by the Judges of the Court or a majority of them is found in s123.  Section 123 limits that rule-making power to the “practice and procedure to be followed” in the Court.  A detailed consideration of s123 and the dicta in the joint judgment of the High Court in Harrington v Lowe[3] is provided in the Full Court’s judgment in Finlayson and Finlayson and Gillam[4].  In my view, those judgments make it arguable that Rule 11.05(4) is invalid as being beyond the rule-making power of the Court.

   [3] Harrington v Lowe (1986) FLC 92-668

   [4] Finlayson and Finlayson and Gillam (2001) FLC 93-068 at 88,214-88-216

9. However, that was not an issue that was the subject of submissions by either of the parties, nor was it raised for consideration.  Consequently, I proceed on the basis of the validity of Rule 11.05(4) and its application in these proceedings.

The proposed application seeking parenting orders

1. The applicant’s proposed application for parenting orders seeks a number of orders, some of which appear to be in the alternative.  Those orders include, but are not limited to:

   (a)the two children living with the father and the mother having supervised periods of time with them;

   (b)the father have the sole responsibility for both the long-term and daily welfare of the two children;  and

   (c)in the alternative that the two children live with each of the parties on a “week about basis, in Sydney NSW”.

2. A number of reports of a personal carer and psychologist were tendered by the applicant, without objection.  Those reports became Exhibits 3 and 4.

3. Exhibit 3 is a report dated 27 January 2004 by Dr J, psychologist.  Dr J states that he has known the applicant “both socially and collegially” for over 26 years.  Dr J provides a glowing character reference and a positive opinion of the applicant being a devoted and loving father.

4. Exhibit 3 makes no reference to the periods of time and the circumstances in which Dr J may have observed the father in a parental role with the two children or either of them.

5. Exhibit 3 also includes reports of Dr J dated 20 August 2004 and 14 January 2006 couched in a similar vein to the report dated 27 January 2004.

6. Exhibit 3 also includes a certificate dated 4 February 2005 by family support workers with the “[Queensland Coast] Family Support Program” certifying the applicant has completed the “Positive Parenting Program”.

7. In addition, Exhibit 3 includes an assessment report dated 2 February 2005 by the Director of Metro Community Services at Southport.  It provides a detailed review of the applicant “presenting issues” and a recommendation that the applicant “be permitted to see his children on a regular basis”.  The report appears to be based solely on an interview with the applicant as no reference is made to having seen the two children or either of them alone or with the applicant.

8. Exhibit 4 is a statutory declaration of Ms L made 18 November 2004.  Ms L provides her occupation as being “personal carer (aged care)”.  The statutory declaration refers to the role that Ms L has played as supervisor for the two children during “contact visits” with the applicant.  The number of occasions and periods of time when Ms L carried out her supervisory role are not mentioned.

9. Ms L expresses her opinion that the applicant “is capable of having these visits with his children solo”.  Presumably, Ms L means unsupervised.  Ms L then sets out the basis for her opinion.

10. Lying at the heart of leave sought by the applicant to make an application for parenting orders is that he has not seen the two children or either of them since about May 2005, nor had telephone communication with them implicitly for a large part of the ensuing period, if not all of it.  Obviously, a period of two years of not seeing or communicating with a parent, who might otherwise have been available to so take part, is a long time in the lives of two children who are still very young being aged 6 and 4 years respectively.

11. There are current parenting orders which enable the applicant to spend time with the two children and communicate with them, albeit so far as the former is concerned, on a supervised basis, subject to the availability of the R Contact Centre to which I will make subsequent reference.

12. The current parenting orders referred herein were part of the orders made 22 August 2005.

13. The father addressed me at some length as to the reasons for him not having availed himself of the relevant parenting orders.  In essence, the applicant’s reasons are that he was of the view that:

    (a)the R Contact Centre was a terrible place for him to spend time with the two children;

    (b)difficulties for him in spending time with the two children;

    (c)difficulties in travel interstate;

    (d)he was worn out by the litigation between the parties;  and

    (e)his perception of the injustices that he has suffered at various court events, as well as non-co-operation by Brisbane Registry staff.

14. So far as lack of lack of telephone communication with the two children, the applicant claimed he had not been informed of the respondent’s telephone number for that purpose.

15. In answer to the proposition that the applicant could have made an application for orders to ensure that supervised periods of time with the two children take place at a different contact centre, and requiring the respondent to provide him with her telephone number within a specified period of time - the thrust of his submission was that the stress of litigation in the court and his lack of confidence in obtaining a proper hearing for a variety of the reasons that he put forward meant that he did not make a further application.

16. I have concluded that the applicant has not succeeded in satisfying me that he has a “reasonable likelihood of success” in accordance with Rule 11.05(4) for the following reasons.

17. The current parenting orders have been operative for almost two years.  The applicant has failed to take advantage of them.  The applicant’s reasons for not doing so are not of persuasive substance.

18. The applicant stressed to me that having a loving relationship with the two children was the primary objective in his life.  Yet, for almost two years the applicant has not taken any steps to see the two children either at the R Contact Centre or such other place which may have been substituted on an application to either this Court or a Magistrates court having jurisdiction.

19. There is a well established line of authority that, generally speaking, supervised parenting orders do not continue indefinitely.  As a result, the applicant potentially could have sought that future periods of time with the two children proceed on an unsupervised basis after he had re-established his relationship with them in a positive way.  Supervised periods of time in that context would have been a relatively limited inconvenience to the applicant in that the two children are very young and many years lay ahead for him and the two children to have a fruitful relationship with each other in the best interests of the two children.

1. The applicant’s excuse for lack of telephone communication for a long period of time does not have any merit.

2. The applicant had numerous extensions of time to file and serve affidavit evidence which could have been relied upon by him at the trial fixed for 22 August 2005.  Such affidavits could have included potentially affidavits of Dr J given that two of his reports are dated 27 January 2004 and 20 August 2004, as well as an affidavit of Ms L given that her statutory declaration (to which I have referred) was made on 18 November 2004.

3. As explained to the applicant, I am not sitting as an appeal court from the Orders made 22 August 2005.  Indeed, the applicant filed an appeal in respect of those orders but discontinued it.

4. The failure by the applicant to take all reasonable steps to avail himself of the current parenting orders do not have merit for the reasons previously given by me.  Whilst the stress of litigation may well have contributed to anxiety not only of the applicant but also the respondent, there was an absence of evidence from a medical practitioner or psychologist or counsellor which could have possibly provided an explanation of substance for the applicant’s lack of effort in relation to seeing and speaking with the two children in accordance with the current parenting orders.

5. The two children are very young.  They have lived with the respondent continuously since the parties separated, other than the periods of time that they have spent with the applicant prior to May 2005.

6. There is no evidence of substance before me to suggest that the respondent is providing anything other than appropriate parenting of the two children or that there is any other relevant aspect of their care which may lead to a conclusion that the applicant has a case which provides a “reasonable likelihood of success” in accordance with Rule 11.05(4) for the purpose of an order being made that the two children live with him, either primarily or on a week about basis as foreshadowed in his proposed application.

7. In view of the matters summarised in the last paragraph and the fact that the applicant has not seen the two children for almost two years, nor spoken with them for most if not all of that period for reasons which I have concluded have no real merit on the evidence before me, lead me to also conclude that the ground for granting leave pursuant to Rule 11.05(4) to enable an application to be made for unsupervised periods of time with the two children whether in Queensland or New South Wales does not have a “reasonable likelihood of success”.

8. The applicant submitted that the R Contact Centre is no longer operative.  Accordingly, so that the substance of the current parenting orders may be maintained providing for supervised periods of time to be spent by the applicant with the two children, I have made an order which provides for the respondent to inform the applicant in writing of suitable alternative places and times on the Gold Coast and for the applicant to respond in writing within a specified time.

9. On 14 March 2007, I made an order requiring the respondent by her solicitors to inform the applicant in writing within seven (7) days of the respondent’s current telephone number so that the applicant could avail himself of one of the current parenting orders which enable him to speak to the two children.

Proposed application of the applicant to seek orders pursuant to s79A(1)(a)

1. The Orders made 22 August 2005 followed a trial which proceeded on an undefended basis.

2. As previously referred to, the Orders made 22 August 2005 included orders by way of property settlement.

3. The applicant seeks leave to make an application for orders setting aside or varying the property settlement orders.

4. Neither of the parties apparently had available transcript of the proceedings before the trial Judge.

5. The court file benchsheet dated 22 August 2005 records the trial Judge having ordered the transcript of the proceedings before him on an urgent basis in relation to that part of the hearing that commenced at 10.15am.  The transcript so ordered was taken out and included in the court file.  It has been received by me as Exhibit 5.

6. The trial Judge commenced the trial by referring to and determining the application of the applicant recorded as:

   “(1)The father have leave to attend the court by electronic means and that the application – that the trial be vacated and the date of the start of the new trial be deferred for a period of no less than 120 days.”

7. Exhibit 5 then records the trial Judge stating in relation to the applicant’s applications to which I have referred, as follows:

   “I am not convinced on the material before me that he has made sufficient endeavours to come to Queensland to prosecute his case.  Therefore, I would refuse the adjournment.  He would have, of course, complain that he has not been given a reasonable chance of putting his case for an adjournment before the court.  What’s your attitude, Mr Hamwood?  The only way he can do it would be by phone.”  [Emphasis added]

8. Mr Hamwood was counsel for the respondent.  In response to the trial Judge’s question, Mr Hamwood is recorded as saying:

   “That would be inappropriate, Your Honour, in my submission.”

9. Counsel for the children’s representative is recorded as having opposed the application for the adjournment and for the applicant to be heard by telephone.

10. I note that the transcript incorrectly refers to Mr Hamwood, rather than Mr Drysdale in lines 36 to 41 on page 2 of Exhibit 5.

11. It is clear that the trial Judge was alive to the issue of the applicant being given “a reasonable chance of putting his case for an adjournment” which could only “be by phone”.[5]

    [5] Exhibit 5, page 2.

12. Exhibit 5 does not record any additional submissions made by counsel to support the proposition that it would be “inappropriate” to hear the applicant by telephone in relation to his application for an adjournment, let alone to appear by electronic means, as opposed to being able to appear by telephone during the trial itself should the application for an adjournment be dismissed.

13. There is no doubt that the applicant was neither heard nor given an opportunity to be heard by telephone on his application for an adjournment, apart from his application to appear by electronic means.  As the trial Judge recognised, there was an opportunity for him to be heard by telephone in relation to the adjournment application.

14. With great respect to the trial Judge, the determination by him which did not to give the applicant an opportunity to be heard by telephone in relation to his adjournment application raises the issue of whether he had been denied natural justice, and if so, the remedies available to him.

15. The High Court in Taylor v Taylor reviewed relevant authorities on the issue of a litigant being given an adequate or reasonable opportunity to be heard.[6]

    [6] Taylor v Taylor (1979) FLC 90-674

16. Gibbs J referred to and followed the Commissioner of Police v Tanos in which it was held that:

    “It is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard.”  [Emphasis added][7]

    [7] ibid at 78,589

17. The other members of the court supported the principles referred to by Gibbs J.

18. In more recent times the High Court has re-stated those principles of natural justice or procedural fairness in terms of a litigant having a reasonable opportunity to be heard.  In doing so, it referred to and followed the judgments in Taylor.[8]

    [8] Allesch v Maunz (2000) FLC 93-033 at 87,516-87,518

19. There is no evidence before me which can adequately explain the applicant’s inability to appear in terms of not being given an opportunity by telephone, as foreshadowed by the trial Judge of “not being given a reasonable chance of putting his case for an adjournment before the court”.[9]

    [9] ibid, Exhibit 5, page 2

20. Unfortunately, it seems the trial Judge was persuaded not to do so.

21. In my view, the applicant had two alternative remedies open to him.  They were that he could have filed and proceeded with a notice of appeal in respect of the Orders made 22 August 2005 or filed an application seeking orders pursuant to s79A(1)(a) on the ground of miscarriage of justice due to “any other circumstance”.

22. The applicant did indeed file a notice of appeal.  However, he discontinued that appeal, to which earlier reference has been made.

23. It was not submitted on behalf of the respondent that issue estoppel arises, or res judicata which would constitute a bar to relief or result in summary dismissal of an application made by the applicant pursuant to s79A(1)(a) as a consequence of him having discontinued his appeal against the Orders made 22 August 2005.

24. So far as a prospective application seeking orders pursuant to s79A(1)(a) is concerned, it is established that “miscarriage of justice”, “relates to the integrity of the judicial process” at the time when the relevant orders were made.[10]

    [10] Suiker and Suiker (1993) FLC 92-436 at 80,472

25. In Clifton and Stewart, the Full Court held that:

    “The words ‘any other circumstance’ is not of unlimited scope but governed by the words ‘miscarriage of justice’.  It also elucidates the proposition that ‘justice means justice according to law’, ie it relates to the integrity of the judicial process.”[11]

    [11] Clifton and Stewart (1991) FLC 92-194 at 78,337

26. I have concluded that the applicant has satisfied the basis for leave to be granted pursuant to Rule 11.05(4) for the purpose of being granted leave to file an application for orders pursuant to s79A(1)(a) for orders setting aside or varying the Orders made 22 August 2005 on the ground of miscarriage of justice due to “any other circumstance”.  Prima facie the denial of natural justice occasioned to the applicant, to which I have earlier referred, attracting the principles stated by the High Court in Taylor and Allesch v Maunz[12] relates to the ground in s79A(1)(a) to which I have referred as “the integrity of the judicial process” at the time when the orders were made which was not maintained as he did not receive “justice according to law”.

    [12] ibid

Section 79A(1)(a) – grounds of “suppression of evidence” and the “giving of false evidence”

1. The provisions of s79A(1)(a) provide that a miscarriage of justice may be demonstrated on the one or other or both of the grounds described above.

2. It is common ground that the parties entered into what is described as a written “pre-nuptial agreement” on 27 June 2002 (“the pre-nuptial agreement”).

3. A copy of the pre-nuptial agreement is annexure “B” to the Affidavit of the applicant sworn 28 November 2006.

4. The pre-nuptial agreement was entered into between the parties on the day of their marriage.

5. There is no dispute that the parties voluntarily entered into the pre-nuptial agreement and that it sets forth the terms of that agreement.

6. The pre-nuptial agreement contains the following clauses:

   “This document is in its present form and content will be considered as a legal pre-nuptial agreement with all its respective rights and liabilities between the above parties.

   If a permanent separation will occur between the above parties after their respective marriage date then –

   I [the applicant] undertake to give [the respondent] a medium sized three bedroom unit in a mutually agreed upon good area of the Gold Coast.

   I also undertake to support her and my own two children with the amount of two hundred and fifty dollars ($250.00) per week.”

7. The pre-nuptial agreement contains an acknowledgment by the respondent of her awareness of “all the legal rights and liabilities of this agreement” in view of her “recent divorce and property settlement that resulted in a prolonged legal conflict with my previous husband”.  Other acknowledgments are given by the respondent in the pre-nuptial agreement.

8. It was conceded by counsel for the respondent that no evidence was adduced by or on behalf of the respondent of the pre-nuptial agreement during the undefended hearing which led to the Orders made 22 August 2005.

9. There is no issue that the pre-nuptial agreement cannot oust the jurisdiction of the Court.  It is not a binding agreement in that it is not a financial agreement which meets the provisions of the Act, nor is it enforceable.

10. I was not referred to any authorities in relation to both the relevance or potential weight that a court may give to the pre-nuptial agreement in either property settlement proceedings or proceedings in which orders are sought pursuant to s79A(1)(a).

11. In Dupont and Dupont (No. 3)[13] Nygh J reviewed decisions of the Court both at first instance and in the Full Court in relation to an agreement under the repealed s86 whether registered or not under that section.  Amongst the decisions to which he referred included Burgoyne and Burgoyne[14] in which Lindenmayer J clearly accepted the relevance of an agreement that the parties had entered into pursuant to s86 although not registered.  On the facts in that case, Lindenmayer J attributed considerable weight to the agreement.

    [13] Dupont and Dupont (No. 3) (1981) FLC 91-103

    [14] Burgoyne and Burgoyne (1978) FLC 90-467

12. In other authorities to which Nygh J referred, the issue was the question of weight to be attributed to the relevant agreement not registered under s86 in the circumstances of a particular case, albeit the Court was required to make orders that were just and equitable pursuant to s79 and not use the agreement as a starting point for that purpose.

13. In Dupont, Nygh J held that an agreement between the parties registered under the repealed s86 was relevant:

    “As a matter of financial history and as an indication of what the parties at the time considered to be just and equitable between them, which the Court may adopt as its order in so far as it approximates what it considers to be just and equitable at the time of the hearing of the application under s79.  It is relevant in the second sense therefore at the end of the proceedings rather than at the beginning.”[15]

    [15] ibid at 76,763

14. Counsel for the respondent informed me that the pre-nuptial agreement was not adduced in evidence in the respondent’s case, to which I have made earlier reference.  Counsel also informed me that part of its provisions were referred to so far as the applicant’s obligations for ongoing financial support in accordance with its provisions but without identifying that the agreement for financial support post-separation was contained in the pre-nuptial agreement.  Apparently, there was a selective reference to the pre-nuptial agreement as counsel for the respondent conceded that no reference was made to the term of the pre-nuptial agreement which required the applicant to “give” the respondent a three bedroom unit.

15. I have concluded that the pre-nuptial agreement was relevant evidence that should have been adduced by or on behalf of the respondent during the course of the undefended hearing before the trial Judge, notwithstanding that it was not a binding agreement nor capable of ousting the Court’s jurisdiction.  It clearly was a relevant historical document between the parties as it set out their agreement for future financial provision by the applicant for the respondent and their two children in the event of the parties separating.

16. It was submitted on behalf of the respondent that there was no obligation by the respondent or her legal representatives to provide evidence of the pre-nuptial agreement as the proceedings were adversarial proceedings in circumstances where the applicant had failed to file and serve affidavit evidence and the trial proceeded on an undefended basis.

17. I do not accept those submissions.

18. The undisputed facts are that the pre-nuptial agreement was entered into approximately nine months prior to the parties separating under the same roof.  It was entered into by the parties voluntarily with acknowledgments in that regard provided by the respondent in the body of the document.

19. It was a matter for the trial Judge as to the weight, if any, that he would give to the pre-nuptial agreement taking into account not only its terms but the fact that the parties entered into it only a short period prior to their separation.

20. The current Family Law Rules commenced on 29 March 2004.  The summary of Chapter 13 of the Rules, and in particular Rule 13.01(1) provides:

    “Each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.”

21. Rule 13.07 contains provisions in relation to “duty of disclosure – documents” is in the following terms:

    “The duty of disclosure applies to each document that:

    (a)is or has been in the possession, or under the control of the party disclosing the document;  and

    (b)is relevant to an issue in the case.”

22. I have concluded that the respondent failed to comply with Rules 13.01(1), 13.01(2) and 13.07 due to failure to observe her duty to the Court, apart from the applicant, in disclosing all of the information relevant to the pre-nuptial agreement, as opposed to a portion of it, and not adducing a copy of the pre-nuptial agreement in evidence before the trial Judge regardless of the trial proceeding on an undefended basis.

23. I accept the general submission made by counsel for the respondent that the trial before the trial Judge was an adversarial one in accordance with the High Court’s decision in Re: Watson;  ex parte Armstrong[16].  I also accept counsel’s submission that in the context of adversarial proceedings the respondent generally was under no obligation to adduce all of the evidence that the applicant may have adduced had he filed and served his affidavits in accordance with directions made.

    [16] Re: Watson; ex parte Armstrong (1976) FLC 90-059

24. However, those general assertions in my view cannot camouflage the duty to comply with the Rules to which I have referred on the specific matter of the pre-nuptial agreement entered into between the parties, having regard to its terms and acknowledgments and the short period of time that elapsed between its date and the separation of the parties.

25. The financial history of the parties was indeed relevant.  The financial provision that the applicant had agreed to make for the respondent and their two children in such a short time prior to separation was clearly relevant.  It certainly must have been an issue in the trial which is heightened by counsel’s submission to me that part of the pre-nuptial agreement was obliquely referred to in the affidavit evidence of the respondent.

26. It would be an absurdity if in those circumstances the duty of disclosure required pursuant to Rules 13.01 and 13.07 would apply as between the parties but that such a duty would not apply in terms of adducing evidence of the pre-nuptial agreement by disclosing it to the Court.

27. The duties that lawyers have to the Court in terms of disclosure of information and relevant documents are clearly set out in paragraphs 7.8 to 7.11 inclusive of the Australian Government’s “Best Practice Guidelines for Lawyers doing Family Law Work” prepared by the Family Law Council and the Family Law Section of the Law Council of Australia dated August 2004.

28. I have concluded that Rule 11.05(4) has been established by the applicant in relation to the grounds of “suppression of evidence” and/or “the giving of false evidence”.  In that regard, I refer to and respectfully follow the judgment of Young J in Official Trustee in Bankruptcy and Bryan & Anor in which he held:

    “Suppression of evidence is the wilful concealment of matters where it is the duty of one or both parties to disclose that information to the court.  This duty of accurate and proper disclosure applies both in contested proceedings and in consent orders.  A party must not knowingly create a false impression or allow the court even on the making of consent property orders, to draw a false inference.  A party must not deliberately conceal evidence which should be before the court, although there is no obligation to put evidence which would advance the interest of the other party.”[17]

    [17] Official Trustee in Bankruptcy and Bryan & Anor (2006) FLC 93-258

1. So far as the ground of “the giving of false evidence” is concerned, in Taylor Mason J held that:

   “The words in the section did not mean evidence which is wilfully false.  The sub-section should be read according to its terms.”

2. For the reasons given by me in relation to the prospective ground of “suppression of evidence” I have concluded that Rule 11.05(4) has been established by the applicant and so far as the prospective ground of “the giving of false evidence” is concerned.

Conclusion

1. Due to the findings of fact that I have made and the reasons given, the applicant will be granted leave to file an application seeking orders setting aside or varying the property orders made 22 August 2005 limited to the grounds that there has been a miscarriage of justice due to “suppression of evidence”, “the giving of false evidence” and/or “any other circumstance”.

2. I will make it a condition of leave having been granted, that the applicant file and serve his proposed application on or before 4.00pm, 24 April 2007.

3. Hopefully, he will retain and follow the advice of a suitably competent and experienced legal practitioner to ensure that the application and subsequent court documents that he may be required to file, including affidavits, are drafted in a fashion which is admissible both in terms of relevance and form.

4. The applicant needs to understand that should he avail himself of the leave which will be granted, it is not a licence to make wild and unfounded allegations about the respondent, lawyers, court staff or the Court.

5. I will also make an order that the application that the applicant may file pursuant to the leave that will be granted must be filed in the Brisbane Registry of the Family Court of Australia.

6. I accept the evidence of the respondent that the parties previously cohabited in Queensland, that the applicant of his own volition decided (as was his right) to live in New South Wales following the parties’ separation;  that all previous proceedings between the parties had been conducted in the Brisbane Registry of the Family Court of Australia;  and that the respondent has incurred substantial legal costs with certain costs orders not having been complied with.

7. Obviously, difficulties in litigation for the respondent will be exacerbated if she has to instruct lawyers in Sydney and further pressure is likely to be experienced by her and the two children of the parties’ relationship should she have to travel to Sydney for the purpose of giving instructions and attending court hearings.

8. During the course of submissions on 14 March 2007, I was informed that the mortgagee has exercised its power of sale in respect of a number of properties of the respondent.  The receivers appointed pursuant to the Orders made 5 October 2006 have been liaising with the mortgagees for the purpose of exercising their powers to recover and account for funds of the applicant in order to satisfy part of the Orders made 22 August 2005.

9. In order that monies may continue to be recovered by the receivers and held by them pending the filing of the applicant’s proposed application, and so as not to prejudice the rights of each of the parties, I will continue the stay previously granted on 29 January 2007 on terms.

10. Finally, it needs to be emphasised, especially to the applicant, I have not determined the issues and/or orders that will be made in the event of him filing his application for orders pursuant to s79A(1)(a).

11. That determination and consequential orders will be solely a matter for the Judge who conducts the potential trial.

12. In addition to the Orders made 3 April 2007 I further order:

    (a)       That the proceedings be removed from the Active Pending Cases List.

I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Dated:  4 April 2007
(amended 5 April 2007)
(further amended 16 April 2007)

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as KINGSTON & JAYDEN