Kitt and Kitt
[2017] FCCA 1996
•28 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KITT & KITT | [2017] FCCA 1996 |
| Catchwords: FAMILY LAW – Property – application under s.79A of Family Law Act1975, to set aside consent property adjustment orders made at a Conciliation Conference – wife’s failure to disclose redundancy payment received prior to the Conciliation Conference – orders set aside. |
| Legislation: Family Law Act 1975, s.79A |
| Cases cited: Lane & Lane [2016] FamCAFC 53 Waterman & Waterman [2017] FamCAFC 23 |
| Applicant: | MR KITT |
| Respondent: | MS KITT |
| File Number: | PAC 5759 of 2014 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 10 February 2017 |
| Date of Last Submission: | 28 August 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 28 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar |
| Solicitors for the Applicant: | Sohan Singh & Associates |
| Counsel for the Respondent: | Ms Beck |
| Solicitors for the Respondent: | Stojanovic Solicitors |
ORDERS
The consent orders made on 4 November 2015 in the Family Court of Australia are set aside.
IT IS NOTED that publication of this judgment under the pseudonym Kitt & Kitt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5759 of 2014
| MR KITT |
Applicant
And
| MS KITT |
Respondent
REASONS FOR JUDGMENT
Introduction and context
The husband seeks to set aside the consent orders made on 4 November 2015 in the Family Court of Australia at Parramatta, pursuant to s79A(1)(a) of the Family Law Act1975, Cth (“the Act”). The wife opposes such application.
The consent orders were entered into at a Conciliation Conference. (The court notes that at the s79A hearing, the husband only sought to set aside consent orders 3 and 6 of the above consent orders. However, at the mention of the proceedings on 28 August 2017 he contended, through his counsel, that if the court proposed to exercise its discretion under s79A to set aside any of the above consent orders, then all of those consent orders should be set aside. The wife also adopted this position, as an alternative position.)
Order 3 of the consent orders of 4 November 2015 provided that the husband pay to the wife the sum of $270,000.
Order 6 provided a mechanism for the wife to be paid the said sum of $270,000 in the event that the husband was unable to pay her this sum within three months of the date of the consent orders.
The Court notes that the balance of the consent orders of 4 November 2015, inter alia, provided that the husband:
i)transfer to the wife his interest in the former matrimonial home at Property B, and that he discharge any liability in relation to that property;
ii)the wife to transfer to the husband her interest in three separate pieces of real estate, her interest in the parties’ partnership business, and her interest in the family company operating a (omitted) business, with the husband to discharge and refinance into his own name all liabilities in relation to those interests and provide an indemnity to the wife; and
iii)each party be declared the sole owner of all debts, property and financial resources presently in their respective names.
In relation to the husband’s s79A application that all consent orders be set aside, the husband’s first contention was that the wife, prior to the Conciliation Conference, had failed to provide full and frank financial disclosure. He contended that the wife had failed to disclose redundancy related payments that she had received from her former employer on 22 September 2015 in the sum of about $104,224 (the redundancy payment).
Further, in relation to contended non-disclosure by the wife, the husband contended that the wife had failed to disclose compensation payments received by her from (omitted) NSW WorkCover on 29 January 2015 in the sum of about $22,528 (some $8,858 of this sum being lost wages for a period in 2014 during the latter stages of the parties’ relationship, and the balance of some $13,670 being repayment of medical expenses to the wife).
The husband’s second contention was that there occurred significant double counting in the balance sheet, relied on by the parties at the Conciliation Conference, and that such double counting constituted a common mistake by both parties at such conference, and to which s79A provided relief.
On 26 November 2015, shortly after the Conciliation Conference, the solicitors for the husband wrote to the wife’s solicitors stating, inter alia, that they had just discovered that the wife
“….has hidden her asset and has not disclosed the redundancy termination payment…We believe that there has been a miscarriage of justice by reason of.….suppression of evidence (including failure to disclose relevant information). We attach a copy of the redundancy communications sent to all employees and your client did not disclose as required under the Act and it is significant and the settlement is unjust. Prior to us making an application pursuant to section 79A we await your response.”
On 11 January 2016, the husband filed an Initiating Application seeking orders that the consent order of 4 November 2015 be stayed, and that the consent order be set aside. An Amended Initiating Application was filed on 22 June 2016 clarifying that certain consent orders sought to be set aside. By the mention of the proceedings on 28 August 2017, again, the husband sought an order that all of the consent orders be set aside.
The parties had married on (omitted) 1993, and had separated on about 23 July 2014. There was a daughter of the relationship born on (omitted) 1997.
The Family Court of Australia proceedings were transferred to this Court on 10 May 2016.
The parties agreed that there would be no cross examination at this hearing.
Documents relied on
The applicant husband relied on:
a)Amended Initiating Application filed 22 June 2016;
b)Affidavit of husband filed 4 April 2016;
c)Affidavit of the husband filed 17 May 2016;
d)Exhibit A:
i)Financial Statement of the wife filed 1 December 2014;
ii)Financial Statement of husband filed 5 February 2015.
iii)Financial Questionnaire of wife dated 3 November 2015 and filed with the Court;
e)Exhibit B: (omitted) Enterprise Agreement 2012
The respondent wife relied on:
a)Response filed 21 July 2016; and
b)Affidavit of the wife filed 21 July 2016.
The redundancy payment of $104,224 not disclosed by the wife prior to the consent orders made at the Conciliation Conference on 4 November 2015
The parties were married on (omitted) 1993 and separated on about 23 July 2014.
After the consent orders were entered into on 4 November 2015, the husband discovered for the first time that the wife had received the redundancy payment on 22 September 2015 from her employer, (employer omitted).
It was common ground that prior to the consent orders made on 4 November 2015 at the Conciliation Conference the wife did not disclose to the husband the redundancy payment. (The wife had referred to a sum of $36,454 in the balance sheet used by the parties at the Conciliation Conference, being what the wife asserted was the balance of the redundancy payment held by her, but its source was not shown in this balance sheet).
Annexure B to the husband’s Affidavit filed 4 April 2016, being a copy of the wife’s former employer’s redundancy letter to the wife states, inter alia:
“You are entitled to the following contractual and statutory entitlements as a consequence of the termination of your employment for redundancy:
· (redaction) redundancy pay pursuant to the (omitted) Enterprise Agreement 2012;
· Accrued but untaken annual leave entitlements;
· Accrued but untaken sick leave entitlement; and
· Accrued but untaken long service leave entitlements.”
Annexure F to the husband’s Affidavit filed 17 May 2016, being a copy of the wife’s former employer’s statement addressed to the wife relating to the redundancy payment, inter alia, states that the redundancy payment included:
Annual Leave Loading 17.5% $518.42,
Termination LSL $14,736.12
Term-Redundancy $90,721.12
Termination Annual Leave-Ent $2,274.
After PAYG tax was deducted, the wife was paid the sum of $104,224.75 and it was credited to her (omitted) bank account on 22 September 2015.
In the wife’s Financial Statement filed 1 December 2014, she states, inter alia, that her current occupation is (occupation omitted), she is employed full-time, her employer is (employer omitted), and that she has been employed with them for 20 years.
In Exhibit B, the (omitted) Enterprise Agreement 2012 (this agreement is referred to in the above redundancy letter from the wife’s former employer to the wife), clause 21.4 “Redundancy Payments”, it is stated, inter alia:
“21.4.2 Severance
a) An employee whose employment is terminated by the Company due to redundancy will receive: four (4.0) week’s pay for every year of continuous service pro-rated for completed months..; and
b) in addition to the entitlements contained in subclause 22.4.2(i) above, an employee with more than 20 years service shall receive an additional $500 for every year of service, pro rated for each completed month, up to a ceiling of 25 years service, at which point no further severance payments will be made.
An employee who was completed five years or more continuous service will receive a pro rata payment of their long service leave as accrued at the applicable rate to their period of service.
..
21.4.4 Annual Leave
A loading of 17.5% will be paid on all accrued annual leave payable on termination of an employee’s employment.
In Exhibit A, the wife’s filed Financial Questionnaire dated 3 November 2015 and signed by her the day before the consent orders of 4 November 2015 made at the Conciliation Conference, the wife stated, inter alia:
Part C Other matters that may be relevant to division of property,
8. (b) Set out in dot point form what relevant section s75(2)…or other factors you rely upon so that adjustment:
Relevant section 75(2) matters..
Marriage of almost 21 years
Wife has no qualifications, aged 48 years in (omitted)
Employer closed in September 2015, wife low prospects employment
Husband, high income from business; Wife endured domestic violence
Effect of any order on earning capacity..
Wife now unemployed and not entitled to pension
Husband will continue business which pays for all his living expenses
The wife, following receipt of the redundancy payment of $104,224 on 22 September 2015, which had been deposited into her (omitted) bank account, withdrew $49,000 in October 2015 (3 separate withdrawals), and used most of that amount to pay back loans that she had received from her uncle. (The wife’s Affidavit stated that the loans from her uncle were taken out by the wife to cover medical expenses for her mother, and also to assist in meeting other bills that she had to pay). She withdrew a further amount of $55,000, also in October 2015, and deposited this amount into her (omitted) bank account. On 22 October 2015, the wife withdrew $11,000 from this (omitted) bank account to pay air-conditioning service expenses. There were further withdrawals from this bank account between 22 October 2015 and 2 November 2015, leaving a balance of $36,256 as at that latter date.
In the aforementioned balance sheet, being Annexure H to the husband’s Affidavit filed 4 April 2016, and used by the parties before the Registrar at the Conciliation Conference on 4 November 2015 (it was common ground at the hearing that this was the case), this (omitted) bank account of the wife was stated to have a net balance of $36,454 (being the balance in the account as at 30 October 2015).
Wife’s receipt of compensation payments
The husband contended that the wife had failed to disclose compensation payments received by her from (omitted) NSW WorkCover on 29 January 2015 in the sum of about $22,528, being in relation to a shoulder injury suffered by the wife at work. The sum of $8,858.45 represented lost wages, during the period of 21 February 2014 to 14 May 2014. The sum of $374.77, $6643.23, and $6653 were refunds paid to the wife for medical expenses that she paid for medical treatment in relation to her shoulder injury. These payments made to the wife were not expressly disclosed to the husband prior to 4 November 2015.
Double counting in the balance sheet used at the Conciliation Conference
On 3 November 2015, the wife’s solicitors had sent a draft balance sheet to the solicitors for the husband, being Annexure A to the wife’s Affidavit filed 21 July 2016.
By reference to the valuation report of Mr T (the valuer), dated 2 November 2015, being Annexure F to the Affidavit of the husband filed 4 April 2016, at the hearing it was contended by the husband that there occurred double counting in the balance sheet being Annexure H to the husband’s Affidavit filed 4 April 2016, at least in the following respect, in respect to 2 entries: the property at Property A, (the property), $320,000, appearing in the balance sheet under the heading “Assets, Real Estate”, and the (omitted business), $275,007, appearing in the balance sheet under the heading “Assets, Business”. The property appears to have been actually owned by that partnership and its value had been taken into account in formulation by the valuer of the partnership figure of $275,007; see paragraph 53 on page 15 of the valuer’s expert report taking into account an adjusted 2014 figure for the property of $264,238.
The husband contended that due to the above double counting, the parties at the Conciliation Conference had proceeded on an assumption that the asset pool, referred to in the balance sheet, was greater than what it actually was.
Submissions of wife
The wife’s submissions were, inter alia:
· despite not disclosing the redundancy payment, she had disclosed her asset and liabilities by the time of the Conciliation Conference as per the balance sheet;
· the husband had not shown that the alleged miscarriage of justice involved an outcome that was adverse to him;
· even if the wife had disclosed her redundancy payout, that payout was received post separation and was not property to which the husband had made any contribution;
· she used part of the payout to pay certain debts and so it was understandable that she would not disclose the redundancy payout;
· the husband had failed to show that had the wife disclosed the redundancy payout the husband would not have entered into the consent orders at the Conciliation Conference;
· any alleged double counting was not conceded;
· the husband had failed, in any event, to make out a case that the Court should exercise its discretion to set aside the orders under s79A.
Legal principles
In Lane & Lane [2016] FamCAFC 53, the Full Court of the Family Court of Australia stated at paragraph 83 that the extent of a party’s knowledge of the relevant facts or circumstances is clearly seminal to the issue both of whether there has been suppression of evidence and whether, if a miscarriage of justice has occurred, the orders should be set aside or varied.
In Waterman & Waterman [2017] FamCAFC 23, a decision of the Full Court of the Family Court of Australia, Murphy J, with whom Bryant CJ and Kent J agreed, stated, in relation to s79A(1)(a) and lack of disclosure:
31.The terms of s 79A (1)(a) make it clear that the specified ground of “suppression of evidence” includes the “failure to disclose relevant information”.
32. Importantly, the duty to disclose is a duty owed both to the other party and to the Court. The duty is to make “full and frank disclosure of all information relevant to the case in a timely manner” (emphasis added).[14] The statements made by Smithers J in Briese & Briese[15] remain, with respect, as true today as they were then:
... a person in the position of the husband in this case has a positive obligation to set out at an early stage his financial position in a clear and comprehensive manner ... The need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance.
33. Although frequently cited and quoted I consider it important to again refer to what the Full Court said in Morrison & Morrison[16]:
The constant emphasis of the cases is that in order for there to be a just and equitable and an appropriate order altering the interests of parties in their property there must be a full and frank disclosure between them of all circumstances which may be relevant to the determination of their true financial position both presently and in the foreseeable future.
34. Of considerable significance in this case, as it seems to me, the Full Court went on to say:
We take this opportunity once again to reinforce the view that the duty of disclosure is a basic duty. Ordinarily, a failure to comply with that duty will amount to a miscarriage of justice.
35. The Full Court quoted from Lord Brandon’s judgment in Livesey v Jenkins, above, which again has frequently been quoted, but again that statement should be repeated in the instant context:[17]
My Lords, once it is accepted that this principle of full and frank disclosure exists, it is obvious that it must apply not only to contested proceedings heard with full evidence adduced before the Court, but also to exchanges of information between parties and their solicitors leading to the making of consent orders without further inquiry by the Court. If that were not so, it would be impossible for a Court to have any assurance that the requirements of [the relevant section of the English Act] were complied with before it made such consent orders.
36. In my view, seeking to respectfully adapt the words of the Full Court in Morrison:[18]
... The failure of the husband to disclose the true position robbed the wife of the opportunity of [her informed consent] ... in [my view] the non-disclosure was of such magnitude that it amounted to a miscarriage of justice ...
37. Paragraph [66(a)] of his Honour’s reasons quoted above suggests to me that his Honour considered that a lack of disclosure is relevant to the s 79A ground only if, in effect, it involves “hidden assets” or involves someone (the bank is quoted by his Honour) being disclosed information or documents that the other party has not. That is not the case; a failure to disclose at the heart of a s 79A case need not involve any deliberate attempt to defraud or deceive the other party, matters which are, in any event, embraced by s79A(1)(a) grounds. (I add that there is no suggestion in this case, at least in anything I have read, that the husband has here sought to deceive or defraud the wife or was in possession of what might be described as “hidden assets”). Rather, full and frank disclosure is required in the context of orders made by consent because it is essential to the consent of the parties being a free and informed consent.[19]
38. Again, although frequently quoted, it seems to me that what the Full Court said in Suiker and Suiker bears repeating in light of the arguments in this case:[20]
Under the Family Law Act 1975, the need for a resolution of disputes by negotiation and the consequent making of consent orders ... is an essential part of the legislation and the rules ... In our opinion, the necessity for full and frank disclosure of financial matters to the Court and to the other party are basic to the process of the Court and the fundamental aims of the financial legislation contained in section 79 of the Family Law Act 1975...
39. Their Honours then cited a passage from the judgment of Dawson J in Harris & Caladine before going on to say:[21]
It is implicit in these passages that the consent to an order must be informed consent. The consent to the order is itself part of the judicial process on which the Court places reliance. If that consent is based on misleading or inadequate information, then there may be, in our opinion, a miscarriage of justice, either by reason of the “suppression of evidence” or by reason of “any other circumstance”.
(Emphasis added)
40.That has led to the Full Court, in the context of this s 79A ground, referring to the failure to disclose matters “peculiarly within [the] knowledge”[22] of that party or omissions which knowingly engendered, or permitted, a mistaken understanding on the part of the other party.[23]
41. Fundamental to a decision to agree to terms designed to bring finality to the financial relationship at the end of a marriage is knowledge of the assets, liabilities, financial resources and financial positions of the parties to which the agreed terms pertain. Hence, in Barker, above, cited by his Honour, there was no free and informed consent where a husband failed to disclose that an offer had been made to him to buy real property at a price significantly higher than the valuation upon which the parties acted in reaching consent.
42. Seen in its proper light, the opening words of his Honour’s finding at [66(a)] in fact establish a lack of disclosure; there was “no relevant evidence was placed before the Court as to the nature or extent of any assets or financial resources of the husband not disclosed to the wife prior to the terms being signed” precisely because there had been no disclosure by the husband of the nature, extent, and estimated value of any assets or financial resources. Nor, it might be observed, in a case where the orders provided that the wife was to receive half the net proceeds of sale of a mortgaged property, was there disclosure of the amount of the mortgage.
43. Here, knowledge of those matters in so far as, relevantly, they affected the husband were peculiarly within his knowledge; on his own evidence the wife knew nothing of them and they had not been discussed by the parties. Indeed, his Honour found, somewhat remarkably it might be thought, that the parties had not at all discussed the terms of settlement until the wife attended at the husband’s solicitor’s office at which time they were read to her by his solicitor for the first time. That is, on his Honour’s findings there was in fact no agreement between the parties prior to the wife’s attendance at the solicitor’s office where she was “told” what the terms of settlement were. In that respect, it should be observed that, in the orders themselves, no values (or estimates of value) are attributed to any assets, liabilities or resources dealt with by the orders.
44. We were taken by counsel for the husband to passages of the transcript appearing at pages 114 to 116. At transcript page 116, although the husband said that he thought that the wife had a copy of an agreement which he said had been reached between the parties, he conceded that he did not know how she had such a copy. I consider, by way of contrast, that the findings made by the trial judge are entirely accepting, in this respect, of evidence given by the wife which appears at paragraphs 27 through 31 of her Affidavit of evidence-in-chief.
45. As I have said, in my view, I consider the evidence pointed unequivocally to the ground of suppression of evidence through lack of disclosure having been made out.”
Discussion
In the view of the Court, the husband has established that the wife’s failure to disclose the redundancy payment of some $104,224 prior to the consent orders being made at the Conciliation Conference amounted to “a suppression of evidence (including failure to disclose relevant information)”, under section 79A(1)(a) of the Family Law Act1975 (“the Act”).
With respect to the wife’s submission in this context, it was not sufficient financial disclosure for the wife to merely disclose her assets and liabilities as at the date of the Conciliation Conference; the husband was entitled to know that she had received the redundancy payment, some 6 weeks previously, in order, inter alia, that he could assess, inter alia, the wife’s contended needs based entitlements under s75(2) of the Act.
In the view of the Court, the matters that justify a conclusion that there was a relevant miscarriage of justice, by reason of the wife’s non-disclosure of the redundancy payment, include:
· The husband had no knowledge of the redundancy payment prior to the consent orders being made by the Court. (The Court acknowledges that the wife had in fact disclosed in the balance sheet the balance remaining of the redundancy payment – the balance being a sum of $36,454 – however she had not disclosed the source of this sum, which the husband was entitled to know, particularly in view of the wife’s assertions as to her needs based entitlement under s75(2) and referred to in her Financial Questionnaire document.)
· The wife’s redundancy payment (specifically, the Term-Redundancy of some $90,721) was calculated by reference to her years of employment which overlapped the duration of the marriage. The Termination LSL (long service leave) payment of some $14,736 also likely accrued over some part of the marriage.
· The redundancy payment was of a significant magnitude by reference to the parties’ net assets. In this context, by reference to the parties’ balance sheet used at the Conciliation Conference (see Annexure H to the husband’s Affidavit filed 4 April 2016), the redundancy payment represented almost 5% of a total net asset pool of about $2,135,481, including superannuation (to arrive at this net asset pool figure, the Court has merely calculated the various figures in Annexure H, including the handwritten amendments).
· The subject consent orders were made at a Conciliation Conference held before a judicial officer of the Family Court of Australia, who was required to be satisfied under section 79(2) of the Act, that, in all circumstances, it was just and equitable to make the consent orders.
Yet, besides the husband, the judicial officer had not been informed of a relevant item of property and financial resource (see s75(2) of the Act) which the wife had received in the form of the redundancy payment, $104,224, on 22 September 2015, some 6 weeks before the consent orders were made.
This lack of financial disclosure by the wife affected the judicial process being undertaken by the judicial officer, noting that this officer proceeded to make consent orders in accordance with the parties’ agreements.
· By reference to the decision in Waterman & Waterman, above, full and frank disclosure of the redundancy payment was required by the wife “in the context of orders made by consent because it is essential to the consent of the parties being a free and informed consent”; “The consent to the order is itself part of the judicial process in which the Court places reliance.” And, “Fundamental to a decision to agree to terms designed to bring finality to the financial relationship at the end of the marriage is knowledge of the assets, liabilities, financial resources and financial positions of the parties to which the agreed terms pertain”.
In Pearce & Pearce [2016] FamCAFC 14, at paragraph 35, the Full Court of the Family Court of Australia had stated:
“In the case of consent orders, the related propositions just discussed intersect at a point where the requisite miscarriage of justice derives from a party’s consent not being a “free and informed consent”;[12] where there is a failure to disclose matters relevant to the decision to enter the consent orders that are “... peculiarly within [the] knowledge”[13] of that party or omissions which knowingly engendered, or permitted, a mistaken understanding on the part of the other party.[14]
The above references to Waterman and Pearce are sufficient to meet the wife’s submission that the husband had failed to show that he would not have entered into the consent orders had the redundancy payment been disclosed by the wife previously; the husband was entitled to have had prior knowledge of the wife’s redundancy payment so that he could give free and informed consent to the consent orders in fact made.
· As referred to in Waterman & Waterman above, ordinarily a failure to comply with the basic duty of disclosure will amount to a miscarriage of justice.
The Court notes the wife’s submission that the husband had not shown that the alleged miscarriage of justice had involved an outcome that was adverse to him.
In the above decision in Pearce & Pearce, it had been submitted to the Full Court that, at least in the circumstances of that case, it had been necessary for the trial judge to have made findings as to the orders the Court would have made under s79 of the Act. The Full Court stated, at paragraphs 33-35:
“33. We consider that senior counsel for the wife put it correctly when he submitted that the process contended for by the husband may be relevant but is not essential to the finding. The maintenance of the integrity of the judicial process through the measure of miscarriage of justice is not necessarily connected with a comparison of what the orders provide compared with what a party might have received from a Court, had consent not been given. As will be seen, we do not consider that they are connected in this case.
34. In Gebert and Gebert, this Court, in the context of a s 79A application, held that “... the law fortunately still allows persons to form their own views as to the arrangement of their affairs”.[6] More recently, the High Court has held that “[i]f both parties are competent, it can still be assumed that any necessary or desirable adjustments can be made to their property interests consensually”.[7] The well-settled proposition that “... [a]agreement to a consent order which may not adequately reflect a party’s entitlements under sec. 79 does not, of itself, show that there has been a miscarriage of justice”[8], derives from these precepts. Of course, “... [t]here 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”.[9] It has been said that “[o]ordinarily, a failure to comply with that duty will amount to a miscarriage of justice”.[10] Equally, however, “[i]t is not every failure of frank and full disclosure which would justify a Court in setting aside an order ...”.[11]
35. In the case of consent orders, the related propositions just discussed intersect at a point where the requisite miscarriage of justice derives from a party’s consent not being a “free and informed consent”;[12] where there is a failure to disclose matters relevant to the decision to enter the consent orders that are “... peculiarly within [the] knowledge”[13] of that party or omissions which knowingly engendered, or permitted, a mistaken understanding on the part of the other party.[14]
Again, this Court is of the view that the husband was entitled to have had prior knowledge of the wife’s redundancy payment so that he could give free and informed consent to the consent orders in fact made.
The Court is of the view that, as a matter of discretion, the consent orders made on 4 November 2015 should be set aside, taking into account:
a)The above considerations taken into account by the Court on the miscarriage of justice issue in respect to the redundancy payment;
b)Had the redundancy payment been disclosed to the husband prior to the Conciliation Conference, it can reasonably be inferred that the husband may well have offered a cash sum significantly less than the $270,000 cash sum referred to in consent order 3.
In any event, by reason of the non-disclosure of the redundancy payment, the husband was denied an opportunity to negotiate a settlement more favourable to himself than the consent orders made.
In this context, it is not without relevance that the husband, through his solicitors, on discovering the wife’s failure to disclose the redundancy payment, promptly wrote to the wife’s solicitors asserting a miscarriage of justice by reason of, inter alia, suppression of evidence (including failure to disclose relevant information). An Initiating Application was then filed on 11 January 2016 seeking an order that “the consent order be set aside” (later Amended Initiating Applications were filed on 7 March, 4 April and 22 June 2016);
c)As to any hardship or prejudice that the wife might incur if the Court was to set aside consent orders 3 and 6, the wife did not make any express submission in this context.
The wife’s Financial Questionnaire document referred to her employer having closed in September 2015, with the wife alleging low employment prospects, being “now unemployed and not entitled to pension”. It is apparent from that document that the wife was residing in the former matrimonial home at Property B with her adult son and the wife was maintaining that property.
The wife’s Affidavit filed 21 July 2016 states in paragraph 24 that since the date of the consent orders “my circumstances have not changed.”
The Court notes the debts that the wife paid off with part of the proceeds of the redundancy payment.
The parties’ balance sheet refers, inter alia, to the wife’s (omitted) bank account with a balance of some $36,454, and her (omitted) Mazda car stated to be worth $8,500.
The Court does not view the wife’s above circumstances as justifying a conclusion that she would likely suffer hardship if the consent orders are set aside.
In view of the Court’s findings above, relating to the wife’s failure to disclose her redundancy payment, it is not necessary to consider the husband’s contentions in relation to non-disclosure of the compensation payments, or the double counting contention.
The parties have agreed on 28 August 2017 for certain directions to be made by the court in the event that the court exercises its discretion under s79A of the Act, such as a further conciliation conference.
I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 28 August 2017
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Consent
-
Appeal
-
Res Judicata
0
3
2