L and L

[2009] FCWA 126

[2009] FCWA 126

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	L and L [2009] FCWA 126
CORAM	:	CRISFORD J
HEARD	:	28 AUGUST 2009 & 2 SEPTEMBER 2009
DELIVERED	:	23 SEPTEMBER 2009
FILE NO/S	:	PTW 5071 of 2002
BETWEEN	:	L Applicant/Wife
AND
L Respondent/Husband
Catchwords:

Property settlement - application to set aside consent orders pursuant to s79A - duress - domestic violence - whether miscarriage of justice

Legislation:

Family Law Act 1975 - s 79A

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr N Marsh
Respondent	:	Mr D Childs

[2009] FCWA 126

Solicitors:

Applicant	:	Julienne Penny & Associates
Respondent	:	Joyce Teh & Associates

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

Barker v Barker (2007) Fam LR 650
Bigg v Suzi (1998) FLC 92-799
Clifton and Stuart (1991) FLC 92-194
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Holland & Holland (1982) FLC 91-243
Kowalski & Kowalski (1993) FLC 92-342
SH & DH (2003) FLC 93-164
Suiker and Suiker (1993) FLC 92-436

[2009] FCWA 126

1 [Mrs L] and [Mr L] settled issues relating to the division of their property by

filing an application for consent orders on 16 August 2002. The orders were approved in chambers on 26 September 2002. The only asset of any significance was the former matrimonial home. At the time the parties agreed its value at $120,000. It was subject to a mortgage of $50,000. Taking into account a motor vehicle and some furniture, the total net property of the parties was approximately $90,000.

2 By the consent orders [Mrs L] agreed to transfer all the assets to [Mr L].

3 The personal circumstances of the parties at the time of the consent orders were

quite unfortunate. [Mrs L] had been charged with the wilful murder of [Mr L]’s girlfriend and was on remand in Bandyup Prison. [Mr L] was caring for the two children of the relationship in the home. It was in this context the consent orders were negotiated and signed.

4 [Mrs L] now seeks to set aside the orders made in 2002 pursuant to s 79A of the

Family Law Act 1975. S 79A is a remedial section designed to overcome miscarriages of justice and it should be construed liberally so as to achieve the intended purpose.

5 Section 79A(1) provides as follows:

Where, on application by a person affected by an order made by a court under s 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 appropriate, make another order under s 79 in substitution of the order so set aside.

6 Despite a liberal construction the section should not be used to override the well

known and basic principle that “there can only be one property settlement between the parties to a marriage” (Kowalski & Kowalski (1993) FLC 92-342). The authorities are clear that the importance of bringing an end to litigation is a significant consideration.

7 The authorities set out that the notion of a miscarriage of justice concerns the

integrity of the judicial process. Any miscarriage must arise out of that process (Clifton and Stuart (1991) FLC 92-194, Bigg v Suzi (1998) FLC 92-799). In Suiker and Suiker (1993) FLC 92-436 at 80,472 the Full Court observed that the expression “judicial process” can refer to a variety of matters and circumstances which had an influence on the outcome of the litigation.

8 It is also well established that a miscarriage of justice can only occur by reason

of a fact or event which occurs before or at the time of the making of the order which is sought to be set aside (Bigg v Suzi (supra), Barker v Barker (2007) Fam LR 650). It does not apply to circumstances occurring afterwards.

[2009] FCWA 126

9 Thus to succeed in a s 79A application an applicant in [Mrs L]’s position must

show that something which occurred prior to or at the time the orders were made
resulted in the exercise of judicial power miscarrying.

10 [Mrs L]’s position is as follows:

• There has been a miscarriage of justice because at the time of signing the consent orders she was acting under duress. The duress arises from the nature of the relationship she had with [Mr L], the hallmarks of which were controlling behaviour and domestic violence.

• Her unfortunate personal circumstances at the time of signing the orders were such that the Court should take them into account as “any other circumstance”. She says she was filled with fear and guilt and [Mr L] took advantage of this.

• The Court should exercise its discretion to set aside or vary the orders given she currently owes in excess of $200,000 being the result of a successful criminal injuries compensation award made against her.

Brief background facts

11 [Mr L] was born [in] December 1961 and [Mrs L] [in] February 1968. They

commenced living together in September 1985 when [Mrs L] was 17 years of age and
[Mr L] 23 years of age.

12 The parties married [in] December 1986 and their daughter, [E] was born [in] August 1987. Their second child, [S], was born [in] January 1993.

13 The parties purchased a property [in the suburbs] in 1999.

14 The parties separated in March or April 2001 when [Mrs L] left the home with [E]. [S] remained living there with [Mr L].

15 [Mr L] says that in November of that year he attempted to prepare an application

for consent orders. This was never completed or filed due to difficulties he had with
the court procedures.

16 On 23 February 2002 [Mrs L] killed [Mr L]’s girlfriend. She was remanded in

custody at Bandyup Women’s Prison. She was charged with wilful murder and found guilty of murder in June 2003. She was sentenced to life imprisonment with the need to serve a minimum of eight years before being eligible for parole.

17 [Mr L] filed an application for consent orders on 16 August 2002. On 22 August

2002 a Registrar of the Family Court wrote to [Mrs L] about the proposed orders. [Mrs L] replied to the Court on 6 September 2002 and the orders were pronounced on 26 September 2002.

18 In November 2002 [Mrs L] commenced a therapeutic counselling relationship with [a clinical supervisor] (psychologist) at Bandyup Women’s Prison. into [Mr L]’s name.

19 [Mrs L] deposes to becoming aware in 2006 the house had not been transferred

[2009] FCWA 126

20 On 26 May 2008 [Mr L] filed an application in a case seeking enforcement of

the consent orders to have the former matrimonial home transferred to his name solely. [Mrs L] responded, firstly on 14 July 2008, and then by an amended response filed 22 July 2008 seeking to vary or set aside the consent orders pursuant to s 79A.

Brief observations of the parties

21 It was clear from the manner in which both parties gave their evidence that the

Court ordeal was extremely painful for them. I do not doubt that both tried to give an honest account of their relationship and the tragic events of 23 February 2002. [Mr L] said he did not want to recall those events and has actively tried to block them out. There is little to be gained by traversing that particular incident in the context of this judgment.

22 I found [Mrs L]’s affidavit material to be far more florid about the parties’ relationship and [Mr L]’s shortcomings than her evidence at trial.

23 What cannot be overlooked is the history of heavy drinking of both parties

during the marriage and the excessive drug taking by [Mrs L] after separation. Both have suffered from depression and [Mrs L], at least, has had some personality issues as a result of the drug abuse.

24 Although I consider both parties did the best they could to give reliable and

credible evidence, I find the issue of substance abuse, including alcohol, is likely to have impacted on both behaviour and recall. It is necessary to carefully consider any independent evidence presented to the Court.

25 There are some disparities in the evidence which will be dealt with specifically

in the course of the judgment. Suffice it to say here, I generally accepted [Mr L]’s
evidence as more accurate and reliable than that of [Mrs L].

Evidence relied upon

26 It is useful to consider some of the background to the relationship between the

parties in order to understand how the signing of the consent orders arose. In support of her argument she signed the consent orders under duress, [Mrs L] deposes variously:

“10	The Respondent has always had control of all monies in our relationship; I was only allowed enough money to pay the bills and to buy the food. If I needed extra money, I had to borrow if from him.
11	The Respondent did not allow me to get a job. I was offered lots of work but always declined the offers.
12	My relationship with the Respondent was horrific; full of physical and emotional abuse. I was beaten and stabbed many times and

[2009] FCWA 126

have lost count of the number of times I was raped during our
marriage.

14 When the Respondent found out I was pregnant with our second child he wanted me to have an abortion but I refused. He made me sign a contract that stipulated particular sexual favours and acts which I was to do to please him.

15 The Respondent physically and mentally abused me throughout the whole pregnancy because I refused to do what he wanted.

60 Due to the violent nature of the relationship I had with the respondent I feared for my safety both before, during and after my time spent in prison if I did not do as the respondent asked in signing the orders.” [sic]

27 [Mr L] denies that he was physically violent or abusive towards [Mrs L] during

the relationship. He denies he sexually abused her as she alleges. He accepts the relationship was volatile from time to time, but denies the physical abuse [Mrs L] indicates was the hallmark of their relationship. He denies any controlling behaviour.

28 It is common ground that these parties commenced a relationship when [Mrs L]

was very young. She was 17 years of age. During the relationship both parties were, in the main, reliant upon government benefits to live. Both stayed at home and it appears they lived modestly. [Mr L] explained that most of their money went into one account in his name. [Mrs L] would obtain a withdrawal slip and he would sign it. He said he trusted her to take out what was needed for food and bills. There was not much money for [Mrs L] to fritter away or for [Mr L] to be controlling of.

29 [Mr L] deposes that [Mrs L] was a stay-at-home mother. In the last 12 months

of the relationship [Mrs L] started working outside the home. Initially she worked part-time at a college in which her parents were working as supervisors. After this she worked as a kitchen hand at a Mexican restaurant. She came home late and [Mr L] cared for the children whilst she was at work.

30 The parties had separated on a number of occasions prior to March 2001 with

[Mrs L] always being the party to leave. When she finally left in March 2001, [Mr L] had not wanted the relationship to end. Despite this, he says he helped her get accommodation in [the suburb] and it appears he assisted her in moving some of the furniture from the home into her new accommodation. [Mr L] deposes that initially after separation the parties were on good terms.

31 After the parties separated it seems that each of them either re-partnered or had a

relationship. [Mr L] said [Mrs L] would return occasionally to the former matrimonial home to see [S]. At times she would stay with [Mr L] in the home for a few days. On these occasions drink was taken.

32 [Mrs L] deposes that it was difficult for her to pick up [S] for visits as [Mr L]

would verbally and physically attack her. She recounts an occasion when [Mr L]
lunged at her with a huge kitchen knife.

[2009] FCWA 126

33 On the day of the murder both parties were drinking heavily and [Mrs L] had

been taking amphetamines and other illicit drugs. An argument arose, according to [Mr L] about some unpleasant remarks [Mrs L] made about his girlfriend, [K]. At some stage there was a fight between [Mrs L] and [K] during which [K] was stabbed.

34 [Mrs L] deposes that on the day of the murder she was arrested and referred to

Graylands Hospital. She was diagnosed with polysubstance abuse and Cluster B Personality traits as a result of her heavy drug taking following the parties’ separation.

35 She deposes, not surprisingly, to being depressed and guilty throughout the

course of 2002 culminating in a suicide attempt in October 2002. She was again
admitted to Graylands Hospital.

36 [Mr L] also says that he had difficulty throughout 2002. After the incident in

February he was caring for the two children. There were some repercussions from [K]’s family resulting in him having to obtain a Violence Restraining Order against her mother. [S] was tormented at school and [Mr L] says the family was generally hounded by other [suburban] residents. He suffered panic attacks, depression and anxiety. After a referral from Graylands Hospital in October 2002 he was admitted to Royal Perth Hospital for treatment. Coincidentally, [Mrs L] was in Graylands Hospital at the same time. [Mr L] remained in Royal Perth Hospital for a week.

37 [Mrs L] says she did not report incidences of being beaten, raped or stabbed by

[Mr L] to the police. She said she feared further harm or that he would kill her. She says she was not checked into hospital when she suffered injuries as a result of his violence towards her.

38 [Mr L] agreed he has a criminal record which includes convictions for violent

behaviour. He has been the subject of Violence Restraining Orders. He has
convictions for possessing firearms and explosives. He has a drink driving offence.

39 [Mr L] says he visited [Mrs L] in Graylands and in Bandyup after the incident in

February. He says she was initially remorseful and sought his support. He said he felt somewhat responsible for what had happened to his girlfriend. Initially he visited [Mrs L] almost every day, but this reduced to two to three times a week. He also took the children to see her at least once a week. He provided her with manchester and clothing. He provided her with funds for cigarettes and toiletries. His mother also assisted by visiting and providing clothing.

40 [Mr L] says that after a while [Mrs L]’s remorse changed to anger as she settled

into life in prison. He said he stopped visiting when he found out she had a boyfriend.
He continued to facilitate visits by the children.

41 [Mrs L] says that [Mr L] visited her every day before she was sentenced and he continued to try to control and manipulate her while she was in gaol.

42 [Mr L]’s mother, [J] gave evidence. She said she had loved [Mrs L] as a

daughter and she observed [Mr L] and her to have a close and loving relationship. [J]
stayed within their household regularly for periods of months at a time.

[2009] FCWA 126

43 She denies ever witnessing anything that suggested [Mrs L] was subject to any

physical or emotional abuse by [Mr L]. She saw no bruises, wounds or injuries on [Mrs L] consistent with her allegations. She says she did not recall even having heard her son raise his voice to [Mrs L]. [Mrs L] never complained to her about violence or mistreatment. She says that [Mrs L] presented as a different person after the separation.

44 [J] was not aware of the full extent of the violence in [Mr L]’s criminal record.

45 [Mr L]’s daughter from a previous relationship, [A], swore an affidavit. She was

not required for cross-examination. She did not recall any instances of physical violence between her father and stepmother. She recalled verbal arguments from time to time. These only went as far as an angry exchange of words. She saw no physical evidence of [Mrs L] having been abused, beaten or stabbed. She recalls one occasion on which [Mrs L] was bruised and says both [Mr L] and [Mrs L] proffered an innocent explanation which she accepted.

46 [Mr E], [Mrs L]’s treating psychologist, swore an affidavit upon which her

counsel sought to rely. [Mr L]’s counsel opposed this on the basis it purported to be an expert’s report without there having been any compliance with the Rules of the Court. [Mr E], to his credit, made it quite clear that he had no intention of providing the Court with an expert opinion. He said he was [Mrs L]’s counsellor and was there to assist her. He holds a Bachelor’s and Master’s Degree in Psychology. He is a registered psychologist working in the prison Counselling Service at Bandyup Women’s Prison where he is the clinical supervisor.

47 Although he deposes to commencing counselling with [Mrs L] on 29 November

2003 the content of his affidavit makes it plain that his counselling commenced in about November 2002 in the context of her release from Graylands Hospital after the suicide attempt in October 2002. He accepted she had previously been diagnosed with a borderline personality disorder.

48 He deposes to [Mrs L] displaying a strong inclination to submit to the will and

needs of others “as she did with [Mr L]” often experiencing being controlled as care and kindness on the part of others. He considered this mirrored her relationship with [Mr L]. He also said that [Mr L] visited [Mrs L] daily during her period of initial arrest and for the early years of her imprisonment, continuing during that period to exert influence over her. He says the ongoing relationship she had with [Mr L] was unhealthy and disempowering.

49 I take into account the fact that [Mr E] relied solely on what he had been told by

[Mrs L]. The reports of treating health professionals at the time were also based on
her reporting alone.

50 [Mrs L] had a senior legal practitioner, [Mr M], giving her legal advice and

representation, at least in relation to the criminal charges. She deposes that [Mr M] asked her whether she wanted to lodge a Caveat over the [suburban] property to protect her interest in it. She said she did not want to. She did not want to aggravate [Mr L] and she thought it might affect the children’s rights to the property if she was

[2009] FCWA 126

to die. She says she told [Mr L] of her lawyer’s suggestion and thereafter he started
talking about having the house signed over into his name.

51 On the other hand, [Mr L] deposes that [Mrs L] told him in around July or

August 2002 that her lawyer had wanted to put a Caveat on the [suburban] property to secure legal fees of $50,000. He said he was not keen on this although in the end it was unnecessary as [Mrs L] received a grant of aid from the Legal Aid Commission.

52 He says further:

“111. I began to feel insecure about the property remaining in joint names
and decided it best to finalise all financial matters with [Mrs L].”

53 [Mr L] then prepared the appropriate court form. It was signed by [Mrs L] on

19 June 2002 and by [Mr L] on 26 June 2002. Initially the document was rejected due to the wrong legal wording being inserted. The orders were duly amended and both parties resigned the document, [Mrs L] on 9 August 2002 and [Mr L] on 16 August 2002.

54 The document was filed on 16 August 2002.

55 A Registrar of the Court wrote to [Mrs L] on 22 August 2002. The

correspondence went to the [suburban] property. The Court sought clarification from [Mrs L] as to whether or not she had taken independent legal advice and whether she fully understood the nature of the orders being sought. The Registrar noted that all the parties’ assets were to be transferred to [Mr L] and he wanted to understand why this was appropriate.

56 On 6 September 2002 a letter both typed and signed by [Mrs L] at Bandyup was

sent to the Registrar. She said she fully understood and was aware of what the consent orders meant. She said she had thought about her decision properly and as [Mr L] had made all the repayments in the preceding 18 months and was the primary caregiver of the two children, she thought the orders appropriate. She said she had not taken her own independent legal advice. She said she thought the outcome was fair. The orders were then made. [Mrs L] told the Court that [Mr L] had told her what to write in the letter.

Approach to be taken

57 When determining an application under s 79A(1)(a) the Court must engage in a four stage process. The four stages are:

• Whether a ground, such as duress, under the section is established;

• Whether the existence of that ground amounts to a miscarriage of justice;

• Whether the Court in its discretion should vary or set aside the order; and

• Whether the Court should make another order under s 79.

[2009] FCWA 126

58 Even if a ground is established under the section, the Court can refuse to

exercise its discretion to set the orders aside. The Court must be satisfied that there
has been a miscarriage of justice to justify setting aside or varying the consent orders.

Discussion

59 I will now turn to the first stage of the exercise as it applies in this case.

• Duress

60 [Mrs L] relies upon duress which is a specific category under s 79A(1)(a) for

which an order can be set aside provided the duress resulted in a miscarriage of justice.

61 Federal Magistrate Ryan (as she then was) reviewed the authorities in SH & DH (2003) FLC 93-164. The Federal Magistrate referred to McHugh JA’s formulation of duress in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at pp 45-46 where he said:

“A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather than take an alternative course of action. The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed.”

62 The test of duress is not purely subjective but includes objective elements.

63 It has been widely recognised in the cases that some forms of pressure,

especially in the context of negotiations prior to a settlement, can be reasonable and legitimate. In this case [Mrs L] raises the issue of the effect of domestic violence upon her.

64 Violence between partners is a complex and contentious issue that often arises in

high conflict Family Court matters, especially in those involving children. In this case it has different implications. Here it involves domestic violence which loosely encompasses violence between a couple within their own family and household setting. More particularly, the term domestic violence is used most often to describe a pattern of behaviour in a relationship that is used to gain or maintain power and control over an intimate partner.

65 Domestic violence can be multifaceted – coercion and threats, intimidation,

emotional abuse, economic abuse, isolation, minimising, denying, blaming and use of children as bargaining chips to name just some aspects of it. The consequences for a victim can be far reaching, long lasting and insidious. Power and control by another can render a person helpless to act in a manner he or she determines for themselves.

[2009] FCWA 126

66 This court is acutely aware of the enormous impact that domestic violence can

have on a victim’s life. Judgment can be impaired, behaviour can be out of character
and decision making can be skewed.

67 The Court is often asked to determine issues of domestic violence on the basis of

little tangible and concrete evidence. This makes the task of a judge very difficult. Domestic violence is often hidden, without any public face and with a lack of credible witnesses.

68 I am asked to determine certain aspects of domestic violence in the context of

[Mrs L]’s reliance upon duress. In order to firstly understand whether there was domestic violence, it is necessary to draw on a number of divergent sources to determine the existence of domestic violence but also, if it has been found to exist, the extent and effect of it on [Mrs L].

69 Although [Mrs L] deposes to a general atmosphere of severe domestic violence

there is little concrete detail provided. She does cite one or two instances but there is little description and content to the allegations. An example is that [Mrs L] deposes to being at her sister’s house “on one occasion”, apparently in January 2002, to pick up [S]. [S] was not there and she rang [Mr L] to find out what was happening. She said he abused her, but 10 minutes later arrived at the front door and lunged at her with a huge kitchen knife. Her brother-in-law came to her assistance. [Mr L] denies this. He says he dropped [S] to [Mrs L] but did not even get out of the car. She abused him claiming he was late. There is simply no confirmation by any third party of what really transpired.

70 I found [Mrs L]’s evidence to be contradictory and there were marked

differences between her affidavit material and her oral evidence. I refer particularly to
the following:

•  Despite [Mrs L]’s allegations of not being allowed to obtain paid employment because of [Mr L]’s controlling nature, she did start paid work outside the home some 12 months before she finally left him. [Mr L] cared for the children while she was at work. There was no evidence to suggest he prevented her obtaining or continuing this work.

•  [Mrs L] left [Mr L] of her own accord. I find that [Mr L] was of assistance to her in the moving process. At least for a period thereafter it is common ground the parties had an amicable relationship.

•  Both parties established other relationships but despite this continued, occasionally, to spend time with each other.

•  It was clear from [Mrs L]’s evidence, lead in chief, that she was well able to see [S] after separation. She was able to come to the home and visit, and take him away for the day or weekends. She would sometimes stay with [Mr L] in the home to facilitate a visit.

•  The parties were separated 12 months before the February 2002 incident where [Mrs L] killed [Mr L]’s girlfriend. [Mr L] was present at the time but [Mrs L]’s ire was direct at [K].

[2009] FCWA 126

71 I have considered the evidence of the other witnesses. Although I accept the

family witnesses are closely aligned to [Mr L], [A] was not required for cross- examination and [Mrs L senior] gave credible and believable evidence. I do, however, accept that she may not have known all that went on in the household. She was not aware of the full extent of her son’s criminal record. That may be as consistent with embarrassment at his own behaviour as it is with being violent to [Mrs L].

72 The evidence of [Mr E] is based solely on [Mrs L]’s own reporting. His

therapeutic relationship with her commenced a few months after the consent orders
were signed.

73 There is some evidence about [Mrs L]’s psychological profile at the time of her

arrest. When she was discharged from the Frankland Centre in March 2002 it was with a diagnosis of mental and behavioural disorder due to polysubstance abuse and impulsive personality traits. It offers the Court little insight into the dynamics between these parties during the course of their marriage.

74 Coupled with the above I am aware there is no objective verification of [Mrs L]’s complaints from police or medical records.

75 I find it likely the issue of the transfer of the house arose in the context of

[Mr M] wanting to secure his own legal fees by lodging a caveat over [Mrs L]’s interest in the property rather than her account of [Mr M] suggesting the use of a caveat to secure her own interest. Even if this is the case she did not proceed to take this step.

76 In these circumstances I do not see [Mr L]’s disquiet as being misplaced or unusual given he had to care for and house both himself and the children.

77 I accept that [Mr L] undertook all the work associated with the application for

consent orders. I accept they were presented to [Mrs L] and her attitude was “fair enough” as suggested by [Mr L]. I take into account she typed and signed the documents in Bandyup some five months after her initial incarceration. Even if [Mr L] told her what to write to the Registrar I find [Mrs L] was satisfied with the wording. There was a lapse of two months before the orders were resigned. There is no evidence at all of any robust negotiation, overt compulsion or threats. I am satisfied there was a true consent, freely given.

78 I accept there may have been some violence between these parties. There is,

however, a paucity of objective, reliable evidence. The evidence lends itself to the possibility of some situational violence in the context of drinking or drug taking. I am not, however, persuaded of its extent or its continuing influence over [Mrs L] after separation. There is little evidence of any nexus between the allegations of domestic violence and the actual signing and resigning of the orders whilst she was incarcerated.

• any other circumstance

79 I have not failed to consider or appreciate the anguish and guilt [Mrs L] felt at

the time the orders were signed. I accept both [Mr L] and [Mrs L] were in a fragile mental state. [Mr L] had an overwhelming responsibility for the home and both children thrust upon him by the events of February 2002. [Mrs L] had to face an

[2009] FCWA 126

accusation of wilful murder in court and suffered the weight of knowing she had taken a person’s life. Despite this I consider they both wanted to ensure the children were properly cared for into the future and that [Mr L]’s post-separation and ongoing financial contributions were acknowledged.

80 Although it is accepted the words “or any other circumstance” must be given a

wide meaning they are limited by the phrase “miscarriage of justice”. It is justice
according to law.

• Miscarriage of justice

81 It is not sufficient to simply establish that duress or any other circumstance exists; a miscarriage of justice must have resulted.

82 A miscarriage of justice results when there has been a failure to attain justice. It

covers any situation “which sufficiently indicates that the decree or order was obtained contrary to the justice of the case” (Holland & Holland (1982) FLC 91-243). The term is not just restricted to vitiating elements in procedure followed in the Court.

83 It will be apparent from what I have set out that I do not find there was any error in the completion of the court forms or the procedure adopted in making the orders.

84 If the end result of orders is that a just and equitable distribution of property has

been achieved notwithstanding defects in the process, it is highly unlikely any final
order will be interfered with.

85 The consent orders were completed showing the parties’ contribution to the

property as equal. Taking into account the length of the marriage and the fact that
neither worked this does not seem to be untoward.

86 I have been told of a gift or loan made by [Mrs L]’s parents to the acquisition of

their home. [Mrs L] says it was given to her as a loan and the parties agreed to repay it. [Mr L] says it was a gift and repayment was not required. In the absence of any independent evidence in this regard I intend to treat it as a contribution made by [Mrs L]. However, this was early in the relationship and must be balanced with post- separation contributions. After separation [Mr L] was solely responsible for mortgage payments, upkeep on the home and the sole care of [S]. His post-separation contributions, in my view, are likely to have made inroads into the impact of [Mrs L]’s gift from her parents early in the relationship.

87 After the incident of February 2002 [Mr L] was, with some family assistance,

solely responsible for the children. Given the circumstances of the parties’ separation and their mother’s incarceration both children suffered greatly. It is of note that [S] still largely lives at home with his father and [E] returns there from time to time when she needs assistance. [Mr L] has been solely responsible for the mortgage and other outgoings on the property. He has undertaken considerable renovations which has involved increasing the mortgage.

88 The conclusion I reach from the above analysis is that there was no duress or

other circumstance at the time of signing the orders. Even if I am wrong in that, there has been no miscarriage of justice arising out of the process. Again, if I am wrong,

[2009] FCWA 126

this is not a case where I would be minded to exercise any discretion to set aside or vary the orders given they were a fair and reasonable reflection of not only the parties’ contributions at the time the orders were made, but took into account the then primarily prospective factors.

89 I am not satisfied the issue of a criminal injuries compensation award against [Mrs L] being enforced changes anything given my earlier findings.

90 On this basis [Mrs L]’s application will be dismissed.

Orders

1 The wife’s application pursuant to s 79A(1) of the Family Law Act 1975 be dismissed.

2 The wife within fourteen (14) days execute a transfer in registrable form of her right title and interest in the property situate at and known as [the address of the former matrimonial home].

3 In the event that the wife neglects or refuses to sign the transfer referred to in paragraph 2 hereof, the Principal Registrar of the Family Court of Western Australia be empowered to and forthwith execute a transfer of the wife’s interest in the property situate at and known as [the address of the former matrimonial home] and being more particularly described as Lot xxxx on Diagram xxxxand being the whole of the land comprised in Certificate of Title Volume xxxxx Folio xxx, to the husband.

I certify that the preceding [90] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate