Lane and Lane - [2013] FamCA 466

FAMILY COURT OF AUSTRALIA

LANE & LANE

[2013] FamCA 466

FAMILY LAW ─ PROPERTY SETTLEMENT ─ Application to set aside consent orders made altering the property interests of the parties ─ Whether the Court should exercise its discretion and set aside the consent orders and make other orders pursuant to s 79 ─ Where the wife submitted that there was a miscarriage of justice due to the husband’s failure to disclose relevant financial information ─ Where it was common ground that the application for consent orders submitted by the parties substantially understated their financial circumstances ─ Where the wife did not say anywhere that she agreed to the consent orders because of the representations made by the husband about his financial circumstances ─ Where the wife knew of the existence of the assets involved ─ Where given the problems with the wife’s credibility, the Court did not accept that the wife entered into the consent orders as a consequence of duress and/or suppression of evidence ─ Where the Court was not satisfied that there was a miscarriage of justice ─ Wife’s application to have consent orders for settlement of property set aside dismissed

Family Law Act 1975 (Cth) ss 79, 79A

Clifton and Stuart (1991) FLC 92-194
Elliot and Willcox (1996) FLC 92-687
Gebert and Gebert (1990) FLC 92-137
Gilbert and the Estate of Gilbert (1989) 13 Fam LR 632
Holland and Holland (1982) FLC 91-243
Hughes & Hughes [2012] FAMCA 198
Jones v Dunkel (1959) 101 CLR 298
Nelson v Nelson (1995) 184 CLR 538
Public Trustee (as executor of the estate of Gilbert) & Gilbert (1991) FLC 92-211; 14 Fam LR 573
In the Marriage of Molier and Van Wyk (1980) 7 Fam LR 18
In the Marriage of Robb (1994) 18 Fam LR 489; (1995) FLC 92–555

APPLICANT:

Ms Lane

RESPONDENT:

Mr Lane

FILE NUMBER:

MLC

8674

2010

DATE DELIVERED:

19 June 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Canberra and Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

12 -14 September 2012,
13 & 14 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D Grieve QC

Ms D Coulton

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr T Tockar

SOLICITOR FOR THE RESPONDENT:

Dobinson Davey Clifford & Simpson (at hearing)

Phelps Reid (at judgment)

Orders

The application of the wife for an order setting aside orders for settlement of property made on 4 March 2003 pursuant to section 79A is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lane & Lane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: MLC 8674 of 2010

Ms Lane

Applicant

And

Mr Lane

Respondent

REASONS FOR JUDGMENT

Ms Lane and Mr Lane were married for 31 years. The parties cannot agree about whether final separation was in 1989 or 2003. Orders for property settlement were made in 2003. The wife seeks that those orders be set aside in favour of different orders. Although the parties are divorced and the husband has remarried, for convenience I will refer to them as the wife and husband.

Applications

The wife seeks the following orders[1]:
i)That pursuant to s 79A(1)(a) of the Family Law Act 1975, the Minute of Consent orders dated 4 March 2003 be set aside;
ii)That the respondent cause [B] Pty Ltd as the trustee of the [BB Lane] Family Trust to sell the property known as “[Property C]” at [D Street] [Town E] near [Town NN] New South Wales within 90 days.
iii)That on settlement of the sale of “[Property C]” the husband cause [B] Pty Ltd to pay to the applicant that sum of money which represents 35% of the value of the net assets of the parties as determined by the Court.
iv)That the respondent pay the costs of and incidental to the applicant’s application.
[1] Identified during final submissions by Senior Counsel for the applicant and as set out in the “Applicant’s Submissions in Outline” dated 14 February 2013.
The husband seeks that the wife’s application be dismissed and that she pay his costs of the proceedings[2].
[2] Husband’s Response to Initiating Application filed 10 December 2012.

The Hearing

The proceedings were commenced in Melbourne, transferred by agreement to Canberra and heard in Canberra and Sydney. The final hearing was listed in Canberra for three days commencing 12 September 2012.
At 4.27pm on 14 September 2012, during the cross-examination of the husband, the hearing was adjourned for two further days in Sydney, on dates to be settled between the parties and the court. Ultimately 13 and 14 February 2013 were fixed for the conclusion of the trial which involved the completion of the husband’s case, the expert witnesses and submissions.
The proceedings were listed on 6 February 2013 at the request of the parties to deal will certain interlocutory issues, including an application for leave to adduce evidence of a handwriting expert in the husband’s case and for the issue of subpoenas. Leave was granted for the husband to rely on further evidence and albeit on conditions, leave was granted for the issue of subpoenas to the wife’s father and for his medical records
On 13 February 2013 the trial resumed. On 14 February 2013 the trial concluded and judgment was reserved.

Documents Read

The wife relied on the following documents:
Initiating Application filed 15 September 2010;
Financial Statement filed 15 September 2010;
Response to Divorce filed 20 October 2010;
Request to Respondent husband for Answers to Specific Questions;
Affidavit of Dr A sworn 17 August 2012 and filed 22 August 2012;
Financial Statement sworn 21 August 2012 and filed 22 August 2012;
Affidavit of Dr F sworn 14 August 2012 and filed 22 August 2012;
Affidavit of the wife sworn 21 August 2012 and filed 22 August 2012;
The husband relied on the following documents:
Response to Initiating Application filed 10 December 2010;
Affidavit of the husband sworn 21 August 2012 and filed 22 August 2012;
Financial Statement of the husband filed 22 August 2012;
Affidavit of Mr G affirmed 5 September 2012 and filed 7 September 2012;
Affidavit of Ms H affirmed 27 August 2012 and filed 10 September 2012.
Affidavit of Mr I sworn and filed 20 December 2012
Affidavit of Mr J affirmed and filed on 5 February 2013
The parties relied on the following evidence of single experts:
Affidavit of Mr K (valuer) sworn 21 August 2012 and filed 24 August 2012;
Affidavit of Mr L (forensic accountant) sworn 21 August 2012 and filed 22 August 2012;
Affidavit of Mr M (valuer) sworn 3 September 2012 and filed 4 September 2012.

Short History

The wife was born in 1948 and is 65 years of age. The husband was born in 1946 and is 66 years of age. The parties commenced cohabiting in 1978 or early 1979 and married in September 1980. The parties separated in December 1989. The wife claims and the husband disputes that the parties resumed their relationship and did not finally separate until 2002. The parties’ divorce became final in January 2011.

Children

There is one adult child of the marriage, namely, N who was born in August 1985. She is 27 years of age.

Background Facts

In 1970, the husband married his first wife, Ms O.
In September 1974, the husband’s daughter P was born. She is now 38 years of age.
In February 1974, the wife’s son, Q was born. He is currently 39 years of age.
In April 1976, the wife’s daughter, R was born. She is currently 37 years of age.
In 1976, the husband paid $4,200 on behalf of his parents towards the purchase of a property by his father at S Street, Suburb T for $42,000.
In 1976, the husband set up a company with his parents, known as B Pty Ltd.
In November 1976, the husband’s son U was born. He is now 36 years of age.
In January 1978, the husband obtained employment as an executive with Company V and relocated from Melbourne to Sydney to take up the position. The wife relocated with the husband to Sydney. The wife said she was employed by the husband in a clerical role. It is the wife’s evidence that the parties commenced living together in January 1978. Although he otherwise deposed in his primary affidavit, the husband contended that cohabitation commenced in early 1979.
In April 1979, the wife’s children, Q and R commenced living with the parties.
In 1979, the husband and his former wife Ms O were involved in property settlement proceedings which resulted in Ms O retaining the jointly owned property following a payment to the husband of $80,000. The husband said that a condition of that settlement was that he establish a family trust with his children as the primary beneficiaries and that the $80,000 would be paid into that trust.
In June 1979, the husband and his parents established the BB Lane Family Trust (“the Trust”) with B Pty Ltd as the corporate trustee.
In June 1980, the husband’s father died. Shortly thereafter, the husband’s employment with Company V was terminated. The husband said that he was unable to service the loans which had been put in place to assist the purchase and renovation of the property. The husband drew down an amount of approximately $35,000 from a CBFC facility and paid those funds to his mother as a partial repayment of the funds which had been advanced by the husband’s parents to the Trust.
In mid 1980, the husband and wife moved back to Melbourne. They lived in rented premises in W Street, Suburb T. Through the trust, the husband then purchased, renovated and sold properties at X Street, Suburb T and in Suburb Y.
The parties were married in September 1980.
In February 1981, the husband commenced work for a company called Company Z earning $36,000 per annum. At that time, neither the Trust nor the parties owned any real property.
In around 1982, the Trust purchased a property at AA Street, Suburb T for $160,000. The purchase was funded by way of a loan of $16,000 from the husband’s mother for the deposit and vendor finance was obtained to cover the balance of the purchase cost.
In early 1982, the husband’s mother asked him to run a business with her. The husband’s mother subsequently purchased a business called Company CC for $50,000 through DD Pty Ltd, as trustee for the EE Lane Family Trust. The husband then commenced working for Company CC with his mother.
In 1982, the wife enrolled her son, Q, at FF School and her daughter, R, at GG School. The husband said that the wife told him that her father would pay the fees.
In late 1982, the parties experienced financial distress. The husband said he discovered that the wife’s father had not been paying Q and R’s school fees as he understood would occur. The husband also said that the wife had been using the housekeeping money to pay school fees.
In December 1982, the husband confronted the wife’s father about paying the school fees and was told that there was no agreement that he would pay the fees. The wife’s father lent the parties $5,000 to pay the school fees. The husband said that those funds have been repaid.
In 1983, the wife said that the husband hit her across the face with the back of his hand. She also said an incident occurred whereby the husband threw her out of the bed and onto the floor.
In 1983, the AA Street property was sold. The husband said that there was no profit from the sale.
In late 1984, the parties purchased a block of land at HH Street, Suburb JJ for approximately $40,000. The parties subsequently borrowed $60,000 from the National Australia Bank to build a house on the block of land. The husband said the purchase was made with the assistance of his mother. The wife said the purchase was made using the proceeds from the sale of the AA Street property. It is not possible to resolve that dispute.
In about early 1985, the wife worked for Company CC on a part-time basis. During this time, the wife informed the husband that she had lost the engagement ring she had received from her former husband. She told the husband she had made a claim on her insurance policy. The husband said that after the wife had received claim money from the insurance company, she told him she had sold the ring a jewellers. It is noteworthy that the husband included this event in his evidence but does not assert that he arranged to repay the insurance company.
In around March 1985, the parties moved into the Suburb JJ property.
In August 1985, the parties’ daughter, N was born.
In April 1986, the husband said he was informed by the wife that they had been robbed and that his grandfather’s gold watch, gold coins, and $300 in cash were stolen. The husband said that an insurance claim was made and subsequently paid in relation to the alleged theft.
In around 1986, the Trust purchased a property at Town KK for approximately $52,000. A deposit in the amount of $10,000 was paid by the Trust and the balance was financed by way of a loan from the National Australia Bank.
In 1987, the husband said he found a receipt from a pawnbroker relating to the pawning of the items that the wife told him had been stolen in 1986. In relation to this incident the husband said that after obtaining legal advice he decided to take no action in relation to the fraudulent conduct.
In May 1987, the parties made an offer to purchase a farming property known as “Property C” near Town E, NSW, through the Trust.
In mid 1987, Company CC was sold for approximately $360,000. The husband said that the $90,000 loan and the $80,000 were repaid to the National Australia Bank from the sale proceeds.
In 1987, the Suburb JJ property was placed on the market and subsequently sold for $180,000. The parties received net proceeds of $113,120.
In July 1987, the property known as “Property C” was purchased by B Pty Ltd as trustee for the Trust for $499,485.
In late 1987, the Town KK property was sold for $82,000. The parties received net proceeds of $10,000.
In December 1987, the parties moved into “Property C”.
In September 1988, the husband’s aunt, Ms LL, died. Her estate was divided equally between the husband and his sister, Ms MM. The husband’s share of the estate totalled approximately $198,000. Those proceeds were received in 1990.
In 1989, the wife’s mother was diagnosed with cancer.
On 24 December 1989, the parties separated. It is the husband’s evidence that the wife said to him:
I am leaving you and moving to Melbourne. My father has offered to buy me a house with a pool and a tennis court.
The wife now contends that this was a physical separation only. In any event, the wife left the matrimonial home with her children (including N). She took with her a motor vehicle and certain furniture. The husband paid the wife $5,000. He said that the parties agreed to a final property settlement on the basis that he would pay to the wife $50,000 in addition to the $5,000 he had already paid, that the wife would retain the motor vehicle and that the husband would provide financially for N. The wife said she left the home to visit her ill mother in Melbourne but intended to return to Property C at some time in the future. The wife asserted that the husband indicated to her that the break was a positive step. She said that she hoped that the separation would be an opportunity for the parties to improve their relationship. In any event the parties did not formalise their financial settlement.
The husband said that between 1989 and 2003, the Trust made payments to the wife totalling $77,000.
In January 1990, N returned to live with the husband.
During 1990, the wife visited the farm approximately 12 times.
In around April 1990, Q returned to live with the husband at Property C. It is the wife’s case that this was in anticipation that the parties would resume cohabitation there.
The wife said that from that time until early January 1991 the parties communicated regularly about her permanent return to the farm. The wife said that ultimately, on the basis of the husband’s expressed wish that she return to the farm, she enrolled R in Town NN High School for 1991.
The husband said that in 1990 he became aware that the wife had arranged for cheques for stock sales to be forwarded directly to her, rather than applying them to reduce the Stock Mortgage.
The husband said that in November 1990 he arranged with the National Australia Bank to refinance the $90,000 overdraft facility as a home loan secured over Property C.
In January 1991, the wife stayed with the husband for a week. The wife said she returned to live at “Property C” in accordance with her understanding of the parties’ discussions during 1990. The husband said that she visited so that she could take N to swimming lessons.
On 21 January 1991, R arrived at the farm from Melbourne and told the husband that the wife had enrolled her at Town NN High School.
On 29 January 1991, the husband filed an Application Initiating Proceedings in the Family Court at Canberra in regard to the parenting arrangements for N. He also sought that the wife be restrained from entering or approaching “Property C”.
On 5 February 1991, orders were made by consent in the Family Court at Canberra providing on a final basis for N to live with the husband and to spend at least each alternate weekend with the wife. The orders also required that the wife vacate “Property C” and that she be restrained from entering the property except for the purposes of picking up or delivering N for “access”.
The wife said that after the orders were made she moved into accommodation in Town NN and then she and R lived at a property called “Property OO” outside Town NN. She said that she later lived at other properties at Town PP, Town NN and Town QQ. However, she also deposed that soon after the orders were made, the husband’s attitude to her improved and although she kept separate accommodation, she also stayed at “Property C” with R and she and the husband resumed married life. The husband said that after the orders the wife returned to Melbourne before returning to Town NN and living in various properties. The husband conceded that the parties continued to have a sexual relationship after the orders were made but insisted that they did not resume cohabitation.
In March 1991, the husband’s mother died. The husband received an inheritance of $50,000 and the loan to him of $200,000 was forgiven.
It is the husband’s evidence that late in 1991 the wife returned to live in Melbourne but came back to the Town NN area in early 1992. The wife did not directly contradict that but said that she frequented “Property C” between 1991 and 2001.
In early 1994, the husband said he discovered that the wife had been attending a hospital alleging that she had a neurological disorder. The husband said he lent the wife money to pay for her hospital visits but later discovered that she had been spending the money on clothes.
In around mid 1994, the wife was charged with three counts of stealing from Organisation RR in Town NN. The charges were found proved but the matter was dealt with under a provision of the NSW Crimes Act whereby no conviction was recorded.
On 24 April 1994, the wife told the husband that she had burnt down her house and would have to move back in with him. The husband said he allowed her to have a shower at his property and drove her back into Town NN. She then commenced living at accommodation in Town NN. The police carried out an investigation into the fire.
In around 1994, the husband said the wife accumulated a substantial credit card debt leading to her being served with an Examination Summons requiring her attendance at Town NN Local Court in May 1995.
In 1995, the husband said he lent the wife over $10,000 to pay credit card and other debts.
In 1995, the wife moved into rental premises in Town QQ. The wife commenced working 20 hours a week in the husband’s professional practice. Later in 1995 the wife commenced to work in a clerical role for one of the husband’s clients, Mr TT. She continued to do some work for the husband’s practice and he paid some of the wife’s wages. She worked for 12 to 18 months before taking up work 3 to 4 days a week with Company SS.

In June 1996, the Trust purchased a company known as UU Pty Ltd from Mr TT. The husband said the purchase price was offset against professional fees owed to the husband by Mr TT.
In January 1997, the husband was admitted to hospital following a hypertensive crisis. The husband said that while in hospital, the wife visited him and that during the visit, they had a conversation during which, among other things, he told her to obtain a copy of the financial statement for the trust. He said that she responded “I did your financials up until last year. I already have a copy.” The wife disputes that conversation. I accept the husband’s evidence on this issue.
In 1997 N won a tuition scholarship to VV School in Sydney. She commenced at VV School in 1998. The husband paid the boarding fees and met all other expenses.
The wife said that in 2000, R disclosed that she had been sexually abused by the husband.
In May 1999, during a conversation with the wife, the husband told her about the purchase by the Trust of a 10% interest in WW Pty Ltd for $40,000.
In 1999 the wife moved from Town QQ to Town XX in Victoria. At the time she had been employed with Company SS in Town QQ. She accepted a position to establish a branch of the business in Victoria for a client of the company.
In 2001 U was diagnosed with acute myeloid leukaemia.
In order to meet a number of margin calls on borrowings for share trading, in mid 2002, the husband arranged for the Trust’s loan facility with NAB to be increased to $200,000.
The wife said that in 2002, R was diagnosed with bipolar disorder. The wife said she travelled to Canberra frequently to support her and to care for her small children.
In 2002, the husband purchased a property at YY Street, Town QQ through UU Pty Ltd for $140,000. The purchase was funded by way of loan of $120,000 from the Commonwealth Bank and a deposit of $20,000 drawn from the B Pty Ltd loan facility with NAB.
In 2001 the husband raised the issue of property settlement with the wife.
In 2002, R was diagnosed with bi polar disorder. The wife travelled to Canberra on occasions to support her and her children.
In 2002, N was diagnosed with depression. The wife travelled to Sydney to support her.
In 2002, the parties re-opened their discussions about a property settlement. It is the evidence of the husband that the parties agreed that he would pay the wife $100,000 and that the wife’s loan from the trust would be forgiven.
Each of the parties deposes to the other party preparing an Application for Maintenance in late 2002. Copies of two unsigned applications, each naming the husband as the applicant and each providing for a payment of $100,000 to the wife are attached to the parties’ affidavits[3]. The documents are apparently completed in different handwriting and some of the information in the documents is different.
[3] Annexure X to the husband’s affidavit and annexure FL7 to the wife’s affidavit.
On 31 January 2003, the husband filed an Application for Consent Orders in the Family Court to give effect to a property settlement agreed to between the parties.
On 18 March 2003, consent orders were made altering the property interests of the parties pursuant to s 79 of the Family Law Act1975 (Cth) as follows:
1.The husband shall pay to the wife the sum of $100,000.00 (“the payment”) within twelve months of the signing of the orders.
2.If the husband fails to pay the wife the sum of $100,000 within 28 days then interest shall accrue on the payment at the rate of 10% per annum from the date of these orders up until payment in full.
3.Each party shall be declared as against the other the sole and beneficial owner of all bank accounts, building society accounts, shares, debentures, life insurance and the like held in their respective names at the date of these orders.
4.The husband shall retain and the wife shall relinquish any claim she may have to the goods, chattels, furniture, furnishings and effects in the possession of the husband at the date of these orders.
5.The wife shall retain and the husband shall relinquish any claim he may have to the goods, chattels, furniture, furnishings and effects in the possession of the wife at the date of these orders.
6.The husband shall be declared as against the wife the sole and beneficial owner of all superannuation benefits held in his name at the date of these orders and further the wife relinquishes any claim she may have in law or in equity to the benefits of the husband.
7.The wife shall be declared as against the husband the sole and beneficial owner of all superannuation benefits held in her name at the date of these orders and further the husband relinquishes any claim she may have in law or in equity to the benefits of the wife.
8.Upon the payment being made under order 1, the wife relinquishes any claim she may have at law or in equity to any interest she or the husband may have in the [BB Lane] Family Trust.
It is noted that by these orders the parties wish to finalise all claims each may have against the other for property settlement or spousal maintenance.
IT IS DIRECTED:
That the Minutes of Consent Orders remain on the Court file.
Since March 2003, the husband has made improvements to “Property C” at a cost of $552,147.41. He does not give evidence as to the source of the funds to make those improvements.
From 2003 to March 2009 the husband paid expenses for N totalling between $30,000 and $35,000 per annum. In particular, when she was at university he provided her with a mobile telephone at a cost of $25 per week. He paid $19,000 for a car for her and paid registration and insurance. He provided her with a monthly allowance of $2,000 from which she paid rent and he met other living expenses from time to time. In 2006, the wife commenced a relationship with her current partner, Mr ZZ.
On 15 September 2010, the wife filed an Initiating Application in the Family Court, thereby initiating these proceedings.
In January 2011, the parties’ divorce became absolute.
In March 2011, the husband married his current wife, Ms AB.
On 14 October 2011, the shares held by the Trust in WW Pty Ltd were sold for $233,000.
In December 2011, UU Pty Ltd purchased a property at AC Street, Suburb AE, Qld for $314,000.

Credit and Submissions

The Evidence of the Witnesses

The wife was a poor witness. Her memory was poor. She produced and relied on her diaries for a number of years. Strangely, she asserted that she had not brought all her diaries to court because she was only asked to bring the diaries covering the years dealt with in annexure FL4 to her affidavit. Given that statement, she could not account for the fact that she had produced some diaries for years not dealt with in the annexure. She said she could not remember whether or not she maintained diaries in some other years. For example, she had a diary for 2012 but could not recall whether she kept a diary for 2011. The schedule of contributions contained in annexure FL4 to her affidavit was said by her to be made up of the notes recorded in her diaries together with her memories. If she cannot recall whether she kept a diary in 2011, it seems unlikely that the wife can remember the detail of work done by her many years ago.
Casting doubt on her credit is the fact that much of the wife’s case makes no sense. She would have it that she and the husband resumed an amicable marital relationship from 1991 to 2003 and yet her evidence is replete with very serious complaints about his conduct during those years. Indeed, the wife’s evidence about the status of her relationship with the husband after 1989 is inherently inconsistent. The wife would have it that at various times she required emergency housing from a community organisation; was so desperately short of funds that she had to steal; believed that the husband sexually assaulted her daughter R; that N was at risk in his care; and yet albeit in separate houses, she and the husband were living as a married couple.
The wife has made many representations over the years that are inconsistent with her evidence in these proceedings as to the date of final separation and as to whether the parties were separated at various times. Indeed, the wife put the date of final separation at 24 December 1989 in the Initiating Application she filed on 15 September 2010. The wife made false representations in aid of her applications for social security benefits.
As to concessions against interest, albeit in the face of incontrovertible evidence, the wife did concede that she stole funds from Organisation RR in 1994.
During cross-examination the wife was asked about the statement in paragraph 82 of her affidavit to the effect that she was “confronted” by the involvement of Mr AD, a family friend and solicitor, in the preparation of proposed consent orders in 2002. The wife said that she did not write the affidavit. Putting the best possible light on that alarming response, I take it that the wife gave instructions for the import of the document but some of the wording was that of her lawyers. As she had earlier said in relation to the word “contemporaneously” in paragraph 62, the wife said she did not know what “confronted” meant. Then she agreed that she meant “comforted”. Unfortunately, she was then taken over the page to the following sentences and agreed that she deposed to feeling intimidated by the involvement of Mr AD. It is impossible to read the relevant passages to suggest that the wife was comforted by the involvement of Mr AD and despite her assertion. I am at a loss as to what she intended to say.
On several occasions the wife was taken by me or by learned counsel for the husband to the inconsistencies in her evidence but she was unable to offer any explanation for them. It is of considerable concern that the wife did not understand parts of her written evidence.
During her cross-examination the wife was warned that her evidence to the effect that “SAF” (stayed at farm) entries in her diaries were invariably made at the time she spent the time or immediately thereafter, was unbelievable. Many of the entries were crossed out. That could only mean that the original entry predated the event - why would the entry be made at or after the event if she did not stay at the farm? After those warnings, the wife commenced her re-examination with the necessary but belated concession that on occasions the diary entries were made in anticipation of an event and were subsequently crossed out when her plans were changed. The wife explained her previous insistence to the contrary and the other deficits in her oral evidence, by saying that she was stressed and confused. In particular she said that she was stressed by the presence of the husband in court.
Lest it be thought otherwise, the purpose of a credit finding is not to make a moral judgment about a witness or to identify a reason for the evidence of a witness being unreliable. The purpose is to assess the reliability of testimony as an aid to resolving disputed issues of fact where there is conflicting evidence or no corroboration. The wife was not a reliable witness.
During his cross-examination the husband had difficulty in limiting himself to answering the question asked. On many occasions questions had to be repeated in an effort to elicit a responsive answer. Although warned against doing so, the husband tended to turn answers into advocacy. Many of the questions in cross-examination, entirely amenable to a direct and brief answer were met with a long rambling explanation which often obscured rather than illuminated the facts. The husband is a business professional and so could be expected to know the detail of financial transactions, particularly where he was the principal. That advantage too was often lost in long speeches from the witness.
On at least two occasions the husband gave diametrically opposed answers to the same question within moments of each other. For example it was put to him that a particular provision in the balance sheet of UU Pty Ltd did not relate to beneficial loans made to his children. He agreed and then immediately thereafter gave a long rambling explanation to the opposite effect.
Albeit not on the scale of the wife’s situation, it is the husband’s case that on occasions he made representations to people, including financial institutions that differed from his testimony before the Court and that his evidence should be preferred to those representations.
The husband made some admissions against interest. He conceded that the wife worked hard on the farm until the date he identified as the date of separation. He also conceded that the wife made contributions after that time, on the occasions when she attended the farm to see N. When N herself worked on the farm, the wife also worked on the farm. The husband conceded that the wife made valuable contributions.
There was no need for the application of the Rule in Jones v Dunkel[4] in relation to the husband’s former solicitor. The husband conceded that his former solicitor, Mr AD was not called as a witness as his evidence would not assist the husband’s case. In the husband’s words, his current solicitor told him that “[Mr AD’s] evidence would be not particularly helpful”. Thus, despite considerable uncertainty about other matters, no inferences are necessary on that point.
[4] Jones v Dunkel (1959) 101 CLR 298.
Mr I is a friend and rural neighbour of the husband. He was challenged more as to the conclusions to be drawn from his evidence, rather than from the evidence itself. The fact is that he was not in a position to exclude the thrust of the wife’s evidence about attending at and working on the farm after separation. That said, Mr I was a good witness.
Mr L gave evidence as a single expert and his credit was not in question.
There were problems with the evidence of each of the parties. The thrust of the submissions on behalf of the husband is that the wife is much less reliable than him. In a somewhat inglorious comparison it is fair to say that the wife is a less credible witness than the husband. However, in each case one would prefer reliable, independent corroboration. It is not possible to prefer the evidence of one of the parties on all issues. Issues fall to be determined issue by issue.

The Submissions

The submissions made on behalf of the parties were extensive and included written and oral argument. With apologies to the reader, it is necessary to set them out in some detail.
The Case Outline prepared in the wife’s case contained the following submissions:
1.By her application filed on 15 September 2010, the wife claims an order under section 79A(1)(a) of the Family Law Act 1975 setting aside the “consent orders” made on 4 March 2003. By those orders, her entitlement to a settlement of the parties’ matrimonial property was compromised on the footing, essentially, that the husband was to pay her $100,000 within 12 months and that otherwise she would have no claim or interest in any other asset which was, or may have been, the property of the parties (within the definition in section 4 of the Act). Based on the pool of assets which the wife asserts was available from division as at this date, the wife received approximately 5% of the pool of assets. On any view it cannot be said that the settlement reflected a just and equitable outcome.
2.There is, of course, a variety of grounds upon which an application may be made under section 79A(1)(a). Perhaps the least demanding of them is a “failure to disclose relevant information”. The overriding consideration is whether or not there has been “a miscarriage of justice”. That concept is to be considered liberally: Re Gilbert 13 Fam LR 632.
3.For reasons which follow, the wife contends that the orders made on 4 March 2003 plainly resulted in a miscarriage of justice because of the husband’s failure to disclose relevant information. The effect of the documents prepared by the husband to support the approval of the consent orders was misleading to the Court and to the wife. It could not have resulted in any approval of a settlement which reflected a just and equitable outcome for the wife.
4.It is submitted that this alone is justification for the Court setting aside the orders of 4 March 2003.
5.The husband has sought to assert, as a justification for why there was non disclosure, the existence of an “agreement” between himself and the applicant-wife, to the effect (inadmissibly) expressed in paragraph 14 of his affidavit of 18 May 2011, that “the assets of the [BB Lane] Family Trust .... would not be included in any property settlement between us”. It is asserted that this is a contrived argument and without substance.
6.Even if the respondent-husband could prove the existence of any such “agreement” (which he has not), it would be of no force or effect because:
(a)     it was not made in compliance with Part VIIIA of the Act; and
(b)    otherwise it amounts to an agreement to oust the jurisdiction of the Court and, as such, as contrary to public policy: Hyman v Hyman [1929] AC 601.
7. Irrespective of the matters set out in paragraph 6 the existence or otherwise of such an agreement is irrelevant to the determination of whether the orders should be set aside. There is long standing authority (Robertson and Willis 8 Fam LR 131) to the effect that the Court cannot “take into account whatever agreement might or might not have been reached between the parties which led to the making of the consent orders”.[5] The orders must be read on their face. The orders and the supporting application for their approval as read on their face do not and cannot be said to either provide full disclosure nor a just and equitable resolution of the wife’s property entitlements.
[5] See Hughes & Hughes [2012] FAMCA 198 at [15].
8.Moreover, the fact that the wife obtained no independent advice before consenting to the orders is of obvious significance.
9.The husband has also attempted to build a case to the effect that on the “strength” of the so-called agreement he caused all, or most, of the parties’ assets to be acquired by [B] Pty Ltd as the trustee of the [BB Lane] Family Trust. The “evidence” proffered by him in support of this case is to be found in paragraphs 28ff. of his affidavit of 18 May 2011. The first of those paragraphs typifies the inadmissibility of that material. For example, in the second sentence, [the husband] has said: “I lent the Trust the $150,000 I received from my property settlement with [Ms O].” This is, at best, a conclusionary statement; there is simply no proof of the underlying (supposed) facts as to the way in which, or the basis upon which, the supposed loan was made. The following sentence “My parents lent the $90,000….” suffers the same deficiency.
10.These evidentiary objections are not taken pedantically. According to the wife’s evidence, during the course of a marriage which subsisted for more than 20 years, she made very significant contributions, both financial and non-financial, to the acquisition, conservation and improvement of the parties’ property. Not only was she a homemaker and the primary caregiver to the children of the marriage, she also worked in the [Company CC] business, on the farm “[Property C]”, in the husband’s [professional] practice (when he paid her at the trifling rate of $8 per hour) and otherwise.
11.Consistently with decisions such as Davidson 14 Fam L R 817 and Kennon v Spry 238 CLR 366, the assets of the [BB Lane] Family Trust supposedly constituted on 19 June 1979 at the husband’s instigation should, in light of the source of the funds by which those assets were “acquired” by the trustee after that date and in light of the husband’s control of that trust, be considered by the Court to be property within the purview of section 79; in other words, the husband’s essential contention (as outlined in paragraph 3 above) should be rejected.
12.It is also noteworthy that during the marriage the husband and wife purchased through the [BB Lane] Family Trust assets such as the former matrimonial home “[Property C]” and there can be no denial that contributions were made by the wife, direct and indirect, to its acquisition, conservation and improvement. On any view, the Trust assets were and are assets which ought to have been the subject of division between the parties. The husband’s attempt to construct an argument to the contrary is artificial and ought to be rejected as so.
13.It is apparent that the husband used the [BB Lane] Family Trust as a vehicle for the acquisition of property according to his whim. The artificiality of the trust is apparent when one considers its balance sheets as at 30 June 2002 and 30 June 2003. Its net assets on both dates are said to have been $812,735, which included, on the former date, $583,489 and, on the latter, $709,944 as “beneficiary loans” supposedly advanced to a number of parties. The largest of those so-called borrowers was the husband’s company, [UU] Pty Ltd to which, according to the balance sheets, $328,500 and $415,000, had been lent as at each of the two balance dates. Of course, the most significant asset of the “trust” was the farm property itself, which was brought to account at its supposed market value of $870,000. In addition, plant and equipment had been acquired at a total cost in excess of $200,000.
14.According to its balance sheet as at 30 June 2003, [UU] Pty Ltd employed the money which it had borrowed from the trustee of the [BB Lane Family] Trust, [B] Pty Ltd, and loans of $275,756 and $106,272 obtained by it from Macquarie Margin Lending and the Commonwealth Bank respectively, to acquire shares at an aggregate cost price of $445,975 and a property at [YY Street, Town QQ] for $148,569.
15. Furthermore, according to his profit and loss account for the year ended 30 June 2003, the husband derived professional fees (doubtless from his [professional] practice) totalling $234,871.
16.In the same year, the husband seemingly was also engaged in the management of [Company AF] which, with the aid of loans made to it by him, by [B] Pty Ltd and by [UU] Pty Ltd (which, as at the balance date, totalled $279,921) managed to trade at a pre-tax loss of $68,861.
17.The husband’s other entities apparently included [WW] Pty Ltd and [AG] Pty Ltd.
18.Quite plainly, the husband did not inform the wife of any of the matters referred to in paragraphs 12-16 above prior to procuring her consent to the orders made on 4 March 2003. On any view, in order for her to have consented to those orders on an “informed” basis, she was entitled to have a full account of all of the financial matters over which the husband obviously exercised control.
19.The weakness of the husband’s resistance of the wife’s present application may be appreciated by the inadequacy of the evidence which he has filed. He has made no real attempt to explain, by the adduction of admissible evidence, precisely how the various entities to which reference has been made acquired the assets which they had accumulated when the orders presently under challenge were made. It is submitted that even if at that time he had provided to the wife the “facts” contained in his affidavit of 18 May 2011, this would have been far from a sufficient disclosure to her of the information to which she was entitled.
20.It is submitted that, in light of the fact that the wife was given inadequate and misleading information concerning the parties’ financial affairs before being prevailed upon to consent to the orders of 4 March 2003, it is difficult to envisage any plainer case for the making of an order under section 79A.
21.In so far as the husband may argue that the wife’s claims are tarnished by her delay in making her application filed on 15 September 2010, it is submitted that the facts to which he has deposed in paragraphs 97-109 of her affidavit of 24 March 2011 provide an ample explanation for that delay.
22.On the assumption that the Court finds favour with the wife’s claim for relief under section 79A, it is submitted that the following matters bear upon her claim for a settlement of property under section 79:
(a)     the parties were in a relationship with one another for approximately 24 years, having commenced cohabitation in January 1978 and been married [in] September 1980 and having remained together until the separation in March 2002;
(b)    the parties have one child, [N], born [in] August 1985 but the children of their previous marriages, [P], [Q], [R] and [U], were members of the household and effectively children of the marriage for most of the time that the parties were together;
(c)     the wife was the primary caregiver to the children (see, for example, paragraphs 15, 16, 28 and 43 of her affidavit of 24 March 2011) and made a very substantial contribution throughout the marriage as such and as a homemaker;
(d)    the wife also made significant financial contributions by working and assisting in the growth of the [Company CC] business and, at the same time, at [Company AH] at nights and on weekends, and later for Dr [AJ]: see paragraphs 26, 31 and 35 of her affidavit;
(e)     the wife uncomplainingly participated in the husband’s decision to sell all of their assets in Melbourne (including the [Company CC] business) and to employ the proceeds in the acquisition of the property “[Property C]” near [Town NN] to which the family moved in 1987;
(f)     thereafter the wife worked hard on the farm while continuing to look after the children; she also got a job as a sales assistant at [Company AK] in [Town AL]: see paragraph 43 of her affidavit;
(g)     the wife’s contributions as a homemaker and primary caregiver were rendered all the more arduous by the husband’s domineering and abusive behaviour and by his periodic violence towards her; consistently with the observations of the majority in Kennon 22 Fam LR 1 at 24, those contributions were therefore all the more significant;
(h)    by permitting the husband to retain control over practically the whole of the marital assets following the consent orders of 4 March 2003, the wife made an indirect financial contribution in that her conduct allowed him to invest those assets at his discretion and so increased his “post separation” wealth; and
(i)     effectively, the husband had the unfettered use of that portion of what ought to have been the wife’s property entitlements to the exclusion to the wife and therefore was able to invest and accumulate his post separation wealth accordingly.
(j)     conversely the wife has been restricted from having access to such wealth which otherwise she would have been in a position to invest.
(k)    the wife suffers from severely restricted eyesight: see the affidavits of Dr [A] sworn 17 August 2012 and Dr [F] sworn 14 August 2012; and this is a significant factor to be taken into consideration under section 75(2).
23.In light of the matters summarised in the preceding paragraph, it is submitted that an order to the effect set out in paragraph 2 below is just and equitable.

Aside from 29 pages of revised Case Outline, the written summary of the husband’s argument occupied 36 pages so it might be best if I attempt a further summary. It is submitted for the husband, at pages 5-11 of the written summary, that:
·The date of final separation was 24 December 1989.
·It is necessary to carefully consider the wife’s credibility.
·The wife’s evidence regarding the date of separation is so fraught with inconsistencies and contradictions that no other finding can be made but that the wife was not a credible witness.
·The wife’s evidence regarding the frequency of her visits to the farm in the period between 1991 and 1997 is gainsaid by Mr G and her visits to the farm during the period 1989 to 2003 is gainsaid by Mr I. In each case their evidence should be preferred over that of the wife.
·The wife’s schedule of attendances, said to reflect her diary entries, cannot be reconciled with those entries and through cross-examination of the wife, those entries proved unreliable in any event.
·Even when the diary entries accurately record her attendance at the farm, the wife exaggerated her role or contributions on those occasions. Her evidence of mowing with a hand mower when a ride-on mower did the main work and her concession that she did not undertake shearing of fly-blown sheep and ‘crutching’ as might have otherwise been inferred, reveal the problem.
·The wife was forced to concede that her diary entries were not all contemporaneous.
·In some instances the diary entries revealed facts that the wife refused to concede in cross-examination – such as her knowledge of a Court Inquest on in June 1995 in respect of the fire that occurred at the wife’s home in Town PP.
·The diaries not having been discovered when they should, meant that it was unfair to the husband to have to address that aspect of the wife’s case with insufficient time to fully examine them. That in turn led to the husband being unable to put his document examiner expert before the Court.
·The wife’s evidence about the impact on her of the involvement of the solicitor, Mr AD, in preparing the documentation for the property settlement was repudiated by her and in any event, unbelievable.
Counsel for the husband also outlined, at pages 11-12 of the written summary, how the wife has been subject to various other legal proceedings:
9....
·       ...in September 1996 the wife was charged with obtaining property by deception and with obtaining financial advantage by deception...;
·       It appears from the material produced by the New South Wales Police that in September 1994 there was an investigation into a fire that occurred at the home where the wife was living and that an examination indicated that an accelerant had been used;
·       Annexure “T” to the husband’s affidavit establishes that in 1995 the wife was summoned to appear for the purpose of being examined in respect of a large number of debts owing to such creditors as Grace Bros, David Jones, ANZ Group, Country Road, Myer, Telecom Australia and Target;
·       The wife conceded that in 1990 she faced allegations of misappropriation of money from [Company AM].
Counsel for the husband outlined at pages 12-16 of the written summary examples of when the wife mislead the Department of Social Security:
14....
·      She told her lawyer, Mr [AD], that she had been undergoing chemotherapy and this was used in an attempt to mitigate her liability in respect of her conviction of theft from [Organisation RR]. In cross-examination, however, she admitted that she had never undergone chemotherapy;
·      Even when admitting the theft from the school, the wife was unable to be entirely truthful – she said that the amount stolen by her was $800, when the police records show that the amount was in fact $1,640; ...
15.Whilst there is no doubt that valid criticisms may be made against the husband in respect of certain aspects of his evidence (in particular, regarding the representations made by him to financial institutions in respect of his assets and liabilities), it is submitted that such criticisms pale into insignificance when compared to the criticisms that can legitimately be made against the wife’s evidence. It is conceded that the husband tended to argue his case and often was not responsive to questions, but the fact is that it was really only in relation to his evidence about inflating values in his applications for credit that his credit was impugned. For the rest, the practice of repeatedly putting to the husband that he was fabricating evidence did not take the matter any further and was of no assistance.
16.It is submitted that the wife’s evidence was so riddled with lies and inconsistencies that it must be rejected where it does not accord with the objective facts or with the clear probabilities. In particular, it is submitted that little weight can be attached to the wife’s evidence regarding:
·       The alleged pressure exerted upon her to sign the Consent Orders of March 2003 (in fact, the wife was living in Melbourne at the time - far from any controlling influence by the husband);
·       The wife’s contention that she was misled by the information contained in the documents prepared to support the approval of the Consent Orders of March 2003 -see Wife’s Amended Case Outline at page 9, paragraph 3 (in any event, it is clear from the wife’s own evidence that she was fully aware of the existence of the Trust and of the value of the assets in the Trust);
·       The nature and extent of any contributions (direct and indirect, financial and non-financial) made by her to the acquisition, conservation and improvement of the parties’ property;
·       Her contention that she ‘worked hard on the farm while continuing to look after the children’ - see Wife’s Amended Case Outline at page 14, sub-paragraph 22(f);
·       Her contention that her ‘contributions as a homemaker and primary caregiver were rendered all the more arduous by the husband’s domineering and abusive behaviour and by his periodic violence towards her…’ - See Wife’s Amended Case Outline at page 14, sub-paragraph 22 (g).
It was further submitted on behalf of the husband, at pages 14-27 of the written summary, with regards to the asset pool and the parties’ contributions that:
1....relevant to the determination of this matter is the value of the asset pool as at:
·       December 1989
·       March 2003; and
·       Date of trial.
...
Asset Pool as at December 1989:
3.7[It is effectively agreed that,] including the value of Trust property, the net asset pool was worth no more than $130,300.
4.It is submitted that this value is significant. Whilst it is so that the value of the asset pool at the time when the Consent Orders were made in March 2003 was the relevant time for determining the property settlement between the parties, it is the husband’s submission that the increase in the value of the asset pool (including the value of the Trust assets) after the parties separated in December 1989 was achieved with virtually no contribution of any kind having been made by the wife.
NB.Regarding the loan to the Trust of $200,000 from the husband’s mother/the [EE Lane] Family Trust, the facts are that:
o   In 1987 the [EE Lane] Family Trust sold the company known as ‘[Company CC]’ for $360,000;
o   In July 1987 the [EE Lane] Family Trust loaned the amount of $200,000 to the Trust (through [B Pty Ltd]) to purchase [Property C];
o   In 1991 the husband’s mother died, and the husband assumed control of the [EE Lane] Family Trust;
o   Prior to her death, the husband’s mother instructed that the loan was to be forgiven;
o   However, a dispute arose between the husband and his sister regarding the loan;
o   In settlement of the dispute, the husband received an amount of $50,000 and the value of the loan, and his sister retained the balance of the estate, including a house;
o   The loan of $200,000 was subsequently forgiven.
It should be further noted that:
o   As regards the vendor finance of $125,000, this was repaid by the husband from an inheritance from his aunt [Ms LL] (see paragraphs 108-111 of the husband’s affidavit);
o   the husband’s share of his aunt [Ms LL’s] estate was approximately $198,000, and the balance of $73,000 was used to reduce the NAB loan to $75,000 and to re-stock the farm;
It is these facts that led to the husband’s equity in the Trust later increasing.
Pre-December 1989 Contributions:
5.1It is submitted contributions made by the parties from commencement of cohabitation in about 1978 until they separated in December 1989 favour the husband.
...
5.3The husband received an amount of $80,000 consequent upon the settlement of proceedings between him and his former wife, [Ms O]. This money was paid into the Trust.
5.4The wife concedes that her financial position was “modest” at the time that the parties commenced cohabitation.
5.5The wife’s children, [Q] and [R], lived with the parties.
5.6The parties’ child, [N], was born [in] August 1985.
5.7Both parties cared for and looked after the children.
5.8For a period of time, the parties lived at the property at [Suburb AN] that had been purchased by the Trust (established by the husband and his parents).
5.9Both parties worked and earned to the best of their abilities. For a period of time, the husband and the wife worked for the company, ‘[Company CC]’, which company was owned by [DD] Pty Ltd, as trustee for the [EE Lane] Family Trust.
5.10The purchase of the farming property, ‘[Property C]’, was made possible by the fact that a loan of $200,000 was obtained from the [EE Lane] Family Trust (in effect, the husband’s mother).
5.11On a contribution-based division of the asset pool as at December 1989, it is submitted that the wife would have been entitled to a maximum of about $55,000 in net assets (approximately 42% of the asset pool).
Asset Pool as at March 2003:
6.1It is submitted that the value of the asset pool (including the value of the Trust assets) as at March 2003 is as set out at Section (H) of the husband’s Revised Case Outline – namely $1,254,258, or, if the Court finds that the value of the husband’s [professional] practice was $136,117 (as valued by Mr [L]) and not $35,000 (as contended by the husband), $1,355,375.
...
6.5In the wife’s Case Outline, the submission is made that the figure of $797,744 (being the figure which the husband submits has been wrongly quoted as Mr [L’s] calculation of the husband’s interest in the Trust as at March 2003) should be increased $1,104,041. The submission is made that “..the provision for a deficiency loan relating to [UU] Pty Ltd of $306,267 should be removed as a liability of the trust”, with the consequence being that the husband’s interest in the Trust at March 2003 should be found to be $1,104,041.
...
6.7... as set out at paragraph 12 at page 24 of the husband’s Revised Case Outline, it is submitted for the husband that the husband’s interest in the Trust as at March 2003 was $980,933 (and not $721,595, as determined by Mr [L]). ...
6.9It appears that there is no dispute about the values attributed by the parties in the Application for Consent Orders to such things as bank accounts, furniture, shares, superannuation, credit card and the like.
6.10However, the husband disagrees with the valuation by Mr [L] of his [professional] business as at March 2003. Mr [L] valued the business as being worth $136,117 as at March 2003. The husband, who is a highly qualified [business professional] contends that the [professional] business was worth $35,000 as at March 2003 [his evidence at paragraphs 145 and 172 of his affidavit].
...
6.12It is submitted that as the [professional] business at March 2003 was a ‘boutique practice’, with the bulk of the fees being generated from three (3) clients, it was inappropriate to have valued the business by reference to its client base (Mr [L] determined the value by having regard to the client base, which he regarded as a “saleable asset”).
...
6.14In the asset pool as at March 2003 there was livestock with a value of $181,125, as determined by the single expert, Mr [M]. In the Application for Consent Orders filed on 4 March 2003, the value of livestock was stated as being $140,000. The husband concedes that this was an underestimate, but it is the husband’s contention that this is explained by the fact that there was a delay between the time that he put a value to the livestock and the time that the Application was actually made.
6.15The wife attempts to take advantage of the fact that on 28 March 2003 the husband represented to NAB that the value of the trust was $1.8M; the [professional] practice was over $400k and the livestock was $292,000. However, the valuations should be accepted rather than his representations to the bank.
6.16The wife also seeks to include [UU Pty Ltd] - at a value of $430,000 – in the asset pool as at March 2003.
6.17[UU Pty Ltd] is wholly owned by the Trust, and it is submitted that it is clearly wrong to include this as a separate asset in the pool, together with the value of the Trust. The duplication is obvious.
6.18According to the wife, the value of the asset pool as at March 2003 should be held to be $1,908,483. For the reasons set out above, the husband contends that the correct figure is $1,254,258.
Alleged ‘Undisclosed Asset’ the trust:
7.1... the existence of the trust was disclosed [in the Application for Consent Orders, the existence of the Trust.] The value of the Trust was stated to be “unknown”. The orders stipulated that “Upon the payment being made under order 1, the wife relinquishes any claim she may have at law or in equity to any interest she or the husband may have in the [BB Lane] Family Trust”. ...the wife was clearly fully aware of the make-up of the Trust – see, for example, her affidavit at paragraphs 23, 35, 36, 37, 144 and her evidence at paragraph 3 of her affidavit of 24 March 2011 that: “When the Consent orders were made, as far as I was aware, our largest asset was a 1500 acre farm known as “[Property C]” in [Town E], NSW together with stock and equipment. In 1987 we paid $499,485.00 for the farming property and we registered it in the name of our company [B] Pty Ltd which was the trustee of the [BB Lane] Family Trust. In 2003, when the orders were made, the farm land alone was valued at more than $1,500,000. Our other assets included [the husband’s] [professional] practice, stock [the husband] valued at $140,000 and extensive farm equipment. In addition [the husband] had interests in other businesses including [Company AF] and [UU] Pty Ltd as well as real estate in NSW and an interest in a … orchard in [Town AL], NSW. At the time the orders were made I did not know the value of any of the businesses, the family trust or [the husband’s] real estate”.
7.2... it is the husband’s evidence [see his affidavit at paragraph 126] that in January 1997 when the wife visited him in hospital he provided her with full details of his financial affairs and says that they discussed the value of the major assets including the farm, stock, plant and equipment owned by the Trust and says that he told the wife to get a copy of the Financial Statement from his personal assistant (but that she replied by saying: “I did your financials up until last year. I already have a copy”).
7.3... in 2002 the husband says the wife “re-opened’ discussions about a property settlement and he says that he said to her words to the effect: “I think we should keep the [B Pty Ltd] assets for the kids. It’s effectively my mother’s estate and should be preserved for my children and [N]. [U] is probably not going to be able to work the future”, and he says that the wife agreed, saying words to the effect: “My father is 85 and is well off and I expect to inherit from him. I don’t expect your children to benefit from Poppa’s (her father’s) estate and I don’t expect my children to benefit from … (my mother’s) estate”.
7.4The husband says that the wife advised him that she had consulted solicitors in [Suburb T] and that they had told her to include the assets of the Trust in their settlement.
...

7.6It is submitted that it cannot be validly contended that there was a non-disclosure of the interest in the Trust.
7.7It is further submitted it cannot be validly contended that the wife was not aware of the makeup of the assets in the Trust or their potential value.

Contributions between December 1989 and March 2003:
8.1It is submitted that the contributions made by the wife to the asset pool during the period December 1989 to March 2003 were minimal.
8.2The wife left the former matrimonial home in December 1989 and only returned to [Town E] from Melbourne in January 1991.
8.3Whilst living in Melbourne between December 1989 and January 1991, the wife did not have the care and control of [N]. [N] returned to live with the husband at the farm on 19 January 1990.
8.4In addition, in April/May 1990 the wife’s son, [Q], went to live with the husband at the farm.
8.5After staying at the farm for a short while in January 1991, the wife refused to leave the farm and the husband, on 5 February 1991, obtained Orders from the Family Court granting him ‘sole custody’ of [N] and restraining the wife from entering or approaching the former family home (it may here be noted that the wife, in her affidavit at paragraph 56 says that she was unable to afford legal representation at the time whereas, in fact, she was represented by the current Deputy Chief Justice of the Family Court of Australia).
8.6When [N] came to live with the husband at the farm in January 1990, she was only 4½ years old.
8.7Whilst the wife regularly spent time with [N] during the period 1991 to 2003, the husband was [N] was primary carer throughout this time.
8.8[N] was supported by the husband, without any assistance from the wife. The wife, after suggesting in cross-examination that she paid ‘what I possibly could’, was obliged to concede that [Q] and [N’s] expenses were all paid for by the husband.
8.9The asset pool increased in value from $130,300 in December 1989 to $1,254,257 (or $1,355,374 if the husband’s [professional] practice is valued at $136,117 as per Mr [L]) in March 2003 without any contribution being made by the wife.
8.10According to the husband, during the period 1989 to 2003 the Trust made payments to and on behalf of the wife to help her out of her various difficulties totalling $77,000, which amounts were recorded as loans in the books of account for the Trust. These loans have been forgiven.
8.11The husband’s [professional] practice was only established post-separation (in 1992)....
8.12[After his mother’s death in March 1991] ... the husband received by way of inheritance a cash payment of $50,000 and the loan to the Trust of $200,000 was forgiven.
8.13In June 1996 the Trust purchased the company, ‘[UU] Pty Ltd’, from a client of the husband’s [professional] practice. The purchase price was offset against [professional] fees owed to the husband by the vendor. ...
8.14In May 1999 the Trust purchased a 10% interest in an Orchard for $40,000. ...
8.15In 2002, a terrace house in [YY Street], [Town QQ], was purchased through [UU Pty Ltd]. ...
8.16The husband received approximately $198,000 as an inheritance from his aunt [Ms LL] and, from this money, the loan of $125,000 which had been provided by way of vendor finance to purchase the farm was discharged, and the balance of the inheritance was used to reduce the NAB overdraft and to re-stock the farm.

8.17The value of the stock owned by the husband (t/a [Company AF]) increased from nil to $181,125. The wife had nothing to do with this.
8.18...the increase in the value of the asset pool was not in any way attributable to any contributions made by the wife, and she has conceded that during the period 1989 to 2003, and thereafter, she has made no direct financial contributions to the asset pool.
8.19The husband managed the farm without any significant assistance from the wife, and it is submitted that the wife’s evidence regarding her contribution to the running of the farm during the period 1989 to 2003 should be treated with much caution.
8.20A consideration of the evidence reveals quite clearly that during the period 1989 to 2003 the wife’s life was fraught with difficulties and it cannot be said that during this time she made any significant contributions to the asset pool by way of homemaking, parenting or direct or indirect financial assistance.

In summary form counsel for the husband submitted, on pages 24-27 of the written summary, with regards to the asset pool at the date of trial as follows:
·The value and make-up of the current asset pool is set out at Section (I) of the husband’s Case Outline. This value is in the amount of $2,817,965 and includes the value of the professional business as determined by Mr [L], the value of the livestock as determined by Mr [M], the bank accounts, furniture, etc as set out in the parties’ Financial Statements and the valuation of the Trust in an amount that significantly exceeds the valuation of Mr [L]. This increased value is explained by the husband at paragraphs 175 – 179 of his affidavit, read with annexures “KK”, “LL”, “MM” and “NN” thereto. It is submitted that it does the husband great credit that he has provided this information, which does not assist his case. He has included the true asset value of [UU Pty Ltd], rather than rely on inter-entity loan, provisions for deficiencies, etc, and he has updated the figures.
·The wife, however, seeks to establish that the asset pool now has a value of $4,113,597. She has incorrectly attributed a value of $1,941,553 to the husband’s interest in the Trust being the net asset value of the Trust as at December 2011 according to Mr [L]. The figure of $1,941,553 did not represent the value of the husband’s interest in the Trust. To calculate the husband’s interest, Mr [L] (correctly, it is submitted) made similar adjustments as made by him when calculating the husband’s interest in the Trust as at March 2003.
·In particular, he has recognised that:
Ø The “Beneficiary Loan – [The husband’s name] ([Company AF])” of $828,705, whilst being an asset of the Trust, is also a liability of the husband;
Ø The further “Beneficiary Loans” totalling $630,268, whilst being liabilities of the Trust, are also assets of the husband.
·The obvious flaw in the wife’s approach as set out in the preceding subparagraph is that she does not recognize that she cannot rely both upon the approach adopted by the husband in valuing his interest in the Trust and the approach adopted by Mr [L] in valuing the husband’s interest in the Trust. She uses the method adopted by Mr [L] and simply adds to his value the increased amount calculated by the husband using an entirely different approach to that adopted by Mr [L]. Not content with her efforts to increase the value of the husband’s interest in the Trust in the manner aforesaid, the wife then suggests that her valuation of $2,456,683 should be regarded as “conservative” in the light of the husband’s representation to Suncorp Metway in July 2011 that the Trust then had a value of $4,985,422. The wife knows that there is no basis in the evidence for such valuation, but has not allowed this to interfere with her attempts to put as high a value as possible on the husband’s interest in the Trust. It is submitted that this hinders, rather than assists, the Court.
·It is submitted that the husband’s calculation of $2,285,789 as correctly representing his interest in the Trust should be accepted and adopted.
·As far as the value of the husband’s [professional] business is concerned, the expert witness, Mr [L], has arrived at a figure of $123,211. This figure is accepted by the husband. Whilst this is not clear from the wife’s Case Outline, it would appear that she suggests that a figure of $435,000 should perhaps be adopted as the value of the [professional] practice based upon a representation made by the husband to Suncorp Metway in July 2011 that the [professional] practice then had a net value of $435,000. Again, the submission is made that this approach is not helpful and simply demonstrates that in her efforts to see the asset pool have as high a value as possible, the wife is not particularly concerned with relying upon the actual facts but is quick to seize upon any opportunity that presents itself to her.
·It is submitted that the value of 123,211 should be accepted as the value of the husband’s [professional] practice as at December 2011.
·As regards the value of the livestock at [Property C], it would appear that there is no issue between the parties and that the value of $384,010 is agreed.
·It would appear that there is no issue between the parties regarding all the other assets, liabilities and superannuation entitlements.
·The wife seeks to include as a further asset in the asset pool, an amount of $1,290,000 as representing the value of [UU] Pty Ltd, whereas the husband contends that the value of [UU Pty Ltd] has already been included as part of the Trust.
·In the circumstances, it is submitted that the Court should rely on the valuation of the current asset pool as calculated in the husband’s Case Outline and should find it to have a value of $2,872,158.
Counsel for the husband at pages 27-36 of the written summary made the following further submissions:
Contributions between March 2003 and Date of Trial:
10.1It is submitted that the wife made no contributions of any nature to the asset pool post-2003.
10.2Even on the wife’s evidence, the parties had finally and irrevocably parted company by March 2003.
10.3There were no more parenting duties to share – [N] turned 18 on 22 August 2003.
10.4Since 2003, the husband has effected improvements to the farm property, costing $552,147.41 (see paragraphs 180 – 181 of the husband’s affidavit).
10.5The wife has had nothing to do with the farm and has not been involved in the dealings of the Trust (eg the sale in 2011 of shares held by the Trust in [WW] Pty Ltd or the purchase in 2011 by [UU] of a property at [Suburb AE, Qld]).
10.6It is submitted that no regard should be had to the wife’s contentions as set out in her Amended Case Outline at page 14, sub-paragraphs (h) – (j) to the effect that she has ‘lost opportunities’ because she did not get more of the asset pool in 2003. In this regard, it is submitted that... no provision is made for ‘damages’ or ‘compensation’ to be paid as contemplated by the wife;... In any event, the wife has failed entirely to establish that she would have invested wisely or in some other way increased her wealth had she received a greater share of the asset pool in 2003.
(D) EFFECT OF THE ORDERS OF MARCH 2003
1.It is submitted that there was no fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance that could constitute a miscarriage of justice in respect of the making of the Orders in March 2003.
2.In any event, it is submitted that even if it is found that there was a failure to disclose relevant information, this did not result in there being a failure of justice.
3.... even having regard to the assets (or their values) that were allegedly not disclosed, the outcome was reasonable, fell within the acceptable range of outcomes and was just and equitable.
4.If the end result was a just and equitable distribution of property, then it cannot be said that that the failure to disclose relevant information caused financial harm and therefore, it cannot be said that in such circumstances there was a failure of justice.
5....if the asset pool, including all assets of the parties and of the Trust, had a value of $1,254,258 as at March 2003 (as contended by the husband), then the fact that the wife effectively received $215,200 means that she received 17.16% of the asset pool. If the husband’s contention regarding the value of his [professional] practice is rejected, and it is found that its value was $1,355,375, then the wife’s percentage share would be 15.88%. [The wife contends, in her Case Outline at paragraph 1, page 9, that the Consent Orders of March 2003 resulted in the wife receiving approximately 5% of the pool of assets. This is demonstrably incorrect].
6.        The amount of $215,200 referred to above is made up as follows:
Cash:  100,000;
Shares:   8,000;
Motor Vehicle:  30,000;
Funds in Bank:  11,500;
Furniture & Effects:                   15,000;
Forgiveness of Loan:                 77,000;
Credit Card:  (17,000);
H.P:  (9,300).
7.It is submitted that whilst a percentage share in the region of 15% -18% is not high, it correctly reflected the disproportion between the contributions (of all kinds) made by the husband as compared to the wife to the acquisition, conservation or improvement of the property of the parties or either of them and to the welfare of the family and to the child born of the marriage. In considering the adjustments to be made (if any), much weight had to be attributed to the husband’s care of the wife’s children.
8....
·       After the wife left in December 1989, [N] (then aged 4 years) returned to live permanently with the husband. The husband was [N’s] primary carer and he supported her without any financial assistance from the wife;
·       Shortly thereafter, in April/May 1990,the wife’s son, [Q], returned to live at the farm with the husband;
·       In 1991 the husband received an inheritance from his mother. He received a cash sum of $50,000, and the loan of $200,000 from the husband’s mother/the [EE Lane Family] Trust was forgiven;
·       In 1990 the husband received an inheritance from his aunt [Ms LL] in the sum of approximately $198,000;
·       The inheritances were substantially applied to reducing debts secured over the farm property, to pay out the stock mortgage and to improve the property;
·       The [professional] practice was only established post-separation (in 1992). The wife had little to do with this business, and when she was employed by the business (in order to assist her when she could not find employment), she was paid for her services;
·       [UU] Pty Ltd was purchased by the Trust post-separation (in June 1996). The wife had nothing to do with this company;
·       The value of the stock owned by the husband (t/a [Company AF]) had increased from nil to $181,125;
·       The husband managed the farm without any significant assistance from the wife;
·       At date of separation the husband made payment of $5,000 to the wife. Payments amounting to about $77,000 were thereafter made to the wife by way of loans from the Trust to help her out of her various difficulties.
9.[The Husband rejects the submissions on behalf of the wife that]:
·       “the parties were in a relationship with one another for approximately 24 years, having commenced cohabitation in January 1978… and having remained together until the separation in March 2002”;
·       “The wife was the primary caregiver to the children… and made a very substantial contribution throughout the marriage as such and as a homemaker”;
·       “The wife also made significant financial contributions….”.
10....The parties separated in December 1989 and that after that date the wife made no financial contributions at all and that her homemaking and parenting contributions were extremely limited. The wife’s contentions, as set out in the previous paragraph, are simply without substance.
11.It is in any event submitted that the mere fact that the Court might be of the view that what the wife received under the Orders of March 2003 was less, or even considerably less, than she would have received if the matter had been determined by the Court exercising its discretion under the Act, it does not necessarily follow that there was an ‘injustice’ between the parties – see Prowse and Prowse (1995) FLC 92-557.
(E) THE LAW
1.If the end result was a just and equitable distribution of property, there has been no financial harm caused by the respondent’s conduct and therefore, no miscarriage of justice: Riley and Pateman [2000] FCA 1296.
2....”miscarriage of justice” should not be interpreted too widely [Clifton and Stuart (1991) FLC 92-194]....The notion of miscarriage of justice concerns the integrity of the judicial process, and does not go further than that.
3....Public Trustee (as executor of the estate of Gilbert) v Gilbert (1991) FLC 92-211 at 78, 427; Bigg v Suzi (1998) FLC 92-799.
4.“The mere fact that there has been a miscarriage of justice does not seem… to mean that the Court must vary the order or set it aside” - this statement by Strauss J at first instance was approved by the Full Court in Prowse and Prowse (supra). The Court stated that: “..an applicant for an order under s. 79A(1) bears the onus of satisfying the Court that the original orders should be set aside or varied, and that includes the onus of satisfying the Court not just that there has been a ‘miscarriage of justice’ but also that the appropriate exercise of the discretion is to so order”.
5.Section 79A(1) is very clear: it provides that where the Court is satisfied that there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), etc, “the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution of the order so set aside” (emphasis supplied).
6.In Prowse and Prowse (supra) at p. 81,563, the Full Court recorded that: “His Honour next referred to and cited a passage from the judgment of the Full Court (Nicholson, CJ,Baker and Burton, JJ) in Gebert and Gebert (1990) FLC 92-137 at 77, 97. That passage is as follows: –
‘the very expression ‘miscarriage of justice’ used in sec. 79A(1)(a) does not fit happily with the concept of a party of full age and with full knowledge of the circumstances entering into an agreement of this nature in circumstances where he had deliberately decided not to seek legal advice, although urged to do so. No doubt had the situation brought about by the order being imposed upon him, it may have amounted to a miscarriage of justice but the law fortunately still allows persons to form their own views as to the arrangement of their affairs. In the present case, there appears to be no doubt that this is precisely what the husband did. The fact that he later repented of that decision, in no sense elevates his original decision to consent to such an order to a miscarriage of justice nor should such order in our view be interfered with. On the contrary, we would regard it as a considerable miscarriage of justice from the wife’s point of view if the husband’s then conscious decision entered into free of duress, was now to be interfered with on a paternalistic view as to what might or might not have been in his best interests’” (emphasis supplied).
...
9....suppression of evidence is specifically stated to include “failure to disclose relevant information”.
...
11.“‘Suppression of evidence’… must go beyond the mere giving of one-sided evidence and amount to wilful concealment of matters which it was [here the appellant’s] duty to put to the Court” -per the Full Court in Taylor v Taylor (1977) FLC 90-226, at 76, 197 (emphasis supplied).
12....the amendment made to s 79A(1)(a) in December 2000 inserting the words “including the failure to disclose relevant information” , it may be that a failure to disclose relevant information need not be deliberate in order to amount to a miscarriage of justice.
13.As regards the concept of “or any other circumstance” in s 79A(1)(a), it was stated at paragraph 95 in the matter of S and B and G (Full Court, Brisbane, 2003) that “The phrase ‘or any other circumstance’ is limited by the phrase ‘miscarriage of justice’ and cannot be read as if it were unlimited in scope: Gebert and Gebert (1990) FLC 92-137 at 77,935 and Clifton and Stuart (supra) at 78,337”.
...
15....it is submitted that simply not furnishing the value of a known and disclosed asset cannot amount to failure of justice in circumstances where the other party was not induced by such fact to enter into the Orders.
16.In circumstances where the ‘aggrieved’ party has full knowledge of the existence of the asset and much knowledge of its value, and of his or her own volition enters into Consent Orders without insisting upon a formal valuation, it is submitted that there can really be no question of a ‘failure of justice’ by reason of a non-disclosure of relevant information.
17.In this case, it is submitted that the wife falls far short of establishing that she entered into the Consent Orders as a consequence of the value of the Trust not being stated in the Application for the Consent Orders.
18.The Full Court in Holland v Holland (1982) FLC 91-243 made it clear that “Agreement to a consent order which may not adequately reflect a party’s entitlements under sec. 79 does not, in itself, show that there has been a miscarriage of justice”.
19....the wife entered into the Consent Orders with her eyes wide open, it is submitted that there is little basis for finding that the failure to disclose the value of the Trust assets constituted a failure of justice. If it were only the question of the failure to state the value of the Trust assets (and this is all that was not disclosed), then the obvious thing for the wife to have done was to have sought a valuation. However, for the reasons given by the husband, and having regard to the fact that the wife had a good knowledge of the Trust assets, the wife clearly did not regard it as necessary to obtain and include a value of the Trust assets in the Application for Consent Orders.
20.In Barker & Barker [2007] FamCA 13 the Full Court said at paragraph 122 that: “There will thus be many cases in which an order will be made, by consent or otherwise, based upon an agreed valuation which has been prepared many months earlier. There may be factors in the intervening period which have affected the value so agreed. Unless there is some particular act which impugns the process by which the order was obtained, the mere effluxion of time and the consequent changes in the market during that period, whether they be upward or downward, will not of themselves create an injustice, nor require either of the parties to make further investigations of value if they choose not to do so”.
...
22.At paragraph 123 the Court emphasised what had been stated in Livesey v Jenkins [1985] 1 All ER 106 by Brandon LJ at 445-6 about the nexus between non-disclosure and setting an order aside, namely that: “I would end with an emphatic word of warning. It is not every failure of frank and full disclosure which would justify a court in setting aside an order of the kind concerned in this appeal. On the contrary, it will only be in cases when the absence of full and frank disclosure has led to the court making, either in contested proceedings or by consent, an order which is substantially different from the order which it would otherwise have made if such disclosure had taken place that a case for setting aside can possibly be made good”. ...
(F) ADJUSTMENTS
1.The parties are of similar age.
2.Both have health issues.
3.There are no minor children.
4.The husband has re-married. He married [Ms AB] in March 2011. [Ms AB] is unemployed and has very limited means (see husband’s affidavit at paragraphs 182-183).
5.The wife has re-partnered. According to her, she commenced a relationship with Mr [ZZ] in 2006 (see her affidavit at paragraph 5). She furnishes no further information about Mr [ZZ], and, in her Financial Statement, leaves blank the space for indicating earnings of Mr [ZZ] and the space for indicating expenses paid by others on her behalf. In cross-examination, the wife indicated that Mr [ZZ] “gets money from a self-managed superfund.” After an unsuccessful attempt by the wife to resist making financial disclosure in respect of Mr [ZZ] and after Orders were made in September 2011, a document was produced in May 2012 indicating that Mr [ZZ] had an interest in a self-managed fund worth $1,221,418 and that he received a non-taxable pension from the fund of $76,140 pa. Mr [ZZ’s] 2011 Tax Return also revealed that he receives $25,000 a year as ‘director’s fees’.
6.The wife’s father, Mr [AP], is very old and gravely ill. This was acknowledged in a letter from the wife’s solicitors. He is aged 94 years. The state of Mr [AP’s] health is such that he was unable to sign an acknowledgement of receipt of a subpoena served on him on 7 February 2013. A letter from solicitors for Mr [AP] confirms the parlous state of Mr [AP’s] health. Mr [AP] owns at least two properties (see affidavit of Mr [J]). He has two other children. The question of his financial circumstances has continually been raised by the husband, but the wife has provided no information in respect thereof. The husband contends that the wife’s potential inheritance from her father constitutes a financial resource available to her. It is further contended that, having regard to the age and state of health of the wife’s father, the wife was obliged to make disclosure regarding his financial affairs and that the Court accordingly need not be unduly cautious about making findings in respect of this resource and making an adjustment in favour of the husband on account of the wife’s non-disclosure (see Gould and Gould (2007) FLC 93-333 at paragraph 27). Evidence before the Court regarding Mr [AP’s] testamentary intentions and financial circumstances may be found at paragraph 133.2 of the husband’s affidavit: “[The wife] agreed, saying words to the effect, ‘My father is 85 and is well off and I expect to inherit from him’”.
7.The husband cared for and supported the wife’s child, [Q].
8.In the wife’s Case Outline, an attempt is made to make out a case either that the assessment of the wife’s contributions should be increased or that there should be a greater adjustment in her favour because the husband was advantaged by having “the unfettered use of that portion of what ought to have been the wife’s property entitlements to the exclusion to (sic) the wife and therefore was able to invest and accumulate his post separation wealth accordingly” and that “conversely the wife has been restricted from having access to such wealth which otherwise she would have been in the position to invest”. It is submitted that such approach is inconsistent with the provisions of section 79 of the Act and that, in any event, it relies on pure speculation and no evidence.
(G) CONCLUSION
1.It is submitted that the failure to disclose the value of the known and disclosed asset (at least in the circumstances of this case) does not constitute a reason to find that here was a miscarriage of justice.
...
3....the wife clearly had sufficient knowledge of the financial circumstances to form her own views.
...
5....the wife has failed to establish that she entered into the Consent Orders as a result of duress or any other circumstance related to a miscarriage of justice.
6.The wife’s case, at its highest, was that the husband exerted ‘pressure’ on her in December 2002 to sign the Application for Consent Orders (see her affidavit at paragraphs 85 -86). The wife says that the husband “..repeatedly demanded that I sign the documents urgently…. I recall that the husband had declared that the reason for the urgency was that Mr [AD] was going to be away in January and it needed to be lodged with the Court prior to his departure. I recall the Husband threatened that if I had not signed the Orders, that I would not receive a property settlement from him at all…”. The fact is, however, that the so-called ‘urgency’ to have the matter finalized before January fell away, and a fresh Application for Consent Orders was sent to the wife in February 2003 under cover of a letter dated 11 February 2003 and was only signed by her on 24 February 2003 (annexure “FL11” to the wife’s affidavit). Further, and in any event, the wife had at least since 1999 been living very far away from the husband (she in Victoria and he in New South Wales) and the negotiations and signing occurred without the parties being in direct contact.
7.In the circumstances, it can hardly be said that the wife signed the document under ‘duress’.
8.It is in any event submitted that the Orders resulted in there being a fair and equitable distribution of property (and, accordingly, no miscarriage of justice).
9.The wife, however, after having delayed for an extraordinary amount of time, now seeks to re-visit what had been previously agreed by her, and to obtain an Order that [Property C] be sold and that she be paid 45% of the value of the net assets of the parties. It is submitted that such outcome would be an outrage. In particular:
·      It would oblige the husband to sell the property which has been developed by him over a period of 25 years without any significant assistance of any sort by the wife;
·      On the husband’s calculation of the value of the asset pool ($2,817,965), this outcome would see the wife being awarded something like $1,268,000. On the wife’s calculation of the net value of the asset pool ($4,113,597), this outcome would see the wife being awarded an amount in the region of $1,851,000;
·      It would see the wife, who lived with the husband for no more than 10 years and who has been separated from him for more than 23 years, receiving enormous benefit for little contribution;
·      It would ignore the principle of justice and equity;
·      It would encourage a revolving-door approach to litigation.

The Issues

The husband’s case outline document puts the issues as follows:
1.Did the wife enter into the Consent Orders in March 2003 as a consequence of duress?
2.Did the reference to the value of the Trust in the Application for Consent Orders as being “unknown” constitute a non-disclosure as envisaged in section 79A of the Act?

3.Did the wife enter into the Consent Orders in March 2003 in circumstances where there had been a suppression of evidence (including a failure by the husband to disclose relevant information)?
4.Was the wife or the Court misled?

5.If the wife did enter into the Consent Orders in March 2003 as a consequence of duress and/or suppression of evidence, did this result in there being a miscarriage of justice?
6.If there was a miscarriage of justice by reason of the wife having entered into the Consent Orders in March 2003 as a consequence of duress and/or suppression of evidence, what Orders (if any) are required to now be made in substitution of the Orders made in March 2003?
7.In determining these issues, the Court will have to have regard to such matters as:

·       The parties’ credit;
·       The actual date of final separation;
·       The value of the asset pool as at date of separation;
·       The wife’s knowledge and understanding of the parties’ finances;
·       The respective contributions of the parties to that asset pool;
·       Post-separation contributions;
·       The value of the asset pool at the time that the parties entered into the Consent Orders;
·       The respective contributions of the parties to that asset pool;
·       Contributions made to the asset pool after the making of the Consent Orders in March 2003;
·       The value of the current asset pool;
·       Section 75(2) factors.
8.Consideration will have to be given to such matters as:

·       The value of the asset pool as at date of separation, as at the date when the Consent Orders were made and as at the current time;
·       What precisely has to be disclosed;
·       Was there in any event an equitable distribution of property;
·       What precisely is meant by a “miscarriage of justice”;
·       How the Court is to exercise its discretion (in the event of a miscarriage of justice being established);
·       The concept of “duress”;
·       The wife’s knowledge of the existence and value of the Trust assets;
·       Whether the (alleged) failure to have obtained independent legal advice has any bearing on whether there might have been a failure of justice;
·       Whether any regard should be had to any contention by the wife that she should be compensated for ‘lost opportunities’ as a result of her allegedly having received a smaller share of the asset pool than was due to her in 2003;
·       The parties’ age and health;
·       Financial resources available to the parties and, in particular, the likelihood of the wife inheriting significant wealth from her old and gravely ill father.

As to two preliminary matters.

The Commencement of Cohabitation

It is the wife’s evidence that the parties commenced living together in January 1978. Although he too identified 1978 as the commencement of cohabitation in his primary affidavit, the husband contended and amended his affidavit in chief to assert that cohabitation commenced in early 1979. Given the change in the husband’s evidence, but without much confidence, I will accept the wife on this issue.

The Date of Separation

Although she made inconsistent representations to this Court and to various agencies, the wife now asserts that separation occurred in March 2002. The husband claims that the parties separated on 24 December 1989.
Importantly, the wife also represented to this Court that the parties separated in December 1989. For example, she did so in the Application that initiated these proceedings. In the period after 1989 the wife represented to various authorities that she was single or separated. Such representations are not conclusive[6] but they are revealing. The wife is in the awkward position of asserting that she has made false representations but seeking to have the Court accept from her, which of her representations were false and which were true. By that admission, the wife has revealed her lack of credibility.
[6] Nelson v Nelson (1995) 184 CLR 538.
Without credible testimony and without corroboration, one turns to the background facts. Albeit that little of it is agreed by the husband, the wife’s own case does not support her argument about separation. The wife would have it that at various times she required emergency housing from a community organisation; was so desperately short of funds that she had to steal; believed that the husband sexually assaulted her daughter R; that the parties’ daughter, N was at risk in his care; and all the while, albeit in separate houses, she and the husband were living as a married couple. The fact that the husband sought and obtained parenting orders in relation to N and an order for exclusive occupation of “Property C” in 1991 suggests that all was not well with the marriage at that time. The assertion by the wife of a happy marriage between herself and the husband in 2001 sits uncomfortably with her description of his conduct towards her.
I am comfortably satisfied that the parties separated on 24 December 1989.
That said, the date of separation is not necessarily important in property settlement proceedings. The focus is normally on contributions and the period over which those contributions are made. Almost invariably, as occurred here, contributions were made after separation. Whereas the parties now disagree about when they finally separated, the range of dispute about the extent to which the parties stayed under one roof after December 1989 is not as extensive. It is agreed, for example, that from time to time the parties had a sexual relationship after that time. It is agreed that on occasions, largely at the farm, they stayed under one roof. The relevant dispute is about the number of nights and what was done. Such is the damage done to the wife’s credibility I cannot accept her uncorroborated evidence about this issue. Far from cohabitating, I find that after December 1989 the parties rarely stayed together under one roof.

The approach in proceedings under Section 79A

As it relates to these proceedings, s 79A relevantly provides:
79A Setting aside of orders altering property interests
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
….
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
…..
In Gilbert and the Estate of Gilbert (1989) 13 Fam LR 632 the Full Court said:
...S.79A is a remedial section intended to overcome miscarriages of justice and certain other specific difficulties or hardships and should be construed liberally to effect its intended purpose.
In Public Trustee (as executor of the estate of Gilbert) & Gilbert (1991) FLC 92-211; 14 Fam LR 573 the Full Court cited with approval the proposition from In the Marriage of Molier and Van Wyk (1980) 7 Fam LR 18 in respect of what is now s 79A(1)(a):
This Court ... considers that section 79A is intended to apply only to circumstances occurring before or at the time of making of an order. The term ‘miscarriage of justice’ does not seem apt to apply to matters which arise after the order has been made.

Discussion

The wife’s Initiating Application nominates one ground – s 79A(1)(a). It is the wife’s case[7] that the Court should exercise its discretion to set aside the property settlement orders of 4 March 2003 and make other orders under s 79 because they represent a miscarriage of justice as a result of the husband’s failure to disclose relevant financial information. In the Submissions in Outline provided in her case, it is argued for the wife that there are a variety of grounds available under s 79A(1)(a) and that “Perhaps the least demanding of them is a ‘failure to disclose relevant information’.”
[7] As set out in the “Applicant’s Submissions in Outline” dated 14 February 2013.

Did the wife enter into the Consent Orders in March 2003 as a consequence of duress?

I am not sure that this was actively pressed as a basis for relief. There was some mention of duress in the course of the proceedings and although it is not developed in the wife’s Outline as a basis for the application, there is reference in that document to matters that could go to such a ground. For example, it is argued that facts of the case and or the husband’s presentation in Court revealed the husband to be “an aggressive bully who brooks no dissent or opposition to his determined (and selfish) decisions” and reference to his “selfish and aggressive personality”. As is submitted on behalf of the husband, the parties were not living together at the time the wife’s consent was obtained. The parties separated four years earlier. I took the import of that submission to be that the parties were not in physical contact at the time the consent was given and therefore there was no realistic opportunity for the husband to intimidate or otherwise pressure the wife.
As is referred to earlier in these reasons, the wife corrected her deposition at paragraph 82 of her affidavit, in her oral evidence, to change the effect of her evidence from her being “confronted” by the involvement of the family solicitor, Mr AD in the preparation of consent orders to being “comforted” by that involvement. The wife said that in November 2002 she was also preoccupied with assisting N and R and was stressed and exhausted. Based on the previous parenting and exclusive occupation proceedings instituted against her by the husband, the wife said she felt she was powerless both emotionally and financially to negotiate a settlement with the husband or to discuss their financial affairs with him in any meaningful way. She received the documents in December 2002 and signed them. She signed them again two months later after the initial agreement was rejected by the Court. In each case, the wife said that much of the document was completed for her and she did not have independent legal advice.
It is the wife’s evidence that she was initially told that the documents had to be signed urgently, because Mr AD was going away in January. Logically, that did not apply to the execution of the February version of the document.
She said that in respect of the November 2002 document the husband threatened that if she did not sign the orders she would not receive a property settlement from him at all and he would tell their daughter that it was her intention to disrupt N’s final year at school rather than settling with the husband.
The wife says that she could not afford legal advice and was also fearful that if she sought advice that would further inflame the “husband’s aggressive and volatile behaviour towards her.” She said that in February 2003 when she was asked to sign the later version of the application, she was afraid that the earlier threats still applied.
It is the evidence of the husband that it was the wife’s proposal that she be paid $100,000. On the unchallenged evidence of the husband, the wife filled in and provided to him an Application for Maintenance which provided for a payment of $100,000 to her. It is his evidence that the wife told him that she had spoken to a solicitor about the proposed settlement. He said that she told him that she was reluctant to return to that solicitor to obtain a signature confirming independent advice, because she did not want to have an argument with that solicitor again about the treatment of B Pty Ltd in the agreement. He said that he told the wife that he wanted to avoid the cost of having the trust assets valued. The husband did not concede that he had made threats to the wife.
The case about duress rests entirely on the wife’s uncorroborated testimony. It falls to her to make the case. On two occasions some months apart, the wife executed consent documents containing representations inconsistent with her evidence today. The parties were living apart. The husband did not concede the accuracy of the wife’s version of events and gave evidence of a version of events inconsistent with that of the wife. The wife is not a credible witness.
Lest it be argued otherwise, I accept that there may be circumstances whereby duress can occur without physical proximity. However, given the problems with her credibility, the wife in these proceedings has not made out a case that she consented to the orders under duress from the husband.

Did the wife enter into the Consent Orders in March 2003 in circumstances where there had been a suppression of evidence (including a failure by the husband to disclose relevant information)?

The main thrust of the wife’s case is that the alleged miscarriage of justice arose from the husband’s failure to disclose. For the consideration of this issue it is important to know what formal representations were made at the time the wife’s consent was given.

The Value of the Assets in 2003

In the Application for Consent Orders the husband declared that he had net assets to the value of $187,000, including livestock at $140,000 and his professional business at $35,000. The husband declared that he had an interest as a beneficiary in the BB Lane Family Trust and that the value of the interest was “unknown”. The wife’s assets were declared at a net $38,000.
The husband now contends that the value of the asset pool (including the value of the Trust assets) as at March 2003 was $1,254,258 or $1,355,375. The submission is that the difference in those figures depends on whether the Court accepts the valuation by Mr L of the husband’s professional practice at $136,117, rather than the husband’s estimate of $35,000. However, the husband agrees that the livestock had a value of $181,125, as determined by the single expert, Mr M, rather than $140,000. As to the trust, rather than “unknown” as was recorded in the 2003 application, and notwithstanding the lower valuation provided by the expert in these proceedings, Mr L, the husband would have the value of his interest in the trust at that time as $980,933.
Although she refers to the representations made by the husband to a bank in 2003, after the consent orders were made, putting the value of the trust at $1.8 million; the professional practice at over $400,000 and the livestock at $292,000, the wife contends that the value of the asset pool as at March 2003 should be held to be $1,908,483. She would have it that Mr L’s calculation of the husband’s interest in the Trust as at March 2003) should be increased by “...the provision for a deficiency loan relating to [UU] Pty Ltd of $306,267” being removed as a liability of the trust, with the consequence being that the husband’s interest in the Trust at March 2003 should be found to be $1,104,041. The wife also argues for UU Pty Ltd to be added to the asset pool - at a value of $430,000.
It appears that there is no dispute about the values attributed by the parties in the Application for Consent Orders to such things as bank accounts, furniture, shares, superannuation, credit card and the like.
As to the professional practice, the husband disagrees with the valuation by Mr L of his professional business as at March 2003. Mr L valued the business as being worth $136,117 as at March 2003. Highly qualified business professional or not, the reasons for not accepting the husband’s opinion over that of the single expert does not require any explanation. Mr L did not revise his opinion or concede the propositions advanced in the husband’s case. The single expert will be preferred over the husband.
As to the value of the trust as at March 2003, the husband concedes a value of $980,933. There is no basis for adding to that value, $430.000 for UU Pty Ltd – a wholly owned asset of the Trust.
For the purposes of these proceedings, the value of the asset pool (including the value of the Trust assets) as at March 2003 was of the order of $1,355,375. Whether $1.3 million or $1.9 million it is common ground that the application for consent orders submitted by the parties substantially understated their financial circumstances.
It is the husband’s case that at all relevant times the wife knew of the husband’s interest in the trust and if not the value of that interest, she knew of the assets of the trust. It was the husband’s evidence that the wife was offered the records of the trust and rejected them, asserting that as she had worked in the husband’s practice; she told him that she already had direct access to that material. The wife rejected that evidence. The wife is not a credible witness. On balance I prefer the evidence of the husband on that issue.
There is no evidence from the wife as to her understanding of the parties’ financial circumstances at the times she signed the consent applications. She notes that the application did not include some assets she was aware of – B Pty Ltd, UU Pty Ltd, the interest in the orchard in Town AL and the property he acquired in Town QQ. Some if not all of those are associated with the trust. The high point of the wife’s evidence is “To be frank, I did not fully comprehend our financial circumstances in any event.”[8] That makes sense of the aspect of the wife’s case that goes to her agreeing to the orders under duress. However, she does not say anywhere that she agreed to the orders because of the representations made by the husband about his financial circumstances.
[8] Paragraph 92 of the affidavit of the wife.
The parties did not tell the Court in March 2003 that the value of the asset pool (including the value of the Trust assets) as at March 2003 was of the order of $1,355,375. That said, the wife knew of the existence of the assets involved.
The wife cannot make a case that she entered into the orders because of the representations made about the assets or because of what she understood about the assets.

If the wife did enter into the Consent Orders in March 2003 as a consequence of duress and/or suppression of evidence, did this result in there being a miscarriage of justice?

I do not accept that the wife entered into the orders as a consequence of duress and/or suppression of evidence.
Even if the wife did enter into the orders as a consequence of one of those things, I am not satisfied that there was a miscarriage of justice.
The expression “miscarriage of justice” has been interpreted to mean that an order has been unjustly obtained (see Holland and Holland (1982) FLC 91-243 at 77,339). In Clifton and Stuart (1991) FLC 92-194 at 78,337-78,338 the Full Court found that the phrase concerns the integrity of the judicial process and that it should not be interpreted too widely. The phrase “or any other circumstance” is limited by the phrase “miscarriage of justice” and cannot be read as if it were unlimited in scope: Gebert and Gebert (1990) FLC 92-137 at 77,935 and Clifton and Stuart (above) at 78,337. However, it is not to be read as being limited to the same kind as the words “fraud, duress, suppression of evidence, the giving of false evidence”(see Elliot and Willcox (1996) FLC 92-687 at 83,134).
There is reference in the case to the issue of the wife having legal advice in relation to the 2003 orders. Mr AD acted as the husband’s solicitor on the consent orders and he was not called to give evidence because his evidence would not help the husband. However, it is not the wife’s case that she relied on the advice of Mr AD in signing the orders. On the contrary, although she initially rejected the plain meaning of her written testimony, she said she was disturbed by his involvement in the process. It is clear that she turned her mind to legal representation (her evidence to the effect that she could not afford legal representation) and it is her own case that she falsely swore that she obtained independent legal representation. On this issue I accept the evidence of the husband about the conversations he had with the wife about legal advice. The reference to her not wanting to have another argument with her lawyer about the treatment of B Pty Ltd in the settlement, has the ring of truth about it. Of course, such is the lack of credit of the wife that her uncorroborated testimony is not persuasive. Thus I accept that the wife had advice about the settlement prior to her execution of the first version of the consent orders.

As to the orders themselves, it is submitted for the wife that the settlement reflected in that document was manifestly inadequate. That is not my finding.
The first thing to be said is that for the purposes of the argument, the BB Lane Family Trust is treated as an asset of the marriage. The unchallenged evidence of the husband is that the trust was established for the benefit of the children of his first marriage. However, there is no doubt that the husband controlled the trust and it is clear from the way in which transactions for and by the trust are described in the evidence, the terms the “trust”, the “husband” and the “parties” are used interchangeably. The affairs of the parties were intermingled with those of the trust and the husband controlled it.
I accept the submission made on behalf of the wife that it was not open to the parties to exclude the BB Lane Family Trust from their property settlement by agreement.
The parties commenced cohabitation in January 1978. They separated in December 1989. Therefore, they lived together for nearly 12 years. More than 13 years passed, after separation, before the property settlement was achieved.
Minds could differ about the calculation but I accept the thrust of the calculations made in the husband’s case that the wife received about $215,200 in March 2003. The calculation is:
Cash:  100,000;
Shares:      8,000;
Motor Vehicle:   30,000;
Funds in Bank:   11,500;
Furniture & Effects:                    15,000;
Forgiveness of Loan:                  77,000;
Credit Card:   (17,000);
H.P:   (9,300).
The values attributed to personalty are disputed but I accept that there was a settlement on the wife, of that order. I am satisfied that the net pool of assets in March 2003 had a value of the order of $1,355,375. Thus, the settlement was in the approximate proportions: 15% to the wife and 85% to the husband.
In my view that was within a proper range of the outcomes that would have resulted from an application of s 79 to the parties circumstances at that time, on a contested basis.
The overwhelming contribution was made by the husband, both during cohabitation and since. It is effectively agreed that, including the value of Trust property, the net asset pool was worth no more than $130,300 at December 1989.
Relevantly:
·The wife had no significant assets at the commencement of the marriage whereas the husband had $80,000 which was applied to the trust.
·In 1991 the husband received an inheritance from his mother of $50,000. The loan of $200,000 from the husband’s mother/the EE Lane Family Trust was forgiven.
·In 1990 the husband received an inheritance from his aunt Ms LL in the sum of approximately $198,000.
·In the 13 years after separation the pool of assets increased by over $1.2 million.
·The husband’s professional practice was only established post-separation.
·The wife’s role in that business was as a paid employee.
·UU Pty Ltd was purchased by the Trust post-separation (in June 1996). The wife had nothing to do with this company.
·The value of the stock owned by the husband (t/a Company AF) had increased from nil to $181,125.
I accept that in addition to her contributions prior to December 1989, the wife made some contribution to the farm after separation. However, she did not live at the farm after separation. The “contemporaneous” record of her time at the farm proved to be not so. In relation to some of the technical contributions she alleged, it transpired that she was not able to perform the duties described in her evidence. For example, she could not operate the ride-on mower and any mowing was performed with a hand machine. The wife may have described the farming activity, but did not always perform more than a support role. Again, beyond the concession made by the husband, there was no corroboration for the wife’s evidence and she is a poor witness.
Importantly, N lived with the wife for about a month after separation and thereafter (for 13 years) was housed, fed and otherwise supported, in the main, by the husband.
The wife has not made out her case that her contributions as a homemaker and primary caregiver were “rendered all the more arduous by the husband’s domineering and abusive behaviour and by his periodic violence towards her”.
Taken together, the husband’s contributions including those made on his behalf, exceeded those of the wife during cohabitation and all but eclipsed her contributions after separation.
As to any adjustments under the non-contribution elements of s 79(4), relevantly:
·in 2003 the parties were both in paid employment, with the wife working full-time as a manager;
·the husband continued to support N living away from home at university; and
·while the husband’s children were also supported for a period, the husband had housed and supported the wife’s children[9] for most of the time of the parties’ cohabitation and Q came back to live at “Property C” with the husband after separation.
[9] See In the Marriage of Robb (1994) 18 Fam LR 489; (1995) FLC 92–555.
In those circumstances, the judicial process did not miscarry in March 2003.

Conclusion as to the threshold step under Section 79A

In that there was no miscarriage of justice by reason of the wife having entered into the Consent Orders in March 2003 as a consequence of duress and/or suppression of evidence, the wife’s application must fail.

I certify that the preceding one hundred and seventy one (171) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 19 June 2013.

Associate:

Date: 19 June 2013