Lane & Lane

[2016] FamCAFC 53

FAMILY COURT OF AUSTRALIA

LANE & LANE [2016] FamCAFC 53

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Consent order – Where the appellant wife seeks to set aside consent orders made in     2003 – Whether the wife’s consent to the orders was obtained by duress – Where the husband deliberately suppressed evidence of the value of the parties’ assets – Whether the wife knew the value of the parties’ assets at the date of the orders – Where there was a miscarriage of justice – Where the trial judge adopted a flawed approach to s 79A and thereby erred in law – Where the value of the wife’s entitlement under the consent orders was incorrectly determined – Where error in calculation of the wife’s entitlement was immaterial – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the husband sought that the wife pay his costs of and incidental to the appeal if the appeal failed – Where some challenges were successfully made out – Where it is appropriate that each party bear their own costs.

Family Law Act 1975 (Cth): ss 75(2), 79(2), 79(4), 79A(1)(a) and 117

Anderson v Anderson (2000) FLC 93-016
Barker v Barker (2007) 36 Fam LR 650
Bigg v Suzi (1998) FLC 92-799
Ebner & Pappas (2014) FLC 93-619
Gebert & Gebert (1990) FLC 92-137
Green & Kwiatek (1982) FLC 91-259
Harris v Caladine (1991) 172 CLR 84
Holland & Holland (1982) FLC 91-243
In the marriage of Clifton and Stuart (1991) FLC 92-194
Korsky and Bright & Anor (No 2) (2007) FLC 93-352
Lowe v Harrington (1997) FLC 92-747
Pelerman v Pelerman (2000) FLC 93-037
Rohde and Rohde (1984) FLC 91-592
Stanford v Stanford (2012) 247 CLR 108
Suiker and Suiker (1993) FLC 92-436
Taylor and Taylor (1977) FLC 90-226

APPELLANT: Ms Lane

RESPONDENT: Mr Lane

FILE NUMBER: MLC 8674 of 2010

APPEAL NUMBER: EA 98 of 2013

DATE DELIVERED: 14 April 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace, Ryan & Murphy JJ

HEARING DATE: 28 April 2015

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 19 June 2013

LOWER COURT MNC: [2013] FamCA 466

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Dickson QC

SOLICITOR FOR THE APPELLANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Campton SC

SOLICITOR FOR THE RESPONDENT: Phelps Reid Lawyers

Orders

1. The appeal from the orders of Justice Loughnan made on 19 June 2013 is dismissed.

2. There is no order as to costs.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA  AT SYDNEY

Appeal Number: EA 98 of 2013
File Number: MLC 8674 of 2010

Ms Lane

Appellant

and

Mr Lane

Respondent

REASONS FOR JUDGMENT

Ainslie-Wallace and Ryan JJ

1. Ms Lane (“the wife”) appeals against an order of Justice Loughnan of 19 June 2013 dismissing her application brought pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) in which she sought to set aside orders for property settlement made by consent on 4 March 2003 (sic) (“the consent orders”) between her and Mr Lane (“the husband”).

2. Section 79A(1)(a) provides:

   (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;

   …

   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.

3. Specifically, the wife claimed that the husband suppressed evidence (from the Court and her) of the value of his interest as a beneficiary of the BB Lane Family Trust (“the Trust”), which as we will shortly discuss was of considerable value, and thus brought about a miscarriage of justice.  Upon the orders being set aside the wife sought orders which would result in her receiving 35 per cent of the parties’ property.

Background

1. Although a matter of contention, his Honour found that the parties commenced to live together in early 1978.  They married in 1980 and separated in December 1989. The wife disputed the date of separation, asserting that she and the husband did not finally separate until 2002. The parties were divorced in January 2011.

2. The parties’ relationship produced one now adult child, namely N, who was born in 1985 and is currently 30 years of age. Further, we note that the parties each have two adult children from their previous relationships.

3. On 4 March 2003, the husband filed an Application for Consent Orders in the Family Court to give effect to an agreement between him and the wife over property settlement.  On 18 March 2003, consent orders were made in those terms in chambers.

4. The consent orders provided (relevantly):

   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.

5. The orders provided for interest to accrue on the sum if it was not paid within 28 days of the order and dealt with the parties’ chattels and possessions and superannuation.  Order 8 provided that:

   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.

6. The affidavit of the husband filed in support of the Application for Consent Orders estimated his net wealth at about $187,000. The husband disclosed that he was a beneficiary of the Trust the value of which he said was not known to him.  The affidavit of the wife filed in support of the Application for Consent Orders estimated her net wealth at about $38,200.  On the basis of the values of those items of property, the parties informed the Court that the division of the property contemplated by the orders resulted in the wife receiving net assets (including the $100,000) to the value of about $138,000.  In other words, the orders were said to give the wife about 74 per cent of the parties’ asserted property.

7. They both said the husband made the principal financial contribution, the wife’s financial contribution was minor and their contributions as homemaker were equal.  Otherwise in relation to other non-financial contributions and contributions as a parent, the husband claimed to have made the principal contributions, whereas the wife said their contributions were equal.

The BB Lane Family Trust

1. In June 1979, the husband and his parents established the BB Lane Family Trust.  The husband and his children from his first marriage are beneficiaries of the Trust.  The husband is the appointor of the Trust.  B Pty Ltd is the corporate trustee ([20]).  The husband is the company secretary, sole director and 100 per cent shareholder of B Pty Ltd.  The wife was appointed secretary of B Pty Ltd.  It needs to be explained that the paragraph references included in square brackets herein relate to the reasons for judgment included in the Appeal Books.  Unfortunately the reasons for judgment recorded in the Court’s record have different paragraph numbers, albeit in every other respect the two versions are identical.  

2. In July 1987, a farming property known as “Property C” was purchased by B Pty Ltd for the Trust ([42]) and the property became the place of residence of the parties until their separation ([44]). 

3. Through the Trust, various properties were bought and sold both during the marriage and subsequently.  The Trust further operated as a service trust for the husband’s professional practice, providing staff and office equipment to the practice.

4. In 1996, the Trust acquired UU Pty Ltd (“UU”) which itself traded, purchasing properties and shares in publically listed companies.

5. At the date on which the consent orders were made, the value of the Trust was in the order of $980,000, comprising assets all of which were under the husband’s control.

The trial judge’s reasons

1. Turning to the basis of the wife’s application that the consent orders be set aside pursuant to s 79A, his Honour noted that the wife’s case was that the orders should be set aside pursuant to s 79A(1)(a) because of the husband’s failure to disclose relevant financial information. That is to say, the suppression of evidence (including the failure to disclose relevant information).

2. As we commence our analysis of his Honour’s reasons for judgment, it needs to be understood that the judgment proceeded on the basis that it was not open to the parties to exclude the Trust from their agreement ([155]).  There is no challenge to this finding. 

3. Turning then to the elements to be established by the wife, the trial judge first considered whether there had been a suppression of relevant financial evidence by the husband.  

4. In support of the making of the consent orders, the husband swore an affidavit in which he disclosed his net financial assets of $187,000, principally comprising livestock ($140,000), his professional practice ($35,000) and his interest as a beneficiary of the Trust, the value of which he included as “unknown”.

5. Before his Honour was evidence of the value of the various assets of the husband valued as at March 2003 in relation to which his Honour said:

   139.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.

   (Emphasis added)

6. The trial judge referred to the wife’s evidence that very shortly after the making of the consent orders, the husband approached a bank and represented that the Trust was valued at $1.8 million, the professional practice was valued at $400,000 and the livestock at $292,000 ([140]).

7. The trial judge found:

   144. 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.

8. His Honour accepted the husband’s contention that the wife knew of his interest in the Trust and of the Trust assets, even if she was not aware of the value of that interest.  Further, he accepted that the husband had offered the wife access to the records of the Trust, and she had rejected that offer, saying that she had that access in any event because she had worked in the husband’s professional practice.  His Honour rejected the wife’s denials of this assertion by the husband on the basis of her lack of credibility as a witness ([145]).

9. His Honour continued and found (at [147]):

   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 [trust] assets involved.

   (Emphasis added) 

10. The trial judge concluded that the wife could not thus establish that she agreed to the orders because of the husband’s representation about the assets ([148]).

11. Having rejected the contention that the wife’s consent to the orders was obtained through suppression of evidence (failure to disclose) ([149]), his Honour turned to consider whether, had that matter been established, it would have amounted to a miscarriage of justice.

12. The trial judge considered whether the wife had obtained legal advice about the proposed orders and said:

    152. There is a 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 …. 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.

13. The trial judge’s finding that the wife had legal advice before signing the consent orders weighed in favour of his conclusion that justice had not miscarried. 

14. The wife’s contention that the provision for her in the consent orders was manifestly inadequate and thus represented a miscarriage of justice was considered next.

15. His Honour set out the effect of the orders at [157]-[158]:

    157. 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).

    158. 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.

16. His Honour concluded that the division of the assets as between the parties was “within a proper range of the outcomes” available from an application under s 79 ([159]).

17. His Honour found that at separation in December 1989 (including Trust property) the parties’ net property was worth no more than $130,300 and between then and when the consent orders were made in March 2003, the property increased by more than $1.2 million.  In broad terms, his Honour considered that the husband’s greater initial financial contribution, sizeable financial contributions made on his behalf not long after separation, and the various other contributions made by the husband after separation established that the husband’s contributions “exceeded those of the wife during cohabitation and all but eclipsed her contributions after separation” ([159]). He further suggested that the husband’s primary care of the parties’ daughter and support of the wife’s children suggested an adjustment in the husband’s favour would have been warranted.

18. There was thus no miscarriage of justice and the wife’s application was dismissed.

The Appeal

1. The Amended Notice of Appeal contains some 21 grounds of challenge to

   
   

   his Honour’s orders.  In the written submissions in support of the appeal, counsel for the wife contended that the grounds could conveniently be considered in three broad categories:

   ·Failure to give reasons (Ground 8);

   ·Failure to find a miscarriage of justice (Grounds 9, 10, 11, 12 and 20); and

   ·Errors of fact (Grounds 13, 14, 15, 16, 17, 18, 19 and 21).

2. At the commencement of the hearing, counsel for the wife indicated that Ground 8 and Grounds 1 to 7 would not be pressed.  Thus the appeal devolved to two challenges – his Honour’s failure to find a miscarriage of justice and an error of fact in determining the value to the wife of the consent orders.

1. Failure to find a miscarriage of justice

1. It was uncontroversial that his Honour’s determination of the issue before him required the resolution of a three part enquiry: first, whether the wife had established one of the matters to which s 79A speaks. In this case, the wife principally contended that the husband had suppressed relevant evidence.  If that fact is established, his Honour was then required to determine whether the suppression of the evidence amounted to a miscarriage of justice and, finally, if that is established, whether to set aside or vary the orders or make another order (see Suiker and Suiker (1993) FLC 92-436).

2. It was argued for the wife that his Honour conflated the determination of the three steps. In essence it was argued that his Honour determined the existence of a miscarriage of justice by considering whether the orders to which the parties consented achieved an appropriate result, had the matter been litigated pursuant to s 79. In so doing, it was contended that his Honour failed to give proper consideration to whether the suppression of evidence impugned the judicial process. By moving seamlessly to a consideration of the appropriateness of the orders, his Honour determined the question of miscarriage of justice by the yard stick of whether the orders were otherwise appropriate. While that task is certainly comprehended in the determination, in most circumstances it is the last step in the determinative process.

3. In Barker v Barker (2007) 36 Fam LR 650 the Full Court explained at 675:

   [120]A miscarriage of justice under s 79A(1)(a) will occur if circumstances exist which “for some significant reason, make the order contrary to law and justice according to law as it relates to the integrity of the judicial process (original emphasis)” (Bigg v Suzi (supra) at 84,982). See also Suiker (supra); Public Trustee (as executor of the estate of Gilbert) v Gilbert (supra)).  While cases such as Suiker; In the marriage ofHolland (1982) 8 Fam LR 233; (1982) FLC 91-243; and In the Marriage ofGebert (1990) 14 Fam LR 62; (1990) FLC 92-137 indicate that the words “miscarriage of justice” should not be construed narrowly and the phrase “integrity of the judicial process” should not be taken only to refer to the hearing in the court, the circumstances creating the miscarriage must nevertheless have been such as to have had an influence on the outcome of the litigation. As the Full Court said in Holland (above at 239):

   To succeed in an application under s 79A, the wife must show some circumstance leading to a miscarriage of justice. Agreement to a consent order which may not adequately reflect a party’s entitlements under s 79 does not, of itself, show that there has been a miscarriage of justice. There may be cases where the order consented to is so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice.

   (See also In the marriage of Clifton and Stuart (1991) FLC 92-194)

4. Central to this broad ground is the wife’s assertion that it was established before his Honour that when the husband signed the consent orders he knew what the Trust was worth yet he withheld that information from the wife and the court, as a consequence of which the first of the three elements of a s 79A(1)(a) challenge was established.

What did the husband know of the value of the Trust at the date of the signing of the consent orders?

1. In support of the making of the consent orders by the court in March 2003, the husband swore an affidavit as to his financial circumstances and, under the part of the form that referred to financial resources, the husband declared: “[BB Lane] family trust as beneficiary” and ascribed the value as “unknown”.

1. At the time of swearing to the accuracy of that statement, the husband, a business professional, had prepared the financial accounts for the Trust for the year ended 30 June 2002 in which the net value of the Trust assets at that time was shown as $812,735. 

2. In cross-examination in the trial, the husband denied the suggestion that because the Trust financial documents had been prepared by him, he knew the value of the Trust, asserting that the values ascribed were “book values … not assets”.  He later said that his solicitor told him that it would cost $60,000 “…to get everything valued and get it all put in…” and he then said:

   So what I did was what my solicitor said, which was put it down as unknown because we didn’t want to deal with it anyway…

   (Transcript of proceedings, 13 February 2013, p 47, lines 17-18)

3. Some very short time after the consent orders were made, the husband approached the National Australia Bank seeking a loan and to that end he signed an application for the loan in which the net asset value of the Trust was said to be $1,807,000 and his personal assets valued at $1,728,000 (exhibit 16).  He was unsuccessful in obtaining the loan and on 4 April 2003 the husband submitted another application for a loan, this time to Suncorp Metway Bank.  In this application he asserted his total assets (in which he included the Trust assets) were $2,237,000 and further assets valued at $1,298,000 (exhibit 18).

4. The husband said that the figures that were set out in both of the loan applications were false and had been manufactured by the bank’s officers in order to assist him to secure the loan.  However, he did agree that he had provided the Trust financial accounts for the financial year ended 30 June 2002 to the National Australia Bank to support his application.  Those accounts showed the same net asset position, namely $812,735, as in the subsequent year ending 30 June 2003 (exhibit 22).  He said that the Suncorp Metway Bank had access to the financial statements for the Trust, although he contended that Suncorp Metway had of its own volition sought the financial statements from the National Australia Bank.

5. The husband said on being shown (exhibit 16):

   [The bank] produced a document with figures on it similar to this

   
   

   16, and I say [sic] down with them and we discussed it, and the manager said you’re not going to get the loan unless your lending ratio is a certain ratio, and I’ve made some adjustments to these figures, and they’re only numbers on a piece of paper so this will get you the loan. Some of the figures I ticked off because they were straight out of the balance sheet, and other figures I queried because they were bank estimates not numbers off the balance sheet, but ultimately this document was prepared. 

   (Transcript of proceedings, 13 February 2013, p 9, lines 40 – 47) 

6. It was put to the husband by counsel for the wife:

   MR GRIEVE: And you had not disclosed to [the wife] any of the information prior to the property settlement that you disclosed to the National Bank and to Suncorp Metway, did you?

   THE HUSBAND: The values, no, but the actual assets, yes. She knew everything. She’s a CFO. She’s on $100,000 a year. She’s not a fool.

   (Transcript of proceedings, 13 February 2013, p 16, lines 33 – 36) 

   …

   MR GRIEVE: When did you first know that you had to make a full and frank disclosure of your financial affairs?

   THE HUSBAND: Well, I assumed that that was the case, always, yes.  Yes, so I have probably known it for a long time, yes.

   (Transcript of proceedings, 13 February 2013, p 18, lines 25 – 28)

7. The application to Suncorp Metway resulted in the husband obtaining a loan of $600,000 approved within one month of the making of the consent orders.

8. His Honour, while he made no direct finding as to the husband’s knowledge of the value of the Trust at the date on which the consent orders were made, at [139] certainly appears to have accepted that the value at that date was not “unknown” to the husband. Indeed, in coming to the view that the evidence of the expert about the value of the Trust in 2003 would be preferred to that of the husband, his Honour appears to have accepted that the value ought to have been declared to be $980,933. Although some caution is appropriate about whether or not this is the correct amount, it is beyond dispute that his Honour needed to consider whether the husband’s statement that the value was “unknown” was evidence given “within my personal knowledge ... or true to the best of my knowledge, information and belief” and was “given in good faith”.  For in relation to disclosure to the court that is what an applicant for consent orders is asked to attest (section H sub-paragraphs 6 and 9 of the Application for Consent Orders filed 4 March 2003).      

9. The irresistible conclusion arising from the evidence and from his Honour’s findings is that had the husband answered the question in good faith at the very least he would have disclosed to the wife and the court the book value of the Trust at $812,735, along with whatever explanation he had for that being a figure put forward in good faith.  This follows from the husband’s knowledge and control of the Trust assets, his professional qualifications, and the fact that he prepared the Trust financial statements and relied upon them when dealing with bank officers on the loan applications.  We also agree with the submission that the husband’s evidence that he knew that the value of the Trust asserted in the bank application was incorrect also demonstrated that he did indeed have a good faith belief of the value of the Trust at the date of the application for orders made very shortly beforehand. 

10. It was argued for the wife that by swearing that the value of the Trust was unknown to him, the husband misled the court about the value of his assets, failed to give full and frank disclosure and knowingly permitted his application to be determined on a factually erroneous basis and thus impugned the integrity of the judicial process.  We agree.  Given that this is also the extent of the husband’s disclosure to the wife, it follows that she too was misled about the state of the evidence and what the husband knew about the value of the Trust.   It follows that we are satisfied that before his Honour the wife established the husband had suppressed evidence of real significance and his Honour should have found accordingly.

11. However, it was argued because of the wife’s personal knowledge of the Trust assets she was in effect complicit in the husband’s misrepresentation and thus if evidence was suppressed, she participated in it.  It was also argued that it necessarily followed that the husband’s misrepresentation was immaterial qua the wife’s decision to enter into the consent orders and she could not rely on it to impugn the efficacy of orders entered by agreement.

12. Under the heading: “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)?”, his Honour found:

    ·In the Application for Consent Orders, although the husband declared that he had an interest in the Trust, he indicated that the value of that interest was “unknown” ([138]); 

    ·That based on the evidence of the values before him, at the date that the orders were made in 2003, the value of the parties’ assets was $1,355,375. The Trust made up $980,933 of this ([143]-[144]);

    ·The figure of $1,355,375 was not put to the court when the orders were made in March 2003 ([147]); and 

    ·The Trust was an item proper to be included in the property of the parties ([154]).

13. His Honour did not find that the wife knew the value of the Trust.  He did however, find:

    145. 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.

14. His Honour continued and noted that there was no evidence from the wife regarding her understanding of the parties’ financial circumstances at the time she signed the consent application.  He then quoted the wife’s evidence where she said that she did not “fully comprehend” their financial circumstances.  His Honour noted that the wife did not say she entered into the consent orders because of any representation made by the husband about his financial circumstances ([146]).

15. His Honour concluded the discussion about whether there had been a suppression of evidence by the husband:

    147. 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.

    148. 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.

16. Thus his Honour rejected the wife’s contention that the husband failed to disclose relevant information and had suppressed evidence.  He said:

    149. I do not accept that the wife entered into the orders as a consequence of duress and/or suppression of evidence.

17. In other words his Honour was satisfied the wife had sufficient knowledge of the Trust assets, that the husband’s failure to tell her what he knew about the value of the Trust assets was irrelevant and because of what she knew she was no less responsible for the misrepresentation to the court.

What did the wife know about the value of the Trust at the date of the consent orders?

1. We then turn to the evidence of the wife’s knowledge of the value of the Trust.  His Honour made no finding that the wife knew the value of the Trust, but, it seems, imputed knowledge to her based on her awareness of the existence of some of the assets of the trust.  Underpinning that imputation is his Honour’s finding at [145] that the husband had offered the wife copies of the financial records of the Trust and she refused them saying that she had direct access to them through the husband’s office. It needs to be understood that although his Honour was satisfied the parties separated in 1989, it was common ground that in 1995 the wife commenced to work in the husband’s professional practice for approximately 20 hours per week, his Honour found that later in that same year, the wife began working for a client of the husband for approximately 12 to 18 months. During this period the wife continued to do some work for the husband’s practice and the husband paid some of the wife’s wages ([68]). 

2. The wife denied that the husband offered to give her access to the financial records of the Trust in 1997.  His Honour rejected her evidence, preferring that of the husband who said that at a time in 1997 when he was very ill, he offered the wife access to the financial records of the Trust to which she replied that she had no need to see them because she had prepared the financial records of the Trust for the previous year ([145]). However, there was no evidence that at any later time the husband offered to give the wife copies of those documents and, indeed, the husband agreed that the wife did not have copies of the financial statements and accounts of the Trust as at as at the date of the Application for Consent Orders or for the year ended 30 June 2002.

3. It was uncontentious that the wife did know of some of the assets held by the Trust, and was, at least, aware of the most significant asset held by the Trust, the farm on which the parties lived during the last part of their relationship.  The wife said that the farm was purchased for $500,000 and it seems that she would, at the very least have understood that it had a significant value.  However, there was no evidence before his Honour that the wife knew of all of the assets of the Trust at the relevant date, or indeed knew the structure of the Trust.  Nor did his Honour find that the wife had any relevant knowledge as to the net value of the Trust assets. 

4. It is further to be observed that whatever the wife may have known in 1997, the nature of the Trust assets had changed since that time.  For example at about the time that the husband said he offered the wife access to the financial accounts of the Trust, UU Pty Ltd had recently been purchased, effectively as a shelf company, for $800. In 2003 the husband sold UU to a client for $240,000.  We raise this point to bring into focus his Honour’s findings that while the wife knew of some of the assets held by the Trust, she did not know the value of those assets.

5. Yet, his Honour found at [147]:

   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.

6. To the extent that his Honour’s finding at [147] amounts to a finding that both the husband and the wife asserted the value of the Trust to be “not known”, it is incorrect.  In her affidavit sworn in support of the consent orders, the wife’s answer to question 53 in the Application for Consent Orders which required her to disclose any interest she had in “a deceased estate, trust or similar”, was “N/A” and in relation to value she wrote “NIL”. 

7. Paragraph J (affidavit of respondent) in the Application for Consent Orders explains that the wife was required to disclose the details of her financial circumstances (sub-paragraph 6); she was not asked to provide details of the financial circumstances of the husband nor to confirm their accuracy.  The wife did not have a financial resource which she failed to disclose and the answer she gave to that question was correct.  It follows we accept that in the answers she gave to the various questions contained in the Application for Consent Orders, the wife did not join in the husband’s suppression of relevant information. 

8. We further accept the argument advanced on behalf of the wife that the evidence before his Honour could not support a finding that she did know the value of the Trust. 

9. His Honour’s conclusion at [148] that the wife could not “make a case that she entered into the orders because of the representations” misstates the object of his Honour’s enquiry, which, at this juncture, was not whether the wife was misled, but whether evidence was suppressed and thus caused justice to miscarry. It seems to us that his Honour focussed solely on whether the wife was induced to enter into the orders by reason of the husband’s suppression of the evidence of value, rather than whether the suppression of that evidence impugned the integrity of the court process. 

10. In this regard his Honour’s consideration miscarried and he erred. We accept the argument that his Honour was in error in failing to find a suppression of evidence in relation to the value of the Trust. However, although the wife has established one of the grounds to which s 79A(1)(a) speaks, appellate intervention would not be warranted unless the remaining elements of the provision were also established.

Did the suppression of evidence cause justice to miscarry?

1. Although his Honour rejected the wife’s contention that there was a suppression of evidence, he nevertheless went on to consider the second question necessary to the determination of the issue, which was whether there was a miscarriage of justice.

2. In Suiker and Suiker (1993) FLC 92-436, which concerned proceedings to set aside an order entered by consent and where it was asserted that there was a suppression of evidence, the Full Court said, apropos the making of orders by consent, at 80,471:

   In our opinion, the necessity for full and frank disclosure of financial matters to the Court and to the other party are basic to the process of the Court and the fundamental aims of the financial legislation contained in section 79 of the Family Law Act 1975.

3. That orders are made by consent does not relieve a court from compliance with the requirements of s 79(2): that the court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to do so:

   …but it may render compliance much less demanding.  Provided that a court, or a Registrar, is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section have been met.

   (Per Dawson J in Harris v Caladine (1991) 172 CLR 84, 124) (Footnote omitted)

4. Thus the accuracy of the information attested to by the parties seeking that consent orders be made, is of single importance in maintaining the integrity of the judicial process.

5. Their Honours continued in Suiker and said (at 80,471):

   It is implicit in these passages that the consent to an order must be informed consent. The consent to the order is itself part of the judicial process on which the Court places reliance. If that consent is based on misleading or inadequate information, then there may be, in our opinion, a miscarriage of justice either by reason of the “suppression of evidence” or by reason of “any other circumstance”.

6. In considering this issue, his Honour referred to two matters: the receipt by the wife of legal advice before signing the Application for Consent Orders; and the appropriateness of the orders made by consent.  It is in this regard that the wife contends his Honour misdirected his enquiry by conflating two steps in the enquiry process.

Legal advice

1. As to whether the wife received legal advice, although his Honour noted that the wife contended that she could not afford legal advice and thus did not receive advice about the proposed consent orders, he rejected her evidence in favour of the husband’s in which he recounted a conversation with the wife in which she said that she had obtained legal advice at one point about the orders but did not wish to obtain further advice because she did not wish to argue with her solicitor over the treatment of the Trust in the agreement.  Consequently, his Honour found that the wife did have advice before she signed the Application for Consent Orders ([152]).

Adequacy of the provision for the wife contained within the orders

1. The trial judge rejected the wife’s contention that the provision for her in the consent orders was manifestly inadequate. In coming to that finding, he assessed the wife’s entitlement pursuant to ss 79(4) and 75(2) of the Act, taking into account the value of the Trust as found by him. After accepting that the wife had “received about $215,200 in March 2003”, or 15 per cent of the net pool of assets, he found that this was “within a proper range of the outcomes that would have resulted from an application of s 79”.

2. His Honour concluded:

   168. 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.

Did his Honour conflate the last two steps in the determination process?

1. It was argued that his Honour, in determining whether there had been a miscarriage of justice by reference to whether the orders fell within the “range of outcomes from an application of s 79”, misdirected himself as to the true nature of the enquiry and at this point his discretion miscarried.

2. It is to be recalled that his Honour found that the wife did not know the value of the Trust and inferentially that the husband did, and that he knowingly ascribed the value of the Trust as “unknown”.  In light of those findings, his Honour was required to consider whether the husband’s failure to disclose the value of the Trust was a suppression of evidence that amounted to a miscarriage of justice.  However, with respect to his Honour, the determination of whether there was a miscarriage of justice is not to be answered by assessing whether the orders made were otherwise “within the range” of orders that might be made under  

   
   

   s 79.

1. As the Full Court said in Korsky and Bright & Anor (No. 2) (2007) FLC 93-352, a miscarriage of justice and an unjust and inequitable order are not synonymous concepts and a miscarriage of justice may have occurred though an order is just and equitable. As we will shortly demonstrate, the issue of whether or not the orders were just and equitable may fall to be determined if a miscarriage of justice has been found and the court is considering whether to set aside or vary the orders made.

2. The correct question for his Honour to have posed is whether the suppression of evidence was such that the court’s process was impugned and, in this case, is not answered solely by assessing whether the orders fall within a proper range.  In conformity with the authorities to which we have earlier referred, the husband presented information to the court asserting its accuracy and on the basis of which he sought the making of property orders.  Part of that process involved the court being satisfied, for itself, as to the appropriateness of the orders sought to be made.  That process required the parties to comply with their obligations of full and frank disclosure.  In this matter, the suppression by the husband of what he knew in good faith to be the value of the Trust amounted to a miscarriage of justice. 

3. We accept the argument that his Honour in failing to find a miscarriage of justice erred.

Should the orders have been set aside?

1. That a miscarriage of justice has occurred does not dictate that the impugned orders be set aside.  In Barker v Barker (supra), the Full Court said (at 678):

   [134] The establishment of a miscarriage of justice does not automatically result in the varying or setting aside of orders, the applicant must satisfy 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” (see In the Marriage of Prowse (1994) 18 Fam LR 348 at 358; (1995) FLC 92-557 at 81,566).

2. The extent of a party’s knowledge of the relevant facts or circumstances is clearly seminal to the issue both of whether there has been a suppression of evidence and whether, if a miscarriage of justice has occurred, the orders should be set aside or otherwise varied.

3. Further, in Barker the Full Court said (at 676):

   [123] As previously discussed, in order for a claim under s 79A(1) to succeed, the Court must be satisfied that a miscarriage of justice has resulted.  It is not sufficient to merely establish the existence of one or more of the stated grounds, such as suppression of evidence.  In Livesey v Jenkins, Brandon LJ had this to say about the nexus between non-disclosure and setting an order aside (at All ER 119; AC 445-6): 

   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 have made if such disclosure had taken place that a case for setting aside can possibly be made good. Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed, with costs against them, or, if they are legally aided, against the legal aid fund.

   …

4. Although the trial judge erred in conflating the last two steps necessary to consider the issue before him, having found there to be no miscarriage of justice, he nevertheless considered albeit hypothetically whether had a miscarriage occurred, the orders would be set aside.  He determined that they would not be.

5. From a reading of his Honour’s reasons as a whole, he clearly identified why, in the exercise of his discretion the orders should not be set aside.  His Honour found:

   ·The wife knew of the establishment of the Trust in 1979 ([20]) and that the farm on which the parties lived was purchased by the Trust for $499,485 in July 1987 ([42]);

   ·That in 1999 the husband told her that the Trust had purchased part of an orchard ([73]);

   ·The wife knew that the husband controlled the Trust, and during the relationship the Trust affairs and those of the parties were intermingled ([154]);

   ·In 1995 she worked in the husband’s professional business for 12 to 18 months ([68]);

   ·In 1997 the husband offered her access to the financial accounts of the Trust and the wife refused his offer because she had prepared the financial documents for the previous year ([145]);

   ·The payment to the wife of $100,000 reflected her settlement proposal to the husband ([134]);

   ·The wife had sought legal advice about the agreement contained within the consent orders before she signed them ([152]) and she had expressed a reluctance to seek further advice because she did not want to have a further argument with the solicitor about valuing the holding company of the Trust, B Pty Ltd ([134] and [152]);

   ·The wife was aware of the existence of the Trust and the assets comprised within it ([145]) although the wife did not know the value of the husband’s interest in the Trust ([145]);

   ·The wife did not assert that she entered into the orders in reliance on any representations made by the husband ([146]);

   ·The wife did not enter into the consent orders because of the husband’s representations of the assets or because of what she understood of the assets ([148]); and

   ·The provision for the wife contained in the consent orders was not manifestly inadequate ([153]).

6. Only the last point is contentious. As we will shortly discuss, in order to consider this issue, that is whether the orders should be set aside, his Honour composed a “balance sheet” in which the assets of the parties and each of them at the relevant time was set out. He then assessed the evidence by reference to the relevant s 79(4) and s 75(2) factors and determined that an outcome which gave the wife approximately 15 per cent of the parties’ property was within the proper range of what, in 2003, the wife would have received.

7. In considering the value to the wife of the provision of the consent orders, the trial judge found that the wife had received funds in the order of $215,200.  Included in that figure is a sum of $77,000 said to be “Forgiveness of Loan”.  That sum was said by the husband to represent advances made to the wife from the Trust and which were recorded as loans to her by the Trust. 

8. It is in this exercise, that is in his Honour’s calculation of the payments made to the wife, that it is contended his Honour erred.  This contention is reflected in the second of the asserted challenges to his orders and to which we will shortly turn.

9. In addition to the findings to which we have referred and on which his Honour’s exercise was clearly based, he further had evidence that:

   ·The wife had received distributions from the Trust in the order of $77,000; and

   ·The wife agreed that she knew the purchase price of the farm and said that she believed that its value before the orders were made to be in the order of $1.5 million.

10. Clearly, uppermost in his Honour’s mind as is apparent from his discussion of this issue, was what was known to the wife at the time she entered into the consent orders. 

11. It is clear from his Honour’s reasons that the wife knew a good deal about the Trust, its existence and some of the assets held by it.  She knew that the document sworn by the husband in support of the consent orders excluded the Trust and, she consented to that exclusion in agreeing to join in seeking the orders.  Potent too is his Honour’s finding that the wife was not induced to enter into the orders by reason of the husband’s suppression of the value of the Trust.

12. She knew of the existence of the Trust and the husband’s role in it and that at least one asset of significance was held by the Trust. 

13. The extent of the wife’s knowledge and her tacit acquiescence to the exclusion of the Trust value from the agreement clearly distinguishes this case from that of Barker to which we have already referred. 

14. In Barker, although the wife had concerns that the joint valuation was too low and was in a position to obtain further information, she did not.  However, the husband had received an offer to purchase the parties’ property at a significant price above the valuation, and while he had rejected it, he failed to disclose it to the wife.  He further had information to the effect that the value of the property had been positively affected by sales in the area leading to a higher price.  In that case, the Full Court concluded that this established a miscarriage of justice.  The consent orders were set aside.

15. Conversely in Ebner & Pappas (2014) FLC 93-619, the husband’s assertion of a miscarriage of justice because of the wife’s failure to disclose certain interests in a financial document was rejected on a finding that the wife had disclosed those interests in a number of previous documents and the husband was aware of their existence and the value of them.

16. Thus, while we agree that the husband suppressed evidence of the value of the Trust and, by its suppression, a miscarriage of justice occurred, we are persuaded that his Honour’s hypothetical determination that in that event the orders would not be set aside, was a proper one on the evidence before him.

1. Errors in determining the value of the wife’s entitlement under the consent orders

1. For the purposes of the application before his Honour, the Trust was valued as at March 2003 by an expert, Mr L, who was appointed for that purpose. 

2. Before turning to the loan to the wife from the Trust, it is appropriate to mention the inclusion of a loan from the Trust to a related entity, UU, against a provision for a deficiency for UU of the same amount, thus, as the expert noted in Schedule 3.1:

   Provision against [UU] loan as per [the husband]. Shown as $NIL (already included in non-recoverable balances of beneficiary loans. Estimated at 10 weeks of staff costs, based on correspondences from [the husband] (net of tax).

3. The expert valued the husband’s interest in the Trust in 2003 at $797,774 (consistent with Schedule 3.1) and, after certain loans to beneficiaries were written out, to produce a net value of the Trust at $721,595. When the value of the husband’s other assets held at that date was added, his net assets were said to be $857,712.

4. Sometime after producing the report, the expert revised his valuation of the Trust after it was agreed that he had mischaracterised UU, which was wholly owned by the Trust, and thus his treatment of the loans to UU was in error.  The agreed reassessed value was then said to be $980,933, which is the value to which his Honour refers in the reasons and used by him in determining the value of the consent orders to the wife.

5. Nothing either at the hearing before the trial judge or on appeal turns on the revision of the valuation of the Trust, but the foregoing explains the apparent difference in the figures adopted by his Honour and shown in Mr L’s first report.

6. The expert attached various schedules to the report.  Schedule 3.1 represented his calculation of the value of the Trust based on the financial accounts for the Trust as at 30 June 2003 “with adjustments as appropriate” and resulting in a valuation of $797,774.

7. A $77,118 loan was shown in the Trust accounts as having been made to the wife from the Trust.  The expert attributed a value to that loan of “$NIL recoverable value” based on the husband’s instructions.  Thus the value of the Trust calculated by him did not include the liability of the wife to the Trust in the sum of $77,118.

8. As we have noted, his Honour concluded that the wife had received $215,200 (including the sum of $77,118 “forgiven”) out of a total pool of assets in the order of $1,355,375 and he calculated that figure to be about 15 per cent of the pool. 

9. The thrust of this ground is that his Honour erred in including the $77,118 as part of the sums received by the wife.

10. When the expert valued the Trust he did so on the basis that the Trust considered the debt to be unrecoverable and it had thus been written out of the financial accounts.  Had it not been so, the value of the Trust assets would have been increased by the addition of the $77,118 owing by the wife.  Thus his Honour was wrong to fix the wife with the liability for a debt which the lender had forgiven.  Secondly, that the debt had been forgiven by the lender does not create a liability in the wife such that it was appropriate to take it into account as part of his Honour’s calculations as to the value of the consent orders to her.

11. We agree with the contentions of counsel for the wife.  Once the debt had been forgiven by the Trust, it was not a “payment” or “asset” of the wife nor indeed was it a debt to be weighed up in assessing the value to her of the consent orders.  His Honour was wrong to include the $77,118 in the balance sheet as part of his consideration of the effect of the consent orders.  In so doing he inflated the value of the consent orders to the wife and the error caused him to find that the orders provided for her to receive about 10 per cent of the then existing property. 

12. Counsel for the wife argued that, when the $77,118 is removed from the calculation, in fact the wife received $138,000 from the total net assets (of which $38,000 represented assets then in the wife’s possession).  It was contended that excluding the figure of $77,118 meant that the wife received something less than 10 per cent of the total assets at the date the orders were made.

13. We agree that his Honour was incorrect in including that figure in calculating the value of the provision for the wife in the consent order, and to include it caused his Honour to have an inflated view of the value to the wife of the provision made by the orders. Although the evidence plainly established that the wife had received distributions from the Trust to that amount, and his Honour could have taken those earlier distributions into account in considering the wife’s entitlement pursuant to s 79, we do not accept that he would have taken them into account on a “dollar for dollar” basis, which was the effect of including it in the balance sheet. Thus we conclude that his Honour was incorrect to include that sum in the balance sheet.

14. However, his Honour’s findings to which we have referred at [85] to [89] amply support his conclusion that had a miscarriage of justice occurred, he would not have set aside the consent orders.  We thus find his Honour’s error in composing the balance sheet to be immaterial.

15. We would dismiss the appeal.

Costs

1. As is customary, we sought submissions on costs from the parties at the conclusion of the appeal hearing to avoid the cost and time taken in providing submissions after the determination of the appeal.

2. The husband argued that if the appeal failed, the wife should be ordered to pay his costs.

3. The determination of costs on appeal is governed by the considerations contained within s 117 of the Act and in particular s 117(2A). Relevantly, while the appeal will be dismissed, some challenges were successfully made out. In those circumstances, we are of the view that there should be no order as to costs, the parties thus will be responsible for his or her own costs.

Murphy J

1. In my opinion the trial Judge was correct in finding that the wife had not established suppression of evidence by the husband and correct in finding that there was no miscarriage of justice within the meaning of s 79A. 

2. The wife’s appeal from his Honour’s order should be dismissed.   

The wife’s case at trial and how it arose

1. The wife sought to set aside orders made by consent by a Registrar on 18 March 2003 upon the joint application of the parties in Form 12A. That document was sworn by both parties.

2. The orders were made about 13 years after the parties separated in 1989. The wife’s s 79A application was filed some 21 years after separation and about seven and a half years after the consent orders were made.

3. The wife deposed that the application was brought after consulting a lawyer and “as a result of discussions with friends … [which] suggested that I might have rights given the manner in which my property settlement had been undertaken”. 

4. Section 79A prescribes five grounds as pre-conditions to the relief given by the section.  One such ground is “duress”. The wife’s affidavit material sought to assert that ground.  His Honour found, with respect entirely correctly, that no case for duress was properly particularised or deposed to by the wife. It is not said otherwise on this appeal.

5. That being so, the wife’s case rested solely on a different ground expressed in the section as: “suppression of evidence (including failure to disclose relevant information)”.  The wife did not contend that the husband supressed evidence other than through his asserted failure to disclose relevant information.  Establishing the relevant ground was dependent upon answering two questions: what evidence is said to have been suppressed and through lack of disclosure of what? What the wife asserted as the answers to those questions does not emerge clearly either from her affidavit or oral evidence or from submissions made at trial on her behalf. 

6. As to the former, at paragraph 107 of her affidavit of evidence in chief the wife deposes:

   The Husband failed to comply with his obligations to provide full and frank financial disclosure at the time he prepared and forwarded to me the Application for Consent Orders and Minutes of Consent Orders. I have now been made aware that at the time the March Orders were made there was a significant discrepancy in the financial assets and resources available for distribution between us arising from our marriage to that which was contained in the court documentation setting out the matrimonial settlement at the time. I was not fully aware of our financial circumstances particularly as these were controlled by the Husband to my exclusion.

   (Emphasis added)

7. There was no evidence before the trial judge which suggested, much less established, that there was any “discrepancy in the assets and financial resources available for distribution” that impacted upon the wife. The trial judge found that “[t]he wife cannot make a case that she entered into the [consent] orders because of the representations made about the assets or because of what she understood about the assets”.[1]  Neither finding is challenged on this appeal.  Each is, with respect, entirely correct. 

   [1]     Reasons, at [148], emphasis added.

8. As to the wife’s submissions at trial, it was said:

   …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.[2]

   [2]    Wife’s written submissions at paragraph 3, quoted at p 15 of the Reasons.

9. The asserted “failure to disclose relevant information” is not particularised. 

10. As the wife’s case emerged ultimately, it became clear that the sole basis for the asserted suppression of evidence was the wife’s contention that there was a failure by the husband “to disclose relevant information” relating solely to the value of a trust. In the parties’ jointly-sworn Form 12A, the husband declared as a financial resource an interest in the “[BB Lane] Family Trust as beneficiary” and declared its value as “unknown”.  (It was, and is, uncontroversial that the husband’s complete control of the trust should see any value it has as synonymous with the value of his beneficial interest in the trust).

1. It is fundamentally important to understand that the wife’s case for suppression of evidence was not at all based on an assertion that the husband had hidden or undisclosed assets or resources but, rather, solely on an asserted failure to disclose documents or information relating to the value of the trust.

2. It will be observed that the sworn basis of the wife’s claim earlier referred to makes no mention of the value of the trust as an issue, much less as the central plank upon which her case as to suppression of evidence was based. 

3. The authorities shortly to be referred to make it clear that in order for the wife to succeed in the case which she ultimately sought to advance, it was necessary for her to establish that, at the time the orders were made and/or their antecedent negotiations, the husband had information as to the value of the trust which was peculiarly within his knowledge or means of knowledge and the information was not within the knowledge, or means of knowledge, of the wife.

4. His Honour concluded that the wife had established no such case. I consider that his Honour was entirely correct in that conclusion.  That finding was itself sufficient to dismiss the wife’s application. 

5. However, his Honour found additionally that even had the wife established the asserted ground, there was no evidence by which it could be concluded to the relevant degree of satisfaction that any failure to disclose was causative of any miscarriage of justice. That this is necessary is evident from s 79A’s requirement that the asserted miscarriage of justice occur “by reason of” the relevant ground. 

6. I consider with respect that his Honour was also entirely correct in that finding.

7. Before looking at the evidence in respect of those matters in more detail, it is first appropriate to place his Honour’s findings and the wife’s case at trial within the context of well-settled principles in respect of s 79A.

The principles governing the trial judge’s determination

1. His Honour’s entirely correct peremptory dismissal of the wife’s purported case of duress gives vitally important context to the issues in this appeal.

2. Some 25 years ago, this Court held, in the context of a s 79A application, “the law fortunately still allows persons to form their own views as to the arrangement of their affairs”.[3] Since then, the legislature has enshrined just such a principle in relation to binding financial agreements which finally determine parties’ rights beyond court interference.[4] Also, entirely consistent with that principle is the recognition that the “stated and unstated assumptions” made by parties during a relationship governing their property interests can continue post separation and, specifically, in consensual arrangements made in the aftermath of separation:

   …Past arrangements that the parties have made about their property interests on the assumption, expressed or implicit, that those arrangements were sufficient and appropriate during the continuance of their marriage are not necessarily falsified. If both parties are competent, it can still be assumed that any necessary or desirable adjustment can be made to their property interests consensually…[5]

   (Emphasis added)

   [3]     Gebert & Gebert (1990) FLC 92-137, 77,936; Quoted at p 33 of the Reasons and, as his Honour there points out, cited in Prowse & Prowse (1995) FLC 92-557.

   [4]     Family Law Act 1975 (Cth), Part VIIIA.

   [5]     Stanford v Stanford (2012) 247 CLR 108, at [44].

3. Those principles underpin the well-settled proposition 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”.[6] 

   [6]     Holland & Holland (1982) FLC 91-243, cited by his Honour at p 34 of the Reasons.

4. In short, absent fraud, duress, or other such vitiating factors, parties of full capacity are free to make whatever agreement they choose in settling their financial affairs.[7] Important to the instant context, they may do so for whatever (idiosyncratic) reasons they might choose. I respectfully disagree with the statement by the trial Judge that “it was not open to the parties to exclude the … Trust from their property settlement by agreement”.[8] In my view it was entirely open to them to do so (again, of course, assuming the absence of fraud or other vitiating factors).  In that respect it is important to observe that the instant proceedings did not involve any application by the wife to extend time to review the decision of the Registrar; it involved a challenge to what the husband is alleged to have omitted so as to bring about the wife’s agreement upon which the consent orders were based.

   [7]     See, for example, Harris v Caladine (1991) 172 CLR 84, per Brennan J at 102.

   [8] Reasons, at [158].

5. The parties’ consent to an order must be a free and informed consent.[9] Consequently, the authorities seek to emphasise that the province of s 79A, in the relevant context of asserted suppression of evidence occasioned by non-disclosure, is one party’s failure to disclose matters “which were peculiarly within [the] knowledge”[10] of that party or omissions which knowingly engendered, or permitted, a mistaken understanding on the part of the other party.[11]  Within that context, it has been said, for example, that suppression of evidence must “amount to wilful concealment of matters which it was [the party’s] duty to put to the Court”[12] and that “the ground is not available to a party who simply fails to give relevant evidence either by choice or inadvertence …‘[t]o withhold facts is not to reveal them or suppress them’”.[13]

   [9]     See Suiker and Suiker (1993) FLC 92-436; Morrison & Morrison (1995) FLC 92-573.

   [10]    Pelerman v Pelerman (2000) FLC 93-037 at [63].

   [11]    For example, Lowe v Harrington (No 2) (1997) FLC 92-747, 84,095.

   [12]    Taylor and Taylor (1977) FLC 90-226, 76,197, cited with approval in In the Marriage of Kokl (1981) FLC 91-078, 76,557 per Gee J and Pelerman v Pelerman (supra) at [75].

   [13]    Rohde and Rohde (1984) FLC 91-592 at 79,762, 79,767; citations omitted.

6. Important to the instant case, the Full Court has also said, for example, that:

   …it is difficult to imagine any circumstances in which it would be enough to constitute a miscarriage of justice … for one party to consent orders to establish only that he or she entered into those orders under a mistaken belief, even about a relevant matter, which was neither induced by nor known to the other party…[14] 

   [14]  Bigg v Suzi (1998) FLC 92-799, 84,983, at [6.41].

7. In Anderson v Anderson,[15] the issue before the Court was described as “essentially whether consent orders can be set aside under s 79A … on the basis that the failure of a party to disclose a valuation to the other party amounts to a ‘miscarriage of justice’”. It was held that, despite there being no proceedings before the Court, the failure to produce a valuation which was the subject of legal professional privilege did not amount to suppression of evidence by non-disclosure for the purposes of s 79A.

   [15] (2000) FLC 93-016, 87,305, at [1]; citations omitted.

8. By way of contrast, it has been held, for example, that there was no free and informed consent where a husband failed to disclose that an offer had been made to him to buy real property at a price significantly higher than the valuation upon which the parties acted in reaching consent.[16] Equally, it has been held, for example, that there was no free and informed consent where parties had agreed to orders on the assumption that the husband would continue working in his erstwhile employment and the husband failed to disclose he had taken steps which “might bring about a substantial change in his financial position”.[17]

The context for the trial judge’s ultimate findings

[16]  Barker v Barker (2007) 36 Fam LR 650.

[17]  Suiker and Suiker (supra) at 80,472. 

The Form 12As

1. The parties swore two Form 12A applications; the second some two months after the first consequent upon a requisition from the Court issued in respect of the orders as first submitted. Neither the requisition nor its basis has been suggested as relevant to this appeal and we have been referred to no such suggestion having been made at trial. The Forms 12A were, in their relevant material particulars, identical.

2. The Form 12A requires each of the applicants to swear to them not having any “interest in property, superannuation or a financial resource which is not described in column 1 of Part F”.  As has been pointed out, it was not, and could not, be suggested that each of the parties gave other than truthful answers to, relevantly, their interests in the trust.   

3. The Form also requires each party to depose, relevantly,[18] “[f]or financial orders – where I give any estimate in this application it is based on knowledge, information and belief and is given in good faith” (emphasis added).

   [18]    Form 12A, Parts H and J for the applicant and respondent respectively.

4. As has earlier been said, the wife gave an accurate estimate of her interest – there is no issue that she had no interest and that her asserted value of nil is correct.  The husband did the opposite of giving an estimate; he swore that the value of the financial resource recorded as the “[BB Lane] Family Trust as beneficiary” was “unknown”.  No evidence before his Honour suggests that sworn assertion was untrue.

5. The wife deposed to swearing only the first of the two Form 12As. In support of her purported case of duress, the wife contended that she was told that the documents “had to be signed urgently”. However as his Honour found, with respect correctly, “[l]ogically, that did not apply to the execution of the February version of the document”[19] upon which the consent orders were ultimately made. 

   [19] Reasons, at [131].

The State of the Wife’s Knowledge When The Orders Were Made

1. As has been seen, it was necessary for the wife to establish that the husband had information as to the value of the trust which was peculiarly within his knowledge or means of knowledge and the information was not within the knowledge, or means of knowledge, of the wife.  Axiomatically, then, evidence as to the state of knowledge of the wife at the time the orders were made and during their antecedent negotiations is a crucial consideration.

2. His Honour said in respect of the credit of the parties and the reliability of their evidence that “[i]n a somewhat inglorious comparison it is fair to say that the wife is a less credible witness than the husband”.[20]  His Honour went on to say that, “[i]t is not possible to prefer the evidence of one of the parties on all issues. Issues fall to be determined issue by issue”.  In that regard, relevant to the issue of the wife’s knowledge was what, if any, information was suppressed by the husband. His Honour made important specific findings not challenged on this appeal.

   [20] Reasons, at [108].

3. His Honour found, contrary to the wife’s sworn assertions, that she and the husband had a conversation in 1997 at which time the husband provided “full details of my financial affairs”. His Honour made a further finding, again contrary to the wife’s sworn assertions, that during that conversation the husband said to her, “go to [the husband’s personal assistant] and get a copy of the Financial Statements for the Trust.  That will give you a list of all the assets at book value and the details of the liabilities”.  His Honour accepted, again contrary to the sworn evidence of the wife, that the wife said in response, “I did your financials up until last year. I already have a copy”.[21] The reference of “book values” in that conversation should be noted; it becomes important when the issue of the husband’s failure to provide to the wife the 2002 accounts for the trust is later discussed.

   [21] Affidavit of husband, at paragraph 126; Reasons, at [70].

4. The appellant contends that his Honour gave those statements too much weight, or used them erroneously, in arriving at a conclusion as to the state of the wife’s knowledge at the time the consent orders were made in 2003. I reject that submission.

5. That finding was made in the context of other evidence – primarily that of the wife herself – as to her state of knowledge.  Given the well-settled principles earlier outlined and the questions for his Honour emerging from them, it is important to record that evidence here.  The evidence is also important because, as will shortly be referred to, the wife swore two Form 12As some two months apart and did so having received legal advice (as his Honour found contrary to the wife’s sworn assertion). The evidence from the wife pertains to her knowledge about the trust, its assets and the husband’s (and the parties’) financial affairs more broadly. The nature and extent of that evidence should be contrasted with the central deposition underpinning the wife’s assertion of suppression of evidence at paragraph 107 of her affidavit quoted earlier. 

6. Crucially:

   ·The wife deposed to her knowledge historically of the husband’s business and financial affairs. Specifically, she deposed that she knew that the husband had established the trust in 1979, that she knew its corporate trustee and that she knew the structure and control of that corporate trustee. She knew that the husband controlled the trust and directed it as he saw fit;[22]

   ·The wife knew that the trust’s primary asset was the farming property known as “[Property C]”. The parties resided on Property C for about 12 years. The wife knew how and when Property C was purchased (in 1987) and its precise purchase price.[23] She deposed specifically 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]’ … together with stock and equipment”[24] (emphasis added);

   ·Importantly, in light of assertions made centrally before his Honour and on this appeal as to the wife’s knowledge about value, the wife herself deposed that she knew that “[i]n 2003 when the orders were made, the farm land alone was valued at $1,500,000 [and] [o]ur other assets included [the husband’s] [professional] practice, stock [the husband] valued at $140,000 and extensive farm equipment”[25] (emphasis added).  It will be observed that she swore to two Forms 12A that contained neither such assertion and that this evidence sits in contrast to what is sworn to by her at paragraph 107 of her affidavit, (emphasis added);

   ·In addition to the matters to which reference has just been made the wife also deposed to knowledge, clearly by inference at the time the orders were made, of the husband having “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”.[26] She deposed to knowledge, during the period between 1994 and 2001 of the registration by the husband of two companies and of the husband’s registration of himself as director and secretary of one of them. Again, the contrast between that evidence and what is deposed to at paragraph 107 of the wife’s affidavit will be observed;[27] 

   ·In respect of the funding of the purchase of Property C, the wife deposes to having been provided with documents to sign and her knowledge that the documents were drawn to reflect a loan by her to the trust;[28]

   ·The wife deposed to having worked in the husband’s professional practice and deposed to knowing that “my low wage was apportioned to take into [sic] my contribution to the upkeep of the farm”;[29]

   ·She deposed to a discussion in 2001 (when property settlement was being discussed between her and the husband) and the tenor of those discussions being to the effect that the husband wanted Property C to remain “within the immediate family”;[30]

   ·She deposed to having seen a document, in connection with an application for maintenance in November 2002, which referred to the husband’s property and financial resources. They included the professional practice (to which a value of “nil” was attached) and the trust (to which a value of “nil” was also attached);[31]

   ·She deposed to subsequently receiving, in December 2002, an Application for Consent Orders which referred to the trust with value “unknown” and the husband’s professional practice with an ascribed value of $35,000.[32]

   [22]  Affidavit of Wife, at paragraphs 22-23.

   [23]  Affidavit of Wife, at paragraph 36. See also transcript of proceedings, 12 September 2012, at p 106ff.

   [24]  Affidavit of wife filed 24 March 2011, at paragraph 3, as quoted at p 25 of the Reasons as part of his Honour’s quotation of the husband’s written submissions at trial.

   [25]  Ibid.

   [26]   Ibid. The further deposition at the same point that “I did not know the value of any of the businesses, the family trust or [the husband’s] real estate will be addressed below”.

   [27]  Affidavit of wife, at paragraph 66.

   [28]  Ibid, at 37.

   [29]   Ibid, at 65.

   [30]  Ibid, at 70.

   [31]  Affidavit of wife, at paragraph 84.

   [32]  Ibid, at 85.

7. The totality of the evidence and findings just referred to gives cogency to his Honour’s further finding that, contrary to that which the wife swears at paragraph 107 of her affidavit – apparently as a central pillar of her case – she (a) had extensive knowledge of the husband’s financial circumstances at the time she agreed to the orders and (b) was able to obtain upon request any financial information she might choose from the husband’s personal assistant.

Independent Legal Advice Received by the Wife

1. Further important context is given to his Honour’s ultimate findings by his Honour’s specific rejection of oral evidence given by the wife that she did not receive independent advice before swearing the Form 12As. 

2. Contrary to the inference and conclusion sought to be drawn by the wife, his Honour found that she was not under any pressure to swear to the second of the two Forms 12A and that there was no urgency attending her swearing that document. Despite swearing in each, some two months apart, that she had received “independent legal advice on my rights under the Family Law Act and the effect and consequences of orders being made in the terms proposed”, her later sworn evidence at trial was that she had not received advice. His Honour did not believe that later evidence: “I accept that the wife had advice about the settlement prior to her execution of the first version of the consent orders”.[33]

   [33] Reasons, at [152]. His Honour had earlier, at [97], referred to the wife’s “alarming” assertion that she did not write her affidavit and, at [134], to the husband’s evidence “that the wife told him that she had spoken to a solicitor about the proposed settlement ” and 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 [a company] in the agreement. He said that he told the wife that he wanted to avoid the cost of having the trust assets valued”.

3. The effect was that what the wife had sworn to in her Forms 12A was true. The submission made on behalf of the wife at trial was that if the wife “obtained no independent advice before consenting to the orders” it was a matter of “obvious significance” – certainly, at least, in assessing if there was any miscarriage of justice. Equally, his Honour’s finding that the wife did receive independent advice and that her evidence to the contrary should not be accepted are both matters of significance in his Honour’s finding that there had been no miscarriage of justice.

The s 79A ground: what evidence was suppressed?

1. The precise particulars of what the wife asserts was the information or documents possessed by the husband as to value which were exclusive to him and should have been revealed to her remain obscure.  Be that as it may, in my view it is clear that neither the affidavit evidence nor the transcript reveals any evidence probative of the husband being possessed of any documents or information as to the value of the trust or his interest in the trust which he was obliged to disclose to the wife.

1. In reaching that conclusion I reject two apparently central arguments on behalf of the wife raised before us.

2. The first argument pertains to evidence that, a few weeks after the consent orders were made, the husband applied for two loans, the second successfully, and in the course of so doing made representations as to the “value” of the trust to financial institutions.  The second argument turns on the failure of the husband to provide to the wife, despite her making no request for them, the 2002 accounts for the trust and the failure by his Honour to so find, and to arrive consequently at a conclusion that evidence had been suppressed.  That is said to constitute error on the part of the trial judge.

(a)      The Applications for Loans and Statements Made by the Husband

1. The husband contended that he provided the books of account of the trust to two banks and that they, in effect, added their own values to them (he instanced an inflated figure for goodwill as an example). The consequence was the creation of documents from each of the two banks which gave “values” of significance to the trust. (It might be observed as an aside that the relevant figures were different to – and significantly in excess of – the 2003 value given to the trust by the single expert, Mr L, some nine years after the orders were made). 

2. For my part I doubt that the evidence was admissible – at least in so far as it purported to be evidence of the “value” of the trust. If the bank evidence was admissible, it was, without more, not directly probative of the “value” of the trust but, perhaps, permitted potentially of an inference that the husband had provided those “values” to the bank.  The husband’s evidence is that the “values” contained in the bank documents arose primarily through the intervention of the relevant bank officers so as to attempt to secure for him the relevant loan, he having given to each of them the 2002 books of account for the trust.   

3. His Honour made no specific finding about that evidence, but he did not need to.  That evidence could only be probative, inferentially, of the issues before his Honour if the husband’s statements (assuming they were made) were based on him being possessed of knowledge or information as to the value of the trust which he was obliged to share with the wife.  There was no such evidence and the evidence just referred to establishes no such thing.  In the absence of evidence that the husband was possessed of information or documents as to value, his subsequent assertions to the bank, if made, amount to no more than his guess or estimate, or hope, or expectation of what the bank might use as the value of the trust for the purposes of lending money.  That is not at all inconsistent with a sworn assertion that the value of the trust was unknown. 

4. The husband’s hope, or expectation, or estimate, or guess, as to the “value” of the trust at the time of the consent orders may, or may not, have been the same as the hope, expectation, guess or estimate which he shared with the bank some few weeks later. It may or may not have been the same as the wife’s hope, or expectation, or estimate, or guess as to the “value” of the trust at that time (noting that her own sworn evidence proffered a “value” of its major assets).

5. However the wife points to no information possessed only by the husband which informed any such hope, expectation, estimate or guess which she either did not know or have the means of knowing. 

6. On her own evidence she had significant information upon which she could base her own hope, expectation, estimate or guess as to the value of the trust.   In the absence of any evidence as to information possessed by the husband exclusive to him (apart from his own hope, expectation, estimate or guess), the bank evidence is in my view not probative of the husband having information “peculiarly within his knowledge” which he was obliged to disclose. What was required in order to found s 79A relief was probative evidence from which it could be concluded that the husband had deposed to a value of unknown despite knowing or having the means of knowing.

7. There was no evidence before his Honour that the husband had a valuation of the trust, or of any assets owned by the trust. There was no evidence before his Honour that the husband was, by information or means exclusively available to him and not also available to the wife, possessed of any particular or specific knowledge as to the value of the trust.

8. On the evidence before his Honour, a sworn assertion that the value of the trust was “unknown” is entirely consistent with the value not being known precisely because neither party had chosen to obtain a valuation despite each being aware of the trust, its primary assets (and, in the wife’s case, an asserted “value” of them), its farming activities and its other assets and despite there being no impediment to either party obtaining any such valuation.[34]

   [34]    Noting that the husband’s evidence was that he didn’t wish to obtain a valuation because of the potential cost.

9. In the absence of evidence of value possessed by the husband, his assertion as to the value being unknown is not misleading to the wife or the court.  Indeed, in the absence of that evidence, neither is the statement inaccurate; it is a statement of fact not challenged by any probative evidence before his Honour.

10. By way of corollary, I am unable, with respect, to discern from the evidence adduced by the wife precisely what was asserted to have been the information “peculiarly within the husband’s knowledge”, or his means of knowledge, that ought to have been disclosed by him.

11. Before leaving the issue of the husband’s knowledge of value, it is necessary to refer to some parts of his Honour’s reasons dealing with that issue.  His Honour said relevantly:

The Value of the Assets in 2003

138.In the Application for Consent Orders the husband declared that he had net assets to the value of $187,000 ... The husband declared that he had an interest as a beneficiary in [the trust] and that the value of the interest was “unknown” …

139.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 …. 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.

140.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 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] to be added to the asset pool – at a value of $430,000.

…

143.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] – a wholly owned asset of the Trust.

144.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.

(Emphasis in original)

1. His Honour’s findings just quoted could only be made because a valuation by an expert obtained in 2012 provides a foundation (an opinion) for a conclusion in 2012 as to the value of the trust in 2003 when the orders were made. That evidence, and those findings, do not provide any assistance, much less a foundation, for answering the first essential question upon which the wife’s case depended: what information was possessed by the husband, peculiar to him, of the value of the trust at the time of the making of the consent orders and during their antecedent negotiations which, by reason of it being exclusive to him, he was obliged to disclose?

2. The husband’s (and for that matter, the wife’s) assertions of value in the proceedings before his Honour were not at all based on what each did or did not know at the date of the orders or in the lead up to them.  Each of their assertions was responsive to a valuation prepared by Mr L some nine years after the orders were made.  The husband makes this very point when being cross-examined, saying in answer to suggestions that he knew the value of the trust in 2003 that, for example, “you still don’t know [the value].  You still have talk to Mr [L] and spend $60,000 on him to find out what it’s worth …”.[35] 

   [35]  Transcript of proceedings, 13 February 2013, p 46; see generally the husband’s evidence at pp 45-47.

3. In my respectful opinion, the focus by the parties at trial on the 2012 assessment of the 2003 value of the trust and the parties’ respective contentions and counter-contentions in respect of that value almost entirely obscured the question necessary to be asked in order to ascertain if the wife established the s 79A ground upon which she relied. That question did not depend on what in fact the valuation was (or, indeed, might be) but, rather, whether the husband was possessed of information or documents exclusive to him and that might inform value, but not within the wife’s means of knowledge, which, because of those facts, he was obliged to disclose to the wife.

(b)      The Books of Account

1. Although again, with respect, not articulated before his Honour with particularity or precision, it appears to be contended that evidence as to the value of the trust has been suppressed by reason of the fact (which is not controversial) that the husband did not volunteer to the wife the 2002 books of account of the trust.  As has been seen, they were volunteered to the bank some weeks after the orders were made. 

2. Those accounts might be described as disclosing a “net asset” position of the trust as $812,735.  That number derives from the book value given to assets and the accounting treatment of entries within the books of account.  Importantly, the book value of assets as disclosed within those accounts is neither determinative of, nor necessarily indicative of, the “true” or “market” value of those assets and is certainly not necessarily indicative of the value of the trust.  Not only can the book value of the assets differ from the “true” value of the assets, but a miscellany of other differences between book entry and valuation assumption can exist. An example is book liabilities to beneficiaries or associated entities. To the extent that these matters are not, in any event, notorious, they plainly emerge from the valuation report of the single expert, Mr L.  Indeed, the very fact that a valuation from Mr L was sought is indicative of the fact that the books of account might reveal a “net asset position” different from the “value” of the trust.

3. Significantly, the ultimate opinion given by Mr L in 2012 as to the value of the trust in 2003 differs from the net asset figure shown in the books of account.  Further, and perhaps more significantly in light of the assertions central to the wife’s case, she herself contended before his Honour that the trust had a 2003 value some $300,000 greater than the value attributed by Mr L.[36]  Her challenge was, in part, based on her knowledge (as at the time the consent orders were made) of the financial circumstances of the husband to which reference has already been made.  For his part, the husband contended for a different figure again. 

   [36] Reasons, at [140].

4. That evidence in 2012 is itself suggestive that the value of the trust in 2003 was, in fact, unknown. That evidence also reinforces the fact that production of the books of account could not have led the wife to know any more as to the value of the trust than she already knew (or assumed, or guessed or estimated). Importantly, as the evidence of the wife herself earlier set out makes clear, she considered that at the time the orders were made the value of the trust was greater than her estimate of the value of Property C and the professional business – that is, greater than $1.6 million.[37] That figure is approximately double that which the books revealed as the “net asset” position of the trust.

   [37]   As reference to her evidence earlier quoted reveals she considered the value of the trust was greater than the $1.5 million she attributed as the value of Property C and the $140,000 she attributed as the value of stock.

5. Manifestly, the books did not, and could not, constitute knowledge by the husband as to the value of the trust nor, equally, could they have provided any information different to, or other than, what the wife herself asserted that she already knew.

6. When account is taken of his Honour’s findings, the evidence included these facts:

   ·    The wife knew that the trust kept and possessed books of account;

   ·    The wife had been offered books of account in 1997;

   ·    The wife had been told in 1997 that she could have access to such information as she might require in respect of, relevantly, the trust;

   ·    The wife knew the trust had significant assets, including its primary asset Property C; and

   ·    The wife knew the husband controlled the trust as he saw fit.

7. In my view, those circumstances were, in the particular circumstances of this case, sufficient to permit the husband to await a request for the books of account to be provided. It was not suggested before us that there was evidence that the wife had requested those, or any other, documents from the husband prior to entering the consent orders or in the negotiations antecedent to them or that the husband had taken any steps to prevent or hinder her access to them. As has been seen, his Honour rejected the wife’s evidence in favour of a conclusion that she had earlier been offered the books of account only to reject them in favour of her own knowledge which, she asserted, she possessed.

8. In the absence of her own valuation she, just like the husband, was left to her own hope, guess, estimate or assumption as to the value of the trust.  The evidence as to the wife’s state of knowledge of the parties’ financial affairs and, specifically the trust and its assets earlier set out pertains.  In that regard, not only was this not a case involving undisclosed or hidden assets, nor was it a case where the wife could possibly allege that she was under any misapprehension that “unknown” meant precisely that (rather than, for example, being used as a synonym for “nominal” or such like).  On any view, the wife’s own sworn evidence reveals that, at the time the orders were made, she plainly considered the trust to be valuable. 

9. Such information as was contained in the books of account and whether that information needed to be disclosed cannot be divorced from the significant central findings made by his Honour earlier referred to and not challenged on this appeal. The trial judge did not accept the wife’s denial of the conversation to which the husband deposed in which he offered to her the opportunity to have such books of account of other documents as she might choose. 

10. I am unable to see anything which the accounts would have revealed as to the value of the trust (or, indeed the value of any assets of the trust) that was not otherwise within the wife’s knowledge or her means of knowledge.

The s 79A Ground: Summary of Conclusions

1. In summary, in my view his Honour was correct in determining that the wife had not established the ground of suppression of evidence through lack of disclosure.

2. It was entirely open to the parties to conclude their agreement on the basis that the value of the trust was unknown. In my view the admissible probative evidence was clearly to the effect that the value was in fact unknown. The fact that in 2012, using expert opinion evidence, his Honour was able to ascribe a 2003 value to the trust was, and is, not to the point in deciding if the relevant s 79A ground is made out.

3. The wife did not establish before his Honour any information peculiarly within the knowledge of the husband or his means of knowledge.  Specifically, in light of the information which the wife knew, or had the means of knowing, it was not established that the husband had any other information as to the value of the trust which he was obliged to disclose but did not. 

Section 79A’s second requirement: miscarriage of justice

1. The conclusion just referred to accords with the conclusion reached by his Honour and is sufficient to dispose of the appeal; if his Honour was correct in concluding that the relevant s 79A ground was not established, his Honour was correct to dismiss the wife’s application. 

2. However, as has been seen, his Honour proceeded to determine, in the event that he was wrong in that conclusion, that no miscarriage of justice was established.  The wife challenges his Honour’s finding in that respect and it is appropriate that this issue be addressed additionally.

3. The precise particulars of the wife’s assertions in respect of this aspect of the case are, again, by no means easy to discern.  Be that as it may I am unable to see any probative evidence that the husband was possessed of any knowledge or information which he failed to disclose with the consequence that the wife was misled by any words, actions or omissions on his part in agreeing to the orders or by which it can be asserted that her consent was neither free nor fully informed.

4. Once again, in my respectful view, the parties’ trial contentions as to value obscured the issues central to the determination of the wife’s claim that there had been a miscarriage of justice. In deciding that issue – that is, whether the integrity of the judicial process had been impugned – the issue was not whether the trust in fact had a particular value or what that value was. The issue was whether the wife was misled by the husband by reason of him swearing to “unknown” as a value of the trust in his contemporaneous sworn documents; that is, he swore to “unknown” despite knowing or having a means of knowing not available to the wife.

5. Central to answering that question was the state of the wife’s knowledge and her means of acquiring any further knowledge which she might choose.  Central aspects of that issue including, centrally, the wife’s own evidence, have already been referred to and need not be repeated.

6. The husband in effect encapsulated the questions at the heart of this issue when in cross-examination he admitted that he had not disclosed to the wife the same representations as to value that he had made to the bank: “[t]he values, no, but the actual assets, yes. She knew everything. She’s a CFO. She’s on $100,000 a year. She’s not a fool”.[38]  Not only is the wife “not a fool” but on her own evidence at the time she agreed to the orders she had knowledge of the trust; asserted knowledge of its assets and, in two specific instances, their value.  The latter included a value ascribed to Property C – a farming property that is, uncontroversially, the trust’s major asset.

   [38]     Transcript of proceedings, 13 February 2013, p 16.

7. Each of the parties had their own information which might have formed the foundation for either or both of them obtaining a valuation of the trust as each was perfectly entitled to do.  Each could have done so; each chose not to. That is, neither party took any action freely available to each so as to crystallise their existing knowledge (or assumptions or guesses) and render the value of the trust as something other than unknown.  To repeat, this was not a case of hidden or undisclosed assets.

1. We have been referred to no authority, and I am not aware of any authority, which establishes, or is to the effect that, s 79A intervention is attracted because one or both parties include, within an application for consent orders, an assertion that a value is “unknown” in circumstances where one, or both, parties expect, guess, estimate or assume that property has a particular value but where no words, actions or omissions by either of them has impacted on the other’s capacity to expect, guess, estimate or assume a value for themselves – and to freely consent to orders accordingly.

2. Statements by the Full Court in Green & Kwiatek,[39] (albeit pertaining to the issue of the revocation of a s 87 maintenance agreement and non-disclosure of an asset, not value) are, in my view, readily applicable to the position in the instant case and, in effect, summarise the position reached by his Honour:

   As appears from his own financial statement, the husband swore to and put in issue the fact that the wife had an interest in a business which she had not disclosed in her financial statement. Had he considered that a material matter, he had several courses open to him. He could have enquired of the wife through her legal advisers of the nature of her interest. If her answer did not satisfy him or seemed to him equivocal, he would have been entitled to insist that, before the negotiations continued, the wife file a new statement of financial circumstances disclosing the extent of that interest; or if the wife denied any interest, he could have asked that the wife on affidavit specifically deny any interest in the business. There is no compulsion upon any litigant to enter into an agreement for the approval of the Court and the husband would have been well within his rights to refuse to continue negotiations until he was satisfied on this point…[40]

   [39] (1982) FLC 91-259 at 77,459, per Asche SJ, Lindenmayer and Nygh JJ.

   [40] Ibid, at 77,459.

3. Even if the husband had an obligation to volunteer to the wife the accounts of the trust – which, in the particular circumstances of this case, I consider he did not – what follows in the Full Court judgment in that case has particular resonance for the instant case:

   None of this excuses the wife from the non-disclosure in her statement of financial circumstances. But it has a profound effect upon the question whether the husband was induced to enter into the agreement … he entered into the agreement well knowing that there was an area of uncertainty which could be further investigated and which he did not wish to investigate further … he made a positive choice not to treat the

   
   

   non-disclosure or misrepresentation as an inducement to enter into the agreement.[41]

   [41] Ibid, at 77,459 - 77,460.

4. In my view his Honour was correct in finding that the wife had not established that the integrity of the judicial process had been impugned by reason of anything done, or not done, by the husband.

5. No actions or omissions by the husband misled the wife or otherwise impugned her free and informed consent. In light of her knowledge of the property of the parties and the trust in particular, she was as informed as to the value of the trust as she chose to be.

6. Suggestions within the wife’s arguments below are to the effect that the court was misled by reason of the parties representing that the value of the trust was “unknown”. In my view, there was no misleading of the court.

7. Parties are perfectly entitled to negotiate their own agreement based on neither of them knowing the value of an asset or, indeed (assuming no fraud or other such element) on the basis of each of them declaring an asset’s value as unknown despite having in their minds different guesses or estimates of value. Equally, parties are perfectly entitled to approach the Court seeking consent orders having agreed (for their own idiosyncratic reasons) that no alteration to some existing legal or equitable is desired but seeking a consent alteration to other legal or equitable interests in property by reference to s 79(4). Whether a Registrar would or would not make the orders may be another matter, although what was said by Brennan J in Harris v Caladine[42] also pertains.

   [42]    Above, at [103]-[104].

Other grounds of appeal

1. It will I think be clear from what I have already said that I consider his Honour’s reasons are adequate to illuminate his findings and that no error is established in that respect.

2. To the extent that the grounds of appeal pertain to challenges to his Honour’s findings in respect of the parties’ contributions my conclusion that his Honour was correct in finding both that there was no s 79A ground established and there was, in any event, no miscarriage of justice renders it unnecessary to consider them substantively. To repeat what was earlier said by reference to authority, a consent order that may not reflect a party’s just and equitable entitlement under a s 79 determination does not of itself show a miscarriage of justice.

3. A consideration of the justice and equity of the order based upon a retrospective opinion as to value and, relevantly, the parties’ contributions, may be relevant to the separate question of whether, upon satisfaction of a ground and miscarriage of justice, discretionary considerations must be weighed in deciding whether to set aside or vary the original orders.  Here, however, that question was not engaged because neither a relevant ground, nor a miscarriage of justice is made out.

Outcome of the appeal and costs

1. The appeal should be dismissed.

2. Costs do not “follow the event” any more on an appeal than they do in any other proceedings.[43] However, it is often said that a party being wholly unsuccessful in an appeal, which by definition seeks to deny the other party the “fruits of their judgment”, can be of great significance.

   [43] s 117(1) Family Law Act 1975 (Cth).

3. By definition, the parties’ consent orders were designed to finally determine the parties’ financial relationship and to effect a “clean break” to their erstwhile joint financial lives.  His Honour’s orders were intended to bring to an end litigation brought some seven years after the orders were made and some 21 years after the parties’ separated.

4. In my judgment, the wife has been wholly unsuccessful in respect of an appeal that enjoyed little prospects of success.

5. The husband would appear to be in a superior financial position to the wife, but I am not persuaded that this factor should loom large, particularly given the time that has elapsed since separation.

6. I would order the wife to pay the husband’s costs of and incidental to the appeal. 

I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Murphy JJ) delivered on 14 April 2016.

Associate:     

Date:              14 April 2016