Maples and Maples
[2019] FCCA 698
•21 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAPLES & MAPLES | [2019] FCCA 698 |
| Catchwords: FAMILY LAW – Application to set aside property orders pursuant to s.79A(1)(a) of the Family Law Act 1975 (Cth) – whether property orders made by consent in 1999 should be set aside on the basis of miscarriage of justice – where the Wife failed to disclose a market appraisal of the former matrimonial home – inaccuracies in the Wife’s Financial Statement – whether property orders should be set aside pursuant to s.79A(1A) – where the parties resumed cohabitation shortly after property orders made – where the resumption of cohabitation and circumstances of cohabitation indicated implied consent to set orders aside – property orders set aside pursuant to ss.79A(1)(a) and 79(1A). |
| Legislation: Family Law Act 1975 (Cth), ss.79, 79A Evidence Act 1995 (Cth), s.140 |
| Cases cited: Byrnes v Kendle (2011) 243 CLR 253 In the Marriage of Drew (1985) FLC 91-601 In the Marriage of Liu (1984) FLC 91-572 In the Marriage of Patching (1995) FLC 92-585 In the Marriage of Prowse (1995) FLC 92-557 |
| Applicant: | MR MAPLES |
| Respondent: | MS MAPLES |
| File Number: | MLC 4194 of 2018 |
| Judgment of: | Judge C.E. Kirton QC |
| Hearing date: | 13 July 2018 |
| Date of Last Submission: | 13 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 21 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Potter |
| Solicitors for the Applicant: | Beaumont Lawyers |
| Counsel for the Respondent: | Ms Juneja |
| Solicitors for the Respondent: | G A Black & Co |
ORDERS
Pursuant to s.79A of the Family Law Act 1975 (Cth) Orders 4 and 5 of the Orders made by consent by the Family Court of Australia on 10 November 1999 be set aside.
PENDING FURTHER OR OTHER ORDER
The Wife be and is hereby restrained from selling, assigning, encumbering or otherwise dealing with the former matrimonial home situate at and known as Property A in the State of Victoria being the whole of the land more particularly described in Certificate of Title volume … folio …, unless agreed in writing between the parties or pursuant to an Order of the Court.
The matter be adjourned to the Federal Circuit Court of Australia on 4 April 2019 at 9.30 am for Mention.
IT IS NOTED that publication of this judgment under the pseudonym Maples & Maples is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4194 of 2018
| MR MAPLES |
Applicant
and
| MS MAPLES |
Respondent
REASONS FOR JUDGMENT
Introduction
The Husband seeks to set aside final property orders made by consent in the Family Court of Australia in Melbourne on 10 November 1999 (Final Orders) pursuant to s.79A of the Family Law Act 1975 (Cth) (Act). At the time the Final Orders were made the Husband signed a transfer of land transferring his interest in the former matrimonial home to the Wife and agreeing to make all payments on the mortgage over the property.
It is the Husband’s case that shortly after the Final Orders were made the parties reconciled and resumed cohabitation in the matrimonial home with their four children until March 2016, when final separation occurred. The Husband then moved to live in a bedroom attached to the garage at the rear of the matrimonial home.
It is the Wife’s case that although the Husband returned to live in the matrimonial home after the Final Orders were made, they were not reconciled. In November 2017 the Wife registered the matrimonial home in her own name. On 9 April 2018 the Wife obtained an ex parte interim intervention order which required the Husband to leave the matrimonial home. The Wife opposes the Husband’s Application to set aside the Final Orders.
Synopsis
I have determined that the Final Orders be set aside pursuant to s.79A(1) and (1A) of the Act.
I have also ordered that pending further order or the agreement of the parties in writing, the Wife is restrained from selling, assigning, encumbering or otherwise dealing with the former matrimonial home.
Background
The Husband was born on … 1962 and is aged 56. The Wife was born on … 1963 and is aged 55.
The parties married on … 1987.
In approximately 1987 the matrimonial home at Property A (Property A Property) was purchased for $74,000. The Property A Property was registered in the name of both the Husband and the Wife.
There are four adult children of the marriage: Mr B born … 1987; Mr C born … 1990; Mr D born … 1992; and Mr E born … 1995 (Children).
On … 1999 the Wife obtained an ex parte interim intervention order against the Husband (1999 Intervention Order), which required the Husband to vacate the Property A Property.
In late 1999 the Wife commenced property and parenting proceedings in the Family Court of Australia in Melbourne and the Wife’s current solicitors acted for her (Family Court Proceedings). The Family Court Proceedings were settled on the first return date[1]. On 10 November 1999 the Final Orders were made by consent in the Family Court Proceedings by Registrar Bender (as she then was). Final parenting orders were also made (Final Parenting Orders). The Final Parenting orders provided that:
a)a) The Children live with the Wife.
b)The Husband and the Wife each have responsibility for the long-term care welfare and development of the Children.
c)The Wife have the sole responsibility for the day to day care, welfare and development of the Children.
[1] Husband’s Affidavit filed 19.4.18, at [25].
The Final Orders provided that:
a)The Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife all of his right, title and interest in the Property A Property (Order 4).
b)The Husband be liable for and indemnify the Wife against all payments in respect of the “Commonwealth Bank Personal Loan that currently encumbers” (Mortgage) the Property A Property (Order 5).
c)The Court noted that the parties intended that the orders as far as practicable finally determined the financial relationship between them and avoided further proceedings between them.
At the time the Final Orders were made the Husband signed a transfer of land transferring his interest in the Property A Property to the Wife (Transfer of Land).
The Husband then moved back into the Property A Property. The Husband and the Wife provided significantly different accounts about the circumstances leading to the Husband’s return to the Property A Property and the subsequent history of their relationship. These accounts are summarised as follows:
The Husband deposed that a reconciliation occurred “within weeks” of the making of the Final Orders. He deposed that he “[…] continued to live with [the Wife] as husband and wife at the home until our marriage broke down irretrievably in early 2016”[2].
a)The Wife deposed that the Husband:
[...] forced his way back into the family home six months or more after the Orders were made and refused to move out. He did leave on several occasions thereafter but on each occasion he eventually returned, doing so over my protests[3].
[…] our separation in 1999 was permanent and we never resumed our relationship thereafter. […] At no stage did I ever regard myself as being in a domestic relationship with the [Husband][4].
[2] Husband’s Affidavit, filed 19.4.18, at [27].
[3] Wife’s Affidavit, filed 17.5.18, at [25].
[4] Ibid., at [22].
On … 2015 the Husband paid the balance owing on the Mortgage in the sum of $27,522.06 from an inheritance from his mother’s estate.
In March 2016 the Husband moved out of the house at the Property A Property and commenced living in a bedroom attached to the garage at the rear of the Property A Property (Garage).
On 14 November 2017 the Wife registered the Transfer of Land, transferring the Property A Property from the joint names of the parties to the Wife’s name only.
On 22 November 2017 the Wife’s current solicitors filed an Application for Divorce (Application for Divorce)[5].
[5] Applicant’s Exhibit 1.
In January 2018 the Wife told the Husband that she had registered the Transfer of Land and that the Property A Property was registered in her name only[6].
[6] Husband’s Affidavit filed 12.6.18, at [47].
On 6 March 2018 the parties were divorced.
On 9 April 2018 the Wife obtained an ex parte interim intervention order at the Suburb F Magistrates’ Court (2018 Intervention Order). It was a term of the 2018 Intervention Order that the Husband not go or remain within 200 meters of the Property A Property or any other place where the Wife lived or worked. As a result the Husband was required to move out of the Garage and away from the Property A Property.
Procedural History
The Husband filed an Initiating Application on 19 April 2018 (Initiating Application). The Husband sought interim orders that:
a)An order be made pursuant to s.79A of the Act to set aside the Final Orders.
b)Further or alternatively, that orders be made pursuant to s.79 of the Act altering the interests of the parties in the property of the marriage.
c)The Wife be restrained from selling, assigning, encumbering or disposing of her interest in the Property A Property save and except with the written consent of the Husband or by order of the Court.
d)The Wife make full and proper financial disclosure pursuant to the Family Law Rules 2004 (Cth) of various specified documents.
The Husband sought final orders that:
a)An order be made pursuant to s.79A of the Act to set aside the Final Orders.
b)Further or alternatively, that orders be made pursuant to s.79 of the Act altering the interests of the parties in the property of the marriage.
c)The parties forthwith do all acts and sign all such documents as that may be required to affect the sale of Property A Property and consequential orders to effect the sale.
d)Upon completion of the sale the proceeds of sale be applied:
i)First to pay all costs, commissions and expenses of the sale;
ii)Second to discharge any encumbrance affecting the real property;
iii)Third the balance then remaining to be divided between the parties in the proportions to be determined by the Court.
e)Pending the sale:
i)The parties hold their respective interests in the Property A Property upon trust pursuant to these orders;
ii)Neither party encumber the Property A Property without the consent in writing of the other party;
iii)Any joint tenancy of the parties is hereby expressly severed.
f)That the Husband be excused from further particularising the orders sought by him pending the making of full and proper financial disclosure by the Wife.
The Husband’s Initiating Application was supported by:
a)Affidavits filed by the Husband on 19 April 2018 (Husband’s First Affidavit) and 12 June 2018 (Husband’s Second Affidavit).
b)The Husband’s Financial Statement, filed 19 April 2018.
c)Affidavit of Ms G, filed 13 June 2018 (Ms G Affidavit). Ms G is a sister of the Husband.
d)Affidavit of Ms H, 2 July 2018. Ms H is also a sister of the Husband.
The Wife opposed the orders sought by the Husband in her Response filed on 17 May 2018. The interim and final orders sought by the Wife were that the Initiating Application be struck out and such further or other order as the Court considered appropriate.
The Wife’s Response was supported by:
a)The Wife’s Affidavit, filed 17 May 2018 (Wife’s First Affidavit) and the Wife’s Affidavit filed 11 July 2018 (Wife’s Second Affidavit).
b)The Wife’s Financial Statement, filed 17 May 2018.
c)Affidavit of Ms J, filed 12 July 2018. Ms J is the Wife’s mother (Ms J Affidavit).
The proceeding first came before the Court in the Duty List on 28 May 2018. Orders were made for the parties to file further affidavits and for the matter to be heard as an Interim Hearing on 13 July 2018. At the Interim Hearing on 13 July 2018 both parties were represented by Counsel. Neither Counsel sought to cross-examine the other party or their witnesses and the matter proceeded by way of submissions relying upon the affidavits that had been filed.
Position of the Parties
Husband’s Submissions
Counsel for the Husband argued the Final Orders should be set aside pursuant to s.79A(1)(a)[7] of the Act because there had been a miscarriage of justice on the basis of “suppression of evidence (including failure to disclose relevant information)”[8]. The basis of this submission was that in the Family Court Proceeding the Wife had:
a)Provided misleading information in her Financial Statement filed on 22 September 1999 (1999 Financial Statement)[9].
b)Failed to disclose a market appraisal of the Property A Property from Real Estate Pty Ltd, dated 6 April 1998[10] (Market Appraisal).
[7] Transcript T 7:15-17.
[8] Section 79A(1)(a) of the Act.
[9] Husband’s Second Affidavit, Annexure “M-1”.
[10] Wife’s First Affidavit, Annexure “M-4”.
The 1999 Financial Statement was prepared by the Wife’s current solicitors. In part “G Property” of 1999 Financial Statement the following instruction was given:
List all property/assets which you own or in which you have an interest.
In Item 1 of Part G the following was listed under the heading “Real Estate”:
“address” Property A
“ % ownership” 50%
“market value of share” $16,500
In part “H Current liabilities (debts)” of the 1999 Financial Statement the following instruction was given: “List all amounts owed by you”. In Item 6 of Part H the Wife listed the following under the heading “Mortgage”:
lender Commonwealth Bank of Australia
security Property A $57,000
In the 1999 Financial Statement in the Financial Summary:
a)Assets were listed under the heading “Total property” as being in the sum of $19,538[11]. These assets were:
i)$16,500 being 50% of the market value of the Property A Property;
ii)$38 in a Commonwealth Bank account;
iii)$1,000 for a Motor Vehicle K;
iv)$2,000 for furniture, furnishings and household effects.
b)Liabilities were listed under the heading “Total liabilities – current” as being $59,000[12]. These liabilities were the $57,000 owing at that time on the Mortgage and $2,000 in unpaid legal fees[13].
[11] 1999 Financial Statement, Financial Summary, p. 2, at [G].
[12] Ibid., at [H].
[13] Ibid., at [H], [6] and [12].
Counsel for the Husband submitted that the 1999 Financial Statement indicated that the Wife’s fifty per cent share of the Property A Property was worth $16,500. Therefore the 1999 Financial Statement indicated that the total value of the Property A Property was $33,000, less the value of the Mortgage of $57,000, which yielded a negative equity of $24,000.
Counsel for the Husband submitted that the Wife was in possession of the Market Appraisal prior to her deposing to the 1999 Financial Statement. The Market Appraisal stated:
I believe that taking into consideration the location, size and individual nature of the home and surrounding properties, a realistic value on today’s market would be upto One Hundred Thousand Dollars ($100,000.00).
It was submitted by Counsel for the Husband that the Wife had deposed to the value of the Property A Property in the 1999 Financial Statement as being worth $33,000, knowing that it was worth up to $100,000. It was submitted that if the Property A Property was worth only $33,000 the Court would have been unlikely to order the sale of the property, as the Wife had the care of four young children and the costs of the sale would be significant[14].
[14] Transcript T 10:2-4.
Counsel for the Husband relied on the decision of the Full Court of the Family Court in Waterman & Waterman[15].
[15] [2017] FamCAFC 23.
It was submitted that the Husband would suffer prejudice if the Final Orders were not set aside, as it would deprive him of the opportunity to have a property adjustment that reflected the relationship that existed of almost 30 years between the Husband and the Wife, between 1987 and 2016.
Wife’s Submissions
Counsel for the Wife relied on the decision of the Full Court of the Family Court in In the Marriage of Molier and Van Wyck[16] in support of the submission that the circumstances contemplated by s.79A relating to fraud, duress and suppression of evidence, are those existing at the time of the order under consideration or before the making of the order.
[16] (1980) FLC 90-911.
It was submitted that none of the prerequisites had been established in this application. Reliance was placed upon the fact that both the Husband and the Wife were represented at the time the Final Orders were made in the Family Court Proceedings.
Counsel for the Wife referred to the Wife’s explanation for the sum of $16,500 being the value of the Property A Property in the 1999 Financial Statement, as follows:
[…] $33,000 was the amount I believed to be the difference between the value of the former family home at the time of these proceedings and the amount owed under the mortgages that encumbered it[17].
[17] Wife’s First Affidavit, at [24].
Counsel for the Wife submitted that Part G of the 1999 Financial Statement was not untrue, it was just the way that it had been noted down that was incorrect. It was submitted that it was not something that would have necessarily affected the final result[18].
[18] Transcript 24:32-37.
Both Counsel agreed that there was no documentation presently before the Court that independently verified the amount owing pursuant to the Mortgage at the time the Final Orders were made[19].
[19] Transcript T 23:32-36 and T 27:1-18.
Counsel for the Wife submitted that there had been no miscarriage of justice and that the Wife would suffer prejudice if the Final Orders were set aside. The Wife would not be able to afford to purchase another home and she would consequently suffer hardship.
Relevant Legislation
The Court can vary or set aside an order made pursuant to s.79 of the Act under s.79A. Section 79A(1)(a) provides:
79A(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 to set aside.
[…]
Section 79A(1A) provides:
A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, 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.
The standard of proof in this case is the balance of probabilities[20].
[20] Section 140 Evidence Act1995 (Cth).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
There are two grounds which I have considered making an order pursuant to s.79A of the Act. I will first consider the ground argued by Counsel for the Applicant which is pursuant to s.79A(1)(a) of the Act.
Section 79A(1)(a) of the Act
Suppression of Evidence Including the Failure to Disclose Relevant Information
The Full Court of the Family Court in In the Marriage of Patching[21] considered the analysis the Court should undertake in determining whether there had been a suppression of evidence or “other circumstance” pursuant to s.79A(1)(a) of the Act. The Full Court said:
[…] this involved four steps, namely, whether there had been a suppression of evidence or “other circumstance” […], whether that amounted to a “miscarriage of justice”, whether the Court, in its discretion, should “vary the order or set the order aside” and whether it should make another order under s.79.[22]
[21] (1995) FLC 92-585.
[22] Ibid., at 81,797.
The Husband’s Counsel submitted that there had been a suppression of evidence by the Wife and a failure to disclose relevant information. This suppression of evidence and failure to disclose information was:
a)The evidence of the value of the Property A Property which was contained in the Market Appraisal[23]. This evidence was that the value of the Property A Property “[…] would be upto One Hundred Thousand Dollars ($100,000.00)”.
b)The misleading information in relation to the value of the Property A Property in the 1999 Financial Statement. This evidence was contained in:
i)Item 1 of Part G, where it is stated that the market value of the Wife’s 50% ownership in the Property A Property was $16,500.
ii)Item G of the Financial Summary, where it is stated that the value of the “Total property” held by the Wife was $19,538 and Item I where it is stated that the “Total Liabilities -contingent” were $59,000.
[23] Transcript T 7:8-17.
In Waterman & Waterman[24](Waterman) Murphy J, sitting as the Full Court of the Family Court said[25]:
Importantly, the duty to disclose is a duty owed both to the other party and to the court. The duty is to make “full and frank disclosure of all information relevant to the case in a timely manner” (emphasis added)[26].
[24] [2017] FamCAFC 23.
[25] Ibid., at [32] (Bryant CJ and Kent J agreeing).
[26] Rule 13.01 Family Law Rules 2004 (Cth).
In Waterman Murphy J referred to the Full Court’s decision in In the Marriage of Morrison[27] where the Full Court said:
We take this opportunity once again to reinforce the view that the duty of disclosure is a basic duty. Ordinarily, a failure to comply with that duty will amount to a miscarriage of justice[28].
[27] (1995) FLC 92-573.
[28] Waterman, at [34].
In Waterman Murphy J said:
[…] a failure to disclose at the heart of a s 79A case need not involve any deliberate attempt to defraud or deceive the other party, matters which are, in any event, embraced by s79A(1)(a) grounds. […] Rather, full and frank disclosure is required in the context of orders made by consent because it is essential to the consent of the parties being free and informed consent (footnotes omitted)[29].
[29] Ibid., at [37].
Murphy J in Waterman also referred to In the Marriage of Suiker[30] where the Full Court said:
[…] the consent to an order must be informed consent. The consent to the order is itself part of the judicial process on which the Court places reliance. If that consent is based on misleading or inadequate information, then there may be in our opinion, a miscarriage of justice, either by reason of the “suppression of evidence” or by reason of “any other circumstance” (emphasis added)[31].
[30] (1993) FLC 92-436.
[31] Ibid., at 80,471.
In this proceeding the Wife has provided two explanations for the value of the Property A Property included in the 1999 Financial Statement. In the Wife’s First Affidavit the Wife produced the Market Appraisal, and she deposed that she obtained it on … 1998. The Wife deposed (First Explanation):
[8][…] I further say that at the time that our Property Orders were made the home at Property A was worth no more than $100,000.00. […] At the time that our Property Orders were made the home was encumbered by a Mortgage of approximately $74,000.00[32].
[13][…] I have a clear recollection that the amount outstanding under our mortgage in 2000 was still approximately $73,000.00 as I tried to refinance believing that if I could register the Transfer that the applicant had signed in November 1999 he would move out of the house. I was only able to borrow 53,000.00 at that time and accordingly could not proceed”[33].
[24][…] I say that $33,000.00 was the amount I believed to be the difference between the value of the former family home at the time of those proceedings and the amount owed under the mortgage that encumbered it[34].
[32] Wife’s First Affidavit, at [8].
[33] Ibid., at [13].
[34] Ibid., at [24].
The Wife’s First Explanation that the Property A Property was encumbered by the Mortgage of approximately $74,000 at the time the Final Orders were made, is inconsistent with the information in the 1999 Financial Statement, where the Mortgage was stated to be $57,000[35]. The Wife’s First Explanation, that the Wife believed that the sum of $33,000 was the amount that was the difference between the value of the Property A Property and the amount owed under the Mortgage is inconsistent with the Wife’s evidence that the Property A Property “[…] was worth no more than $100,000”[36]. It is also inconsistent with the Market Appraisal that the Wife relies on, which states that the value of the Property A Property “[…] would be upto One Hundred Thousand Dollars ($100,000.00)”. If the Mortgage was $74,000 and the equity in the Property A Property was $33,000, the value of the Property A Property would be $107,000.
[35] 1999 Financial Statement.
[36] Wife’s First Affidavit, at [8].
The Husband’s Second Affidavit was filed a month after the Wife’s First Affidavit. The 1999 Financial Statement was produced as an annexure to the Husband’s Second Affidavit. In response to the contents of the 1999 Financial Statement referred to in paragraphs 28 to 37 above, the Wife deposed in the Wife’s Second Affidavit:
My Financial Statement sworn in September 1999 referred to my half share of the difference between the value of the home and the amount owing on the mortgage[37] (Second Explanation).
[37] Wife’s Second Affidavit, at 17(i).
If the Mortgage was $57,000, as stated the 1999 Financial Statement and the equity in the Property A Property was $33,000, as suggested by the Second Explanation, the value of the property would be $90,000. This is not consistent with the Wife’s evidence that the Property A Property “was worth no more than $100,000.00[38] or with the Market Appraisal. There is no evidence as to why $90,000 was selected as the value of the Property A Property.
[38] Wife’s First Affidavit, at [8].
The Husband has deposed that at the time that he agreed to the Final Orders:
Although I was legally represented by other legal practitioners at that time I was confused as to my rights and do not recall why I would have agreed to the making of such unfair orders at that time[39].
[39] Husband’s First Affidavit, at [25].
In relation to the value of the Property A Property and the amount owing on the Mortgage at the time of the Final Orders, the Husband deposed:
[…] I say that the home was worth in excess of $100,000.00 at the time of the 1999 orders. We had purchased the home in the 1980s for the sum of $74,000.00. [...] I deny that the mortgage balance at the time of the 1999 orders was in the sum of $74,000.00 as [the Wife] now alleges. [The Wife] swore a Financial Statement on 15 September 1999 pursuant to which the 1999 orders were made. On page 9 of that Financial Statement [the Wife] swore that the mortgage balance at that time was in the sum of $57,000.00[40].
[40] Husband’s Second Affidavit, at [29].
Part G of the 1999 Financial Statement relating to property discloses that the market value of the Wife’s 50% share of the Property A Property was $16,500. Therefore according to the 1999 Financial Statement the value of 100% of the Property A Property was $33,000. The fact that the Mortgage is disclosed in Part H of the 1999 Financial Statement relating to current liabilities as being $57,000, indicates that the value of the Property A Property disclosed in Part G is the full value of the property, not the equity in the property. If this were not the case, there is no other way to ascertain the unencumbered value of the Property A Property from the 1999 Financial Statement. Consequently the total value of the Property A Property revealed by the 1999 Financial Statement was $33,000, less the value of the Mortgage of $57,000, which yielded a negative equity in the Property A Property of $24,000.
The information in Part G of the 1999 Financial Statement is reinforced in the Financial Summary at the commencement of the 1999 Financial Statement, where the Wife’s total assets are listed as being in the sum of $19,538[41] and her liabilities as $59,000[42].
[41] 1999 Financial Statement, Financial Summary, p. 2, at [G].
[42] Ibid., at [H].
The Wife had a duty to the Husband and the Court to make full and frank disclosure of all information relevant to the case in a timely manner[43]. The Court does not need to find that the Wife deliberately attempted to defraud or deceive the Husband or the Court in relation to the value of the Property A Property[44].
[43] Waterman, at [32] and O.20 r.1 Family Law Rules 1984 (Cth) (now r.13.01 Family Law Rules 2004 (Cth)).
[44] Waterman, at [37].
There is no evidence before the Court that the Market Appraisal was disclosed by the Wife in the Family Court Proceedings prior to the Final Orders being made.
In the Family Court Proceeding the 1999 Financial Statement does not indicate that the Property A Property had a value of “approximately $100,000” or “up to $100,000”. This would be consistent with the Market Appraisal. The 1999 Financial Statement revealed that the total value of the Property A Property was $33,000, less the value of the Mortgage of $57,000, which yielded a negative equity of $24,000.
The 1999 Financial Statement should have:
a)Specified in Item 1 of part G that the “market value” of the Wife’s 50% share in the Property A property was “approximately $50,000” or “up to $50,000”.
b)Indicated in the Financial Summary the amount of approximately $53,038 as assets instead of $19,538.
This would have informed the Court that there was a total of approximately $43,000 in equity in the Property A Property, if the property was valued at approximately $100,000 and the Mortgage of $57,000 was taken into account. This is a significantly different position to that of a negative equity of $24,000 disclosed in the 1999 Financial Statement.
I therefore determine that the evidence demonstrates the ground of suppression of evidence and failure to disclose relevant evidence in the Family Court Proceeding has been made out.
I turn now to consider whether justice was miscarried within the meaning of s.79A(1)(a) in the context of this ground.
Miscarriage of Justice
The circumstances under which the miscarriage of justice is alleged to have taken place must be from the time the original order was made under s.79 of the Act or before the order was made: In the Marriage of Molier and Van Wyk[45]. Therefore in determining whether or not there has been a miscarriage of justice associated with the making of the Final Orders, it is necessary to show events existing either before or at the time which constituted such a miscarriage of justice.
[45] (1980) FLC 90-911, at 75,767. See also In the Marriage of Liu (1984) FLC 91-572; In the Marriage of Clifton& Stuart (1991) FLC 92-194; Public Trustee (As Executor of the Estate of Gilbert) v Gilbert (1991) FLC 92-211; and Sommerville v Sommerville (2000) FLC 93-042.
In this case I have determined that the Wife failed to disclose evidence and suppressed evidence by:
a)Not disclosing evidence of the value of the Property A Property which was contained in the Market Appraisal which she had in her possession prior to the making of the Final Orders[46]. This evidence was that value of the Property A Property “[…] would be upto One Hundred Thousand Dollars ($100,000.00)”[47].
b)Including misleading information in relation to the value of the Property A Property in the 1999 Financial Statement. This information was contained in Item 1 of Part G, where it is stated that the market value of the Wife’s 50% ownership in the Property A Property was $16,500. It is also included in the Financial Summary where the Wife’s total assets are valued in the sum of $19,538.
[46] Transcript T 7:8-17.
[47] Market Appraisal.
Each of these events took place prior to the making of the Final Orders. Ordinarily a failure to comply with the duty of full and frank disclosure of all information relevant to the case will amount to a miscarriage of justice[48]. However not every failure of full and frank disclosure will justify a court in setting aside an order. In In the Marriage of Morrison[49] the Full Court of the Family Court said:
[…] we adopt (with slight modification) the words of Lord Brandon in Livesey and Jenkins at 119 where His Lordship said:
“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…”
Rather than use His Lordship’s test of “the order which it would have made”, we would suggest that the test is more properly expressed as “the order which it might have made”[50].
[48] In the Marriage of Morrison (1995) FLC 92 573, at 81,672.
[49] (1995) FLC 92-573.
[50] Ibid., at 81,672.
In this case I have determined that there was approximately $43,000 in equity in the Property A Property when the Final Orders were made. This is a significantly different position to that disclosed in the 1999 Financial Statement, of a negative equity of $24,000 in the Property A Property. There was approximately $67,000 more equity in the Property A Property than was disclosed by the 1999 Financial Statement.
The Final Orders resulted in the Husband receiving no assets and being ordered to make all payments on the Mortgage, whilst at the same time being ordered to transfer all of his interest in the Property A Property to the Wife. I am satisfied that a Court, believing that there was a significant negative equity in the Property A Property, would be unlikely to order the sale of the property in circumstances where the costs of the sale would only increase the parties’ liabilities and be likely to force the Wife and four young children into rented accommodation.
As there was in fact equity of approximately $43,000 the Court was not given the opportunity to consider a substantially different order that did not leave the Husband without any assets and paying for a house that was transferred to the Wife. I am satisfied that the Wife’s failure to disclose the equity in the Property A Property was of sufficient significance to constitute a miscarriage of justice as contemplated in In the Marriage of Morrison[51]. There has been a suppression of evidence in that at the time the Final Orders were made, the true value of the Property A Property was not known by the Court and also it was not known that there was equity of approximately $43,000 in the property. I therefore find that there has been a miscarriage of justice in relation to this ground.
[51] (1995) FLC 92-573, at 81,672.
Exercise of Discretion
The Court has the discretion as to whether or not to vary or set aside orders even if one of the grounds set out in s.79A are satisfied[52]. In In the Marriage of Prowse[53] the Full Court said:
[…] an applicant for an order under s. 79A(1) bears the onus of satisfying the Court that the original orders should be set aside or varied, and that includes the onus of satisfying the Court not just that there has been a “miscarriage of justice” but also that the appropriate exercise of the discretion is to so order[54].
[52] In the Marriage of Prowse (1995) FLC 92-557, at 81,566; Sommerville v Sommerville (2000)
[53] (1995) FLC 92-557.
[54] Ibid., at 81, 566.
Relevant matters may include lack of legal advice or representation, concealment (or ignorance of) financial matters, pressure or undue persuasion, or unequal bargaining power[55]. The Court may also consider:
[…] the degree and nature of the miscarriage in question, any delay, alterations in the parties’ positions in the meantime, and the extent to which, if at all, it is now appropriate to vary the original orders[56].
[55] Ibid., at 81,564.
[56] In the Marriage of Patching (1995) FLC 92-585, 81,797.
All of the factors that are relevant in a s.79 application are also relevant to the Court’s discretion[57].
[57] Gitane & Velacruz (2008) FLC 93-371, at 82,566.
The Husband moved back into the Property A Property after the Final Orders were made. Precisely when he did so is in dispute between the parties, as discussed in paragraph 14 above. However it may be summarised that the Husband moved back into the Property A Property “within weeks”[58] or “six months or more”[59] after the Final Orders were made, being a period between … 1999 and the first half of 2000. The parties agree that they attended a New Year’s celebration at the … Hotel for the year 2000. They attended with the Children and the Husband’s sister Ms H and her Husband[60].
[58] Husband’s First Affidavit, at [27].
[59] Wife’s First Affidavit, at [25].
[60] Husband’s Second Affidavit, at [6(c)]; Wife’s Second Affidavit, at [6(c)].
I find that final separation took place when the Husband moved into the Garage in March 2016.
I am satisfied to the relevant standard, being the balance of probabilities, that the parties continued to cohabit together at the Property A Property for a further 15 years after the Final Orders were made (Second Cohabitation Period). In the absence of cross-examination, and in circumstances where the parties have deposed to different accounts of their sexual relationship during this period, I make no findings as to the parameters of their intimate relationship during this period. I nevertheless find that they shared a bedroom and bed at the Property A Property during the Second Cohabitation Period and in this respect the matrimonial relationship continued. During the Second Cohabitation Period the parties lived at the Property A Property with the Children and periodically went on holidays together, including overseas holidays[61].
[61] Refer to discussion in paragraphs 124 and 125.
The Final Orders purported to deal with s.79 considerations by reference to a period of cohabitation of 12 years, being that period between the date of marriage on … 1987 and the date of the 1999 Intervention Order, … 1999 (First Cohabitation Period). However, I have found that the parties ultimately cohabitated, with periods of separation, between … 1987 and March 2016, a period of 29 years, the Second Cohabitation Period being longer than the First Cohabitation Period.
Unless the Final Orders are varied or set aside the Husband will be deprived of the opportunity of a just and equitable distribution of property that reflects the 29 year period of cohabitation and not the 12 year period of cohabitation.
Counsel for the Wife argued that the Court should take into account the Husband’s delay in bringing his application to set aside the Final Orders[62]. I have found that final separation occurred in March 2016. The Wife told the Husband that she had registered the Transfer of Land in January 2018. The Wife has deposed that at the time she provided the Husband with this information the Husband was in Country L[63]. The Husband then sought legal advice and commenced this proceeding on 19 April 2018.
[62] Transcript T 26:21-25.
[63] Wife’s First Affidavit, at [26].
I find that in the circumstances the Husband has not delayed in commencing this proceeding.
Counsel for the Wife also argued that the Wife would suffer hardship if the Final Orders were set aside. This was submitted on the basis that the Wife was a labourer who worked casually, was on a modest wage and that she would not be able to afford another property. It was also submitted that the Wife’s employment was not guaranteed and that she was not in good health[64].
[64] Transcript T 26:25-29.
There was no evidence relating to the Wife’s health in the affidavit material, apart from the Wife’s evidence. There was no evidence from the Wife concerning the detailed circumstances of her employment. There was no independent evidence about the current value of the Property A Property, or the value of smaller properties in the area.
If there is substance to these submissions the Wife’s health and employment prospects will be taken into consideration in a just and equitable distribution of property that reflects the 29 year period of cohabitation.
I have therefore determined that in this case I should exercise my discretion pursuant to s.79A(1) to either vary or set aside the Final Orders.
Vary or Set Aside Final Orders
The final matter for consideration is whether to vary or to set aside the Final Orders or whether to make another order (or orders) in its place.
The Initiating Application seeks interim procedural orders that the Wife makes disclosure of financial documents, including tax returns, payslips, superannuation accounts and the like, in addition to the matters referred to in paragraph 22. Final orders are sought for the sale of the Property A Property as referred to in paragraph 23.
Having found that there has been a miscarriage of justice, the parties should be afforded the opportunity as a matter of procedural fairness in the conduct of the s.79 proceeding to put further evidence and submissions. It is therefore not appropriate for the Court to make orders pursuant to s.79 without hearing further from the parties.
In the circumstances, due to the limited nature of the Final Orders, I have determined to set the Final Orders aside. Any orders that will subsequently be made in this proceeding will be more comprehensive than Order 4 and Order 5. I will make Orders accordingly.
Section 79(1A) of the Act
I turn now to consider the second ground which is pursuant to s.79(1A) of the Act. This ground was not expressly argued by Counsel for the Husband, although the evidence and arguments supporting this ground were referred to in submissions by Counsel for the Husband.
The Court may, with the consent of all the parties to the proceeding in which the order was made, vary an order or set an order aside and make another order in substitution[65]. Consent by a party may be express however it may also be implied. Implied consent may arise from facts and circumstances such as the parties reconciling and not implementing the terms of the orders made. In In the Marriage of McCabe[66] the Full Court of the Family Court said:
There is no reason to doubt that parties can expressly or by their conduct consent to the discharge of prior orders so as to enable the Court to make a fresh property order[67].
[65] Section 79A(1A).
[66] (1995) FLC 92-634.
[67] Ibid., at 82,370.
Conduct of the Parties after the Final Orders
I will now consider the conduct of the parties after the Final Orders were made. As discussed in paragraph 14 above, the parties have provided significantly different accounts about the circumstances leading to the Husband’s return to the Property A Property and their subsequent relationship.
The Husband has deposed that “within weeks” of the making of the Final Orders a reconciliation occurred between the parties and the Husband recommenced living with the Wife and the Children at the Property A Property. The Husband deposed that he continued to live with the Wife as “husband and wife” until the marriage irretrievably broke down in early 2016[68]. The Husband says further that after the reconciliation in 1999:
[…] we continued to sleep in the one bed in the master bedroom we assumed and continued an active sexual relationship with each other[69].
[68] Husband’s First Affidavit, at [27].
[69] Husband’s Second Affidavit, at [4].
In contrast the Wife denies that there was ever a reconciliation between herself and the Husband and deposed that the Husband:
[…] forced his way back into the family home six months or more after the Orders were made and refused to move out. He did leave on several occasions thereafter but on each occasion he eventually returned, doing so over my protests[70].
[70] Wife’s First Affidavit, at [25].
The Wife deposed that after the Husband returned to live at the Property A Property, the Wife:
a)Contacted the police but was told that because the Husband was a joint registered proprietor of the Property A Property he was entitled to remain at the property[71].
b)Could not afford to go back to her solicitor for legal advice and assumed the advice from the police was correct[72]. The Wife also said:
I felt that I had spent a lot of money on lawyers only to find that the [Husband] could move back into the home[73].
c)Tried to obtain a grant of legal assistance to assist her in removing the Husband from the Property A Property but the request for legal aid was refused.
d)Attempted to refinance the Mortgage in 2000 so that she could register the Transfer of Land, however she was only able to borrow $53,000 and was therefore unable to proceed with the refinance[74].
[71] Ibid., at [5(g)].
[72] Ibid., at [5(i)].
[73] Wife’s Second Affidavit, at [2].
[74] Wife’s First Affidavit., at [13].
The Wife deposed that she had always been scared of the Husband[75]. The Wife said that after the Final Orders were made:
[…] our relationship never resumed and I have been deeply unhappy but felt powerless to remove him from the former family home[76].
I never consented to his return to our family home. We never so much as even resumed a casual sexual relationship. We have not had sexual relations on even one occasion since he forced his way back into the family home[77].
At no stage did I ever regard myself as being in a domestic relationship with [the Husband][78].
We did not resume a normal married life and in no way did I think of [the Husband] as my domestic partner[79].
[75] Ibid., at [5(a)].
[76] Ibid., at [5].
[77] Ibid., [5(n)].
[78] Ibid., at [22].
[79] Ibid., at [27].
The Wife admitted that she and the Husband had shared the same bedroom but provided the following explanation:
In fact the [Husband] forced his way back into my bedroom and I spent many months sleeping on the couch until the damage that it did to my back became unbearable and I moved back into that room to sleep. This was an intolerable situation for me but my back pain was worsening. I reiterate that we have never ever had sexual relations with each other since the orders made in 1999[80].
[80] Ibid., at [25].
The Husband deposed that as a result of the reconciliation shortly after the Final Orders were made, the Final Orders were not acted upon and:
It was understood and agreed between [the Wife] and I that because of our reconciliation, the [Final Orders] did not apply and they did not have any force or effect and that is the basis upon which our marriage continued until its breakdown in 2016[81].
That because of our reconciliation in December 1999 it was agreed and understood between [the Wife] and I that the [Final Orders] did not have any relevance or operation. That after December 1999 it was on that basis that we arranged our lives and affairs and acted accordingly[82].
[81] Husband’s First Affidavit, at [30].
[82] Husband’s Second Affidavit, at [8].
The Wife disagrees with the Husband in relation to the status of the Final Orders. The Wife deposed:
We never agreed that the orders from 1999 were “irrelevant”. The [Husband] simply said he would not move out of the house whilst his name remained on the title. I tried unsuccessfully to refinance and given the advice that I had received from the Police I believed I could not force his removal from the home”[83].
[83] Wife’s Second Affidavit., at [8].
The Husband deposed that after the Final Orders were made the parties continued to pool their income and resources for the joint benefit of the family[84]. The Husband said that:
After 1999 we arranged our financial affairs by agreement in a way which was acceptable to both of us. It was also consistent with the way our financial affairs had operated prior to the [Final Orders] since the start of our marriage in that we did not operate a joint savings account. I continued to contribute the whole of my income for the benefit of our family[85].
[84] Husband’s First Affidavit, at [27].
[85] Husband’s Second Affidavit, at [48].
The Husband deposed that he was the “main breadwinner” for the family both before and after the Final Orders were made[86]. The Husband deposed that he had been in employment throughout the marriage. At the start of the marriage he had been employed by the Employer as a clerk. In 1992 he left the Employer and received a termination payment, which he deposed was used for the joint benefit of the family. He then worked for an Employer doing casual labouring work. He was then employed by an Employer as a labourer. The Husband was then employed by an Employer as a driver for 13 years until 2016. The Husband then commenced work with an Employer as a driver[87].
[86] Ibid, at [37].
[87] Husband’s First Affidavit, at [19].
The Husband said he paid for all of the weekly groceries, contributed to the household utilities and purchased household furniture and appliances[88]. He also paid for the Children’s recreational and sporting activities and gave them money when they needed it[89].
[88] Husband’s Second Affidavit, at [37].
[89] Ibid., at [40].
After the Final Orders were made the parties installed a swimming pool in the backyard of the Property A Property. The Husband’s parents provided money to help with the construction of the swimming pool, which was an above ground pool that was partially buried into the ground with decking surrounding it[90].
[90] Ibid., at [4].
In 2015 the Husband paid the balance owing on the Mortgage in the sum of $27,522.06 (Final Mortgage Payment) from the proceeds from his late mother’s estate[91].
[91] Ibid., at [29].
The Wife provides a different account of the parties’ financial history after the Final Orders were made.
The Wife deposed that after the Final Orders were made the parties never pooled their income[92] and their finances were completely separate. The Wife deposed that the only joint account that the parties had ever had was an account opened when the loan was set up for the Mortgage, for the payments to be debited from[93]. The Wife complained that notwithstanding the order in the Final Orders that the Husband make the Mortgage payments, the Husband made no payments until he paid the Final Mortgage Payment[94].
[92] Wife’s First Affidavit, at [25].
[93] Ibid., at [27].
[94] Wife’s First Affidavit, at [8].
The Wife deposed that after the Final Orders were made the Husband:
a)Did not pay any child support for the Children[95]. The Wife says that she did not pursue child support despite her financial difficulties because the Husband was “quite frightening”[96].
b)Only ever spent his money on “[…] food, alcohol, gambling, illicit drugs and in pursuit of his relationship with his current and previous girlfriends”[97].
c)Paid for a refrigerator, washing machine and an oven[98].
[95] Ibid., 5(f).
[96] Wife’s Second Affidavit, at [14].
[97] Wife’s First Affidavit., at [12].
[98] Ibid., at [16].
The Wife deposed that she has been in permanent part time employment as a labourer. She also received Centrelink benefits[99]. After the Final Orders were made, it was from this income that she made the payments on the Mortgage, “[…] paid rates and utilities and all other household expenses”[100]. The Children also contributed as they grew older by paying board. The Wife said that the Husband’s only contribution was to purchase food and this was insufficient for the family and she was required to buy food on a weekly basis for herself and the Children. The Wife’s parents also assisted with buying food for the Wife and the Children[101].
[99] Wife’s Second Affidavit, at [4].
[100] Wife’s First Affidavit., at [18].
[101] Ibid., at [19].
The Husband deposed that when he returned to the Property A Property after the Final Orders were made:
Our usual domestic routine also resumed and continued after our reconciliation in 1999. I continued to do all of the cooking and all of the grocery shopping for our family as I had done throughout the marriage. We ate our meals together as a married couple and a family as usual. […] we shared the usual household tasks as any married couple and family[102].
[102] Husband’s Second Affidavit, at [4].
The Husband said that he continued to make all the usual contributions to the household that he had made prior to the Final Orders, including repair and maintenance of the home, as well as contributing to the household cleaning chores[103]. The Husband deposed that he contributed to the external maintenance of the home which included the lawn mowing and the whipper-snipping, as well as general outside maintenance[104].
[103] Ibid., at [29].
[104] Ibid., at [42].
The Wife deposed that apart from the Final Mortgage Payment the Husband had made “[…] no contribution to the acquisition, conservation or maintenance” of the Property A Property[105].
[105] Wife’s First Affidavit., at [8(b)].
The Wife deposed that after the Final Orders were made and the Husband returned to the Property A Property:
a)The Husband generally cooked the evening meal and “[…] he cooked enough for me to eat as well”. The Wife maintains that she refused to cook for the Husband[106]. When the Wife cooked, she did not cook a meal for the Husband[107].
b)The Husband mowed the lawn and whipper-snipped “[…] on a very occasional basis”[108].
c)The Husband otherwise maintained that: “I work all week and weekends are my drinking time”[109].
[106] Ibid., at [20].
[107] Wife’s Second Affidavit, at [4].
[108] Wife’s First Affidavit, at [21].
[109] Wife’s Second Affidavit, at [17(g)].
The Husband deposed that after the Final Orders were made and the Husband returned to the Property A Property the parties:
[…] continued to be closely and jointly involved as a normal married couple in the lives and activities of our four children[110].
[110] Husband’s Second Affidavit, at [5].
This involvement included:
a)Both attending sports games for three of the Children. For some time the Wife also performed the role of timekeeper at the games. The Husband acted as coach for one of the sports teams for approximately 10 years.
b)Attending sports matches for the Children. The Husband and Wife also jointly operated the club fund raising BBQ together at sports games[111].
c)Each family member family having a tattoo done with the inscription “…”. Ms G (the Husband’s sister) deposed that:
They showed me these tattoos and told me that it signified and was a reference to all of their family members because they all had the same initials and there were six of them in the family. I considered the fact that [the Husband], [the Wife] and all of the children all got the same tattoo to be a very strong statement of connection and solidarity between them all[112].
[111] Loc. cit.
[112] Ms G Affidavit, at [18].
In relation to the Wife’s involvement in the Children’s activities after the Final Orders were made, the Wife has responded that:
[…] I was involved in my children’s lives. I was an active and interested parent and supported them whenever I could. I did not do that jointly with the [Husband][113].
[113] Wife’s Second Affidavit, at [5].
The Wife now describes the family tattoos “…” as being “a grave error of judgment”[114]. The Wife also deposes that if having the tattoo:
[…] is in any way regarded as a link to the [Husband] in the minds of others then I regret it even more[115].
[114] Ibid., at [26].
[115] Loc. cit.
The Husband deposed that when he returned to the Property A Property after the Final Orders were made, the parties continued “[…] to go to social and family functions together as husband and wife” and continued to “[…] visit each of our respective families together”[116]. The Husband provided examples of such functions[117], which included:
a)At Christmas visiting the Wife’s parents’ home for lunch and the Husband’s parents’ home for tea “[…] for many years after 1999”[118].
b)Jointly hosting Christmas functions at the Property A Property in the week prior to Christmas for both parties’ extended families until 2015.
c)For the year 2000 the Husband and the Wife attended a New Year’s celebration together at the … Hotel, with the Husband’s sister Ms H and her husband.
d)In approximately 2006 the Wife became the Godmother of Ms G’s son. The Husband and the Wife attended the baptism.
e)Several years ago the parties attended the 21st birthday party of Mr M, the son of a family friend.
f)Several years ago the parties attended a function for the … Club which involved the Wife’s father. The function was at the … and the parties stayed at the … hotel and shared the same hotel room and the same bed. The Wife’s sister also stayed overnight at the hotel with her partner[119].
[116] Husband’s Second Affidavit, at [6].
[117] Ibid, at [6(a)-(g)].
[118] Ibid, at [6(a)].
[119] Ibid., at [6(f)].
The Husband’s sister Ms G deposed that:
a)She had known the Wife since they were friends together at high school.
b)She and her family had regular social interaction with the parties throughout the period from 1999 until 2016. During this time she was never given any reason to believe that the Husband and the Wife were “[…] living at the home on any basis other than as husband and wife”[120]. Ms G produced nine photos taken between 1999 and 2016 of the parties at various family events[121].
c)Neither of the parties had ever mentioned to her that the Final Orders had been made.
d)The parties and the Children had attended her wedding in 2000.
e)The parties would both host and attend family Christmas celebrations which she also attended.
f)In 2006 she had spent a weekend at the parties’ home so that the Wife could assist with the care of her new born son. During this time Ms G observed that the parties were sleeping in the same bed in their bedroom.
[120] Ms G Affidavit, at [19].
[121] Ibid, “-1”-“-9”.
In relation to the parties’ involvement with family and social functions the Wife responded that:
a)She went with the Children for Christmas lunch at her parents’ home each year however the Husband did not always attend. The Wife does not recall attending the Husband’s parents’ home for Christmas tea after the Husband’s father died in 2001[122].
b)The Husband would from “time to time” invite his cousins to the Property A Property for Christmas and on occasions the Wife’s parents were also invited. No other members of the Wife’s family were invited. The Wife denies that these occasions were jointly hosted[123].
c)She only attended the New Year’s celebration for the year 2000 at the … Hotel because the Husband “was insistent” that the Children attend. The Wife says that she knew that the Husband would be drinking and she went to ensure that the Children would be safe[124].
d)Mr M’s family were her friends and therefore she attended his 21st birthday party. The Husband’s presence at that function was no reason to miss out on the event[125].
e)Between 1999 and 2016 there were times when she did not see Ms G for a couple of years at a time[126].
f)Ms G was:
[…] very fond of taking photographs and was equally fond of telling people to pose with others for those photographs. It was easier to go along with her than to make a scene[127].
[122] Wife’s Second Affidavit, at [6(a)].
[123] Ibid., at [6(b)].
[124] Ibid., at [6(c)].
[125] Ibid., at [6(e)].
[126] Ibid., at [20].
[127] Ibid., at [25].
The Wife’s Mother Ms J deposed that after the Final Orders were made:
a)The Wife would visit her home once every two or three weeks. The Husband did not accompany the Wife on any of her visits, except on Christmas Day[128].
b)The Husband attended her home on Christmas Day on no more than three occasions and he had not attended since 2006[129].
[128] Ms J Affidavit, at [11].
[129] Ibid., at [12].
The Husband deposed that after the Final Orders were made and he returned to the Property A Property, the parties resumed going on annual holidays and other holidays together as husband and wife, including the following:
a)For several years after 1999 the parties would have an annual family holiday together with the Children at Town N at Easter. On at least one of those years the family stayed in a caravan owned by the Wife’s parents[130].
b)In 2011 the parties went on holidays together to Country O. Their son Mr C and his girlfriend at the time also accompanied them[131].
c)In 2012 the parties travelled to Country L as a family, as part of a group of about 20 friends to celebrate the Husband’s 50th birthday. Throughout the trip the parties shared a bed in their hotel room[132].
d)In 2013 the parties travelled to Country L to celebrate the Wife’s 50th birthday. The parties shared a bed in their hotel room. Their son Mr E and his then girlfriend, as well as their son Mr B and his friend also travelled with the parties on that trip[133].
e)In 2015/2016 the parties went on a holiday to Country L for approximately two weeks together using part of the inheritance monies which the Husband received from his mother’s deceased estate. The parties shared a bed as husband and wife throughout that trip[134].
[130] Husband’s Second Affidavit, at [7(a)].
[131] Ibid., at [7(b)].
[132] Ibid., at [7(c)].
[133] Ibid., at [7(d)].
[134] Ibid., at [7(e)] and [52].
In relation to the parties’ holidays together after the Final Orders were made and the Husband had returned to the Property A Property, the Wife responded that:
a)The Husband encouraged the Children to put “immense pressure” on her to go to Town N at Easter. The Wife found the holiday “unbearable” and only went for three years[135].
b)The Wife did attend the holiday in Country O in 2011. The Wife had originally been invited to join her son Mr C and his girlfriend on the trip. The Wife was “extremely disappointed” when the Husband was also invited. The Wife paid all her expenses for the holiday[136].
c)The Wife did travel to Country L in 2012 as part of a large group. The Wife deposed:
I felt if the [Husband] was prepared to pay for me to travel I was not going to stop him doing so given the financial privation I had suffered since well before separation in 1999 due to his inability to put the needs of me when we were a couple and our children ahead of his own desire to smoke, drink, gamble and consume drugs. During that holiday I did my best to avoid the [Husband] as I resolved to enjoy my holiday. I returned home after two weeks. The [Husband] remained in Country L for another week[137].
d)The Wife did travel to Country L in 2013. The Wife travelled there with the Husband and returned home alone whilst the Husband remained. The Wife paid for her return airfare and all of her other expenses. The parties shared a hotel room but did not share a bed. The Wife slept in a double bed and the Husband slept in a single bed.
e)The Wife did travel to Country L in … 2015. The Husband paid for the Wife’s travel however the Wife deposed:
We did not travel as a couple and in fact the [Husband’s] return flight to Australia was somewhere between 7 and 10 days later than my return flight. I paid for one half of any meals that we had together and for one half of the accommodation expenses for the period that I was there in Country L [138].
[135] Wife’s Second Affidavit, at [7(a)].
[136] Ibid., at [7(b)] and “M-1”.
[137] Ibid., at [7(d)].
[138] Wife’s First Affidavit, at [31].
The Husband deposed that the marriage broke down irretrievably in approximately March 2016 when the parties began living separately and apart at the Property A Property. The Husband began living in the Garage whilst still using the facilities in the house. The Wife continued to sleep and live in the house[139].
[139] Husband’s First Affidavit, at [6]
The Wife deposed:
I could not remember where that Transfer of Land was and was very concerned about it. I located my previous Solicitor from the time the Orders were made in 1999 and attended upon him on 20 September 2017. To my relief I learnt that my solicitor had the original transfer of land and I instructed him to arrange for its registration[140].
[140] Wife’s First Affidavit, at [26].
The Transfer of Land was registered on 14 November 2017.
The Wife’s solicitors filed the Application for Divorce on 22 November 2017. On the Application for Divorce:
a)The date of separation is stated to be 1 March 2016[141].
b)The date of marriage is stated to be … 2011 and not the actual date of marriage being … 1987[142].
c)In response to the question on the Application for Divorce:
Are there any existing orders, agreements, parenting plans or undertakings to a court about family law, child support, family violence or child welfare issues concerning any of the parties or children listed in this application?
The Wife’s response was “no”[143].
[141] Application for Divorce, at [14].
[142] Ibid., at [12].
[143] Ibid., at [21].
The Wife provided an explanation for the date of separation in the Divorce Application being 1 March 2016. The Wife’s explanation for this date is that she saw a junior solicitor about the preparation of her Divorce Application and that:
I was asked when the [Husband] moved out of the family home and told her that he did so in March 2016. I am sure I also advised that we had been separated since 1999 and had not reconciled and I did not question the way in which the Divorce Application had been prepared. I assumed that the relevant date for the purposes of that application was when the [Husband] finally moved out of the house. […] I confirm that on 20 September 2017 I told my solicitor that we had not reconciled […][144].
[144] Wife’s Second Affidavit, at [17(b)].
The Wife produced a copy of her solicitors file notes from 20 September 2017 together with a transcription of these notes[145].
[145] Wife’s Second Affidavit, “M-2” and “M-3”.
The Wife did not tell the Husband that she was going to register the Transfer of Land before it was registered. It was not until January 2018 that the Wife told the Husband that he had been removed from the title of the Property A Property[146]. The Husband deposed that he was “very surprised” when the Wife told him that she had registered the Transfer of Land because:
[…] I did not know that any transfer […] still existed, or would still be usable, given our reconciliation[147].
The Husband then sought legal advice.
[146] Husband’s Second Affidavit, at [47].
[147] Husband’s First Affidavit, at [28].
The parties were divorced on 6 March 2018[148].
[148] Initiating Application, at [28].
On 9 April 2018 the Wife obtained an ex parte intervention order against the Husband at the Suburb F Magistrates’ Court. The specific allegations made by the Wife against the Husband related to a dispute over chattels. The Wife alleged that the Husband was taking chattels from the house to sell “[…] to obtain money to send to his girlfriend in Country L” and that the Husband was “desperate for money”[149].
[149] Wife’s First Affidavit, “M-3”.
As a result of the 2018 Intervention Order the Husband was required to cease living in the Garage and was excluded from the Property A Property. At the time of the hearing of this matter the Husband deposed that he was sleeping in a converted shipping container at his employer’s business premises[150].
[150] Husband’s Second Affidavit, at [51].
Relevant Law
The Full Court of the Family Court in Gitane & Velacruz[151] considered the analysis the Court should undertake in determining an application under s.79(1A) of the Act. The Full Court said:
[…] an application under s 79A(1A) involves an examination of whether the ground - a consent- is made out- the first step-and then, a consideration of all other matters that bear upon the question of whether to vary or set aside- the second and final step. However, an alternative view is that, after making the decision to vary or set aside, the court must decide how to vary, or, if setting aside, what, if any, new s 79 order to make. Our own view is that all the discretionary factors, including how to vary, if at all, or what new order to make, if any, after setting aside the initial order can be considered in the one-step[152].
[151] (2008) FLC 93-371.
[152] Ibid., at 82, 565.
In this case the Court is faced with a situation where:
a)The Husband contends that the parties reconciled and that there was an “understanding” and “agreement” between the parties that the Final Orders did not have any “force or effect”[153] and did not have any “relevance or operation”[154].
b)The Wife contends that the parties never reconciled and that she did not regard herself as being in a “domestic relationship” with the Husband[155]. The Wife also contends that the parties never agreed that the Final Orders were “irrelevant”[156].
[153] Husband’s First Affidavit, at [30].
[154] Husband’s Second Affidavit, at [8].
[155] Wife’s First Affidavit, at [22].
[156] Wife’s Second Affidavit, at [8].
The parties had been living together in the house at the Property A Property from late 1999 or early in 2000 until March 2016, a period of approximately 15 years. A finding that the parties had impliedly consented to the setting aside of the Final Orders is to be made by reference to the “[…] miscellany of circumstances pertaining to the parties’ relationship by which the relevant intention is to be inferred”[157].
[157] Waterman, at [66].
In Waterman Murphy J considered the circumstances in which an implied intention to consent to set aside s.79 orders may be inferred. His Honour said:
[67]As far as I can see there was no evidence before his Honour as to any formal or informal agreement in respect of the earlier consent orders. What was said by Coleman J, sitting as a single judge of appeal, in O’Hurley & O’Hurley[158] pertains equally to the instant case:
[158] [2008] FamCAFC 57, at [67].
The case thus fell to be determined on the basis of whether the circumstantial evidence established as a matter of inference or conclusion that, despite the absence of any express agreement or even consideration of the consequences of the resumption of cohabitation so far as the [relevant consent] orders were concerned, the parties nevertheless intended to no longer be bound by the terms of those orders.
[68]In light of at least some of the arguments advanced by counsel for the wife, I consider it helpful to also refer to what Gummow and Hayne JJ said in the decision of Byrnes v Kendle,[159] […] Their Honours said this:
…In some situations, legal consequences do turn on actual intentions, as in the case of those charged with certain crimes. Ordinarily, however, the legal effect of a transaction does not depend on the parties' secret intentions, but on the outward manifestations of their intentions. For practical reasons, we disregard the parties' undisclosed states of mind. To be accurate, therefore, it is necessary, when dealing with the creation of a trust and its terms, to speak not of the settlor's intention but of the settlor's manifestation of intention.
[69]In concluding, at [68] and [69], that the wife had not established that the parties impliedly consented to the setting aside of the orders, his Honour relied upon the following passage from the decision of the Full Court in McCabe, above:[160]
In cases of this nature conclusions about intention which should be attributed to the parties will depend upon the particular circumstances of each case. That material would not necessarily be confined to the initial decision to reconcile or, as in this case, to write to the Court. Their intention may crystallize into a more precise form as time progresses and as the parties’ reconciliation continues and they conduct their lives together, including their financial affairs, so that it becomes inconsistent with any other conclusion[161].
[159] (2011) 243 CLR 253, at 275, quoting from ‘Scott and Ascher on Trusts’, 5th ed (2006), vol 1, Chapter 4.1.
[160] In the Marriage of McCabe (1995) FLC 92-634, at 82,369.
[161] Waterman, at [67]-[69].
In Waterman Murphy J referred to the fact that the trial judge’s central findings had failed to mention that:
[…] the parties had a marriage which, however happy or unhappy, subsisted for 21 years within a cohabitation that spanned almost 30 years, the former a period during which the parties’ two children were raised[162].
[162] Ibid., at [73].
Murphy J then referred to the decision of Fogarty J in In the Marriage of Drew[163] , although noting that the case involved the setting aside of a s.87 agreement, his Honour said:
The question then is whether the events that have happened since 1980 affect the validity or enforceability of the agreement. I might add that if they do not the parties will find themselves in a most curious position. Whilst the approval remains the parties may not validly institute proceedings in this Court under Pt VIII. However they may not institute property proceedings in any other court because such proceedings would constitute a “matrimonial cause” within the exclusive jurisdiction of the Family Court. Thus, although they have jointly owned property, namely the matrimonial home, and other assets which the wife says have been acquired jointly by them during the 2½ years of their resumed and still existing marriage no court would have jurisdiction to determine their rights arising from those circumstances. This would apply equally to the husband’s application for an order under sec. 78.
At least these problems would exist in such a case as this where the parties have remained married throughout. Different considerations may apply in a case where the parties resumed cohabitation after divorce and had not remarried. In that case the financial issues may not be referable to the prior marriage relationship and may not be a matrimonial cause, but rather may be referable to the de facto relationship and fall to be determined by the State law applicable[164].
[163] (1985) FLC 91-601, at 79,862.
[164] Waterman, at [74].
Consideration
I turn now to first consider whether the ground of consent is made out pursuant to s.79A(1A) of the Act[165].
[165] Gitane & Velacruz (2008) FLC 93-371, at 82,565.
The Wife argues that the parties never reconciled and that she did not regard herself as being in a “domestic relationship” with the Husband[166]. There are two underlying premises to this argument. The first is that the Wife was fearful of the Husband and the second is that they had separate financial lives. I will first consider the Wife’s claims to fear the Husband.
[166] Wife’s First Affidavit, at [22].
The Wife deposed that:
a)She had “[…] always been scared of the [Husband]”[167].
b)She “[…] felt powerless to remove him from the [Property A Property]”[168].
c)The Husband “[…] forced his way back into the [the Property A Property] […]”[169].
d)The Husband “[…] forced his way back into my bedroom […]”[170].
e)She had “[…] endured the most harrowing time since the [Husband] forced his way back into the [Property A Property]”[171].
f)“I was terrified of him and my life with him there was a living hell”[172].
[167] Wife’s First Affidavit, at [5(a)].
[168] Ibid., at [5].
[169] Ibid., at [5(g)].
[170] Ibid., at [25].
[171] Ibid., at [35(d)].
[172] Wife’s Second Affidavit, at [3].
Notwithstanding that the Wife has deposed to her fear of the Husband:
a)The Second Cohabitation Period was longer than the First Cohabitation Period.
b)The Wife did not seek to obtain an intervention order against the Husband in relation to any of his behaviour during the 15 years of the Second Cohabitation Period. This is particularly significant:
i)In circumstances where the Wife had previously obtained the 1999 Intervention Order against the Husband. The Wife deposed that she subsequently contacted the police for advice about the Husband’s return to the Property A Property. There is no evidence about when she did so or who she spoke to. It is not explained why the Wife would not have told the police how “scared” and “terrified” she was of the Husband in such circumstances and why a further intervention order would not have been applied for;
ii)Where the Wife deposed that she could not afford legal representation[173] the Wife nevertheless obtained the 2018 Intervention Order on her own application[174]. It is not explained why the Wife did not apply for an intervention order herself during the Second Cohabitation Period.
c)The Wife shared the bedroom and slept in the same bed with the Husband at the Property A Property.
d)The Wife, the Husband and the Children were all tattooed with the inscription “….”.
e)The Wife participated with the Husband in the upbringing of their four children, as referred to in paragraphs 117 and 118.
f)Participated in social and family activities with the Husband, as discussed to in paragraphs 121 to 124. The photographs produced by Ms G [175] depict the Husband and the Wife and family members at various family gatherings. The Wife appears relaxed and happy. Some of the photos are of the Husband and the Wife with their arms around each other and/or in close proximity to each other. None of these photos convey the impression of a terrified woman who was in a “living hell”.
g)Between 2011 and 2015 the Wife went on four overseas trips to Country L with the Husband, as discussed to in paragraphs 125 and 126. On these trips the Wife shared a hotel room and a hotel bed with the Husband. It is significant that one of the trips was to celebrate the Husband’s 50th birthday and another the Wife’s 50th birthday. Another trip was paid for by the Husband using money that he had received as an inheritance from his mother’s estate. I find that if the Wife was genuinely scared or terrified of the Husband as she claims, she would not have left Australia and gone on holidays in the Husband’s presence.
h)The Wife did not apply for a divorce until the Husband moved out of the house at the Property A Property and went to live in the Garage.
[173] Wife’s Second Affidavit, at [2].
[174] Wife’s First Affidavit, at [7].
[175] Ms G Affidavit, “-1”-“-9”
After considering the “outward manifestations” of the Wife’s intentions[176] referred to in the preceding paragraph, I find the Wife’s claimed fear of the Husband to be significantly exaggerated and objectively inconsistent with her behaviour over the Second Cohabitation Period.
[176] Cf Byrnes v Kendle (2011) 243 CLR 253, at 275.
I will now consider the Wife’s claim that there had been no reconciliation because there was a separation of finances. The Wife deposes that the parties never pooled their income after the Final Orders[177]. The Wife contends that there was no reconciliation because there was no pooling of finances and that there was a separation of finances. However I take into account the following:
a)The Wife deposed that prior to the Final Orders, the only joint account that the parties had ever opened was an account when the loan was set up for the Mortgage for the payments to be debited from[178]. The Husband agrees with the Wife that the parties have never held joint accounts[179].
b)The Wife made the payments on the Mortgage. This was not in accordance with the Final Orders and in particular Order 5.
c)The Wife did not take any action to enforce Order 5, being that the Husband make the payments pursuant to the Mortgage.
d)The Wife made no further attempt to refinance the Mortgage herself, other than the attempt in 2000. No explanation is provided by the Wife as to why she did not attempt to refinance the Mortgage when the balance fell below $53,000, being the amount she had been able to borrow in 2000. By the time the Mortgage was paid out by the Husband in 2015 the balance was $27,522.
e)The Husband made the Final Mortgage Payment in 2015 in the sum of $27,522 from the proceeds of his late mother’s estate[180].
f)The Wife complained that the Husband did not pay Child Support however she took no action to obtain Child Support.
g)The parties installed a swimming pool in the backyard of the Property A Property and the Husband’s parents provided money to help with the construction of the swimming pool and decking surrounding it[181].
[177] Wife’s First Affidavit, at [25].
[178] Ibid., at [27].
[179] Husband’s Second Affidavit, at [48].
[180] Ibid., at [29].
[181] Ibid., at [4].
The evidence of the parties referred to in paragraphs 104 to 112 is that each of the parties contend that they contributed financially to the benefit of the household.
In Waterman Murphy J found that the evidence and the trial judge’s findings:
[…] point to a “separateness” in responsibility for meeting expenses from the joint resources of both parties, albeit that the proportion in which those resources were sourced to the income of one or both altered from time to time. The fact that the husband, on his own case, abdicated to the wife responsibility for meeting expenses, other than the provision of accommodation, associated with the day to day necessities of the parties and, crucially the children, from an amount which he determined and controlled (and which did not increase for 10 years) does not, in my view indicate to the contrary[182].
[182] Waterman, at [89].
In Waterman the Full Court concluded that the inference that emerged from the totality of the findings made by the trial judge, was that the parties no longer intended that the final orders made 14 years prior to final separation should finally determine their financial affairs, after nearly 30 years of cohabitation[183].
[183] Ibid., at [90].
In this case I find that after the Final Orders were made the parties arranged their financial affairs by agreement in a way that was acceptable to both of them. As in Waterman, I find that there was not a separation of their financial lives but a “separateness” in responsibility for paying expenses from the joint resources of both parties. I find that the parties continued to manage their household finances in the same manner that they had in the First Cohabitation Period, without any joint accounts, apart for that used for the Mortgage payments. During the Second Cohabitation Period the Wife assumed responsibility for paying the Mortgage, (which was not in accordance with the Final Orders) and the Husband paid for the weekly household groceries, household furniture and appliances.
The Wife has sworn the Application for Divorce and deposed that the date of separation was 1 March 2016[184]. I do not accept the Wife’s explanation referred to in paragraph 131. There is no solicitor’s affidavit corroborating the Wife’s evidence. In relation to the solicitor’s notes produced by the Wife from 20 September 2017[185], I regard these notes as recording the Wife’s self-serving account of her current evidence in relation to the Husband. I therefore place no weight upon this evidence.
[184] Application for Divorce, at [14].
[185] Wife’s Second Affidavit, “M-2” and “M-3”.
The Wife relied upon the date of 1 March 2016 as being the date of separation in support of her Application for Divorce and the Wife now seeks to rely upon a separation date of 1999 to resist this application. The Wife has sworn to the truth of each date. I take this into account in determining this application on the basis that the Wife is indifferent to the truthfulness of her Court documents.
The Wife has sworn in the Application for Divorce that there were no existing orders involving any of the parties[186]. That was a false declaration and the Wife was aware that the Final Orders had been made in 1999 and now seeks to rely upon the Final Orders. Further the Wife deposed to the date of marriage in the Application for Divorce as being 28 May 2011[187]. That was another false declaration and was a fact that the Wife was aware of. The Wife has deposed:
[…] I did not question the way in which the Divorce Application had been prepared[188].
[186] Application for Divorce, at [21].
[187] Ibid., at [12].
[188] Wife’s Second Affidavit, at [17(b)].
I do not accept that explanation. This was information that the Wife should have ensured was correct before she deposed that the Application for Divorce was true. I take this into account in determining this application on the basis that the Wife was reckless as to the truthfulness of the contents of her Court documents.
The Wife has deposed that she could not remember where the Transfer of Land was located and that she was “very concerned about it”[189]. I refer to the discussion in paragraph 128. I find that during the Second Cohabitation Period the location of the Transfer of Land was not a matter of concern to the Wife.
[189] Wife’s First Affidavit, at [26].
It is only after separation in March 2016 that the Wife embarked upon the course of conduct referred to in paragraphs 133 to 136, which ultimately resulted in the Husband being removed from the Property A Property. I find that it was only after the conclusion of the Second Cohabitation Period that the Wife took steps to locate the Transfer of Land and to register it.
The parties were divorced on 6 March 2018[190]. If the Husband is unable to set aside the Final Orders, he may not institute property proceedings relating to the Property A Property in any other jurisdiction because such proceedings would constitute a “matrimonial cause” and are within the exclusive jurisdiction of the Act. Therefore, for example, as the parties remained married no Victorian State Court could entertain an equitable claim against the Wife claiming proprietary estoppel and equitable relief. In this circumstance I rely upon the comments of Fogarty J in In the Marriage of Drew[191].
[190] Initiating Application, at [28].
[191] (1985) FLC 91-601, at 79,862.
The parties had a marriage which subsisted for 31 years with a cohabitation during which the Children were raised. There were two periods of cohabitation. I am satisfied to the relevant standard, being the balance of probabilities that during the Second Cohabitation Period, by reason of the matters referred to in paragraphs 144 to 156 the parties by their conduct have impliedly consented to the discharging of the Final Orders.
I find that the Husband and the Wife provided their implied consent to the effect that the Final Orders were set aside.
Vary or Set Aside Final Orders
Having found that consent to set aside the Final Orders is made out, I am required[192] to consider whether to vary or to set aside the Final Orders or whether to make another order (or orders) in its place.
[192] Section 79A(1A) of the Act.
I refer to paragraphs 90 to 93 and determine that the Final Orders be set aside. I will make orders accordingly.
I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Judge C.E. Kirton QC
Date: 21 March 2019
FLC 93-042, at 87,667.
0
5
3