Merton and Merton

[2017] FamCA 281

FAMILY COURT OF AUSTRALIA

MERTON & MERTON [2017] FamCA 281

FAMILY LAW – PROPERTY SETTLEMENT – Setting aside orders – Where the parties consensually entered into property settlement orders, a Binding Financial Agreement, and a Deed of Release to sever their financial affairs – Where the husband sought the property settlement orders be set aside pursuant to s 79A(1)(a) of the Family Law Act – Where the husband failed to prove the wife suppressed relevant information – Where, even if relevant information was suppressed, the husband failed to prove it caused a miscarriage of justice – Decided the husband’s application to set aside orders should not succeed – Ordered the entirety of the husband’s application is dismissed 

Evidence Act 1995 (Cth), ss 58, 160, 183
Family Law Act 1975 (Cth), s 79A

Family Law Rules 2004 (Cth)

Barker v Barker (2007) 36 Fam LR 650
Gitane v Velacruz (2009) 39 Fam LR 460
Marriage of Patching (1995) FLC 92-585
Pearce & Pearce [2016] FamCAFC 14

APPLICANT: Mr Merton

RESPONDENT: Ms Merton

FILE NUMBER: SYC 3926 of 2015

DATE DELIVERED: 1 May 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 30 & 31 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC

SOLICITOR FOR THE APPLICANT: McDonell Milne Toltz Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Knox SC

SOLICITOR FOR THE RESPONDENT: Redmond Hale Simpson Solicitors & Barristers

Orders

1. The Initiating Application filed on 16 June 2016 is dismissed.

2. The Response to Initiating Application filed on 26 September 2016 is dismissed.

3. Costs are reserved for 28 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3926 of 2015

Mr Merton

Applicant

And

Ms Merton

Respondent

REASONS FOR JUDGMENT

Introduction

1. In August 2015, the applicant husband and respondent wife settled all outstanding disputes between them under Part VIII of the Family Law Act 1975 (Cth) (“the Act”) arising out of the breakdown of their marriage.

2. Their settlement was consummated by property settlement orders, made by this Court pursuant to their joint application, and their execution of a Binding Financial Agreement (“BFA”) and a Deed of Release (“Deed”).

3. The settlement entailed the husband’s transfer of his proprietary interest in the former matrimonial home to the wife, so she became the sole registered proprietor of it. The wife and the parties’ children still then lived in the home but, within several months of the settlement, the wife proposed to sell the home for more than the parties agreed it was worth to enable her establishment of a new home with her partner.

4. The husband became dissatisfied with the terms of the settlement and he commenced these proceedings seeking that the consensual property settlement orders made by the Court be set aside under s 79A of the Act. These reasons explain why his application fails.

Evidence

1. The husband relied upon:

   (a)His affidavit filed on 16 June 2016;

   (b)His affidavit filed on 24 March 2017; and

   (c)The sworn evidence given by the wife in answer to the questions he posed to her under Part 13.3 of the Family Law Rules 2004 (Cth) (“the Rules”), recorded in the document filed on 13 March 2017.

2. The wife relied upon:

   (a)Her affidavit filed on 26 September 2016;

   (b)Her financial statement filed on 26 September 2016; and

   (c)Her affidavit filed on 27 March 2017.

3. Both parties successfully sustained objections to the other’s evidence and both were cross-examined.

The issues

1. The husband’s claim for relief under s 79A of the Act was not clearly identified within his Initiating Application filed on 16 June 2016, so he was asked to articulate the basis of the application at the commencement of the trial. He confirmed his reliance upon the wife’s alleged suppression of relevant information, in fulfilment of s 79A(1)(a) of the Act, which he particularised to be the following information, allegedly suppressed by the wife prior to their application for the consent orders:

   (a)The wife’s failure to inform him of her intention to sell the former matrimonial home and not remain living within it “until at least the parties’ youngest child had completed tertiary education”, contrary to the parties’ agreement or the wife’s representation;

   (b)The wife’s failure to disclose to him she was in possession of a market appraisal suggesting the former matrimonial home was valued at $2 million; and

   (c)The wife’s failure to inform him she intended that her partner occupy the former matrimonial home with her and the children “within the immediately foreseeable future”.

2. Section 79A(1)(a) of the Act relevantly 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. It is well established that application of s 79A(1)(a) entails several distinct steps: the assessment of whether one of the nominated grounds is proven; if so, whether a miscarriage of justice was thereby caused; and, if so, whether the Court should exercise its discretion to vary or set aside the existing order and/or make another order in its place (see Gitane v Velacruz (2009) 39 Fam LR 460; Barker v Barker (2007) 36 Fam LR 650; Marriage of Patching (1995) FLC 92-585).

Suppression of relevant information

Sale of the former matrimonial home

1. In or about 2003, while the parties’ relationship was intact, they renovated the former matrimonial home to enlarge it. The purpose, according to the wife’s admission, was to:

   …accommodate the needs of [their] growing teenage children and to see them through their years of tertiary study.

2. The parties eventually separated years later in 2011. Prior to the husband vacating the former matrimonial home in 2011, the wife told him her “greatest concern” was the need for the family home to be sold and for the children to move house and change schools. The husband promised her, both before and after he vacated the family home, he would not force its sale.

3. Thereafter, the wife and children remained in occupation of the home and were supported by the husband. He met the mortgage repayments and paid a monthly sum to the wife to help maintain her and the children. The husband gained new employment in January 2015 and used the redundancy payment he received from his former employer to discharge the mortgage registered over the family home.

4. By mid-2015, both parties had established new relationships and were moving on with their lives. In May 2015, the husband and his new partner bought an investment property together. In June 2015, the wife applied for the parties’ divorce. By July 2015, the husband was cohabiting with his new partner, the wife and her new partner were frequently spending time at each other’s homes, and both parties were legally represented in their negotiations over a property settlement.

5. The parties’ agreement about the alteration of their property interests was contained within an Application for Consent Orders, filed on 28 August 2015, and orders in those terms were made by the Court several days later on 31 August 2015.

6. The wife acknowledged she did not tell the husband of her plans to sell the home before they reached their settlement in August 2015, but that was unremarkable in itself. She had no need to tell him if she had no plans to sell it at that time, or if there was no antecedent agreement between them for her to retain it, or if she did not earlier tell him that she intended to retain it.

7. The wife denied she represented to the husband, prior to filing their application for consent orders with the Court, that she would or wished to retain the former matrimonial home for any given future period. She made the denial in both cross-examination and in answer to the husband’s pre-trial interrogation under Part 13.3 of the Rules. She also denied in cross-examination that the parties had even discussed the children remaining resident in the former matrimonial home, let alone reached any agreement they could, prior to the consent orders being made. Although the husband was critical of the wife’s credit as a witness, there was no proper basis upon which to reject her evidence to that effect, particularly given the scarcity of his own evidence.

8. Significantly, the husband adduced very little evidence of any such agreement or representation by the wife proximate to their settlement negotiations. In fact, he deposed the wife did not “mention…her intentions regarding the future ownership of the house” during 2014. He assured her, in April 2015, of his intention to consult his solicitor over the property settlement and that there was no change to his prior proposal about allowing her to retain the former matrimonial home.

9. The husband deposed that, between April 2015 and their settlement in August 2015, the parties:

   …had discussions…and agreement was reached as to the settlement of property between us on terms that I would transfer to [the wife] my interest in the home on an unencumbered basis in accordance with the promises I had made to [the wife] since separation and consistent with our agreement that the sole purpose for the transfer of the property in this way was to ensure a future home and stability for our four children until they became financially independent and chose to leave the family home.

10. However, limited weight can be reposed in that evidence. It was merely a conclusion reached by the husband about the terms of an agreement he perceived the parties struck. The objective facts upon which the conclusion could be supported were not adduced in evidence to enable rational evaluation of its accuracy. The prospect that the husband reached an honest but incorrect conclusion about the meaning of past discussions between the parties was readily evident because of the inconsistency between his evidence and submissions – both as to the terms of the parties’ alleged discussions and whether their discussions actually amounted to an agreement or merely a representation by the wife about what she would or would not do. Such inconsistency engendered doubts about the accuracy of the husband’s conclusions and assumptions. For example, he contended the agreement was for the wife to retain the home “until all children had completed tertiary education”, but his evidence about the supposed agreement was that she would retain the home “until all children became financially independent and chose to leave”, which were similar but materially different conditions. While the husband was certainly motivated to transfer sole ownership of the family home to the wife, he did not satisfactorily connect his promises to the wife to do so to any reciprocal representation made by her to him.

11. The husband deposed that, in July 2015, the wife challenged him about his commitment to their agreement about her retention of the home for the “long term benefit of the children”, which commitment he confirmed. That evidence did imply the wife’s knowledge of an understanding between the parties she would only acquire sole ownership of the home for the ultimate benefit of the children but, in isolation, that was not a sufficiently secure foundation to prove the entirety of the husband’s case. At its highest, it was only evidence that would support an inference consistent with his case.

12. The husband gave evidence of his surprise at the wife’s decision to sell the property only months after their settlement, which was probably genuine, but his surprise did not objectively prove any contrary agreement with the wife or any contrary representation made by her upon which he relied. His surprise was just as consistent with his mere assumption of such an agreement or representation. The husband’s solicitors described his understanding only as an “expectation” in May 2016, shortly before he commenced these proceedings.

13. The fact the parties had a mutual intention when they renovated the home in 2003 to remain living in it as an intact family until the children completed their tertiary education was not evidence of a concluded agreement between them about their respective conduct some 12 years later, when they were separated and disentangling their financial entitlements. Nor was it evidence of a representation by the wife upon which the husband could reasonably rely in perpetuity.

14. The conversations between the parties in 2011, at or about the time of their marital separation, were not the basis of any agreement or representation either. On the husband’s own version of those conversations, the wife simply shared with him her concern that the former matrimonial home may need to be sold to allow them to sever their property interests. The husband’s promise not to force that result upon her was honourable – but it was his promise, not hers. There was no direct evidence of her promising him anything.

15. The husband’s attribution to the wife of a solitary statement, in July 2015, that she expected him to adhere to his commitment to transfer sole ownership of the home to her for the long term benefit of their children – thereby implying she would retain the home in specie for their use – was notably different from all other evidence adduced by the husband on that issue. Although he was not challenged about the accuracy of his recollection of that conversation, it is inherently unlikely he would have an exact memory of it more than a year after it occurred. While his veracity was not in doubt, his recollection may have plausibly evolved to correlate with an honest but mistaken belief in the existence of such an agreement between the parties. His evidence to that effect collided violently with the wife’s multiple denials of any agreement or representation about her retention of the home after the parties’ settlement.

16. The evidence was insufficiently persuasive to reasonably construe that, prior to their entry into the consent orders in August 2015, the parties agreed the wife would retain the family home until after all children had completed their tertiary education, or alternatively, that she promised to do so. If the husband harboured that belief, he failed to prove his belief was induced by any agreement, oral representation or conduct on the wife’s part. Maintenance of the husband’s case depended on proving the contrary, because only then could the wife’s failure to disabuse his misconception possibly amount to her suppression of relevant contrary information.

17. Even if the husband had successfully proven the existence of a prior agreement with, or prior representation by, the wife not to sell the home after their settlement, he still needed to prove the wife held the intention to do the opposite before they entered the consent orders and she withheld that “relevant information” from him. If she did not form the intention to sell the property until after the settlement then she obviously did not suppress any information relevant to that issue before the settlement. The husband failed to prove the wife intended, before August 2015, to sell the home. His speculation or suspicion that she held that prior intention was not proof. No such intention could be reasonably inferred from the available evidence.

18. The husband believed the wife decided to sell the property before they settled their dispute and deliberately abstained from telling him of her plans, but his belief was apparently inferred from her posting a message on her internet Facebook page, following dissolution of their marriage in 2015, saying “Watch this space!”. He imputed her message invited readers to expect some further announcement by her, and in particular her sale of the family home, but she said in cross-examination it only meant she was starting her new life following four years of separation and divorce, which explanation was just as likely as the husband’s inference of her obliquity.

19. The parties were divorced in September 2015. The wife then became engaged in November 2015 and, in December 2015, her partner moved into the former matrimonial home and she listed it for sale with a real estate agent. They wanted to live together and decided to buy a home in a different district of Sydney. They decided not to live in either the former matrimonial home or her partner’s former home. The parties’ children were unhappy with the wife’s decision, when she informed them of it in December 2015, but their unhappiness about prospective residential dislocation did not prove or disprove the case conducted by either party.

20. The husband failed to prove the wife suppressed relevant information about her intentions concerning sale of the former matrimonial home prior to their entry into the settlement in August 2015.

The market appraisal

1. The parties’ negotiations about the alteration of their property interests were well underway by May 2015. The wife gave the husband a “property profile report” suggesting the market value of the former matrimonial home ranged between $1.1 and $1.375 million. The husband was dismissive of the opinion and maintained the property was worth “at least $2.2 million”. The wife disagreed and told him she would not agree to a higher value than $1.6 million.

2. In June 2015, the wife’s solicitor wrote to the husband’s solicitor with draft terms of settlement and enclosed another copy of the property profile report, but the negotiations temporarily stalled at that point.

3. In early July 2015, the parties spoke by telephone and the husband repeated his disagreement with the opinion expressed in the property profile report about the value of the former matrimonial home. The next day the wife sent the husband a text message saying she would “speak to [her] lawyer about the valuation”. About a week later, on 15 July 2015, the husband instructed his lawyers to write to the wife’s lawyers about the settlement. He maintained his belief the home was worth “not less than $2.2 million”, but was nonetheless willing to enter into the consent orders drafted by the wife’s lawyers, provided the wife additionally agreed to settle “spousal maintenance and estate matters” by execution of a BFA and Deed.

4. In early August 2015, the wife’s solicitors informed the husband’s solicitors she would do so and, for the purpose of the consent orders, she was prepared to compromise on the value of the former matrimonial home being accepted as $1.8 million. The husband agreed. The documents were signed, the consent orders were made by the Court, and the settlement was finalised.

5. On or about 15 July 2015, while the parties’ argument over the proper value of the former matrimonial home was unresolved, the wife engaged a real estate agent to furnish her with an appraisal of its market value. The market appraisal was prepared by the agent for her on 15 July 2015, in which he estimated the property’s value “in the vicinity of $2 million”,[1] but the wife denied she received the written appraisal. The husband disbelieved her. He submitted the Court should reject her evidence as false and find that she received it shortly after it was prepared. The husband undoubtedly did not receive a copy of the market appraisal before the consent orders were made so, if the wife did receive it at or around that time, she withheld it from him.

   [1] Exhibit H1

1. The husband contended the wife was obliged to disclose the appraisal to him so his consent to enter the property settlement orders was “fully informed”. Significantly, the wife did not contend she had no obligation to disclose it, if indeed she had it. The husband’s assertion of that obligation and the wife’s implicit concession of it were consistent with her probable duty to have disclosed the appraisal (see Pearce v Pearce [2016] FamCAFC 14 at [16], [21], [35]-[36], [47]-[48]). Even if the wife regarded the opinion as to the property’s value to be erroneous or unreliable, that would not justify it being withheld from the husband because the test of relevance is objective, not subjective (see Barker v Barker at [80]-[83], [109], [114]).

2. The real estate agent’s opinion about the property’s value, as expressed in the document, was unimportant because it may have been unreliable; perhaps even inadmissible as evidence in any litigation. Rather, the important issue was the husband’s deprivation of knowledge of the existence of the opinion about the property’s market value, which denied him the opportunity of considering whether he would adhere to his compromise over the property’s value at $1.8 million and maintain the settlement or whether he would risk destruction of the settlement by insisting on the property being valued at some higher figure.

3. The issue for determination then was whether, on the balance of probabilities, the wife received the market appraisal sometime between its preparation on 15 July 2015 and the parties’ entry into the consent orders on 31 August 2015.

4. The wife contended the evidence did not reveal the market appraisal was actually posted to her by the agent after it was prepared, but even if there was no direct evidence of its postage there was enough evidence to inferentially find it probably was posted to her. Inferences can be drawn from the face of the document (ss 58, 183 of the Evidence Act 1995 (Cth)) and, by reason of its form and content, it was clearly intended to be posted to the wife on or about 15 July 2015. It is presumed, subject to any evidence in rebuttal, that the market appraisal reached the wife on the fourth working day after it was posted (s 160 of the Evidence Act).

5. The wife did give evidence capable of rebutting that presumption. She denied her awareness of the market appraisal until she was informed a copy of it was produced in answer to a subpoena issued by the husband in these proceedings. When alerted to its existence, the wife asserted she telephoned the agent enquiring about it and he then made arrangements to have a copy delivered to her home, which she received a day or two before the trial. Obviously enough, the wife instructed its preparation in July 2015 because she wanted it, for otherwise there was no point to its preparation. She was asked why she did not pursue the agent about the missing market appraisal shortly after 15 July 2015 and her explanation was that the parties were in the midst of their settlement negotiations which led to their compromise on the figure of $1.8 million. She implied, but did not actually say, she considered any appraisal of value was then redundant.

6. Overall, the wife’s evidence may not have been as convincing as the husband’s, but her evidence was not so weak or unreliable as to warrant outright rejection of her denial of receipt of the market appraisal. The evidence on that issue was not a direct contest between the parties’ veracity in any event. The husband could not say whether the wife received the market appraisal or not. He simply doubted the truth of her denial. His case was conjecture, but her case was not. She denied its receipt and her explanation for not pursuing the agent to furnish her with the appraisal in July/August 2015 was plausible. Accordingly, the husband failed to prove the wife’s timely receipt of the market appraisal on the balance of probabilities and so it follows, if she did not have it, she did not fail to disclose it to him.

7. Even if, contrary to that finding, the wife actually did receive the market appraisal and failed to disclose it to the husband before their entry into the consent orders, that only surmounted the first hurdle confronting the husband. There were others to come.

The wife’s cohabitation with her partner in the home

1. At the outset of the trial, the husband contended one aspect of the wife’s suppression of relevant information was her failure to inform him she intended to have her partner live with her and the children in the former matrimonial home “within the immediately foreseeable future”, when she had previously represented she would not. He deposed the wife once told him, during a conversation in April 2013, she would “never have another man living in the house while [their] two daughters [were there]”.

2. Even if it is assumed the wife said exactly that, over two years before the parties’ settlement in August 2015, it was not a representation that could bind her indefinitely in respect of the occupants she allowed to live in the home. Neither that statement, nor any contrary intention, remained “relevant information” in connection with the parties’ settlement once they realised their respective personal circumstances had changed with the passage of time. For quite some time before their settlement in August 2015, both parties knew the other was in a new relationship. The husband knew of the wife’s partner from at least April 2014 and actually met him at two family functions in May 2015.

3. In cross-examination, the husband said the wife’s relationship with her partner was “not a great concern” to him, which was entirely understandable given his own new de facto relationship, but still unhelpful to the case he conducted. The admission implied he was unconcerned by the wife’s formation of another relationship, which might ultimately result in her cohabitation with her partner, and so that development would not be “relevant information” for him. He must have contemplated the possibility of the wife’s cohabitation with her partner because, by July 2015, he was cohabiting with his own partner. The wife’s relationship with her partner was relatively strong by August 2015, but no decision was taken before then for her partner to live with her in the former matrimonial home. The wife may have contemplated the possibility of its future occurrence but, if she had not yet decided it would eventually happen, she had nothing to reveal to the husband prior to the settlement.

4. The husband conceded in cross-examination he did not contend the wife was in a de facto relationship with her partner before the parties negotiated their settlement. The wife and her partner did not start their cohabitation in the former matrimonial home until December 2015, following the dissolution of the parties’ marriage in 2015 and the wife’s engagement to her partner in late 2015, which facts the husband did not dispute.

5. In any event, the argument advanced by the husband about the wife’s suppression of relevant information did not correlate with his own evidence. According to his evidence, the parties’ arrangement about who could live at the family home was only tied to the existence of the outstanding mortgage. He told the wife he would need to re-visit the arrangement under which he made mortgage repayments if she allowed a man to move into the home with her. The wife confirmed that evidence in cross-examination. She asserted the husband told her he did not want another man in the house while he was paying the mortgage because he did not want to be supporting another man. The parties adhered to that arrangement. The mortgage registered over the home was discharged in January 2015 and the wife lived in the family home alone with the children until December 2015.

Miscarriage of justice?

1. Unless a miscarriage of justice resulted from the wife’s suppression of relevant information, s 79A(1)(a) of the Act is not engaged (see Barker v Barker at [120]-[124]). The husband failed to prove the wife’s suppression of relevant information but, in any event, he also failed to prove any miscarriage of justice resulted from the property settlement orders to which he agreed.

2. During 2014, the parties’ financial affairs were in a state of flux. The wife was partly reliant upon continuing financial support from the husband and he lost his employment through redundancy. He found other work, but his salary was substantially less. He used his redundancy payment to discharge the loan secured by mortgage over the former matrimonial home and was forced to reduce the financial assistance he provided to the wife and children. Both parties therefore wanted future financial certainty. The wife coveted exclusive ownership of the unencumbered family home and the husband was keen to ensure the final and irrevocable severance of the parties’ financial interests.

3. The parties began the negotiations over the severance of their financial interests once the husband paid out the mortgage in January 2015. The two principal assets in which their financial interests were entangled were the family home and the husband’s superannuation interest, though both parties had interests in other property.

4. The parties disagreed over the value attributable to the family home, but eventually compromised on $1.8 million as its notional value. The husband gave evidence, both in chief and in cross-examination, how that figure was the highest value to which the wife would compromise and, while he maintained it was worth more, he acceded to that value in order to achieve the settlement. He realised she would not compromise any further and, to preserve the settlement and avoid the uncertainty, delay, and expense of litigation, he was willing to accept it. Even if the wife did receive the market appraisal estimating the property’s value at $2 million and had disclosed it to the husband, it is doubtful he would have acted differently, such was his commitment to achievement of the settlement. He was free to commission his own advice about the market value of the family home had he wanted, but he abstained from doing so. He was reluctantly content to rely upon the agreed value. The certainty of resolution was more important than the certainty of the home’s value.

5. The opinion expressed in the market appraisal about the value of the family home was not necessarily reliable because the author cautioned it was not a “sworn valuation”. Nonetheless, acceptance of the appraisal at its highest meant the author considered the property was worth “in the vicinity of $2 million”. It would be difficult for the husband to contend the value of $1.8 million, upon which the parties eventually compromised, was not a value in the “vicinity” of $2 million. It was only 10 per cent less, in circumstances where the parties’ original bargaining positions were more than $1 million apart. The compromise figure of $1.8 million was closer to the value for which the husband originally contended than the value for which the wife originally contended.

6. Both parties were legally represented in respect of their negotiations over the property settlement, so neither was able to take unconscionable advantage of the other. The wife wanted to achieve a settlement under Part VIII of the Act, under which she acquired sole ownership of the family home and the husband acquired sole ownership of his superannuation interest. With an agreed value of $1.8 million attributed to the family home, the split of assets ensured the wife received about 68 per cent and the husband about 32 per cent of matrimonial property, in circumstances where their relationship extended back over nearly 30 years. They both consented to the proposed property settlement orders on that understanding.[2]

   [2] Exhibit A, Q.67

7. However, there was more to the settlement than just the consent orders made by the Court under Part VIII of the Act. The husband insisted on the parties finalising “spousal maintenance and estate matters” between them as well, so he instructed his solicitors to draft and send to the wife’s solicitors the BFA[3] and Deed[4] he proposed be executed. The BFA finalised their “financial relationship with respect to spouse maintenance” and the Deed released each of them from testamentary claims by the other. The BFA and Deed were both expressed to be part of the overall settlement between the parties. The wife acceded to the husband’s request and their settlement is therefore reflected conjunctively in the consent orders, BFA, and Deed. They were all integral to the resolution of the parties’ financial affairs.

   [3] Exhibit C

   [4] Exhibit B

8. In circumstances where both parties wanted certainty over their financial future, their settlement comprised an aggregated package, and the (allegedly) suppressed market appraisal about the value of the family home was not too dissimilar from the value upon which they eventually agreed, the husband failed to prove his ignorance of the market appraisal (even if it was suppressed by the wife) caused a miscarriage of justice.

Exercise of discretion

1. It is unnecessary to address the question of whether discretion would be exercised under s 79A(1) to vary or set aside existing orders and/or make substitute orders, because the pre-conditions for its exercise were not proven. Nevertheless, the issue was another obstacle to the success of the husband’s application.

2. In these proceedings, the husband simply sought to set aside the consent orders under s 79A of the Act. He sought no relief in respect of either the BFA or Deed which documents would, axiomatically, continue to bind the parties even if the consent orders were varied or set aside. Consequently, any amendment to the existing orders or any supplementary property settlement orders, justified by any proven miscarriage of justice, would have been confined to adjustment of the parties’ existing proprietary interests.

3. The purpose of the husband’s application was to claw back some of the distributed property so that he obtains a higher proportional share of the property than he received under the consent orders. Such an outcome would probably necessitate a new order for sale of the former matrimonial home, because the wife does not have the financial capacity to pay more money to the husband in consideration for her retention of sole proprietorship of it. Although the wife has contemplated its sale in the past, in which event the net proceeds could be distributed between the parties in different proportions, that eventuality would be forced upon her. She would be deprived of the choice between sale and retention she currently enjoys. The valid BFA would preclude the Court from considering or making any fresh orders under Part VIII of the Act by way of periodic or lump sum spousal maintenance in order to do justice between the parties.

4. Any prejudice caused by those limitations would more likely adversely affect the wife than the husband so, even if he had proven the wife’s suppression of relevant information caused a miscarriage of justice, he may have failed at the final hurdle of persuading an exercise of discretion by the Court to vary or set aside the consent orders and to make any substitute orders.

Orders

1. Although the husband sought alternate property settlement orders under Part VIII of the Act, the only issue currently requiring determination was whether his antecedent application to vary or set aside the existing consent orders should succeed. Given the determination it should not, there is no utility in dismissing only the first order sought by the husband in his Initiating Application. The entirety of the application will be dismissed.

2. Costs are reserved for 28 days.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 1 May 2017.

Associate: 

Date:  1 May 2017