MILFORD & MILFORD - [2015] FCCA 344

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILFORD & MILFORD

[2015] FCCA 344

Catchwords:
FAMILY LAW – Application under section 79A – whether there was a miscarriage of justice on the ground of suppression of evidence – application dismissed.

Legislation:

Family Law Act 1975, ss.79A, 79(1)(a), 79(4)(a) to (c), 75(2)

Patching and Patching (1995) FLC 92-585
Gebert and Gebert (1990) FLC 92-137
Korsky & Bright [2007] FamCA 245
Public Trustee v Gilbert (1991) 103 FLR 282
Bigg v Suzi (1998) FLC 92-799
Barker & Barker [2007] FamCA 13; (2007) 36 Fam LR

Applicant:

MR MILFORD

Respondent:

MS MILFORD

File Number:

MLC 1119 of 2009

Judgment of:

Judge Jones

Hearing dates:

2 and 3 February 2015

Date of Last Submission:

3 February 2015

Delivered at:

Melbourne

Delivered on:

27 February 2015

REPRESENTATION

Counsel for the Applicant:

Mr Hall

Solicitors for the Applicant:

Slater & Gordon Lawyers

Counsel for the Respondent:

Mr Sweeney

Solicitors for the Respondent:

Westminster Lawyers

ORDERS

The application made pursuant to s.79A of the Family Law Act 1975 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Milford & Milford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1119 of 2009

MR MILFORD

Applicant

And

MS MILFORD

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Milford (“the applicant”) seeks an order pursuant to s.79A of the Family Law Act 1975 (“the Act”) that the Orders made by the Family Court on 4 March 2009 (“the 2009 Orders”) be set aside. The 2009 Orders were made by consent. Ms Milford (“the respondent”) seeks an order that the application be dismissed.
Section 79A(1)(a) relevantly provides as follows:
(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 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.
The applicant claims that I should exercise my discretion to set aside the 2009 Orders on the grounds that there has been a “miscarriage of justice” by reason of the respondent’s suppression of evidence. As the applicant, he bears the onus on the balance of probabilities to establish the grounds relied upon that would cause the Court to then consider its exercise of discretion.
The suppression of evidence which is alleged by the applicant relates to the respondent’s then interest in the [C] Family Trust (“the Trust”) and its corporate Trustee, [C] Consolidated Pty Ltd (“CCPL”)
At the commencement of proceedings, the applicant sought that the Court determine first whether the 2009 Orders be set aside.

The respondent consented to this approach. Consequently, notwithstanding the difficulties that may ensue, I have confined my decision to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MILFORD & MILFORD

Details

AGLC: Milford and Milford [2015] FCCA 344
Case: [2015] FCCA 344
Decision Date: 27 February 2015

CaseChat Overview and Summary

In *Milford & Milford*, the applicant, Mr Milford, sought to set aside consent orders made by the Family Court on 4 March 2009 pursuant to s.79A of the *Family Law Act 1975* (Cth). The respondent, Ms Milford, sought dismissal of the application. The applicant alleged a miscarriage of justice due to the respondent's alleged suppression of evidence concerning her interest in the [C] Family Trust and its corporate trustee, [C] Consolidated Pty Ltd.

The central legal issue before the Court was whether the applicant had discharged the onus, on the balance of probabilities, to establish that a miscarriage of justice had occurred by reason of the respondent's suppression of evidence, thereby justifying the Court exercising its discretion to set aside the 2009 consent orders. The Court was required to determine this issue before considering any potential property settlement orders.

Judge Jones reasoned that the applicant bore the burden of proving the grounds for setting aside the orders. The alleged suppression of evidence related to the respondent's interest in the [C] Family Trust. The Court noted that the applicant sought to have the Court determine this specific issue first, to which the respondent consented. Consequently, the Court confined its decision solely to the question of whether the 2009 orders should be set aside based on the alleged suppression of evidence.

The application made pursuant to s.79A of the *Family Law Act 1975* was dismissed.

Orders

Orders of the court

The application made pursuant to s.79A of the Family Law Act 1975 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The application made pursuant to s.79A of the Family Law Act 1975 is dismissed. IT IS NOTED that publication of this judgment under the pseudonym Milford & Milford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth). Mr Milford (“the applicant”) seeks an order pursuant to s.79A of the Family Law Act 1975 (“the Act”) that the Orders made by the Family Court on 4 March 2009 (“the 2009 Orders”) be set aside. The 2009 Orders were made by consent. Ms Milford (“the respondent”) seeks an order that the application be dismissed. Section 79A(1)(a) relevantly provides as follows:(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 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. The applicant claims that I should exercise my discretion to set aside the 2009 Orders on the grounds that there has been a “miscarriage of justice” by reason of the respondent’s suppression of evidence. As the applicant, he bears the onus on the balance of probabilities to establish the grounds relied upon that would cause the Court to then consider its exercise of discretion. The suppression of evidence which is alleged by the applicant relates to the respondent’s then interest in the [C] Family Trust (“the Trust”) and its corporate Trustee, [C] Consolidated Pty Ltd (“CCPL”) At the commencement of proceedings, the applicant sought that the Court determine first whether the 2009 Orders be set aside. The respondent consented to this approach. Consequently, notwithstanding the difficulties that may ensue, I have confined my decision to the determination of whether I should set aside the 2009 orders. The applicant is 49 years old and is employed as a [omitted]. The respondent is 46 years old and is employed as a [omitted]. Both apparently enjoy good health. The parties were married in 1986 and separated on 17 August 2007. There are two children of the relationship. The son is 19 years old and the daughter 17 years. The parties shared the care of the children after separation until February 2013. The daughter lives with the applicant and the son with the respondent. It appears that, for a significant period of time (around 20 years) during the relationship, the parties resided rent free in a house at the respondent’s parent’s farm, [B], in [omitted], Victoria. During this time both parties’ employment was outside of the farm. They then purchased a home. The context of this application is a bitter family dispute that has been ongoing, it seems for decades, in relation to the Trust established to hold and preserve the family farm, [B]. It is, therefore, appropriate to set out a brief outline of the Trust and the history of the dispute which culminated in the vesting of the Trust following settlement reached during the course of Supreme Court proceedings in 2012.

Ratio Decidendi

Legal Principle Established

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