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 determination of whether I should set aside the 2009 orders.

Background

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.
The Trust was established in 1977 by Mr C (the respondent’s father). The vesting date specified in the Trust deed is 2057. The purpose of the Trust was to hold the family farm, [B], for the future generations of the [C] family. At the time the Trust was established the siblings and beneficiaries of the Trust were Mr R, Mr A, Mr N, Ms K and Ms Milford. The Trust comprises the property known as [B] (which land contains the various titles including water rights and quarry reserves) together with plant and equipment.
CCPL is trustee of the Trust. Originally, the corporate trustee for the Trust was [W] Nominees Pty Ltd. In February 1994, CCPL was registered as the trustee company.
There were changes in the directors of CCPL. However, at the end of 2001, Mr R, Mr N, Ms K and Ms Milford were directors and the respondent was also Secretary of CCPL. Mr R and Mr N were now the Appointers of the Trust, the father and mother having resigned from any position in the Trust and CCPL. Each of those siblings held two shares in CCPL. Each share was valued at $1.
There is no dispute that the relationship between Mr R and Mr N was acrimonious. There was ongoing and continuing conflict over the running of the family farm by Mr R. It seems that Mr R was given responsibility for the management of the farming business at [B] by the father and Mr N was given the right to mine sand on the farm land.

Mr R and his wife Ms S operate the farming business through their company, [B] Farms Pty Ltd. Mr N conducted a sand mining business and mined sand at [B].
By agreement dated 24 June 2005, Ms K agreed to sell her shares and Mr R agreed to purchase her shares in CCPL. Pursuant to the agreement these shares were transferred to Mr R and Ms K resigned as director and was excluded as a beneficiary of the Trust. This agreement was signed by Mr R and Ms K. Schedule 1 to the agreement fixed an entitlement consideration of $500,000 payable by a $150,000 payment on or before 22 January 2005 and the balance payable by instalments every 6 months over a period of 20 years. The deed to give effect to the transfer of shares was signed by Ms K, Mr R and Ms Milford (as Secretary).[1]
[1] Applicant’s Trial Affidavit filed 31 March 2014, Annexure RM3
This transfer was the catalyst for a further deterioration in the relationship between Mr N and Mr R. Mr N says he was unaware of the agreement and transfer of shares until after Ms K passed away in October 2005. The respondent says she was informed by Ms K that

Mr N was aware of this agreement and consequently, she signed the deed of transfer.
From that time, the dispute between the siblings intensified. On one side, there was Mr N and Ms Milford and on the other side, Mr R. It is apparent that the father supported Mr R, although of course he was not involved in the Trust. Mr N and Ms Milford were apparently dissatisfied with capital expenditure and financial contracts entered into by Mr R. From the affidavit material I can say that both sides accused each other of attempting to wrest control of the Trust and, consequently, the family farm.
From the evidence, it is apparent that a number of critical events occurred in 2011:
a)On 13 July 2011, Mr N and the respondent, by email to Mr R and his wife Ms S, set out various options in relation to the future of the Trust, involving either Mr R or the respondent and Mr N purchasing the property and assets of the Trust. On 15 July 2011 Mr R was informed by email that Mr N and Ms Milford were not interested in engaging the services of a negotiator. The respondent says that the offers were made as a “bluff to make Mr R toe the line”;
b)Six months later, at a directors meeting, Mr N and the respondent voted to sell the farm on the market;
c)Proceedings were initiated by Mr R and Ms S in relation to the Trust in the Supreme Court of Victoria.
A settlement was reached on 8 August 2012 under which the property and assets of the Trust was sold to Mr R and Ms S for a purchase price of $6 million. Payments were paid in the amount of $2 million to Mr N, $1 million to the respondent and $500,000 to Mr A. Upon the completion of the sale of the Trust and the payments to Mr N, the respondent and Mr A, the Trust vested.
Returning to the period 2008 to 2009, by the time the 2009 orders were made the former matrimonial home had been sold. During the property proceedings both parties were legally represented. The 2009 Orders provided for an equal division of the net proceeds of the former matrimonial home. Otherwise the parties retained their motor vehicles, savings and superannuation entitlements. The respondent retained her interest in the Trust.
Prior to the making of the 2009 Orders, there was correspondence between the respondent’s and applicant’s (then) solicitors in relation to the Trust and CCPL:
a)By correspondence dated 14 January 2008, the applicant’s solicitor stated:
“we are instructed that your client is a shareholder in the company [C] Consolidated Pty Ltd which in turn acts as a Trustee for a Family Trust. Our client is concerned that your client not dispose of any interest which she might have in the Trust.”
The respondent was requested to provide an undertaking that she not dispose of her interest. That undertaking was subsequently given through her solicitors by correspondence date 8 February 2008.
The applicant’s solicitors also requested a copy of the “Trust Deed and the Financial Statements, including Balance Sheet and Profit & Loss Statements for [C] Consolidated Pty Ltd for the past three years”
The documents requested were enclosed in the respondent’s solicitors’ correspondence date 8 February 2008[2];
b)By correspondence dated 5 March 2008, the applicant’s solicitors stated:
“It is clear that your client has an interest in the [C] Family Trust, and that therefore the assets of the Trust will need to be valued…. We would suggest initially that there be market appraisals obtained for the farming lands, although given the nature of the properties and the extent of them it may be necessary to obtain a sworn valuation at a later time. The Trust also owns substantial plant and equipment, which will need to be valued.”[3]
c)By correspondence dated 22 April 2008, the applicant’s solicitors stated:
“The fact that our client may not be pursuing a claim on the [C] Family Trust does not in any way mean your client is relieved from her obligation to disclose her interest in that Trust. However we do not wish to engage in any protracted debate on this matter, as our client is concerned at the time it has taken to finalise settlement.”[4]
[2] Respondent’s Trial Affidavit filed 2 May 2014, Annexures KM5, KM6.
[3] Ibid, Annexure KM7.
[4] Ibid, Annexure KM8.
The Application for Consent Orders filed by the parties pursuant to the Family Court rules[5] specify the applicant’s gross weekly income as $1,450 and the respondent’s as $1,250. The equal division in the net proceeds of sale of the former matrimonial home resulted in $88,734 to each party. The value of the motor vehicles were specified as $15,000 to the applicant and $10,000.00 to the respondent. The applicant’s savings were specified as $9,500.00 and the respondent’s $4,000.00. The applicant’s interest in superannuation was specified as $99,059 and the respondent’s as $114,746. The applicant swore her interest in the Trust (in answer to question 55) as follows:
“Secretary of [C] Consolidated Pty Ltd as Trustee for the [C] Family Trust Deed dated 12/01/1977 with the perpetuity period of 80 years. It is a Discretionary Trust. The Wife has a one-fifth share in Trust at the time of vesting.”
[5] Applicant’s Trial Affidavit filed 31 March 2014, Annexure RM2.
She declared the amount of her interest as “$not known”.
The percentage division of property was specified as 50%. As to financial and non–financial contributions under s.79(4)(a) to (c), both parties specified they were the same. With respect to s.75(2) matter the applicant specified that he disagreed with the respondent that there were no other relevant matters, declaring as follows (question 60):
(a)Husband has use of motor vehicle provided by employer
(b)Wife is a specified beneficiary of the [C] Family Trust which had net assets in the 2007 Balance Sheet of $1,335,053. ~~The Wife has no expectation of benefit from same - Trust to be wound up in 2050~~

Approach to s.79A

In Patching and Patching (1995) FLC 92-585 commencing at 81,796, the Full Court addressed the trial Judge’s approach in determining first whether orders should be set aside and, if that were determined in the affirmative, what orders should be made. Their Honours observed this procedural approach was to later cause difficulty. At 81,797, the Full Court, having set out the provisions of s.79A, stated:
“Here this involved four steps namely whether there has been a suppression of evidence or “other circumstance” as alleged by the husband, 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: see, for example, McIntrye and McIntyre (1994) FLC 92-468. Recent decisions of the Full Court have emphasised the independent significance of the exercise of the discretion which s.79A gives. See Prowse and Prowse (1995) FLC 92-557 and Morrison and Morrison (1995) FLC 92-573.
In Oastler and Oastler (1993) FLC 92-390 the Full Court emphasized that it is generally preferable to deal with all of the steps in the one hearing. The reasons for that are obvious, namely that even if the Court concludes that there have been circumstances which amount to a miscarriage of justice, it must then consider whether, in all the circumstances, it should exercise its discretion to vary or set aside the orders and/or make a new s.79 order. In exercising that discretion, it will have regard to, inter alia, 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: McIntyre, supra, provides an example of this. The last of those circumstances was important in this case for reasons which will subsequently become apparent. Of course, there will be cases where it is convenient to divide the procedure into several hearings; for example, where there is a discrete issue under the first and/or second step, and the property circumstances of the parties are complex.
Here, as the parties agreed to this split hearing, it would not normally be appropriate for either to complain to this Court about that: see Nolan and Ingram (1984) FLC 91-585 and Ahmed and Ahmed (1995) FLC 92-571. However, the procedure did, in fact, cause difficulty in this case because it meant that his Honour considered not only the question of a miscarriage of justice but also the discretion to set aside the original orders in a vacuum, as it were, that is, without having the additional material against which to determine whether it was a proper exercise of discretion to do so and what other orders should be appropriate.”
In Gebert and Gebert (1990) FLC 92-137, the Full Court considered the requirement that there be a miscarriage of justice and stated at 77, 937:
“The very expression of “miscarriage of justice” used in sec.79A(1)(a) does not fit happily with the concept of a party of full age and with full knowledge of the circumstances entering into an agreement of this nature in circumstances where he had deliberately decided not to seek legal advice, although urged to do so. No doubt had the situation brought about by the order been imposed upon him, it may have amounted to a miscarriage of justice but the law fortunately still allows persons to form their own views as to the arrangement of their affairs. In the present case, there appears to be no doubt that this is precisely what the husband did. The fact that he later repented of that decision, in no sense elevates his original decision to consent to such an order to a miscarriage of justice nor should such order in our view be interfered with. On the contrary, we would regard it as a considerable miscarriage of justice from the wife’s point of view if the husband’s then conscious decision entered into free of duress, was not to be interfered with on a paternalistic view as to what might not have been in his best interests. Accordingly we would dismiss the appeal”.
In Korsky & Bright [2007] FamCA 245, Brown J said:
“36. It is well established that the notion of a miscarriage of justice concerns the integrity of the judicial process; the miscarriage must arise out of that process; see Clifton and Stuart(1991) FLC 92-194, Bigg v. Suzi. In Suiker and Suiker(1993) FLC 92-436 at 80,472 the Full Court observed that the expression “judicial process” can refer to a variety of matters and circumstances which had an influence on the outcome of the litigation and that it is neither necessary nor desirable to attempt to define the matters which may amount to a miscarriage of justice by reason of any other circumstance in the relevant sense.”
In Public Trustee v Gilbert (1991) 103 FLR 282; (1991) FLC 92-211 (Gilbert), Fogarty Nygh and Wilczek JJ addressed whether the events must occur at or before the making of the order (as was concluded in Molier & Van Wyk (1980) FLC 90-911) saying:
“Furthermore, as their Honours pointed out in Molier and Van Wyk the circumstance complained of must have resulted in a miscarriage of justice. That term relates to the judicial process which resulted in the order sought to be set aside. Its integrity cannot be put into question by something that happened after that process was completed. Indeed, it was because of this perceived defect of section 79A(1) as originally enacted: see Family Law in Australia Report on the Joint Select Committee on the Family Law Act 1980, Volume I, paragraph 5.94 that paragraphs (b), (c) and (d) were subsequently inserted. We see no reason, therefore to depart from what was said in Molier and Van Wyk.
An alternative argument, which received the support of the learned Trial Judge, was to the effect that at the time of the making of the consent orders there existed a basic assumption that the husband would remain alive for at least the near future, and that this was an existing fact or circumstance which was falsified by the husband’s death so shortly thereafter. In connection with this argument great stress was laid upon the decision of the House of Lords in Barder & Caluori [1988] AC 20.”
The Full Court in Gilbert analysed Barder & Caluori [1988] AC 20; [1987] 2 All ER 440; [1987] 2 WLR 1350; [1988] Fam Law 18 in some detail before concluding:
“We have, in any event, some, serious reservations about the notion of fundamental assumptions underlying orders as was adumbrated by Lord Brandon. It would be difficult to draw the line at a death by suicide within a period of twelve months. Indeed, the learned Trial Judge, in this case instanced as a case where basic assumptions of the parties might be said to have been falsified, a situation where a short time after the orders the value of the property, the subject of the order, had “plummeted or fallen to quite significantly low figure or amount.” It would mean that, in any order, there would have to be read a “rebus sic stantibus” clause for a period of twelve months. This would mean, reading into the Australian legislation, something which is simply not there, a power which this Court, as the High Court pointed out in Mallet v Mallet (1984) FLC 91-507; (1984) 156 CLR 605, simply does not possess.
We, therefore, remain of the view that a miscarriage of justice can only occur by reason of a fact or event which occurs before or at the time of the making of the order which it is sought to set aside. For that reason, the learned Trial Judge was in error insofar as he sought to rely on s.79A(1)(a). [emphasis added].”

In Bigg v Suzi (1998) FLC 92-799 the Full Court (Barblett DCJ, Lindenmayer & Finn JJ) said:
“6.41 … It is difficult to imagine any circumstances in which it would be enough to constitute a mischarge of justice, within s3.79A(1)(a), as explained in the cases to which we have referred, for one party to consent orders to establish only that he or she entered into those orders under a mistaken belief, even about a relevant matter, which was neither induced by nor known to the other party. Certainly, there is nothing in circumstances of this case to lead us to the conclusion that such a mistake on the part of the husband, without more, could amount to such a miscarriage of justice.”
The Full Court of the Family Court in Barker & Barker [2007] FamCA 13; (2007) 36 Fam LR 650 considered a case where the wife settled property proceedings on the basis of a value of a property at $1.65 million. Shortly after the settlement, in which the husband received that property, it was sold for $2.65 million. The Full Court stated:
“120. A miscarriage of justice under s.79A(1)(a) will occur if circumstances exist which “for some significant reason, make the order contrary to law and justice according to law as it relates to the integrity of the judicial process [original emphasis]” (Bigg v Suzi (supra) at 84,982. See also Suiker (supra); Public Trustee (as executor of the estate of Gilbert) v Gilbert (supra)). Whilst cases such as Suiker (supra), Holland v Holland (1982) FLC91-243 and Gerbert v Gerbert 1990 FLC 92-137 indicate that the words “miscarriage of justice” should not be construed narrowly and the phrase “integrity of the judicial process” should not be taken only to refer to the hearing in the court, the circumstances creating the miscarriage must nevertheless have been such as to have had an influence on the outcome of the litigation. As the Full Court said in Holland (supra):
To succeed in an application under sec.79A, the wife must show some circumstances leading to a miscarriage of justice. Agreement to a consent order which may not adequately reflect a party’s entitlement under sec.79 does not, of itself, show that there has been a miscarriage of justice. There may be cases where the order consented to is so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice.”
The Full Court concluded:
“122. There will thus be many cases in which an order will be made, by consent or otherwise, based upon an agreed valuation which has been prepared many months earlier. There may be factors in the intervening period which have affected the value so agreed. Unless there is some particular act which impugns the process by which the orders were obtained, the mere effluxion of time and the consequent changes in the market during that period, whether they be upward or downward, will not of themselves create an injustice, nor require either of the parties to make further investigations of value if they choose not to do so.
123. As previously discussed, in order for a claim under s 79A(1) to succeed, the Court must be satisfied that a miscarriage of justice has resulted. It is not sufficient to merely establish the existence of one or more of the stated grounds, such as suppression of evidence. In Livesey v Jenkins (supra), Brandon LJ had this to say about the nexus between non-disclosure and setting an order aside (at 445-6):
I would end with an emphatic word of warning. It is not every failure of frank and full disclosure which would justify a Court in setting aside an order of the kind concerned in this appeal. On the contrary, it will only be in cases when the absence of full and frank disclosure has led to the Court making, either in contested proceedings or by consent, an order which is substantially different from the order which it would have made if such disclosure had taken place that a case for setting aside can possibly be made good. Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the Court would have made or approved, are likely to find their applications being summarily dismissed, with costs against them, or, if they are legally aided, against the legal aid fund.
We agree with this statement.
124. But s.79A is a remedial section designed to avoid a miscarriage of justice. Where there is some intervening factor known to one party, but not the other, this may lead to a result which is unfair and unjust and can be characterised as a flaw in the judicial process by which the orders were made. There may also be circumstances in which the judicial process could be impugned by a sale after orders were made and in the absence of bad faith by either party or suppression of some relevant fact, if it led to a significant miscarriage of justice.
125. However, the wife’s case does not rest solely on the subsequent sale. Her case also rests on a combination of events some of which occurred prior to the orders being made. The first of these was the sale of “AB” at a price consistent with “TD”, which led Mr J to say in his letter of 14 April 2004 that the sale “set a whole new level of values for the district.” Secondly, there is the offer made for “AW” of $2,300,000, which was not disclosed to the wife. The third is the sale of “AW” at $2,650,000 so proximate to the making of the orders.
126. In our view these factors did constitute a miscarriage of justice, as a result of “any other circumstance”, because the value of the net property, including “AW”, when the orders by consent were made did not reflect the real value of “AW” and possibly the value of the other properties. Further, the evidence indicates that the value of “AW” was at least $1,000,000 greater than the figure given to O’Reilly J with the effect that the amount the husband had to pay the wife resulted in her receiving a substantially smaller percentage of the property than that which the parties had submitted was a just and equitable outcome. The trial judge erred in not appreciating the relevance of the offer of $2,300,000 and the sale of “AW”.”
The Full Court further stated:
“127. In addition to this ground we are satisfied that his Honour erred in rejecting the wife’s contention that the husband was under an obligation to disclose the offer. The husband knew of the “AB” sale and whether or not he accepted or rejected the evidence of the agent Mr H, he had been advised by him that in his view after that sale the value per acre had increased to beyond $500. The subsequent offer was known to the husband but not to the wife and, as we have found, the husband had an obligation to disclose it, particularly in circumstances in which the wife had raised the possibility of the property being worth more. We are satisfied that the wife has also established the ground of suppression of evidence.”
The crucial factor in Barker’s case appears to be that the husband had failed to make disclosure to the wife an offer he had received on the property of $2.3 million. This would have put her on notice that the value assigned to the property by the joint valuer may not have been correct.
There are two issues to be decided in determining whether there has been a miscarriage of justice by reason of the suppression of evidence. The first is clearly whether there has been a suppression of evidence. And, if I find there has been, whether this constitutes a miscarriage of justice within the meaning of s.79A(1)(a).
The applicant says the respondent failed to provide full and frank disclosure during the course of the proceedings in which both parties sought the alteration of their interests in the property of the marriage under s.79 of the Act, resulting in the making of the 2009 consent Orders.
The matters or events which the applicant says he did not know prior to the signing of the 2009 Orders are:
a)The conversation his then wife (the respondent) had with her sister Ms K in 2004 regarding the possibility of transferring her share to Mr R for consideration;
b)The value of the payment made by Mr R to Ms K in consideration for the transfer of her two shares in CCPL in 2005 which was $500,000;
c)The conversation that Mr R and his wife Ms S allege occurred in early 2008 in which Mr R offered to purchase the respondent’s shares in CCPL for the same amount as Ms K received.
The applicant’s case is that the respondent failed to disclose fully her interest in the [C] Family Trust and some 18 months, after the consent orders were made, she relinquished her share in the corporate Trustee of the Trust for an amount of $1 million. The applicant says that, in failing to disclose the value of the payment made by Mr R for Ms K’s shares in 2005 and in failing to disclose that Mr R had offered to purchase her shares in CCPL in early 2008 during the course of the negotiations leading to the property settlement, he was misled. He deposes that had he been aware of the real value of the respondent’s share he would not have agreed to the 2009 orders.[6]
[6] Applicant’s Affidavit filed 31 March 2014 at [21].
Consequently, the failure to disclose her interest resulted in a miscarriage of justice.
The respondent denies that there was a miscarriage of justice within the meaning of section 79A(1)(a) of the Act. She denies that she suppressed any evidence. The respondent says that both she and the applicant were aware by late 2005 of the transfer of shares from Ms K to Mr R and that the payment by Mr R was likely $500,000. She says that she was not aware of the precise amount or terms for the payment of that amount until the Victorian Supreme Court proceedings in 2012.
The respondent denies that in early 2008 Mr R offered to purchase her shares in CCPL for $500,000. She denies she went to Mr R and Ms S’s home at that time nor that any conversation occurred between herself, Mr R and Ms S in relation to an offer to purchase her shares during that time.

Evidence
The Commencement of Proceedings

The applicant stated, in cross examination, that after the settlement reached in the Supreme Court proceedings, the respondent’s father,

Mr T, said to him that he should have a second go at his property settlement. He told the applicant he would back him and help him in the funding of his litigation in these proceedings. So far Mr T has paid $44,000 in legal fees. He said, after this conversation with Mr T, Ms S had given him the documentation from the Supreme Court proceedings.

The Making of the 2009 Orders

The applicant agreed with the statement in Mr R’s affidavit filed in the Victorian Supreme Court, wherein he said that the desire of Mr T in establishing the Trust was for it to continue the farming legacy from previous generations of the [C] family, then onto his children’s generation and his grand children’s generation and beyond.
The applicant agreed that he knew, prior to the making of the 2009 Orders, the relevant details regarding the establishment of the Trust and that its purpose was to hold the farm for future generations. He agreed that he had a copy of the Trust deed and relevant financial documents as requested by her solicitors. He knew that the respondent was Secretary and director of CCPL and was aware of her shareholding in CCPL and that she was a beneficiary of the Trust.
The applicant’s evidence, during cross examination, was that during the course of the litigation which occurred over a period of some 12 to 15 months leading to the making of the 2009 orders:
a)The decision to vest the Trust in 2012 was not foreseen by anyone;
b)He was aware that he had a right to value the Trust but made a conscious decision not to;
c)He decided not to value the Trust because of the impact it would have on his father in law, Mr T, given his desire to maintain the farm for future generations (including his children) and his health. Because of this he decided not to disturb the interests in the Trust;
d)He gave specific instructions to his solicitor, because of these circumstances, not to pursue the Trust interest in negotiations;
e)He believed that the respondent’s interest in the Trust was a substantial interest and that the farm, if sold would be worth millions of dollars. At that time, however, the farm was never intended to be sold;
f)Because of these considerations (see [c] above), the value of the Trust or the existence or otherwise of an offer to the respondent for her shares in CCPL would not have altered his decision to sign the 2009 Order.
On 15 October 2008, in the context of an application by the respondent for a change of assessment in Child Support, the applicant submitted a Response Form[7]. The applicant confirmed that he completed this form truthfully. In response to question 28, Assets, the applicant relevantly stated:
“I note in question 28, Ms Milford makes no mention nor information forwarded in relation to the shared interest of 25% in her parents property in which Ms Milford is also a director of (land and assets). If the property sold today, it would be in the millions of dollars…”
[7] Respondent’s affidavit filed 2 May 2014, Annexure KM2.
At question 31, the applicant relevantly stated:
“Having the ability to sell her interest of 25% share in her parents property and assets at any time to one of the other family shareholders puts her in a very good position to set herself and the kids up for life I do not require any of this share and have made this very transparent….”

The 2005 Transfer of Shares

The respondent says that both she and the applicant were aware prior to the date in 2005 of the transfer of shares and that, although they were not provided with the information of the precise amount, the discussions between her and Mr N, with the applicant present, were to the effect that the amount may well have been $500,000.
The respondent says that the applicant came with her to the many meetings or discussions she had with Mr N and Ms C, after the transfer of Ms K’s shares in CCPL to Mr R. She says that the applicant attended a meeting on 30 November 2005 at Mr N and Ms C’s request during which there was a very detailed discussion of the structure of the Trust and the transfer of Ms K’s shares in CCPL to Mr R. She has produced an email from Ms C to the respondent dated 1 December 2005[8] referring to the applicant and respondent going to Mr N and Ms C’s house the previous day. The response to that email from the respondent makes it clear that the discussion was about the Trust.
[8] Ibid, Annexure KM9
In her affidavit filed in the Victorian Supreme Court proceedings,[9] the applicant deposed at [19]:
“Sometime in 2005 Ms K approached me to sign documents to the effect the sale of her shares for a sum of money which she did not disclose to me. Ms K advised me Mr N was aware of the transaction. I was later told after Ms K’s death in 2005, by her son [name omitted], that he had delivered to Mr N a copy of the document found amongst Ms K (sic) effects. Mr N had not been aware of the transaction between Ms K and Mr R. Dad later told me that Ms K had received $200,000 from Mr R for the shares.”
[9] Applicant's trial affidavit filed 31 March 2014, Annexure RM5
In her affidavit filed on 5 August 2013, the respondent deposed at [9(e)(v)] in respect of the circumstances surrounding the transfer of shares:
“the husband became aware of this transaction in 2005 at the same time I was and he was also well aware of the amount my sister Ms K received as a result of this transaction.
In her trial affidavit for these proceedings, the applicant deposed at [17(l) and (m)] respectively:
“…. At the time of signing the document (the deed to effect the transfer of shares), I was not aware of the amount of money that had been exchanged between Mr R and Ms K. The document does not specify a dollar value. Prior to Ms K’s death in October 2005, Mr Milford and I became aware of the value of the transaction of $500,000…..”
“….. Prior to Ms K’s death on 9 October 2005 both Mr Milford and I were aware of the $500,000 transaction between Mr R and Ms K. While we never had any definitive knowledge of the amount paid by Mr R to Ms K, it was discussed in our family circle that the amount may have been $500,000. My father told me the amount paid to Ms K was $200,000 however I believe the initial amount was probably higher.”
The respondent was cross-examined regarding alleged inconsistencies in her affidavit filed in the Victorian Supreme Court proceedings and her affidavit this in these proceedings.
The respondent denied that they were any inconsistencies. She says she was not aware of the actual amount nor the conditions of the payment made by Mr R to Ms K for the transfer of her shares in CCPL until she read Mr R’s affidavit filed in the Victorian Supreme Court proceedings. Her evidence was that the family were aware an amount of money changed hands and the amount was discussed openly among the family. She said the family discussions included Ms K’s children and Mr N and Ms C and that the applicant was present at the discussions. She said that there was nothing confirmed about the actual amount. She said that the amount of $500,000 was mentioned and the applicant was aware of this. She deposes that she had not previously seen Schedule 1 to the agreement between Ms K and Mr R which set out their agreement regarding Mr R’s payment to Ms K for her shares in CCPL.
Mr N’s evidence is that:
a)prior to the steps taken by him and the respondent in 2011 (see [16] above), he had not pursued legal avenues to set aside the 2005 transaction between Ms K and Mr R;
b)the steps taken by him and the respondent in 2011 were designed to bring things to a head;
c)about a month after Ms K died, there was a discussion between Mr N and Ms C, the respondent and the applicant about what had happened to the Trust during which the amount Ms K was paid was “floated around the room”. The amounts he heard were $200,000 and $400,000;
Ms C’s evidence was that at a meeting held at her house on 30 November 2005, at which she and her husband, the respondent and applicant were present, there was some discussion about the amount Mr R paid for Ms K’s interest in CCPL. She said that amounts such as $400,000 and $500,000 were discussed. She said it was all hearsay.
The applicant agreed that he was present at discussions held between the respondent and Mr N at Mr N’s home regarding the Trust. He said he was not an active participant in the discussions, he was simply there as a support person for his then wife, the respondent. He does recall discussions between the respondent and Mr N in which they express their dissatisfaction about Mr R and Ms S’s operation of the farm. He does not recall a discussion in November 2005 at Mr N’s house, regarding the transfer of Ms K’s shares in CCPL to Mr R. He does, however, agree that the principal focus of discussions in 2005/2006 was what Mr R did to acquire the shares of Ms K. He recalls being present at meetings Mr N and the respondent held with the CCPL accountant and a mediation conducted between Mr N, the respondent and Mr R. He says he does not recall in detail the content of the meetings or mediation.
Both Mr R and Ms S depose that in late February or early March 2008, after the applicant and respondent had separated, the respondent came to their home to obtain a copy of the Trust Deed. They depose that whilst the respondent was in their house:
a)Mr R offered to purchase the respondent’s shares;
b)The respondent asked how much Mr R would pay for her shares;
c)Mr R stated the same as what Ms K received;
d)The respondent asked what that was;
e)Ms S stated $500,000; and
f)The respondent stated she would hold onto her shares for a bit longer.
In cross-examination Mr R:
a)Agreed that up until the dispute in 2012, it was intended that the farm, [B], remain in the family;
b)Agreed that in 2008/2009 he had a debt of over $3 million;
c)Agreed that in 28 January 2009, the ANZ Business Loan to [B] Farms Ltd was varied to purchase Ms K’s 25% share in CCPL. The security for the borrowings included a mortgage given by CCPL as Trustee for the Trust (Exhibit R1);
d)The first time he spoke to anyone about the payment he made for the transfer of Ms K’s shares in CCPL to him was during the course of the conversation he had with the respondent in 2008.

Ms S said, in cross-examination, that:
a)She believed she played the role of peacemaker in the family;
b)If the respondent had accepted Mr R’s offer in early 2008 to buy her shares in CCPL, they would have then addressed their capacity, through other assets, to secure borrowings for the purchase, however, the matter did not proceed that far;
c)There was a possibility that they would have been unable to secure agreement to use the Trust as security;
d)Anyone with a working knowledge of the farm, [B], was aware that it was worth some millions of dollars;
e)she was aware that, back in 2009, irrespective of the value of the farm and what offers had been made, the applicant did not want to pursue an interest in the Trust because of his father in law’s commitment to the legacy of the farm and his health;
f)the applicant’s legal costs in these proceedings are being paid jointly by his father-in-law and Mr R and Ms S. They are providing a small loan whenever there is a shortfall.
It should be noted that the respondent agreed, in cross examination, that the borrowings from and securities for the ANZ business loan (Exhibit R1) were discharged by the end of 2010.
The respondent’s evidence is that on the Australia Day weekend, following the request by correspondence dated 14 January 2008 from the applicant’s then solicitors for a copy of the Trust Deed, she went to her parent’s house to obtain a copy of the Trust deed. She says she obtained a copy of the Trust deed and then forwarded same to her solicitor’s. She says that she did not go to Mr R and Ms S’s house nor did Mr R offer to purchase her shares in CCPL.

Submissions

The applicant submits that this is a case where there has not been full disclosure, the consequence of which is there has been a miscarriage of justice under s.79A(1)(a) by reason of suppression of evidence. The applicant submits that, in accordance with the decision in Barker, nondisclosure of an offer to purchase property which a party has an interest in during the course of negotiations leading to the making of property orders is fatal and amounts to a miscarriage of justice as described in that decision. The applicant submits that:
a)he was not aware of the amount received for payment for Ms K’s share in CCPL at any time prior to signing the 2009 orders;
b)the wife was aware, either in 2005 or in 2008, of the sum that was paid for Ms K’s share;
c)an offer was made in 2008 by Mr R and witnessed by his wife, Ms S, in the circumstances as deposed by them in their affidavits;
d)Ms S was a witness of truth whose version of the offer should be accepted. There is no dispute that at the relevant time she undertook the duties of bookkeeper for the Trust and it is more than likely that a copy of the Trust deed would be located where the books of accounts were kept;
The applicant relies on the decisions referred to by the Full Court in Barker as follows:
“110. In Suiker (1993 FLC 92-436 the Full Court held that the husband was under a duty to disclose to the wife before the consent order was made that he had applied for a redundancy and what his prospective benefits would be. At page 80,471 the Full Court (Nicholson CJ, Baker and Strauss JJ) said:
Under the Family law Act 1975 the need for a resolution of disputes by negotiation and the consequent making of consent orders or the approval of maintenance agreements is an essential part of the legislation and the rules. Relevant provisions in force at the time included section 79(9) and section 87 of the Family Law Act 1975 and Orders 24 and Order 31 Rule 8 of the Family law Rules. In our opinion, the necessity for full and frank disclosure of financial matters to the Court and to the other party are basic to the process of the Court and the fundamental aims of the financial legislation in section 79 of the Family Law Act 1975.
111. After citing from Dawson J in Harris v Caladine (1991) FLC 92-217 at 78,845-78,846 the Full Court said:
It is implicit in these passages that the consent to an order must be informed consent. The consent to the order is itself part of the judicial process on which the Court places reliance. If that consent is based on misleading or inadequate information, then there may be, in our opinion, a miscarriage of justice either by reason of the “suppression of evidence” or by reason of “any other circumstance”.
“112. As the Full Court said in Morrison v Morrison (1995) FLC 92-573 at 81,671:
The obligation to make a full and frank disclosure is regarded as so crucial to the functioning of this jurisdiction that the deliberate failure by one party to meet that obligation may result in the Court drawing adverse inferences against the non-disclosing party where there is material upon which such inferences can be based; see Stein and stein (1986) FLC 91-779; The Mezzacappa and Mezzacappa (1987) FLC 91-853; Giunti and Giunti (1986) FLC 91-759.”
“113. We note further what was said by Thorpe LJ in burns v Burns [2004] EWCA Civ 1258; (2004) 3 FCR at 267 that the effect of the decisions in Robinson v Robinson [1982] 2 All ER 699; 1982 1 WLR 786 and Livesey v Jenkins [1985] 1 All ER 106; 1985 AC 424 is “to establish clearly that if a party is in breach of the duty of candour, whether by actively presenting a false case or passively failing to reveal relevant facts and circumstances, the the court has the power to set aside the order and do justice, whether or not the order was made by consent.”
114. Each case must be carefully considered in light of its own circumstances. The circumstances of this case were that the wife was concerned about the valuation of Mr J being too low and where she indicated that there had been an offer to purchase at a higher price. In those circumstances in our view the husband had an obligation to disclose the amount of the offer, even if he did not wish to sell the property or he thought that the offer was not genuine. It was not for him to determine the relevance of the facts and to make a unilateral decision not to disclose them, whatever his own views may have been.”
The applicant submits that it is the fact of an offer being made by Mr R to purchase the respondent’s shares in CCPL in early 2008 that gives rise to a conclusion that there was not full and frank disclosure by the respondent and, consequently, a suppression of evidence.
The respondent submits that:
a)the focus of the Court’s consideration must be the circumstances that existed in 2008/2009;
b)the evidence is that in 2008/2009 the [B] farm was a generational farm, it was intended to be held for generations to come and that was the view of everybody;
c)the correspondence between solicitors for the parties during the negotiations of the property orders is evidence that the applicant had all the necessary information on a legal basis regarding the Trust;
d)the applicant conceded in evidence that it did not matter what offers were made or the value of the applicant’s interest, he made a “conscious decision” not to pursue further any interest in the Trust because he was concerned about his father in law’s health and he knew the farm was his father-in-law’s life;
e)the applicant knew in 2008 that the wife had an interest, possibly a substantial interest in the Trust and he knew that he had had an opportunity to value it and had decided not to;
f)the applicant’s Response to the CSA discloses that he was aware of the percentage of her interest in her parents’ property and assets, that she had the ability to sell that interest, that he did not require her share and that if the property was sold it would be worth millions of dollars;
g)it is illogical to assert that Mr R made an offer to the respondent in early 2008 because he had no capacity to borrow and was well aware that Mr N (as director of CCPL) would not agree to such a transfer;
h)Mr N was not challenged about his evidence regarding meetings that the parties, Mr N and his wife had at their house, with the accountant and the financial counsellor. In particular, he was not challenged regarding the discussion between the parties, Mr N and his wife in relation to the amount of payment made by Mr R to Ms K for the transfer of her shares. This, the respondent submits, imputes the knowledge that the husband had in 2008.
The respondent submits that the Court should take into account the motivation of the applicant, together with the father in law and Mr R and Ms S, in initiating these proceedings. The respondent submits that the evidence reveals that the legal proceedings are being funded by Mr T together with Mr R and Ms S. Mr T no longer is able to maintain his desire to retain the farm as a generational farm and Mr R and Ms S have had to pay the other beneficiaries of the Trust and legal fees, which amounts to $3.5 million. The applicant relies on Mr R and Ms S’s evidence for the finding that an offer was made by Mr R in early 2008 to purchase the respondents share in CCPL for $500,000. This offer was not disclosed to the applicant until 5 or 6 years later, after the completion of the Victorian Supreme Court proceedings. The respondent submits they should not be treated as witnesses of credit given their motivations in these proceedings.
In any event, the respondent submits that her evidence that she collected a copy of the Trust deed from her parent’s house on the Australia Day weekend in 2008 is consistent with the documentary evidence before the Court; namely, that less than two weeks later, her solicitors forwarded a copy of the Trust deed to the applicant’s solicitors.
The respondent submits that the evidence of the applicant that he would have entered into the 2009 orders under any circumstances because of his concerns regarding the father-in-law, is on all fours, with the circumstances in Gebert (supra) and the statements by the Full Court at [77,937] regarding the concept of “miscarriage” in s.79A(1)(a) of the Act.
The respondent submits that the circumstances in Barker are starkly different to those applicable in these proceedings.

Consideration

The 2005 Transfer of Shares

The applicant has submitted that the matters deposed by the respondent in her affidavit filed in the Victorian Supreme Court regarding the transfer of shares by Ms K to Mr R in 2005, are inconsistent with the matters deposed in these proceedings. I agree that there is an inconsistency. On the one hand, the respondent deposes at [19] of her affidavit filed in the Victorian Supreme Court proceedings that Mr N was not aware of the transaction of shares until after Ms K’s death in October 2005. In her affidavit in these proceedings she deposes that she and the applicant were aware of the $500,000 transaction between

Mr R and Ms K and that this awareness had emerged from discussions in the family circle prior to Ms K’s death (affidavit filed 31 March 2014). I do not see this inconsistency as necessarily fatal to the respondent’s evidence that she and the applicant were aware of the transaction and that it may involve an amount of $500,000 as it is confined to Mr N’s awareness and not her or the applicant’s awareness. Moreover, the key meeting or discussion the respondent and Mr N and Ms C rely on for their evidence that the transfer of shares and the consideration was discussed, is a meeting held on 30 November 2005, after Ms K passed away.
Having considered the evidence, I am satisfied that from late 2005 there were discussions between the respondent and Mr N at Mr N’s house and at which both the applicant and Ms C were present. I am satisfied that these discussions centred around the respondent’s and

Mr N’s dissatisfaction with the circumstances under which the transfer of Ms K’s shares to Mr R were effected and the manner in which Mr R was managing the [B] farm, in particular the capital expenditure and borrowings. I am further satisfied that these discussions included speculation by the respondent and Mr N regarding the payment made by Mr R to Ms K as consideration for the transfer of her shares in CCPL to him. I am satisfied that the amounts which were discussed ranged from $200,000 up to $500,000. Mr N and Ms C were not challenged regarding their evidence as to the amounts discussed.
The applicant says that he was not an active participant in the discussions. He says he was there to support his wife and was not aware of the content of these discussions. I am unable to accept the applicant’s evidence on this. He seems to me to be an intelligent man, who without doubt would have taken a keen interest in matters that might potentially affect his wife and his children’s interests. The applicant has conceded that at this time he and the respondent’s relationship was a happy one. I am satisfied that the respondent was well aware of the content of these discussions.
I am, therefore, satisfied that the applicant was aware prior to the making of the 2009 Orders that there had been a transfer of Ms K’s shares in CCPL in 2005 to Mr R for consideration and that the amount of payment was in the range of $200,000 up to $500,000. I am fortified in this conclusion by the contents of the applicant’s Response in the Child Support proceedings (see [45] and [46] above) in which he says that the respondent has a 25% share in the Trust which is worth millions of dollars. Taking a conservative view of this statement, bearing in mind that the 2007 balance sheet for the Trust disclosed assets of $1,335,053, 25% of the Trust valued at $ 2 million is $500,000.
I agree, however, with the applicant, that in discharging her obligation to provide full and frank disclosure as a party to property proceedings under the Act, the respondent ought to have disclosed her knowledge of the share transfer by Ms K to Mr R, including the payment made.

The alleged 2008 Offer

I agree with the respondent that there is an issue regarding the credit of Mr R and Ms S. This is not particularly because of the manner in which they gave evidence or because of any inconsistencies in the evidence given. It is because I have formed the view that they have an investment in this matter which goes beyond the giving of evidence as to matters of fact. This is not simply because they were required to pay around $3.5million arising out of the Supreme Court proceedings by way of settlement and legal costs. It arises from the undisputed fact that the alleged conversation took place in early 2008 during the property proceedings between the parties. The conflict between Mr R and the respondent as well as Mr N was high. The applicant was living in 2008, at the invitation of Mr R, at the farm. I am satisfied that Ms S and Mr R were aware of the property proceedings. It defies common sense that either Mr R or Ms S would not have informed the applicant in 2008 of this conversation which may well be relevant to the applicant’s interest in the Trust. No explanation was given why this conversation was not conveyed to the applicant until after the finalisation of the Supreme Court proceedings some 3 years later.
In addition, Ms S’s evidence (in conflict with her husband’s evidence) was that they have and will loan the applicant funds to cover any shortfall in this litigation.
I am satisfied I should accept the respondent’s evidence. She is able to recall the precise date she says that she went to her parent’s house to obtain a copy of the Trust Deed. Her evidence regarding the date she went to her parent’s house to obtain a copy of the Trust Deed accords with the date she then forwarded a copy of the Trust deed (through her solicitors) to the applicant’s then solicitors on 8 February 2008. The dates that Mr R and Ms S depose this conversation took place are at odds with that documentary evidence. That is, she would not have gone to their house to obtain the Trust Deed in late February or early March 2008 as a copy of this document had already been provided by the respondents solicitor, by correspondence dated 8 February 2008 to the applicant’s solicitors.
Accordingly, I find that Mr R did not make an offer, in late February or early March 2008, to the respondent to purchase her shares in CCPL.

Findings

Having considered the evidence I find that that during the period of negotiations of the property settlement resulting in the making of the 2009 orders:
a)the applicant believed (as did the [C] family) that the [B] farm would be held on Trust, for future generations to come;
b)the applicant made a conscious decision not to pursue the respondent’s interest in the Trust because of the impact this would have on his father in law, Mr T, given his health and the fact the farm was his life;
c)the applicant was aware of the respondent’s interest in and the structure of the Trust and its corporate Trustee, CCPL;
d)the applicant was aware in late 2005 that Ms K had transferred her shares in CCPL to Mr R for consideration;
e)the applicant was aware that the amount of consideration discussed by the respondent, Mr N and Ms C were in the order of $200,000, $400,000 up to $500,000;
f)the applicant was aware that the Trust, if it was sold, was worth millions of dollars and that the respondent’s share would be 25%; conservatively $500,000;
g)the respondent failed to disclose in the property proceedings that she was aware of the transfer of shares by Ms K to Mr R in 2005 and that she believed the amount paid was $500,000;
h)an offer was not made by Mr R to the respondent in early 2008 to purchase the respondent’s share in CCPL for consideration equivalent to that paid to Ms K.

Was there Miscarriage of Justice because of Suppression of Evidence

I have earlier found that Mr R did not make an offer to the respondent in early 2008 to purchase the respondent’s share in CCPL for consideration equivalent to that paid to Ms K. It flows from this finding that the respondent did not suppress any evidence of an offer made for her shares.
However, I have found that the respondent failed to disclose in the property proceedings that she was aware of the transfer of shares by Ms K to Mr R in 2005 and that she believed the amount paid was $500,000.
It can be therefore concluded that the respondent did not fully disclose by correspondence from her solicitors or by reason of the matters she disclosed in the Consent Application for the 2009 orders, her knowledge regarding the transfer of shares by Ms K to Mr R in 2005. However, I have also found that the applicant was aware of the transfer of shares and was also aware that the amount of consideration paid by Mr R for the shares included an amount of $500,000. I have also found that the applicant was aware that if the farm was sold the applicant had a 25% interest of some millions of dollars.
In these circumstances, I am not confident that the respondent’s failure to fully disclose constitutes “suppression of evidence” within the meaning of s.79A(1)(a) of the Act.
Even if I did find that the respondent had suppressed the evidence relating to the transfer of shares by Ms K to Mr R in 2005 and her knowledge of the consideration that may have been paid, I am not satisfied, in the circumstances that there has been a miscarriage of justice within the meaning of s.79A(1)(a) of the Act. I have reached this view for two reasons:
a)First, I have found that the applicant was aware of the transfer of shares and was also aware that the amount of consideration paid by Mr R for the shares included an amount of $500,000. I have also found that the applicant was aware that if the farm was sold the applicant had a 25% interest of some millions of dollars; and
b)Second, the applicant’s evidence that he made a conscious decision not to pursue in the property proceedings the respondent’s interest in the Trust. His evidence is that irrespective of the value of her interest he would not have pursued her interest in the Trust.

It is clear that not every failure of full and frank disclosure would justify setting aside an order. The failure must be one that would have produced a substantially different result in the order: Barker citing Livesay v Jenkins (supra).
I am satisfied that, given my findings, the observation of the Full Court in Gerbet at [77,937] are apt to this case. In my view, the expression “miscarriage of justice” is not consonant with circumstances where an adult person, who is legally represented and with full knowledge of the circumstances entering into an agreement, consciously and deliberately decides not to pursue an interest which may have a bearing on the outcome of property proceedings. The fact that, some 3 years later, he repents of this decision does not render his original decision to make a consent order a miscarriage of justice.

Conclusion

For the reasons I have set out in this judgement I will dismiss the applicant’s application.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:

Date: 27 February 2015