Mirren and Mirren

[2019] FamCA 532

FAMILY COURT OF AUSTRALIA

MIRREN & MIRREN [2019] FamCA 532  

FAMILY LAW – APPLICATION TO REVIEW REGISTRAR’S ORDERS – applicant requiring an order extending time to bring the application – lapse of almost six years – applicant contending that orders were procured by the failure to disclose relevant information.

Family Law Act 1975 (Cth) ss 37A, 79, 79A
Family Law Rules 2004 rr 1.14, 18.08

Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86
Badawi & Badawi [2017] FamCAFC 129
Barker v Barker (2007) 36 Fam LR 650
Bigg v Suzi (1998) 22 Fam LR 700
Burns v Grigg [1967] VR 871
Gallo v Dawson (1990) 64 ALJR 458
Harris v Caladine (1991) 172 CLR 84
Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257
In the Marriage of Banhidy (1982) 8 Fam LR 82
In the Marriage of Clifton & Stuart (1990) 14 Fam LR 511
In the Marriage of Elliot & Willcox (1996) 20 Fam LR 567
In the Marriage of Gebert (1990) 14 Fam LR 62
In the Marriage of Holland (1982) 8 Fam LR 233
In the Marriage of Kokl (1981) 7 Fam LR 59
In the Marriage of McCabe (1995) 19 Fam LR 579
In the Marriage of Prowse (1994) 18 Fam LR 348
In the Marriage of Rohde & Rohde (1984) 10 Fam LR 56
In the Marriage of Sommerville (1999) 27 Fam LR 233
In the Marriage of Suiker (1993) 17 Fam LR 236
J.C. Williamson Ltd v Lukey & Mulholland (1931) 45 CLR 282
Jess v Scott (1986) 12 FCR 187
Korsky v Bright (No 2) (2007) 38 Fam LR 106
McKenna v McKenna (1971) 18 FLR 15
Mitchelson v Mitchelson (1979) 37 FLR 289
Murray v Director, Family Services (1993) 16 Fam LR 982
Pearson & Coli [2018] FamCA 295
Pelerman v Pelerman [2000] FamCA 881
Ratnam v Cumarasamy [1964] 3 All ER 933
Redman & Redman [2013] FamCAFC 183
Stanford v Stanford (2012) 247 CLR 108
Taylor v Taylor (1979) 143 CLR 1
Trustee of the Bankrupt Estate of Hicks & Hicks [2018] FamCAFC 37
Tsiang & Wu [2019] FamCAFC 128
Turner v Bladin (1951) 82 CLR 463
Waterman & Waterman [2017] FamCAFC 23

Dr Anthony Dickey QC, ‘Family Law’ (LBC Information Services, 3^rd ed, 1997)

APPLICANT: Mr Mirren

RESPONDENT: Ms Mirren

FILE NUMBER: MLC 9896 of 2013

DATE DELIVERED: 14 August 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Wilson J

HEARING DATE: 16, 17 July, 12 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr R Ingleby

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT: Ms E Swart

SOLICITOR FOR THE RESPONDENT: Kelly & McHale Family Lawyers

Orders

1. All relevant periods of time be extended thereby granting leave to review the decision of the Registrar made on 16 December 2013 under s 37A(9) and 37A(10) of the Family Law Act.

2. This proceeding is referred to the registrar for further case management.

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 Mirren & Mirren 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 MELBOURNE

FILE NUMBER: MLC 9896 of 2013

Mr Mirren

Applicant

And

Ms Mirren

Respondent

REASONS FOR JUDGMENT

Introduction  

1. Almost six years ago on 16 December 2013, minutes of consent orders were approved by a registrar of this court pursuant to which the property of the parties was ordered to be divided.  The husband contended in this application before me that those orders were made at a time when the husband and wife were not in marital discord, that the parties did not seek to enforce those orders subsequent to their making, that the orders remain unperformed and that the orders were made based on a failure to disclose relevant information.  The husband has applied for an order extending the time for the review of the registrar’s order. 

2. The wife, as respondent to this application, opposed the making of orders for an extension of time. 

3. Pursuant to orders made by the Honourable Justice Johns on 3 December 2018, the only question to be determined by me on this application was whether to grant the husband the extension of time he sought. 

Synopsis

1. For the reasons that follow, in my judgment an order should be made extending time for the bringing of the application for the review of the consent orders. 

The issue before me

1. Pursuant to the orders of the Honourable Justice Johns made on 3 December 2018, the relevant order was as follows –

   All applications for final orders be adjourned for hearing before Justice Benjamin on 6 May 2019 at 10:00 am as a two-day matter and that the evidence in chief of all witnesses be given by affidavit AND THE COURT NOTES that the issue for determination at that hearing is the husband’s application pursuant to s 79A of the Family Law Act 1975.

2. Dr Ingleby of counsel for the husband agreed to characterising relevant events as being that based on a collection of factual errors, the registrar was misled into making the consent orders because the orders were premised on misrepresentations of fact or on important non-disclosures. 

3. The wife disagreed. 

4. Before descending to the respective positions of the parties it is necessary to say a little about the principles of law against which this application is set.  They are both procedural and substantive. 

The operation of s 79A of the Family Law Act

1. Section 79A of the Family Law Act was first introduced in 1976 by Act 63.[1] Under s 79A, the court may, in its discretion, vary or set aside an order made by a court under s 79 in a property settlement proceeding, of which this was one. Before making such an order, the court must be satisfied about the existence of any one of the matters canvassed in subparagraphs s 79A(1)(a) to (d). Each is expressed alternatively, hence the conjunction “or”. In this case Dr Ingleby relied on subparagraph of s 79A(1)(a).

   [1] Amended No. 23, 1979; No. 72, 1983, No. 181, 1987; No. 167, 1995; No. 194, 1999; No. 143, 2000; No.86, 2002; No. 20, 2005; No.46, 2006

2. In that subsection, an applicant relies on the existence of a miscarriage of justice.  That phrase has been judicially defined, although it has not been defined by the legislation.  Before going to the meaning of “miscarriage of justice” for the purposes of s 79A(1)(a) it is relevant to observe that the subsection stipulates that there has been a miscarriage of justice “by reason of” fraud, duress, suppression of evidence (including failure to disclose relevant information) and the giving of false evidence.  To those is added the words “or any other circumstance”.  Those words are not words of surplusage.  It was held in In the Marriage of Gebert[2] that while those words are not to be read ejusdem generis with fraud, duress, suppression of evidence or the giving of false evidence, they were intended to cover other situations where for one reason or another a miscarriage of justice has occurred.  That construct was consonant with the decisions of McKenna v McKenna[3] (a case decided prior to the operation of the Family Law Act) and In the Marriage of Holland,[4] as well as In the Marriage of Rohde & Rohde.[5]

   [2] (1990) 14 Fam LR 62

   [3] (1971) 18 FLR 15

   [4] (1982) 8 Fam LR 233

   [5] (1984) 10 Fam LR 56

3. Miscarriage of justice for the purposes of s 79A is not to be given a restrictive meaning, as was held in In the Marriage of Kokl.[6]  

   [6] (1981) 7 Fam LR 59

4. The notion of miscarriage of justice has central to it the integrity of the judicial process, hence the miscarriage must arise out of that process.  That has been the view taken by appeal courts in the family law jurisdiction in cases such as In the Marriage of Clifton & Stuart,[7] Bigg v Suzi,[8] In the Marriage of Suiker[9] and Korsky v Bright (No 2).[10] Since the holding of the last mentioned decision, to succeed in a s 79A application an applicant must show that something which occurred prior to or at the time the orders were made resulted in the exercise of the judicial power miscarrying. The Full Court (Warnick, May and Boland JJ) held that a miscarriage of justice may have occurred even though an order for the division of property may be just and equitable. Equally, the court held that an order may be unjust or inequitable but not necessarily by reason of any miscarriage of justice.

   [7] (1990) 14 Fam LR 511

   [8] (1998) 22 Fam LR 700

   [9] (1993) 17 Fam LR 236

   [10] (2007) 38 Fam LR 106

5. In Taylor v Taylor,[11] the High Court provided early guidance on the operation of s 79A citing the desirability of finality to litigation by orders, even orders obtained by false evidence, unless a deeper factual matrix exists beyond orders being obtained by false evidence. In my view, for the reasons that follow, in this case more exists than orders being obtained by false evidence, the consequence of which is that the consent orders must be set aside. Consonant with the observations in Barker & Barker[12] and In the Marriage of Prowse,[13] it is appropriate in this case for there to be a consideration of the exercise of discretion in this case to set aside the consent orders.  

   [11] (1979) 143 CLR 1

   [12] (2007) 36 Fam LR 650

   [13] (1994) 18 Fam LR 348

6. Dr Ingleby relied on the decision of the Full Court in Trustee of the Bankrupt Estate of Hicks & Hicks.[14]  That decision is instructive for several reasons.  It was concerned with suppression of evidence.  At paragraph [145] citing Pelerman v Pelerman[15] Murphy J held as follows –

   If the consent order is made on the basis of sworn information that is materially false, the evaluative process conducted by the Registrar has miscarried; the Registrar cannot have decided that the orders are appropriate based on them being just and equitable if materially false information has informed the inquiry.

   [14] [2018] FamCAFC 37

   [15] [2000] FamCA 881

7. In Hicks, Murphy J also identified that the suppression could have been by either party.  For reasons developed below, in my view the failure to disclose relevant information in this case was joint. 

Relevant history in this case

1. The husband made an affidavit on 1 March 2019 in support of this application in which he recorded some of the more important factual issues, most of which were uncontroversial.  They may be shortly stated as follows –

   a)the husband and wife commenced cohabitation in 1996 and married in 2003;

   b)their eldest child was born in 2004;

   c)their middle child was born in 2006;

   d)their youngest child was born in 2007;

   e)the husband is a qualified professional;

   f)the children live with the father and mother respectively on a week-about basis in accordance with final parenting orders made on 2 August 2018;

   g)the husband at one stage carried on business as a professional at a Company the corporate name of which was F Pty Ltd, the business name of which was “Mirren Pty Ltd”;

   h)in May 2010 the husband and wife purchased the land and dwelling at J Street, Suburb D for over $2m; and

   i)in November 2012 the wife purchased a property in G Town for $935 000. 

2. It was not disputed that the husband was the primary income earner and the wife was the primary carer during their relationship. 

3. The phenomenon of the separation between the husband and wife was a fact in dispute on this application.  In essence, the husband contended that he and the wife separated in November 2012 yet they reconciled in March 2013 at which time he moved into the G Town property.  He said that thereafter the two carried on in the marriage as before.  He said in his affidavit that on 8 May 2013 the wife invited a female to stay at the husband’s and wife’s house for the husband’s birthday.  He said the three commenced an intimate sexual relationship that lasted until late 2014.  It is not presently necessary to name the female friend.  At all events, the female friend lived in the G Town house with the husband and wife.  The husband stated in his affidavit that it was an unusual arrangement that did not work out in the long term.  He said that on a holiday to Country H in 2014 attended by the husband, the wife, the children and the female friend, an altercation took place between the wife and the female friend and upon the return of all to Australia, the relationship between the husband, the wife and the female friend ceased. 

4. The husband stated in his affidavit made on 1 March 2019 that he and the wife finally separated in March 2016 and not before. 

5. The wife made an affidavit in this proceeding dated 22 March 2019.  In it she gave a version of events similar to that narrated so far by the husband, although not precisely.  Her evidence corresponded with the husband’s on their respective ages, their date of marriage and first separation, their children and birthdates, their final consent to parenting orders made on 2 August 2018 and the fact that they are not divorced.  The wife’s evidence about the female friend was different to the husband’s as the wife said the female friend was the husband’s new partner with whom the husband formed a relationship from January 2013.  The wife said the husband moved back into the former matrimonial home in March 2013.  The wife said that between March 2013 and the date on which the husband and wife finally physically separated in March 2016 the husband and wife were separated under the one roof. 

6. The date of final separation was contentious.  Whether the husband and wife were separated under the one roof as the wife asserted or whether the marriage was valid and subsisting between 2013 and 2016 as the husband asserted (whether or not with the inclusion of the female friend) was the subject of cross examination to which I advert below. 

7. Returning to the narrative of relevant events, it is a fair distillation of the evidence that certain hostilities existed in the husband’s and wife’s marriage by late 2012.  According to the husband they reconciled in March 2013, living thereafter in the G Town property.  According to the wife, the husband moved into the G Town home in March 2013, although the wife said that from March 2013 the husband and wife slept in separate bedrooms and that the female friend moved into the home in May 2013. 

8. In her affidavit made on 22 March 2019 the wife did not assert that she protested about the presence of the female friend living at the G Town home during 2013 until the altercation in Country H.  For that matter, unless the wife agreed to the presence of the female friend at the G Town home during 2013 until her departure in 2014 it would be a remarkable state of affairs for the female friend to reside at the G Town home for that period, essentially as a trespasser.  The female friend was not a trespasser during that period.  For that matter, she accompanied the family on their holiday to Country H in 2014.  On that holiday, according to the husband, the wife demanded that she (the wife) sleep in the master bedroom only with the husband and the female friend demanded that the three sleep in the master bedroom which angered the wife resulting in the wife throwing a glass at the female friend leading to the female friend’s leg being damaged by the severing of an artery. 

9. The wife admitted in cross examination that she and the female friend retain a friendship to this day.  In cross examination the wife was challenged on an array of matters that Dr Ingleby argued demonstrated that the husband and wife were not, in fact and in law, separated.  He catalogued (and the wife accepted) that the husband and wife between March 2013 and March 2016 –

   a)had sexual relations;

   b)lived in the same house and raised their children together; and

   c)holidayed together.

10. It seemed to me that on the wife’s own admissions, from March 2013, relevantly including December 2013, the husband and wife had reconciled and had resumed their marriage despite a short period of separation between very late 2012 and early 2013. 

11. Despite that reconciliation, the parties nevertheless applied for the court to make consent orders under s 79 of the Family Law Act.  That seemingly contradictory approach was explained by the husband in his affidavit material filed in support of this application.  In it he stated that from a date he did not identify beyond saying “over the next few months” following November 2012 the wife regularly told him she wanted a property settlement, that she wanted it for her own financial security and he said she told him that even people who remain in a relationship can obtain a property settlement.  The husband said he continued to question the wife’s need for a property settlement to which, on one occasion, the wife became angry, began to pack her bags and told the husband she would leave him, inferentially, unless he agreed to a property settlement.  In his answers to questions put in cross examination the husband said when a draft proposal of the orders emerged, he was not legally represented, he did not regard his marriage with the wife as being over, and he was willing to do as the wife asked him by applying for property settlement orders because her proposal went some way to alleviating the risks of the financial consequences of the husband being sued or the Company being placed in insolvency.  The husband agreed that he received from the wife’s solicitors a draft of the proposed orders in March 2013.  He said that soon after the wife presented the paperwork to him, he put it to one side for a long time and neither did anything about it.  He said he was very focused on retrieving the marriage.  His actual expression in evidence was –

    As long as I get my wife back, I’m happy.

12. The husband gave evidence that the wife was panic-stricken over the separation.  He said the wife told him that her father had helped her with the documentation, it was fair and equitable, they did not have to abide by it and it was merely a piece of paper.  On behalf of the wife no evidence was led to the effect that the husband was wrong in that evidence.  For that matter, the wife scarcely addressed the factual backdrop leading to her application for the property settlement orders.  Her evidence on the subject, wholly bereft of context, was reposed in a single sentence in paragraph 10 of her 22 March 2019 affidavit.  In it she said the following –

    Following our initial separation [Mr Mirren] and I made an application for consent orders to the Family Court of Australia at Melbourne and on 16 December 2013 consent orders were made (“the final orders”).

13. The documentation generated by the wife’s solicitors provided some context by which the chronological sequence of events is better understood.  That material was exhibited to the wife’s affidavit.  It commenced on 14 May 2013.  It will be recalled that both husband and wife agreed that in March 2013, that is to say two months earlier, the initial separation came to an end.  True, the status of their resumption was differently given, the husband stating it was an unqualified resumption of the marriage and the wife stating they were separated under the one roof.  At all events, on 14 May 2013 the wife’s solicitors provided an application for consent orders.  By 28 May 2013 the husband had not sought his own legal advice so the wife’s solicitors wrote on that day providing the names of various solicitors who could be retained by the husband.  The fact that the wife’s solicitors had not heard from the husband for a fortnight between 14 and 28 May 2013 was consistent with the husband’s evidence that upon his receiving court documentation, he put it aside as the marriage was then intact. 

14. According to a letter from the wife’s solicitors dated 31 October 2013, the husband signed the consent orders on 24 August 2013.  Those documents were not filed.

1. On a date not given in evidence, between 31 October 2013 when the wife’s solicitors wrote to the husband and 13 November 2013 when the application for consent orders was filed, the husband appeared to have addressed the matters mentioned in the 31 October 2013 correspondence.  At all events prior to 20 November 2013 the husband was not legally represented.  Following the filing of the application for consent orders on 13 November 2013 a registrar of this court wrote to the husband and to the wife’s solicitors pointing out that the consent orders may have enlivened taxation ruling … and the registrar invited the parties to consider their position.  The application for consent orders was renewed and the registrar made the orders on 16 December 2013.  The minute was signed personally by the wife as applicant, by the husband as respondent and by various corporate entities as follows –

   a)by the husband on behalf of F Pty Ltd;

   b)by the husband on behalf of Mirren Pty Ltd; and

   c)by the wife on behalf of E Pty Ltd.

2. The minutes of consent orders were accompanied, when filed, by an application for consent orders, the court date stamp of which also bears the date 13 November 2013.  The original application became the initiating document by which this proceeding was commenced.  It was made up of 27 printed pages, each of which was signed and countersigned by the wife in her personal as well as representative capacities and also by the husband in his personal and representative capacities. 

3. On behalf of the husband, Dr Ingleby submitted that the application for consent orders contained four material defects.  He submitted that those four defects, when taken in combination, represented a “failure to disclose relevant information” for the purposes of s 79A(1)(a) of the Family Law Act.  They were as follows –

   a)first, in item 8 on page 2 the application stated, wrongly Dr Ingleby said, that the parties separated on 23 October 2012 when in truth, when the application for consent orders was made, the husband and wife were not in fact separated;

   b)second, in item 37 on page 10 the application stated, wrongly Dr Ingleby said, that the husband’s gross weekly income was $35 243 which translated to an annual sum of over $1.8m that was not the case;

   c)third, in item 45 on page 12 of the application the entry reads that the husband had a 50% share in “K Trust and related entities” the 50% share being valued at $1 250 000, there being no identification of the “related entities” mentioned in which the husband had a 50% share.  Dr Ingleby contended that the figure of $2 500 000 of which $1 250 000 was half, was without foundation and in any event, the husband and wife had borrowed from a company owned and controlled by them to the extent of approximately $3 300 000 for which amount they were liable to be assessed for income tax; and

   d)last, in item 56 on page 13 of the application, in answer to the request for the husband to give details of any other liabilities the response was “nil”.  Dr Ingleby said that in truth, the parties owed the operating entities owned or controlled by them a sum of nearly $3.3m so the response “nil” in relation to his liabilities was erroneous. 

4. In debate on 16 July 2019, Dr Ingleby handed me a copy of the balance sheet of the K Trust as at 30 June 2013.  In it the wife’s liability under a beneficiary loan was recorded at $1 634 979.78 and the husband’s liability under a beneficiary loan was recorded at $1 634 979.76.  Dr Ingleby pointed out that the wife referred to that liability in her own material.  In an endeavour to demonstrate that the husband was, at the relevant date, not indebted in the manner that Dr Ingleby said he and the wife were, Ms Swart spent a large amount of time cross examining the husband about successes he had enjoyed while trading  Having heard the husband’s evidence on point the sums involved were very large indeed.  Yet despite the rises and falls in the market, and despite the magnitude of his trades, the husband’s success in those trades was mercurial and ultimately led to very considerable losses.  Nothing in his evidence about his trading demonstrated to me that the balance sheet of the K Trust showing their combined liability to the trustee was anything but accurate.  Self-evidently, item 56 was wrong and to a very significant extent. 

5. In debate with Dr Ingleby I asked whether it made any difference to his application that both parties represented to the registrar that their financial circumstances were accurately recorded in their application for consent orders when in truth they were not.  Dr Ingleby submitted that the registrar had been misled into making the orders that he made.  Conversely, Ms Swart argued that the failure to disclose information was the applicant’s, relying upon the observations in Badawi & Badawi,[16] In the Marriage of Rohde & Rohde and Lane & Lane.[17]  Ms Swart said that it ill-behoved the husband to invoke s 79A when he was the author of the errors in the documentation on which the registrar’s orders were premised. A relevant consideration of s 79A emerged from the decision in Tsiang & Wu,[18] judgment in which was handed down two weeks ago. However, no particular point of principle was given in that case. The wife submitted that such failures of disclosure disentitled the husband to the remedy he sought under s 79A.

   [16][2017] FamCAFC 129

   [17] [2016] FamCAFC 53

   [18] [2019] FamCAFC 128

6. At once it must be pointed out that the reference in s 79A(1)(a) to a failure to disclose relevant information does not identify who is the perpetrator of that failure. Nor on the evidence in this case could it be said that any deficiency in the financial material was solely of the husband’s making. In my view, that answered the point advanced by Ms Swart. The important matter for the purpose of the phrase “(including failure to disclose relevant information)” in s 79A(1)(a) is “disclose relevant information”. The failure to make that disclosure could have emanated from either party. The absence of a subject in s 79A(1)(a) is supported by the fact that the section is expressed in the passive tense (“there has been a miscarriage of justice”) and not “the respondent has caused a miscarriage of justice”.  In my view, the failure to state in item 56 of the application for consent orders liabilities aggregating $3 300 000 was “relevant information”.  Lest it matters, in my view both parties made that failure. 

The registrar’s consent orders

1. Since the High Court’s decision in Harris v Caladine,[19] it must be accepted that the making of a consent order is not automatic and instead a court may be satisfied that an order should be made not only by reference to the material before the court in relation to s 79(4) factors but also by reference to the advice available to the parties as well as to the consent they give to the making of the order. Even if parties enthusiastically consent to the making of orders in particular terms, the court is not relieved of its statutory obligation of being persuaded that it is just and equitable to make the relevant order under s 79(2), a proposition restated by the Full Court in Redman & Redman.[20]  In Pearson & Coli,[21] Macmillan J addressed a situation where a registrar was requested to make consent orders, largely in similar circumstances to those that are involved in this case.  Her Honour mentioned the observations of the High Court in Harris & Caladine, holding that the requirement that the court be satisfied that it is just and equitable to make orders may not require the same degree of consideration when the court is being asked to make consent orders.  Her Honour pointed out that those observations are qualified by the fact that the registrar is being adequately informed and the parties being at arm’s length are properly represented.  Here, the wife was represented yet the husband was not.  The evidence revealed that the entirety of the documentation on which the parties relied to support the making of the consent orders was prepared on behalf of the wife by her solicitors. 

   [19] (1991) 172 CLR 84

   [20][2013] FamCAFC 183

   [21] [2018] FamCA 295

2. Turning now to the four defects in the application for consent orders, it is necessary to canvass the effect of those deficiencies. 

3. The first related to the date of separation.  According to the husband by November 2013 when the application for consent orders was filed, the husband and wife had reconciled or at least resumed their marriage.  According to the wife, they were separated although living under the one roof.  Yet she admitted in cross examination that they lived in the same house and raised their children together, they had sexual relations and they holidayed together.  In view of that state of the evidence I am unable to say definitively that the parties were in fact separated let alone on the date nominated in item 8 of the application for consent orders.  By November 2013 it was erroneous to state, as the form stated, that the parties finally separated on 23 October 2012.  In final addresses both counsel debated whether as a matter of law it was possible under the Family Law Act for two persons each married to the other to apply to the court by consent for orders under s 79 at a time when the marriage between the two was valid, subsisting and intact. The point of law is thorny and the older authorities as reviewed by Dr Dickey QC in his book Family Law[22] revealed that it was theoretically possible for that result to follow.  The point need not be decided by me as, for the purposes of the error reposed in the date of separation, I find that as at the date mentioned on the application for consent orders, the parties were not separated.  The date given was wrong. 

   [22] Dr Anthony Dickey QC, ‘Family Law’ (LBC Information Services, 3^rd ed, 1997)

4. The second error alleged by the husband was contained in item 37 of the application for consent orders, namely, the assertion that the husband received $35 243 by way of weekly gross income.  His taxable income for the financial year ended 30 June 2011 was $80 000 and $118 000 for 30 June 2012, as the husband deposed in paragraph 26 of his affidavit made 1 March 2019.  Even recognising that gross income is entirely different to taxable income, by multiplying the stated weekly gross income to derive an annual gross figure, the sum of $1 800 000 or thereabouts was produced.  The taxable amount is so different as to be inexplicably referrable to the asserted weekly gross sum of $35 243.  In my view the entry in item 37 was erroneous. 

5. The third error alleged by the husband related to item 45 on the application for consent orders.  Two vices were identified in relation to this asserted error, the first being the omission to stipulate the so-called related entities and the second was an estimated amount of $1 250 000 when in truth the husband and wife were jointly liable to one or more companies they owned for an aggregated sum of almost $3 300 000.  In my view the entries in item 45 were wrong. 

6. The fourth error alleged by the husband related to item 56 of the application for consent orders.  The response failed to identify that each owed $1 600 000 by way of company loans, such amounts most likely taking the form of income amenable to assessment for income taxation purposes.  That debt owed by both was acknowledged by both husband and wife.  Item 56 was wrong. 

7. The decision in In the Marriage of Sommerville[23] addressed the question of whether a miscarriage of justice arose in circumstances where the registrar did not have sufficient information to approach the question whether orders should be made under s 79(2). On the facts of that case, Nicholson CJ held that grounds did not exist to vary or discharge the orders altering property interests. It was also held that in the circumstances of that case, no warrant was shown to extend time for the making of an order to review the decision of the registrar. Yet the case stands for the unimpeachable proposition that where, by their conduct in reconciliation after the making of the orders for property division, the parties are to be taken to have consented to the setting aside of the orders.

   [23] (1999) 27 Fam LR 233

8. Here, the husband relied on the existence of the wife’s implied consent to the setting aside of the orders made on 16 December 2013.  He said the wife had conducted herself on and from the date of the making of the orders as if those orders had not been made at all.  In debate with Dr Ingleby I raised the question whether equitable principles of estoppel could arise in circumstances where parties executed consent orders for the division of property yet by their conduct the parties were to be taken as having agreed that the consent orders were not operative or enforceable.  As it happened in 1982 the Full Court pronounced on point in In the Marriage of Banhidy,[24] in the affirmative.  That decision was approved in In the Marriage of Sommerville as well as in the earlier decision in In the Marriage of McCabe.[25] 

   [24](1982) 8 Fam LR 821

   [25] (1995) 19 Fam LR 579

9. Ms Swart on behalf of the wife contended that almost from the moment of the making of the orders, the wife had pressed the husband to comply with the orders according to their terms and that the husband had, in large measure, done precisely that.  She cited how the wife had “part-performed” the consent orders (her words).  The wife’s alleged part performance included –

   a)her transfer of a motor vehicle to the husband;

   b)the husband transferring $160 000 to her; and

   c)her sale of the Suburb D property. 

10. The husband denied that the wife transferred the motor vehicle to him.  He said the car was not owned by him.  He said the minutes of consent orders contained no reference to his obligation to transfer a motor vehicle.  Paragraph 1(c) of the minutes of consent orders refers to the wife transferring a motor vehicle to him, the registration number of which was … .  However, the wife did not identify the vehicle she allegedly transferred nor did she explain how a vehicle owned by a company, not her, could be transferred by her as she asserted.  I was not persuaded that the wife’s version of events surrounding the motor vehicle transfer were correct.  The husband was not cross examined on the issue. 

11. Dr Ingleby cross examined the wife about her assertion that the husband was required to pay the wife $960 000 and that he had paid her only $160 000.  She agreed that the husband had not paid her the stipulated sum of $960 000 within the timeframe provided for in paragraph 6 of the minutes of consent orders, namely three years.  In those circumstances I was not persuaded that the husband partly performed the consent minutes as the wife asserted on that issue. 

12. Dr Ingleby’s cross examination of the wife demonstrated to me that the wife’s contentions that the settlement agreement had been performed or even partly performed were wrong.  It seemed to me that on the balance of probabilities the version given by the husband was correct, namely, that the husband and wife by their conduct rescinded the consent orders or waived reliance upon or the enforceability of the consent orders.  At all events, on behalf of the wife no attempt was made to explain the application of equitable principles of part performance as canvassed into such landmark decisions as J.C. Williamson Ltd v Lukey & Mulholland[26] and Turner v Bladin.[27]  It seemed to me that carrying out an order of the court according to its terms was a concept altogether different to partly performing a contract where Statute of Frauds issues were involved.

    [26](1931) 45 CLR 282

    [27] (1951) 82 CLR 463

13. Returning to the observations of Nicholson CJ in In the Marriage of Sommerville, a miscarriage of justice can occur at the time of the orders dealing with property division by the failure of the registrar to comply with the requirements of s 79(2) and s 79(4) where the registrar fails to be satisfied that an order dividing property is just and equitable. In that case, Nicholson CJ held that there was insufficient information before the registrar to be satisfied of the required basis for the making of the orders. In my view, the same result applies in this case in relation to the application for property orders. Three of the four issues identified by Dr Ingleby were highly material. The date of separation was not in that category yet the fact of separation may have been. But the omission of a liability of $3 300 000 and the misstatement of income were in the glaring category. The registrar’s approval of the minutes was premised on incorrect information. The correct position should have been brought to the registrar’s attention. It was not. Had the true financial position of the husband and wife been properly brought to the registrar’s attention it is likely that different orders would have been made for the division of the property. Put differently, had the true financial position of the husband and wife been brought to the registrar’s attention, the orders made on 16 December 2013 could not be gainsaid. Whether the registrar would have made orders under s 79(2) at all had the registrar been told that the marriage between the husband and wife was valid and subsisting on 16 December 2013 could also not be gainsaid for the reasons canvassed in Stanford v Stanford[28] especially at paragraph [42] of the reasons for judgment of the plurality. 

    [28] (2012) 247 CLR 108

14. On behalf of the wife Ms Swart contended that in many instances on the application for consent orders the relevant response was premised with the capital letter “E” designating that the response was an estimate and therefore was not a positive representation of the pinpoint accuracy of the information given.  Ms Swart said that as a matter of common practice, almost daily applications for consent orders were put forward using estimated figures.  While I accept that such a practice exists, such a practice being pragmatic where precision is difficult, such an estimate cannot be called in aid to purport to explain the validity of material deficiencies in the information propounded to the registrar.  Murphy J explained the need for accuracy at paragraphs [141] and [142] of Hicks, in the following terms –

    Axiomatically, in order for a Registrar to conclude that the orders are “appropriate” and “just and equitable” within the terms of s 79, the sworn statements made by the parties must include an accurate statement as to the legal and equitable interests in property of the parties or either of them; their financial resources; and their joint and several liabilities.

    The consent orders process solemnised ultimately by a consent order miscarries if that does not occur. Justice miscarries accordingly.

Review of the orders of the registrar

1. Since the decision of the High Court in Harris v Caladine, it can no longer be contended that the registrar does not possess the power to make orders by consent under s 79 of the Family Law Act as s 37A of the Act confers the power to do so. In this case the husband, through Dr Ingleby, did not contend otherwise. Pursuant to s 37A(9) of the Family Law Act, a party to a proceeding in which a registrar has exercised a power (that is to say, the husband in this case), may apply to the court for the review of the exercise of that power.  Under that section, the application for review must be made within the prescribed time or within such other time as may be allowed.  As Macmillan J canvassed in Pearson & Coli, by operation of r 18.08 of the Family Law Rules, the husband had 28 days from the making of the orders on 16 December 2013 within which to apply by application in a case for the review of the registrar’s order in this case. The husband failed to make that application within the prescribed period of 28 days. That was not fatal to his application, however. Rule 1.14 of the Family Law Rules authorised the court to make an order shortening or extending the time fixed by r 18.08. Here, the time for which the extension was sought spanned the period from 16 December 2013 until the filing of the husband’s application in a case. The rules do not prescribe the matters that a court is required to take into account when considering whether to make an order under r 1.14. Guidance on point was given by McHugh J of the High Court in Gallo v Dawson.[29]  There, his Honour may be taken to have distilled the relevant principles in the following manner –

   a)the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties as was held in Hughes v National Trustees Executors & Agency Co of Australasia Ltd;[30]

   b)the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice to the applicant;

   c)it is necessary to have regard to the history of the proceeding, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time, as was held in Avery v No 2 Public Service Appeal Board[31] and Jess v Scott;[32]

   d)in relation to an extension of time to appeal, it is necessary to consider the prospects of the applicant succeeding on appeal as was held in Burns v Grigg[33] and Mitchelson v Mitchelson;[34] and

   e)material must be before the court by which it can be ascertained that an injustice would occur by the refusal of the application, as was held in Ratnam v Cumarasamy.[35] 

   [29] (1990) 64 ALJR 458 at [2]

   [30] [1978] VR 257

   [31][1973] 2 NZLR 86

   [32] (1986) 12 FCR 187

   [33] [1967] VR 871

   [34] (1979) 37 FLR 289

   [35] [1964] 3 All ER 933

1. The formulation propounded by the High Court in Gallo v Dawson was embraced by the Full Court of the Family Court of Australia in In the Marriage of Prowse.

2. As Macmillan J pointed out in Pearson & Coli, in deciding whether to extend the time for the filing of the application for review of the registrar’s decision, I must be satisfied that it is necessary to do so in order to do justice between the parties, the converse being that strict compliance with the Rules will work an injustice. 

3. To state the obvious, an order made under s 79 must be premised on the court’s consideration of accurate and complete financial information. That cannot be said in this case. Put differently, in this case the registrar proceeded on incomplete, understated and inaccurate information. An injustice will result if the orders made on 16 December 2013 are permitted to stand. In my view it cannot be said that there is “nothing wrong” with the registrar’s orders, as was the touchstone in Sommerville.  The orders were based on incomplete, understated and inaccurate information. 

4. The time between the orders and this application for an extension of time is significant.  Yet so too was the time between the orders and the application in Pearson & Coli. In my view, it would be wrong to stipulate that some particular time is within or not within time for the purposes of r 1.14 of the Family Law Rules.  It must not be forgotten that the husband was not represented during the 28 day period during which time began to run for the purposes of any application for review.  It also must not be forgotten that this court has power of its own motion to review a decision of the registrar, regardless of the time that has elapsed from the making of  the registrar’s decision, a point made by the Full Court (Nicholson CJ, Baker and Lindenmayer JJ) in In the Marriage of Elliot & Willcox[36] and also in Murray v Director, Family Services.[37] 

   [36](1996) 20 Fam LR 567

   [37] (1993) 16 Fam LR 982

5. In Waterman & Waterman,[38] the Full Court addressed the nature of a consent order under s 79. There the court held that if consent is based on misleading or inadequate information, there may be a miscarriage of justice by reason of the “suppression of evidence” or by reason of “any other circumstance” for the purposes of s 79A(1)(a).

   [38] [2017] FamCAFC 23

Conclusion

1. In my view the husband’s consent to the orders made in December 2013 was premised on an array of errors set out in the application for consent orders, prepared by the wife’s solicitors, that I have addressed above.  The registrar received the application for consent orders by the parties jointly propounding for the making of them.  The application was erroneous in several material respects identified above.  By reason of those errors, the registrar could not have been properly satisfied that it was just and equitable to make the orders.  A miscarriage of justice thereby occurred.  By reason of that miscarriage of justice it was open to the husband to apply to this court to set aside the consent orders.  The lapse in time since the making of the consent orders was no bar to his application.  The husband was not precluded from bringing this application by reason of his being the architect of the consent orders as the errors were joint.  Nor was he precluded from applying for the relief he sought in this application on the basis that the orders were “partly performed” (a concept I expressly denounce in the context of complying with court orders).  The better view is that the parties agreed that the consent orders were inoperative, waived or rescinded.  By reason of the fact that a miscarriage of justice occurred in the making of the consent orders, the registrar’s order should be set aside.  Leave should be given to enable the application for a review of the registrar’s orders to be brought out of time.  I order that an extension of time is granted to review the registrar’s orders. 

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 14 August 2019.

Associate: 

Date:  14 August 2019