Monaco and Daniels and Anor - [2021] FCWA 49

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: MONACO and DANIELS & ANOR [2021] FCWA 49
CORAM: O'BRIEN J
HEARD: 27 JANUARY 2021
WRITTEN SUBMISSIONS
DELIVERED : 26 MARCH 2021
FILE NO/S: PTW 292 of 2008
BETWEEN: MR MONACO
Applicant
AND
MS DANIELS
First Respondent
AND
MR HIGGS
Second Respondent

Catchwords:

SUMMARY DISMISSAL – Where the wife applies for summary dismissal of the husband's application to set aside property orders made by consent in 2008 – Where the husband's application asserts a miscarriage of justice by reason of duress, fraud, relevant non-disclosure or error in the exercise of the court's discretion in making the consent orders – Where the husband's application asserts further or in the alternative that the court should infer consent of the parties to set aside the orders – Where the husband further asserts that circumstances of an exceptional nature relating to the care, welfare and development of a child have arisen since the making of the orders such that hardship would be suffered if they are not set aside and another order made in substitution for them – Consideration of the relevant law in relation to each component of the husband's claim, and the husband's case at its highest – Where the husband's application has no reasonable prospect of success – Husband's application summarily dismissed.

Legislation:

Family Law Act 1975 (Cth)
Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Everett
First Respondent	:	Ms Henderson
Second Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	WL & KJ Everett
First Respondent	:	Chris Williams Lawyer & Mediator
Second Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Australia & New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149
Badawi & Badawi (2017) FLC 93-784
Bain Pacific Associations & Ors and Kelly & Ors (2006) FLC 93-270
Baker v The Queen (2004) 223 CLR 513
Barker v Barker (2007) 36 Fam LR 650
Beck & Beck (2004) FLC 93-181
Bigg v Suzi (1998) FLC 92-799
Black & Kellner (1992) FLC 92-287
Bourke v Bourke (No 2) (1994) FLC 92-479
Byrnes v Kendle (2011) 243 CLR 253
Cantrell & North and Anor (2020) FLC 93-976
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Daily & Daily (2020) FLC 93-999
Gadzen & Simkin (2018) FLC 93-871
Garden v Gavin (No 2) (2010) 43 Fam LR 383
Hall and Hall (1979) FLC 90-679
Harris v Caladine (1991) 172 CLR 84
In the marriage of Briese (1986) FLC 91-713
In the marriage of Clifton and Stuart (1991) FLC 92-194
In the marriage of Fagan and Fagan (1985) FLC 91-607
In the marriage of Gebert and Gebert (1990) FLC 92-137
In the marriage of Green and Kwiatek (1982) FLC 91-259
In the marriage of Holland and Holland (1982) FLC 91-243
In the marriage of McCabe and McCabe (1995) FLC 92-634
In the marriage of Morrison (1995) FLC 92-573
In the marriage of Morrison and Morrison (1995) FLC 92-573
In the marriage of Patching and Patching (1995) FLC 92-585
In the marriage of Prowse and Prowse (1995) FLC 92-557
In the marriage of Suiker and Suiker (1993) FLC 92-436
In the marriage of Whitford and Whitford (1979) FLC 90-612
Jenkins v Livesey (formerly Jenkins) [1985] AC 424
Keane v Keane (2013) 50 Fam LR 120
Lane & Lane (2016) FLC 93-699
Lindon v Commonwealth (No 2) (1996) 136 ALR 251
Livesey v Jenkins [1985] 1 All ER 106
Maxwell & Miltiadis (2015) FLC 93-644
Melville & Melville (No 3) (2020) FLC 93-985
Molier and Van Wyk (1980) FLC 90-911
O’Hurley & O’Hurley [2008] FamCAFC 57
Official Trustee in Bankruptcy v Bryan and the Estate of Christine Ann Gatenby (Deceased) (2006) FLC 93-258
Pearce & Pearce [2016] FamCAFC 14
R v Kelly (Edward) [2000] QB 198
Scribe and Scribe (2006) FLC 93-302
Simpson & Hamlin (1984) FLC 91-576
Sommerville and Sommerville (2000) FLC 93-042
Thorne v Kennedy (2017) FLC 93-807
Waterman & Waterman (2017) FLC 93-762
Webster v Lampard (1993) 177 CLR 598
Whitford and Whitford (1979) FLC 90-612

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

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

1[Mr Monaco] and [Ms Daniels] commenced their involvement with this court in January 2008, on the filing of an application for consent orders for the alteration of their property interests.
2In the years that followed, what started so simply became complex, and the ensuing litigation expanded to include numerous other parties, and multiple issues. Over time, some issues have been resolved or otherwise fallen away, and some parties have ceased their involvement in the proceedings.
3Mr Monaco and Ms Daniels are the parents of [Child A] born [in] 2006. Parenting proceedings between them in relation to the arrangements for Child A were eventually resolved by the making of final parenting orders by consent on 7 August 2020, and the Independent Children’s Lawyer was discharged.
4[Mr Maxwell] and Ms Daniels are the parents of [Child B] born [in] 2000 and [Child C] born [in] 2002. Concurrently with the present proceedings, they were involved in parenting proceedings in relation to the arrangements for those children. Those proceedings were unresolved by the time Child B turned 18, at which point Ms Daniels’s application in relation to her became moot. Mr Maxwell filed a notice of discontinuance of his application in the parenting proceedings on 11 October 2018; by that time, Child C was living with his aunt. His aunt was joined to the proceedings on 29 October 2018; she made it clear that while she was content for Child C to continue to live with her, she had no interest in participating in the litigation. All substantive applications in relation to Child C were dismissed on 5 September 2019, and Child C’s aunt was removed as a party to the proceedings.
5Mr Higgs was in a relationship with Ms Daniels prior to her relationship with Mr Monaco, and continued to have dealings with her thereafter. Mr [T] was briefly in a relationship with Ms Daniels in 2012. Both advanced her sums of money. Mr T was a party to proceedings in this court only briefly in 2013.
6The consent orders as between Mr Monaco and Ms Daniels made on 7 February 2008 (“the consent orders”) provided among other things for the alteration of their property interests. In particular, the orders required Mr Monaco to transfer to Ms Daniels all his interest in a property [in Suburb A] (“the [Suburb A] property”), and for Ms Daniels to indemnify him in relation to the debt secured by mortgage against that property, and any outgoings.
7As part of the present proceedings, Mr Monaco seeks to set aside the consent orders. Associated with that claim is the application of Mr Higgs. Mr Higgs seeks a declaration that he is the equitable co-owner of the Suburb A property, and other alternative and consequential relief. He says that Ms Daniels asked him to invest in that property, that he did so on the basis of an understanding that she would repay him, and that no repayment has been received.
8The proceedings (which at that stage comprised the applications of Mr Monaco and Mr Higgs just referred to, and the parenting proceedings in relation to Child A) came before [another judge] for trial commencing on 13 November 2013. After five days, the trial was adjourned part heard. It resumed on 28 May 2014 and was heard over a further four days. His Honour then reserved his decision. In circumstances familiar to the parties, and which do not require detailed repetition, his Honour was unable to deliver judgment.
9The proceedings came before me, following orders made by consent by [the other judge] on 22 June 2017 in circumstances where all parties sought to reopen the previous trial and adduce further evidence, it being known that, due to his Honour’s ill health, the trial could not resume before him. Pursuant to those consent orders the parties and the Court have access to the transcript of the previous days of trial, which has been admitted into evidence for the purposes of the further substantive hearing.
10Subsequently, in August 2018 Ms Daniels commenced proceedings against Mr Monaco in the Supreme Court of Western Australia, seeking damages for injuries allegedly inflicted by him. Both parties sought the transfer of those proceedings to this court pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) and a consent order to that effect was made in the Supreme Court [in] November 2018.
11The cross-vested proceedings were discontinued on 29 July 2020, and various orders were made requiring Ms Daniels to pay Mr Monaco’s costs.
12Over the course of the proceedings, numerous other interim and interlocutory applications were brought and dealt with, including applications for parties and solicitors to be found in contempt both of this court and of the Supreme Court, an application for the appointment of a Case Guardian, and applications relating to the applicability or otherwise of the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”). A detailed recital of those proceedings is unnecessary for present purposes; it is sufficient to note that apart from the nine days of trial before the other judge the parties or various combinations of them have been involved in 65 hearings in this court, and have brought a total of 37 interim and interlocutory applications and responses.
13What now remain are:
(a)Mr Monaco’s application to set aside the consent orders and for orders to be made in substitution for them, which is opposed by Ms Daniels;
(b)Mr Higgs’s associated application, which is opposed by Ms Daniels; and
(c)Applications for costs which may reasonably be anticipated.

14I made orders on 24 June 2019 requiring the parties to each file a single stand-alone affidavit to comprise their evidence in chief additional to that already given at the trial before the other judge, and expressly limited to events occurring after 5 June 2014. In the context of those aspects of Mr Monaco’s application to set aside the consent orders which rely on events which occurred prior to and at the time of the making of them, the orders of 24 June 2019 had the effect of confirming that the evidence of all parties in relation to those events was closed in the absence of any further application to reopen.

The consent orders, and the circumstances which led to the making of them

15On 24 January 2008, solicitors then acting for Ms Daniels filed an application for consent orders signed by her and by Mr Monaco, together with a Minute of consent orders. Both parties deposed to the truth of the evidence in support of the application. It was apparent both on the face of the documents and from the solicitor’s covering letter that Mr Monaco was self-represented. The letter requested that the documents be considered by a registrar in chambers as soon as practicable.
16The pro forma application contained a number of questions to which the parties were required to respond. The question as to the primary care of Child A was not answered, but the consent orders provided for her to live with Ms Daniels. The question as to the proposed arrangements for Child A similarly made that arrangement clear.
17Ms Daniels deposed to having a gross weekly income of $1,200 and to receipt of child support of $300 per week. Mr Monaco deposed to having a gross weekly income of $3,500, and paying child support of $300 per week.
18The parties deposed further:
(a)that the Suburb A property was owned solely by Mr Monaco, had a value of $900,000, and was encumbered by a mortgage securing a debt of $365,000;
(b)that Mr Monaco owned a [motor vehicle] worth $60,000, with an associated debt of $31,000;
(c)that Ms Daniels owned furniture, furnishings and effects to a value of $20,000, a business to which a nil value was attributed, had savings of $2,000, and had no liabilities;
(d)that Mr Monaco owned shares worth $2,700, and had a credit card liability of $17,500;
(e)that Ms Daniels had no superannuation, and Mr Monaco had an accumulation interest in superannuation worth $130,000;
(f)that the proposed division would see Ms Daniels retaining property to a value of $922,000 and liabilities of $365,000, with no superannuation; and
(g)that the proposed division would see Mr Monaco retaining property to a value of $62,700, liabilities of $48,500, and superannuation to the value of $130,000.

19On the calculation of the parties set out in the relevant part of the form, that represented an overall division between them in the proportions of 20 per cent to Mr Monaco and 80 per cent to Ms Daniels. The slight inaccuracy in that calculation is of no moment.
20The parties deposed further:
(a)that their financial contributions were not the same, Mr Monaco having made “greater financial contributions on account of his earnings and the assets which he owned pre-marriage”;
(b)that their non-financial contributions were the same;
(c)that Ms Daniels made a greater contribution as a homemaker;
(d)that Ms Daniels had a “significantly lesser earning capacity” than Mr Monaco; and
(e)that Ms Daniels would have the ongoing care of Child A, who at that point was 13 months old.

21Mr Monaco swore an affidavit confirming that he had read and considered the relevant sections of the Act, that he agreed to the proposed orders, and that he had received independent legal advice on his relevant rights under the Act and the effect and consequences of orders being made in the terms proposed. Ms Daniels swore an affidavit in the same terms.
22On 29 January 2008, the Principal Registrar wrote to Mr Monaco, noting that “under the terms of the agreement [Ms Daniels was] receiving a significantly larger share of the matrimonial assets than [Mr Monaco]”. The letter went on to explain that “property orders once made are usually final and not capable of variation”, and that “in addition a Court must determine that the agreement between the parties is both just and equitable”.
23The Principal Registrar noted further in the letter that it appeared that Mr Monaco had taken independent legal advice. He said that he “would be pleased to be advised as to why [Mr Monaco] believe[d] the proposed agreement [was] just and equitable and if [he had] not taken legal advice whether or not [he would] now intend to do so”. The letter concluded by indicating that upon receipt of Mr Monaco’s response, the Principal Registrar would further consider the matter.
24On 4 February 2008, the Principal Registrar received Mr Monaco’s reply. The full text of that reply was as follows:
“In reference to your letter dated 29 January 2008, I can understand with looking at the agreement on paper that it appears to be one sided however, this was done with the best interests of our child [Child A].
With this settlement there is minimal disruption to our daughter’s environment. An amicable agreement was formed with the purpose of not selling the family home.
I am retaining my superannuation and motor vehicle which is acceptable to me as an agreed settlement given that I have family support and will be residing with them. I accept the terms of the proposed order. Legal advice has already been sought through [Law Firm A] in [Suburb B]”.

25The consent orders were then made on 7 February 2008.

Subsequent applications

26Mr Monaco filed an application for divorce on 19 September 2011. On 29 November 2011, he filed an application seeking parenting orders as to the time Child A was to spend with him. Ms Daniels responded to that application.
27On 27 February 2012 Mr Monaco filed his amended application, seeking orders for alteration of property interests and, by implication at least, to set aside the consent orders. That application was subsequently further amended on 13 August 2013 to seek orders for the sale of the Suburb A property and disbursements of the proceeds, and other financial orders. Somewhat curiously, no orders pursuant to s 79A were expressly sought either in those documents, or in the Minute of orders sought filed by Mr Monaco for the purposes of trial on 6 November 2013; that said, the affidavit filed on 27 February 2012 in support of the amended application referred specifically to s 79A and to grounds similar to those now pressed by reference to events which had occurred by that time. A further Minute of orders sought was handed up at the commencement of the trial before the other judge, and counsel for Mr Monaco made it clear in opening that orders pursuant to s 79A(1) were sought. The trial proceeded on that basis.
28After the trial was reopened by consent of the parties, Mr Monaco filed on 14 December 2017 the fourth iteration of his initiating application, articulating in a formal sense for the first time the grounds upon which he asserted the consent orders should be set aside.
29Most recently, the relief sought by Mr Monaco was defined in the fifth iteration of his initiating application, filed on 28 June 2019. Annexure A to that document set out the bases of his claim for the consent orders to be set aside and further orders to be made in their place. Those various bases are set out in more detail later in these reasons. Annexure B to that document set out the orders sought by Mr Monaco in substitution for the consent orders; in broad terms, he seeks to be appointed as trustee for sale of the Suburb A property and proposes that the proceeds of sale be applied to the discharge of secured liabilities, a payment of $275,960 to Mr Higgs, and the division of the balance as to 15 per cent to Ms Daniels and the remainder to him. The last element of the proposed division is complicated somewhat by Mr Monaco’s claims for costs.

The present dispute

30Ms Daniels now seeks that Mr Monaco’s application be summarily dismissed. Mr Monaco opposes that application. Mr Higgs does not seek to be heard in relation to it, albeit his position as to the effect or otherwise on him of the application is not particularly clear.
31In short, Ms Daniels contends that even if Mr Monaco’s evidence is accepted at its highest, his application has no reasonable prospect of success.
32The parties agreed that the application for summary dismissal could be determined on the papers, and orders were made on 27 January 2021 for the filing of written submissions. The submissions upon which Ms Daniels would rely were comprehensively foreshadowed in an affidavit filed by her on 15 October 2020. Mr Monaco responded by filing written submissions on 22 January 2021. Properly, his counsel noted at a hearing on 27 January 2021 that it was inappropriate that Ms Daniels’s submissions should be in the form of sworn evidence; Ms Daniels’ submissions were then received on 3 February 2021. The orders made on 27 January 2021 entitled Mr Monaco to file responsive submissions if he chose to do so, requiring them to be filed by 24 February 2021; no further submissions were received.

The legal principles – summary dismissal

33Sections 45A(2) and 45A(3) of the Act, which were inserted with effect from 1 September 2018 but are applicable to proceedings instituted before and after that date,[1] are in the following terms:
[1] Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth), s 15.

45ASummary decrees

No reasonable prospect of successfully prosecuting proceedings
(2)The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a)the first party is defending the proceedings or that part of the proceedings; and
(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

When there is no reasonable prospect of success
(3)For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a)hopeless; or
(b)bound to fail;

to have no reasonable prospect of success.

34Rule 10.12 of the Family Law Rules 2004 (Cth) (“the Rules”) is in the following terms:
10.12Application for summary orders

A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a)the court has no jurisdiction;
(b)the other party has no legal capacity to apply for the orders sought;
(c)it is frivolous, vexatious or an abuse of process; or
(d)there is no reasonable likelihood of success.

35Rule 10.14 provides (while expressly not limiting the powers of the Court) that on an application under Rule 10.12 the Court may dismiss any part of the case, decide an issue, or make a final order on any issue.
36While the Rules have not been relevantly amended since the insertion of s 45A, it was not suggested by either party that the long‑standing principles applicable to an application brought pursuant to Rule 10.12(d) are substantially affected by the terms of s 45A(3).
37Those principles, as outlined in Lindon v Commonwealth of Australia (No 2),[2] and referred to in Bigg & Suzi,[3] may be summarised as follows:
1.It is a serious matter to deprive a person of access to the Court for the determination at trial of their claim. Accordingly, the power to summarily dismiss an application is “rarely and sparingly provided”;[4]
2.The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that he or she “lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”;[5]
3.A perception by the Court, at that preliminary stage, that the substantive application is unlikely to succeed, or that the case is weak, is not sufficient to justify summary dismissal;[6]
4.If there is a serious legal question to be determined it should ordinarily be determined at trial, as the proof of facts may assist the Court to understand and apply the law that is invoked;[7]
5.If the substantive claim is inadequately pleaded, but “it appears that [the claimant] may have a reasonable cause of action” which is not yet in proper form, the court will ordinarily allow that party to “reframe” the pleading;[8] and
6.“The guiding principle is… doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit”.[9]
[2] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251.
[3] Bigg v Suzi (1998) FLC 92-799.
[4] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, at 256.
[5] Ibid (omitting citations).
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.

38The reference above to a clear finding that the relevant proceedings are “doomed to fail” must be read in context of the subsequent legislative provision in s 45A(3) which expressly provides that the substantive application in question need not be “hopeless” or “bound to fail” to have “no reasonable prospect of success” for the purposes of the court making a decree pursuant to either s 45A(1) or s 45A(2).
39Nevertheless in my view, the principle that a perception by the Court, only that the substantive application is unlikely to succeed, or that the case is weak, is insufficient to justify summary dismissal remains apposite, and binding on me.
40As is clear from the reference to the need for the party seeking summary dismissal to demonstrate a lack of merit in the application “on the face of the [other party]’s documents”,[10] an application for summary dismissal based on the proposition that an application has no reasonable likelihood of success can only succeed if the assessment of that likelihood is based exclusively on the evidence of the respondent to the application for summary dismissal,[11] provided that evidence is not inherently incredible,[12] and on relevant non-contentious facts.[13]
[10] Ibid.
[11] Beck and Beck (2004) FLC 93-181.
[12] Webster v Lampard (1993) 177 CLR 598.
[13] Bain Pacific Associations & Ors and Kelly & Ors (2006) FLC 93-270, at [21].
41The fact that the present application for summary dismissal is brought when the evidence at trial is part heard and Mr Monaco has been cross examined in relation to the evidence given by him by the time of the trial before the other judge, does not alter that position. In short, the consideration of whether Mr Monaco’s application has no reasonable likelihood of success must take his evidence at its highest; to the extent that evidence has already been challenged in cross examination, the outcome of those challenges can only be relevant where a direct and clear concession was made.
42With that in mind, on 20 October 2020 I ordered that the written submissions to be filed by the parties must clearly and specifically identify any evidence from the proceedings before the other judge, whether by reference to specific affidavits or transcript, to which they would assert I should direct attention in considering the merits of the application for summary judgment. Mr Monaco says that he relies on certain evidence given in his trial affidavit filed on 30 July 2013 (“the 2013 affidavit”) and other evidence given in his trial affidavit filed on 12 September 2019 (“the 2019 affidavit”). Ms Daniels refers to those affidavits, evidence given by Mr Monaco at the trial before the other judge, other affidavits filed by Mr Monaco, and affidavits sworn by Mr Higgs relied upon at that trial by Mr Monaco as part of his case.
43I refer below to the evidence identified by the parties as being relevant in relation to each element of Mr Monaco’s claim.

The claimed bases of Mr Monaco’s application

44In order to consider Ms Daniels’s present application, it is necessary to first identify the bases upon which Mr Monaco asserts that the consent orders should be set aside.
45Mr Monaco’s application is brought pursuant to s 79A of the Act. All but one of the pleaded elements of his claim are made by reference to s 79A(1). Section 79A(1) is in the following terms:
79A Setting aside of orders altering property interests
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;

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.

46The bases for Mr Monaco’s application are defined by him as:
(a)that there has been a miscarriage of justice by reason of duress (“the duress claim” );
(b)that there has been a miscarriage of justice by reason of fraud (“the fraud claim”) ;
(c)that there has been a miscarriage of justice by reason of relevant non-disclosure (“the non-disclosure claim”);
(d)that circumstances of an exceptional nature relating to the care, welfare and development of Child A have arisen since the making of the order such that he or Child A will suffer hardship if the consent orders are not set aside and another order made in substitution for them (“the hardship claim”);
(e)that there has been a miscarriage of justice arising from what he describes as a “miscarriage of the exercise of the Court’s discretion” to make the consent orders, in circumstances where he would assert the court ought not have been satisfied that it was just and equitable to do so (“the miscarriage of discretion claim”); and
(f)that the court should infer from the conduct of the parties after the making of the consent orders that they no longer intended to rely on them, and accordingly that by their conduct they consented to the orders being set aside (“the s 79A(1A) claim”).

General principles applicable to the claims under s 79A(1)

47Section 79A(1)(a) applies only to circumstances which existed at or before the making of the primary order.[14] The duress, fraud and non‑disclosure claims are all self-evidently brought pursuant to that subsection. As will be seen, the miscarriage of discretion claim is also properly construed as being brought pursuant to that subsection. The hardship claim is brought under s 79A(1)(d) and relates to circumstances arising since the consent orders were made.
[14] In the marriage of Molier and Van Wyk (1980) FLC 90-911, at 75,767-8.
48If a factual ground required under s 79A(1)(a) is made out (so, for example, relevant fraud is established) there still remains the separate question of whether it is productive of a miscarriage of justice.[15] Only then does the court turn to the separate consideration of whether discretion should be exercised so as to set aside or vary the order.[16]
[15] In the marriage of Patching and Patching (1995) FLC 92-585.
[16] See for example In the marriage of Morrison and Morrison (1995) FLC 92-573; Waterman & Waterman (2017) FLC 93-762.
49A finding that a relevant miscarriage of justice has occurred requires the identification of circumstances 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”.[17] The words “miscarriage of justice” should not be construed narrowly, and the phrase “integrity of the judicial process” does not refer simply to a hearing in court, but the circumstances identified as creating the miscarriage “must nevertheless have been such as to have had an influence on the outcome of the litigation”.[18]
[17] Bigg v Suzi (1998) FLC 92-799, at [4.5] (emphasis in original).
[18] Barker v Barker (2007) 36 Fam LR 650, at [120].
50It is not sufficient to merely establish the existence of one or more of the stated grounds[19] of relevant fraud, duress, suppression of evidence, giving false evidence or any other relevant circumstance. There must be a finding as to the existence of one or more of the stated grounds, such that there was a miscarriage of justice which finally justifies varying or setting aside the primary order.[20]
[19] Ibid, at [123].
[20] Cantrell & North and Anor (2020) FLC 93-976, at [82] citing In the marriage of Suiker and Suiker (1993) FLC 92-436.
51Implicit in each of Mr Monaco’s claims then, other than the last, is the proposition that upon being satisfied of the relevant point the court should then in its discretion set aside the consent orders and find that it is appropriate to make another order for alteration of property interests in substitution for them. Those steps to the exercise of the relevant power are distinct, and each is essential.[21]
[21] Bourke v Bourke (No 2) (1994) FLC 92-479, at 80,983.
52It is necessary to consider each claim in turn in order to determine Ms Daniels’s application for summary dismissal. That would be so even were it not permissible for the court to summarily dismiss defined parts of Mr Monaco’s claim, while permitting others to proceed.[22]

The duress claim

The legal principles

[22] Family Law Rules 2004 (Cth) r 10.14.

53The High Court has summarised the relevant concept of duress as follows:
“The vitiating factor of duress focuses upon the effect of a particular type of pressure on the person seeking to set aside the transaction. It does not require that the person’s will be overborne. Nor does it require that the pressure be such as to deprive the person of any free agency or ability to decide. The person subjected to duress is usually able to assess alternatives and to make a choice. The person submits to the demand knowing ‘only too well’ what he or she is doing”.[23]
[23] Thorne v Kennedy (2017) FLC 93-807, at [26].

54In the same judgment, the High Court did not find it necessary to determine what it described as the “difficult question” of whether duress “should be based on any unlawful threat or conduct or, alternatively, whether other illegitimate or improper, yet lawful, threats or conduct might suffice”.[24] Historically, the common law held that the duress necessary to vitiate a transaction required an unlawful threat or conduct. The New South Wales Court of Appeal has more recently confirmed that approach,[25] saying:
“The vagueness inherent in the terms ‘economic duress’ and ‘illegitimate pressure’ can be avoided by treating the concept of ‘duress’ as limited to threatened or actual unlawful conduct. The threat or conduct in question need not be directed to the person or property of the victim, narrowly identified, but can be to the legitimate commercial and financial interests of the party. Secondly, if the conduct or threat is not unlawful, the resulting agreement may nevertheless be set aside where the weaker party establishes undue influence (actual or presumptive) or unconscionable conduct based on an unconscientious taking advantage of his or her special disability or special disadvantage, in the sense identified in Commercial Bank of Australia Ltd v Amadio (citation added)”.[26]
[24] Ibid, at [27] - [29].
[25] Australia & New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149, at [66].
[26] Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447.

55While some doubt has been cast on that narrow approach, the restriction at common law of the concept of illegitimate pressure to the imposition of pressure by “threatened or actual unlawful conduct” has continued, and the High Court would not depart from it in the absence of “detailed argument and deep consideration of the ramifications”.[27] Decisions of the Full Court which supported the more expansive approach, whereby “other illegitimate or improper, yet lawful, threats or conduct might suffice”[28] to establish a claim that an agreement should be vitiated because of duress, but which predated Thorne v Kennedy,[29] must be viewed in that context.

Mr Monaco’s case at its highest

[27] Thorne v Kennedy (2017) FLC 93-807, at [70] and [73] (per Nettle J).

[28] Ibid, at [27]–[29].

[29] (2017) FLC 93-807.

56Mr Monaco submits that Ms Daniels “subjected [him] to demands and pressure amounting to duress for the purpose of securing, or which led to, his signing of the [application for consent orders]”.
57In response to the application for summary dismissal of this aspect of his claim he points to the paragraphs from the 2013 affidavit set out below:
71.By the end of 2007 [Ms Daniels] was demanding that I transfer the house to her. She threatened that if I did not do so, she would take [Child A] back to [State A] and that I would not see [Child A] again. She usually made this threat verbally, but [in] 2007 she threatened in an email that she would be leaving at the end of the school term and stated: “I told you once before, push me into a corner and I will run. Very very far away”. [Relevant email annexed] [Child A] was only 8 months old at this time.
72.[Ms Daniels] had also once previously made a threat by email that she was planning to take [Child A] away and would have to because she could not afford to live in [City A]. [Email dated 20 January 2007 annexed]
73.[Ms Daniels] also told me that I could continue to live in the home with her and [Child A] and that the property transfer to her would be in lieu of ongoing child support for [Child A]. She also said that if I transferred the property to her, she would not oppose [Child A]’s ongoing contact with me and that the home would one day become [Child A]’s. I was thinking that this would be the only way to continue to have a relationship with [Child A].
80.I entered into this property settlement over the period of the summer of 2007/2008, mostly on the basis that I knew that I would not see [Child A] again if I did not do so and [Ms Daniels] had already threatened to take [Child A] and run away. I have seen first-hand [Ms Daniels]’s capacity to deny all contact, as she wouldn’t let [Mr Maxwell] see his two children without terrible conflict.
83.After [Ms Daniels] filed [the application for consent orders], the Family Court sent me a letter noting that [Ms Daniels] was receiving a significantly larger share of the matrimonial assets and querying why I believed that the property settlement proposed was just and equitable. [Letter from the Principal Registrar dated 29 January 2008 referred to at paragraph 22 of these reasons annexed]
84.[Ms Daniels] then drew up a letter for me to send back to the Family Court, and she organised for someone from [Law Firm A] to speak to me on the phone for about 20 minutes to give me independent legal advice. [Letter from Mr [Monaco] to the Principal Registrar dated 4 February 2008 referred to at paragraph 24 of these reasons annexed]
85.I had no involvement in arranging the property settlement agreement and I had no choice but to sign the application and the letter to the Family Court given [Ms Daniels]’s ultimatum.

58The submissions filed on behalf of Mr Monaco include a notation in relation to paragraph 84 of the 2013 affidavit saying “see also [Law Firm A] file notes”. No such documents were adduced in evidence during the trial before the other judge, nor by Mr Monaco subsequently.
59In cross examination before the other judge, Mr Monaco said that Ms Daniels “organised the legal advice with [Law Firm A] purely because the court wouldn’t process the papers that she had produced without any legal advice so she arranged for [Law Firm A] to do what they needed to do to get it through court”. He went on to confirm that he spoke to Law Firm A for about 20 minutes, and that Ms Daniels was not present during that conversation, albeit he said that she “had already taken the paperwork to [Law Firm A] and sorted out who [he] needed to speak to”.

60The following exchange ensued:
[COUNSEL]: But the telephone conversation you had with [Law Firm A] was just you and their lawyers. Is that right?‑‑‑
[MR MONACO]: Me and the lawyer, yes.
[COUNSEL]: And they told you what the papers meant for you, did they not?‑‑‑
[MR MONACO]: On that side of it, they did, yes.
[COUNSEL]: And did they discuss with you whether the papers were fair or not?‑‑‑
[MR MONACO]: The ‑ ‑ ‑
[COUNSEL]: Sorry, whether the orders you were going to make were going to be fair or not?‑‑‑
[MR MONACO]: From the – the unfairnesses of the orders were equalised by [Ms Daniels]’s word that there wasn’t going to be ever any child support and that I could continue to live in the house and ‑ ‑ ‑
[COUNSEL]: Sorry, no ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑
[MR MONACO]: and ‑ ‑ ‑
[COUNSEL]: No, I will just stop you there?‑‑‑ ‑ ‑ ‑
[MR MONACO]: care for [Child A] ‑ ‑ ‑
[COUNSEL]: I will just – Mr [Monaco], I will just stop you there. Sorry, my question was your discussion – I’m talking about your discussion with [Law Firm A] ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑
[MR MONACO]: and that’s what I did. ‑ ‑ ‑
[COUNSEL]: did they discuss with you whether it would be fair or not? The proposals for the consent orders, did they discuss whether it was going to be fair for you or not?‑‑‑
[MR MONACO]: And, as discussed with the lawyers at the time, that the child support matters and the actual – only the title of the house changing over, not – no other actual living arrangements were supposed to be changed was the other factors that were in the case at the time. And, obviously, the original paperwork from [Law Firm B] – where the original office presented with the child support on the – on the paperwork but was later taken out because she would have lost her pension – would show it.
[COUNSEL]: So would you accept that your discussion with [Law Firm A] covered a lot of topics that were in the orders that were proposed by consent?‑‑‑
[MR MONACO]: No, it was very vague.
[COUNSEL]: But you did go over the orders that were proposed with them, didn’t you?‑‑‑
[MR MONACO]: No. It was more going over that the – the orders weren’t what they should have been.
[COUNSEL]: But having had that discussion with [Law Firm A], you then went and executed your side of the paperwork so that the application for consent orders could go to the court, didn’t you?‑‑‑
[MR MONACO]: I did so I could continue to see [Child A] because that’s all that mattered at that stage and that sometimes you’ve got to jump through a burning house or something to do something for a loved one.

Discussion and conclusion as to summary dismissal

61As may be seen from what is set out above, notwithstanding the confused presentation of his case it is clear that the central component of what Mr Monaco asserts to be relevant duress is the alleged making of threats summarised in the written submissions filed on his behalf as:
(a)a threat that “if he did not [transfer the Suburb A property to Ms Daniels] she would take away Child A, and prevent [him] having contact with Child A”; and
(b)a statement that if Mr Monaco transferred the Suburb A property to her, Ms Daniels “would not oppose [him] having ongoing contact with Child A, thereby impliedly threatening that if [he] did not transfer the Suburb A property to her she would oppose his (sic) having contact with Child A”.

62The first point which may be made is that, taking Mr Monaco’s evidence at its highest, there is no alleged threatened or actual unlawful conduct on the part of Ms Daniels. Duress at common law cannot be made out.
63Still in the context of his duress claim, Mr Monaco submits that in addition to making the threats described above Ms Daniels made various promises, to the effect that:
(a)she would not thereafter seek ongoing child support for Child A “as the Suburb A Property would constitute child support”;
(b)Child A “would inherit the Suburb A Property from her and it would not be part of the inheritance of any of her other three children”; and
(c)Mr Monaco “could continue to reside in the Suburb A Property to facilitate his being involved in the care of Child A”.

64The making of promises, perceived by the promisee to be beneficial to his interests, self-evidently cannot constitute duress. The contention by Mr Monaco, albeit expressed in the alternative, that the promises in combination with the alleged threats amounted to duress is misconceived.
65The remaining issue, then, is whether notwithstanding those observations the acceptance of Mr Monaco’s evidence at its highest as to the asserted threats would negate the proposition that the duress claim has no reasonable prospect of success. In my view, it would not. My conclusion would not differ even if it was accepted that a claim of duress could succeed upon the establishment of “illegitimate or improper, yet lawful” threats.
66While for present purposes Mr Monaco’s case must be taken at its highest, that does not require reliance only upon those parts of his case which favour his present argument. By way of example, the emails from Ms Daniels referred to in paragraphs 71 and 72 of the 2013 affidavit are referred to at best selectively, and at worst inaccurately. Those emails were annexed to Mr Monaco’s trial affidavit, thereby forming part of his case.
67In the email referenced in paragraph 71 of the 2013 affidavit, while making the comment quoted, Ms Daniels also stated that she “refuse[d] to accept money” from Mr Monaco, and that he could “keep [his] house and [his] money and [his] car”. That email was sent on 11 October 2007.
68In the email referenced in paragraph 72 of the 2013 affidavit, while saying as quoted that she would “have to leave [City A] this year sometime as [she couldn’t] afford to stay here”, Ms Daniels went on to say that she was “not saying that to gain money out of [Mr Monaco]” and that she did not want any money from him. That email was sent on 20 January 2007, a few days short of 12 months prior to the execution by Mr Monaco of the application for consent orders, and six months prior to what both parties deposed in that document to be the date of their separation.
69As already outlined, Mr Monaco subsequently executed the application for consent orders in circumstances where the document itself made it clear that he understood their effect.
70The threats of which Mr Monaco complains were incapable of amounting to common law duress. They were also insufficient to amount to illegitimate pressure by lawful means. On his own case, Mr Monaco had time to reflect, took independent legal advice, and formally confirmed his consent to the orders not once, but twice. In the second of those confirmations, in his response to the letter from the Principal Registrar, he expressly acknowledged that the agreement “appear[ed] to be one-sided”, while explaining that the agreement was undertaken with the best interests of Child A in mind as it was “formed with the purpose of not selling the family home”. That purpose, of course, was achieved. He went further to describe the agreement as “amicable”, noting that the retention of his superannuation and motor vehicle was “acceptable” to him. He represented to the Principal Registrar that he had family support, and would be “residing with them”.
71The duress claim has no reasonable prospect of success.

The fraud claim

The legal principles

72Fraud in the present context connotes a conscious wrongdoing or form of deceit.[30] It will generally mean the use of a false representation, with intent that it be relied upon, to obtain an unjust advantage, and can extend to circumstances where that representation is made knowingly, without belief in its truth, or recklessly.[31]

Mr Monaco’s case at its highest

[30] Official Trustee in Bankruptcy v Bryan and the Estate of Christine Ann Gatenby (Deceased) (2006) FLC 93-258, at 80,385.

[31] See In the marriage of Green and Kwiatek (1982) FLC 91-259.

73Further or in the alternative to the duress claim, Mr Monaco argues that Ms Daniels “induced [him] to sign [the application for consent orders and his subsequent response to the letter from the Principal Registrar] in the hope of avoiding the matters the subject of the Threats and/or of securing the benefits the subject of the Promises in circumstances where [she] had no intention either of honouring the Promises or not enacting the Threats”.
74Mr Monaco’s evidence as to the alleged threats is set out in paragraphs 71 to 72 of his 2013 affidavit and quoted above. His evidence as to the alleged promises is set out in paragraph 73 of that affidavit, again quoted above.
75In submissions, Mr Monaco says that in or about April 2008 Ms Daniels took the following steps, and thereby “acted in breach of the Promises and carried out the Threats”:
(a)arranged for the transfer of the Suburb A property into her name;
(b)informed him, at a time when he was working away on a FIFO roster, that he “no longer lived at the [Suburb A] property and to arrange for his belongings to be collected”;
(c)contacted his parents and requested they collect his belongings from the Suburb A property;
(d)verbally abused his parents when they attended the Suburb A property, and called the police;
(e)refused to allow him to “have contact” with Child A for approximately 12 months after April 2008, and on “other occasions and periods of time since then”; and
(f)applied for and obtained a Child Support Assessment.

76While those submissions did not comply with my order of 20 October 2020, in that the relevant parts of Mr Monaco’s affidavit evidence or evidence at trial were not identified, I have reviewed the 2013 affidavit and the submissions accurately reflect his evidence given in it. The submissions do not, however, refer to Mr Monaco’s evidence that Ms Daniels “kicked [him] out of the house” on 25 February 2008, calling the police, and that he was charged and convicted of assaulting both Ms Daniels and a police officer. Similarly, they do not refer to his evidence that the parties recommenced a relationship near the end of 2009, he began to stay at the Suburb A house again, and spent time with Child A “frequently” until what he refers to as the “cupboard incident” occurred in early January 2010.
77Similarly, the submissions do not refer to the evidence given by Mr Monaco in response to a question from his counsel at trial:
[COUNSEL]: There’s some parts of the affidavit – well, the mother says that the relationship ended in 2007, or the marriage ended in 2007; is that correct?‑‑‑
[MR MONACO]: No. That’s not correct. I was still in the house in – in the [Suburb A] house in 2008 and have been back a number of times since, with the final time being in April 2011.
[COUNSEL]: What do you say the date of separation was between you; the final separation?‑‑‑
[MR MONACO]: Well, the final separation was 2011.

Discussion and conclusion as to summary dismissal

78Given that the central element of fraud will generally be the making of a false representation, whether knowingly or recklessly, with the intent of obtaining a benefit therefrom, distinctions between Ms Daniels’s alleged threats and forbearance from carrying them out, and her alleged promises and failure to carry them out, are of little assistance.
79Several of the factual matters raised in Mr Monaco’s evidence, and referred to in his submissions as to the fraud claim, are irrelevant to that claim.
80Given the terms of the consent orders, Ms Daniels’s action in causing the Suburb A property to be transferred to her (an action, of course, which required Mr Monaco’s participation) was entirely unobjectionable. No submission is made, nor could it be, as to how that action could in any sense be characterised as breaching a promise or carrying out a threat.
81Similarly, the references to Ms Daniels contacting Mr Monaco’s parents, and to her behaviour towards them, are irrelevant.
82In essence, Mr Monaco’s fraud claim is based on the proposition that he was induced by Ms Daniels to enter into the consent orders by false promises that he would be able to live in the Suburb A house, and spend time with Child A, and that she would not seek child support from him.
83While as counsel for Ms Daniels points out, Mr Monaco cannot give evidence as to Ms Daniels’ state of mind, nothing turns on that.
84That is so, as the establishment of fraud is but the first step to the fraud claim; unless a miscarriage of justice is also established, the fraud claim must fail.
85It is possible that, accepting Mr Monaco’s evidence at its highest, knowingly false or recklessly false promises by Ms Daniels of the nature described could amount to fraud. While Mr Monaco’s case on that point is demonstrably weak, that possibility remains.
86Critically, however, Mr Monaco’s case at its highest cannot demonstrate that the asserted fraud in turn gave rise to a miscarriage of justice.
87The entire tenor of Mr Monaco’s case is to the effect that at no time could Ms Daniels’s statements of fact, statements of intention, or promises be in any sense relied upon – and that he was at all times throughout the relationship and subsequently acutely aware of that. There is no reasonable prospect of a finding that, notwithstanding that, he believed and relied upon the promises to which he now refers, even if it is accepted that they were made.
88Even if it be suggested that the finding just made departs impermissibly from the proper consideration of an application for summary dismissal, the fact that Mr Monaco took independent legal advice before confirming his agreement to the consent orders is fatal to the fraud claim. While he asserts that he did not inform the lawyers advising him of the “threats and promises”, that does not assist him. If a party has the opportunity to take legal advice and chooses not to do so, or takes legal advice but chooses not to inform the lawyer of matters he would later assert to be relevant, no miscarriage of justice in the relevant sense can arise from those failures.[32]
[32] In the marriage of Gebert and Gebert (1990) FLC 92-137, at 77,937 cited with approval in Scribe and Scribe (2006) FLC 93-302.
89The fraud claim has no reasonable prospect of success.

The non-disclosure claim

The legal principles

90Disclosure by the parties of documents in their possession or control relevant to matters in issue is fundamental to the conduct of all civil litigation. A failure to disclose relevant documents will ordinarily give rise to a miscarriage of justice.[33]
[33] In the marriage of Morrison and Morrison (1995) FLC 92-573.
91The duty of disclosure is owed not only to the other party, but to the court. It includes not only a duty to disclose relevant documents, but a duty to disclose all material information.[34] That duty in turn is “fundamental to the whole operation of the Family Law Act in financial cases”.[35]
[34] Livesey (formerly Jenkins) v Jenkins [1985] 1 All ER 106, at 114; cited with approval in various decisions of the Full Court of the Family Court of Australia.
[35] In the marriage of Briese and Briese (1986) FLC 91-713; cited with approval in In the marriage ofBlack and Kellner (1992) FLC 92-287 and subsequently.
92That said, the following passage from the decision of the Full Court in Barker,[36] is apposite:
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, Brandon LJ had this to say about the nexus between non-disclosure and setting an order aside (at All ER 119; AC 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.

Mr Monaco’s case at its highest

[36] Barker v Barker (2007) 36 Fam LR 650, cited with approval in Lane & Lane (2016) FLC 93-699, and Cantrell & North and Anor (2020) FLC 93-976.

93In the submissions filed on behalf of Mr Monaco, his evidence in support of the non-disclosure claim was identified as being contained in paragraphs 75 to 79 inclusive of the 2013 affidavit. Those paragraphs are reproduced in full below:
75.I agreed to transfer the house and [Bank A] mortgage debt to [Ms Daniels] on this basis [referring to the asserted promises that he could continue to live in the home, spend time with [Child A], and would be freed from any child support obligation] and [Ms Daniels] arranged for a property settlement agreement to be drawn up.
76.I presumed that [Ms Daniels] was simply refinancing the [Bank A] mortgage in order to release me from the debt.
77.I now know from evidence provided by [Mr Higgs] that [Ms Daniels] had arranged to borrow $166,000 from [him] to facilitate the refinancing of the mortgage over the [Suburb A] property. [Ms Daniels] had made these arrangements with [Mr Higgs] as early as August 2007.
78.According to the subpoenaed loan documents from [Bank A], [Ms Daniels] obtained the funds from [Mr Higgs] and declared to [Bank A] that she had $165,000 ‘savings’ in order to obtain a loan of $201,000.
79.Clearly, [Ms Daniels] did not make full and frank disclosure to me as to her assets and liabilities at the time the Form 11 Application for Consent Orders was made and filed with the Court on 24 January 2008.

Discussion and conclusion as to summary dismissal

94Notwithstanding the somewhat confusing reference in paragraph 79 of the 2013 affidavit to Ms Daniels’s “assets and liabilities”, from which it may be inferred that it is asserted that she had an “asset” in the form of the “savings” declared to [Bank A], that was not Mr Monaco’s case at the trial before the other judge. His clear position was that Mr Higgs had made a loan to Ms Daniels in that amount, and that Mr Higgs should be repaid that debt from the proceeds of the proposed sale of the Suburb A property. That proposition was put to Ms Daniels by Mr Monaco’s counsel in cross examination.
95In closing submissions before the other judge, his counsel described his position as being:
“He says, ‘Yes, Mr [Higgs] lent the money. I don’t want Mr [Higgs]’s money. Even though, if we had Mr [Higgs]’s money back in the pool, the pool would be increased by $275,000’”.

96The reference to an increased sum relates to further monies provided by Mr Higgs to Ms Daniels well after the transfer of the Suburb A property; those transactions are irrelevant for present purposes.
97While later in closing submissions counsel for Mr Monaco did refer to the monies advanced by Mr Higgs as being “by way of loan or investment”, nothing turns on that.
98That is so, as the consent orders clearly provided for Ms Daniels to take on the liability secured by mortgage against the Suburb A property, and to refinance it so as to exclude Mr Monaco from any liability. She did so. It was always in contemplation that she would incur a debt in the total sum secured by the mortgage; the fact that she did so both by borrowing from the bank and by obtaining funds from Mr Higgs is irrelevant.

99Mr Monaco’s case at its highest does not establish, and cannot establish, that Ms Daniels was under any duty to disclose to him the source of her borrowing. Accordingly, there is no material non‑disclosure.
100Even were that not so, the facts asserted are not capable of establishing a miscarriage of justice.
101The non-disclosure claim has no reasonable prospect of success.

The hardship claim

The legal principles

102Three elements must be satisfied before an order can be made pursuant to s 79A(1)(d).
103First, circumstances of an exceptional nature relating to the care, welfare and development of a child must have arisen since the making of the primary order.
104As has been observed:
“We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.[37]
[37] R v Kelly (Edward) [2000] QB 198, at [108] (per Lord Bingham of Cornhill C.J.) quoted with approval by Callinan J in Baker v The Queen (2004) 223 CLR 513, at [173]. See also Keane v Keane (2013) 50 Fam LR 120.

105A change of circumstances whereby a child who lived with one parent at the time of the primary order moves to live with the other will not, of itself, be exceptional. That said, the determination of whether particular circumstances are “exceptional” is very much a question of fact and degree.[38]
[38] In the marriage of Simpson and Hamlin (1984) FLC 91-576.
106Secondly, circumstances of an exceptional nature having been established, it must be demonstrated in those circumstances that the applicant[39] will suffer hardship if the court does not vary the primary order or set it aside and make another order in substitution. Hardship means “something more burdensome than ‘any appreciable detriment’”;[40] it must involve substantial detriment.[41] The consideration of whether the relevant hardship will be suffered if the court does not vary the order, or set it aside and make another order in substitution for it necessarily requires a comparison of the position of the person asserted to be facing that hardship if the primary order remains in place, and their position if the order is varied or set aside[42] as proposed.
[39] Garden v Gavin (No 2) (2010) 43 Fam LR 383, at [46].
[40] In the marriage ofWhitford and Whitford (1979) FLC 90-612, at 78,144–78,145.
[41] In the marriage ofHall and Hall (1979) FLC 90-679, at 78,627.
[42] See, albeit in the context of s 90K(1)(d), Daily & Daily (2020) FLC 93-999, at [31], and the cases there cited.
107The relevant question is not whether the relevant person is presently suffering hardship, but whether they would suffer hardship if the order is not varied or set aside. If the probable outcome is not one which would alleviate the hardship, the ground is not established.[43]
[43] See, in the context of s 44(4), In the marriage ofWhitford and Whitford (1979) FLC 90-612, at 78,144, and Gadzen & Simkin (2018) FLC 93-871.
108Thirdly, those conditions being satisfied, the exercise of discretion remains.[44] In that regard, “the Court must consider in the exercise of its discretion whether that hardship is of such a serious nature and results in such inequity that it can only be rectified by the extreme step of setting aside or varying an existing order of the Court”.[45]

Mr Monaco’s case at its highest

[44] Garden v Gavin (No 2) (2010) 43 Fam LR 383.

[45] In the marriage of Simpson and Hamlin (1984) FLC 91-576, at 79,659.

109In the submissions filed on his behalf, Mr Monaco asserts that the relevant circumstances relating to the care, welfare and development of Child A which have arisen since the making of the consent orders, and which he would assert to be exceptional are:
(a)that Ms Daniels no longer has the care of any children under the age of 18;
(b)that on 16 October 2015, orders were made suspending previous parenting orders, and providing for Child A to live with him and spend no time with Ms Daniels;
(c)that he has had sole care of Child A since that date;
(d)that Ms Daniels was “charged albeit not convicted with eighteen offences of assault against her children, including [Child A]”; and
(e)that, at the time of those submissions, he was “now seeking final orders granting him sole parental responsibility for [Child A]”.

110He asserts in the same submissions that he will suffer hardship if the consent orders are not varied or set aside, in that he:
(a)“has no other substantial assets” other than his superannuation;
(b)lives with Child A in his partner’s home;
(c)cannot afford to purchase a home in which he can live with Child A; and
(d)by virtue of “having no share in the [Suburb A] property” he is “unable to secure his or [Child A]’s financial future”.

111He relies on the evidence set out at paragraphs 16 to 47 inclusive, and 457-470 inclusive of the 2019 affidavit. It is unnecessary to set out that evidence in detail in so far as it relates to the circumstances in which Child A came into his care, and her interaction with Ms Daniels since, beyond the matters noted below.
112At the time the consent orders were made, Child A was 14 months old. The orders provided for the parties to “each have parental responsibility for decisions” regarding her long-term care, welfare and development, and for Child A to live with Ms Daniels and spend time with Mr Monaco “on reasonable occasions when [he] is in Australia”. At the relevant sections of the application for consent orders, the parties deposed to the proposed arrangements for Child A being that she would live in the Suburb A property which was “comfortably furnished” and would have her own room, would be supervised by Ms Daniels who was noted as not being employed, would be supported by Ms Daniels from her income and from child support of $1,300 per month to be paid by Mr Monaco, was in good health and was not yet of school age.
113In his application for divorce filed on 19 September 2011, Mr Monaco said that Child A lived primarily with Ms Daniels, seeing him “occasionally” and speaking to him on the telephone. He said that she was in good health, attending full-time kindergarten, and that he paid approximately $230 per month child support for her. He proposed no changes to those arrangements.
114Mr Monaco then commenced proceedings by filing his application on 29 November 2011. In that application he sought parenting orders only. He sought orders for Child A to spend time with him from Tuesday after kindergarten or school until the following Monday morning on those weeks that he lived in [City A], and that she have telephone communication with him at about 7.30 pm on Wednesdays and Sundays when he was working away from City A. At that time, he was working FIFO as a [mechanic] on a “two weeks on, one week off” roster.
115In her response to that application, Ms Daniels proposed that Mr Monaco spend supervised time with Child A.
116At a case assessment conference on 17 February 2012, Ms Daniels informed the family consultant that she had recently relocated with Child A to [Town A]. Mr Monaco indicated his intention to apply for a recovery order to compel Ms Daniels to return with Child A to City A. On 22 February 2012, an interim order was made restraining Ms Daniels from again changing Child A’s place of residence other than to return to City A and on 8 March 2012 an interim order was made for Mr Monaco to communicate with Child A by telephone twice per week.
117On 27 February 2012, Mr Monaco filed his amended application seeking to set aside the consent orders.
118On 28 March 2012, pending a further hearing orders were made for Child A to spend time with Mr Monaco every third Saturday to coincide with his rostered day off in City A. On the same day, Ms Daniels filed an amended response in which she sought the dismissal of the application to set aside the consent orders.
119On 8 June 2012, further orders were made effecting a minor amendment to the orders made on 28 March 2012. On 26 November 2012 further interim orders were made for Child A to spend time with Mr Monaco every third Saturday from 10.00 am until 5.00 pm without any requirement for supervision, and commencing from 5 January 2013, every third Saturday at 10.00 am until the following day at 9.00 am, if practicable in the presence of the paternal grandparents. Further orders were made for telephone communication twice per week, and in relation to particular special occasions.
120On 9 May 2013, further interim orders were made for Child A to spend time with Mr Monaco each alternate weekend from 10.00 am Saturday until 4.30 pm Sunday, with the paternal grandparents being present wherever possible during overnight visits. Again, orders for telephone communication were made. Various specific issues orders were made which are not relevant for present purposes.
121On 2 July 2013 an interim order was made by consent restraining Ms Daniels from changing Child A’s place of residence from the Suburb A property. Orders were also made for Child A to spend make up time with Mr Monaco.
122Mr Monaco’s further amended application was filed on 13 August 2013. He sought that the earlier parenting orders be set aside and that the parties have equal shared parental responsibility for Child A, that Child A live with Ms Daniels, and that she spend time with him on alternate weekends from 6.00 pm on Friday until 6.00 pm Sunday, for specified periods in school holidays and on various special occasions.
123The trial before the other judge was scheduled to commence on 13 November 2013. On 6 November 2013, Mr Monaco’s Minute of proposed final orders was filed; in that document, he sought sole parental responsibility for Child A, that Child A live with him, and that she spend time with Ms Daniels on alternate weekends and during school holidays. His affidavit filed for the purposes of trial had not addressed that proposal, which his counsel understatedly described as a “recent development”.[46]
[46] Trial transcript 14 November 2013, at page 20.
124After various exchanges between counsel and the other judge, and observations by the then Independent Children’s Lawyer, Mr Monaco reconsidered his position and proposed orders whereby Child A would continue to live with Ms Daniels and spend time with him on alternate weekends as earlier proposed, and for an additional period on intervening weekends. The trial proceeded on that basis,[47] and on 22 November 2013 further interim orders were made for Child A to spend time with Mr Monaco each alternate weekend from Saturday at 10.00 am until Sunday at 4.30 pm subject to the paternal grandparents being present wherever possible for overnight visits. Detailed orders for handover and the like were made, as well as orders for Child A to communicate with the father each Wednesday and Sunday evening. Additional orders were made in relation to various special occasions.
[47] Trial transcript 14 November 2013, at page 53.
125[In late] 2015, Mr Monaco was contacted by an officer of what was then known as the Department of Child Protection and Family Support. Child A was placed in his care, and Child B and Child C were placed in the care of Mr Maxwell. The following day, orders were made by the other judge on an interim basis for Child A to live with Mr Monaco and neither spend time nor have face-to-face contact with Ms Daniels. A single expert witness in the parenting proceedings was subsequently appointed; there were difficulties in relation to that appointment, and an alternate single expert witness was appointed on 27 January 2017.
126As earlier noted, all parties sought to reopen the previous trial and to adduce further evidence and orders were made on 22 June 2017 to facilitate that.
127In the fourth iteration of Mr Monaco’s application filed on 14 December 2017, he sought orders pursuant to s 79A(1)(d) for the first time.
128On 7 August 2020, final parenting orders were made by consent. They provide for Mr Monaco to have sole parental responsibility for Child A, and for her to live with him. They provide further for the parties to participate in family therapy with Child A, with Ms Daniels to meet the associated costs, and for Child A to spend time (subject to her wishes) with Ms Daniels if she is living in Western Australia, on a reasonable basis and up to alternate weekends and half of school holidays. Various other specific issues orders were also made by consent.
129Mr Monaco’s evidence in the 2019 affidavit as to his financial circumstances, and relied upon by him in the hardship claim, may be summarised as follows:
(a)he was employed [in occupation A] earning a salary of $97,000 per annum, and based in City A;
(b)at the time of the trial before the other judge he was working [in occupation B] for a different company. His financial statement filed for the purposes of that trial on 30 July 2013 disclosed a gross annual income of just under $115,000; at that time, he was working FIFO as earlier noted;
(c)from June 2014 until the time of swearing his affidavit in September 2019, in addition to his employment he operated his own [business], but was in the process of winding it down in the face of “a downturn in business opportunities” and had, since 2017, sold vehicles and equipment with a total value of approximately $317,000, in respect of which he applied the proceeds of sale towards associated liabilities of approximately $136,000, plus some commissions on sale;
(d)at the time of swearing his affidavit, the business had minimal assets remaining, and had some minor debts;
(e)he owned property to a value of approximately $46,800, and had superannuation interests then worth $317,934;
(f)he had liabilities of $273,451, of which $262,355 was represented by outstanding legal fees;
(g)he expressed his understanding, albeit without complete disclosure, that Ms Daniels’s interest in the Suburb A property was worth approximately $800,000 and that she had liabilities of some $427,560 including to Mr Higgs;
(h)that he lived with Child A in a house owned by his partner, paying her $600 per fortnight for his and Child A’s share of household costs;
(i)that he received no child support from Ms Daniels;
(j)that Child A attended a private school at his cost, which he estimated at approximately $15,000 per annum;
(k)that he had prepaid $10,000 towards the following year’s private school fees;
(l)that over the course of various legal proceedings he had incurred legal fees of just over $386,000, of which he had paid $145,282; and
(m)that his finances and those of his partner were “not intermingled”, and that his responsibilities for Child A were now such that he had no capacity to engage in FIFO work.

Discussion and conclusion as to summary dismissal

130It must first be borne in mind that the consent orders were made at a time when Child A was 14 months old. The possibility, indeed likelihood, of significant changes in the parenting arrangements which would be in her best interests over the balance of her childhood was entirely predictable.
131The unfortunate circumstances in which Child A came into the care of Mr Monaco were not of themselves exceptional. Similarly, the potential for issues to arise between the parties in relation to Child A and by reference to Ms Daniels’s personality and behaviour was always clear, albeit it was brought into stark relief at particular times; indeed, that is clear on Mr Monaco’s own evidence upon which he relies in relation to the duress and fraud claims.
132Child A’s present circumstances, and those of Mr Monaco insofar as they relate to his care of her, are in no way circumstances “of an exceptional nature”; indeed, to Mr Monaco’s credit the arrangements for Child A’s care, welfare and development are stable and unremarkable. She lives with her father and his new partner in suitable accommodation, and attends a private school. Her father works to support her; her mother is not employed and does not pay child support. The parties have agreed orders for family therapy to address issues surrounding Child A’s relationship with Ms Daniels.
133In my view, there is no reasonable prospect of Mr Monaco successfully establishing the first limb of the hardship claim – that the circumstances that have arisen since the making of the consent orders are circumstances of an exceptional nature relating to the care, welfare and development of Child A.
134Even if I am wrong in that conclusion, there is in my view no reasonable prospect of Mr Monaco successfully establishing the second limb of the hardship claim – that he will suffer hardship if the court does not vary the consent orders or set them aside and make other orders in substitution for them.
135In the financial circumstances already outlined, it cannot be suggested that Mr Monaco is presently suffering hardship. In making that observation, I appreciate that is not the test to be satisfied.
136On Mr Monaco’s evidence taken at its highest, the known property and superannuation available for division between the parties were the consent orders to be set aside, after taking into account liabilities other than for legal fees, totals approximately $727,000. Of that amount, on his evidence Mr Monaco presently holds approximately $353,636 albeit most of that is in the form of superannuation.
137In considering the property available for division between the parties were the consent orders to be set aside, any amounts owed by either party for legal fees would be properly taken into account as part of the consideration of their respective financial circumstances, by reference to s 75(2)(o). The inclusion of such liabilities in any calculation of the existing interests of the parties in property such as to form the basis of any division of those interests would potentially require one party to subsidise the legal costs of the other without proper regard to s 117; it is well-established that such an approach is not open. Any hardship asserted to be suffered by Mr Monaco by virtue of his debt to his solicitors could not be alleviated by the setting aside of the consent orders and the making of orders in substitution for them.
138The parties separated prior to the making of the consent orders. The subsequent resumption of their relationship, as noted elsewhere in these reasons, is not of significance. Were the consent orders to be set aside, a holistic assessment of the financial and non-financial contributions of all forms by both parties would necessarily be undertaken; in that context, for example, Mr Monaco would no doubt point not only to his initial financial contributions, and to his contributions during the relationship, but also to contributions made by him to superannuation after the making of the consent orders, and to his contributions as a parent since Child A came into his care. Even on his case at its highest, however, Ms Daniels would be entitled to similarly point to contributions made by her to the Suburb A property after the making of the consent orders, and to her contributions as a parent from Child A’s birth until October 2015.
139Apart from contributions, Mr Monaco would point to his ongoing responsibility to care for Child A, his present financial circumstances necessarily inviting comparison to those of Ms Daniels, and the lack of child support payments from Ms Daniels.

140When the property and superannuation available for division between the parties should the consent orders be set aside is considered, again on the basis that the evidence of Mr Monaco is accepted, there is no reasonable prospect of Mr Monaco establishing that he will suffer hardship if the orders are not set aside and other orders capable of contemplation as a probable outcome made[48] in substitution for them.
[48] Gadzen & Simkin (2018) FLC 93-871.
141The hardship claim has no reasonable prospect of success.

The miscarriage of discretion claim

The legal principles and Mr Monaco’s case

142Mr Monaco contends that the orders sought in the application for consent orders were “manifestly unjust and inequitable”, and that the registrar considering the application “ought not to have been satisfied, in all the circumstances, that it was just and equitable to make [them]”. He refers to what he would contend was an absence of any sufficient explanation, in a letter sent by him in response to an initial requisition from the registrar, as to why the orders sought were just and equitable, while asserting that the response “disclosed further detail” of what would be the outcome of the proposed division of property. He contends further that, in the same response, he did not provide sufficient information as to the legal advice he had received to enable the registrar to be satisfied that he was, or ought to have been, aware of “the injustice and/or inequity of the orders sought”, and notes further that the letter in question was received by the court three days before final orders were made. The purported relevance of the last observation is not apparent.
143In making a property settlement order sought by consent, the court does not simply “rubber stamp” the parties’ agreement. That said, while the process is no mere formality, the nature or extent of the inquiry required of a registrar making a consent order is entirely different from that required of a judicial officer in the making of contentious orders.[49] While the fact that the order in question is sought by consent does not relieve a registrar from compliance with the requirements of the legislation, it may “render compliance much less demanding”, such that provided the registrar is adequately informed “where the parties are at arm’s length and are properly represented, little more than consent may be needed to establish that the requirements of the section have been met”.[50]
[49] Harris v Caladine (1991) 172 CLR 84; see also Maxwell & Miltiadis (2015) FLC 93-644.
[50] Harris v Caladine (1991) 172 CLR 84, see also Jenkins v Livesey (formerly Jenkins) [1985] AC 424, at 437-444.
144Comparatively little is required of a judicial officer in those circumstances. While the making of the consent order is not automatic, the court may be satisfied to the necessary degree by reference not only to the material before it relating to the factors set out in s 79(4) but by reference to the advice available to the parties and the consent which they have given. In the majority of cases, once it appears that the parties are conscious of the factors set out in the legislation and have taken them into account before consenting, the orders will be seen to be proper.[51]
[51] Harris v Caladine (1991) 172 CLR 84, at 103 (per Brennan J).
145While merely consenting to an order does not establish justice and equity,[52] agreement “to a consent order which may not adequately reflect a party’s entitlements under sec. 79 does not, of itself, show that there has been a miscarriage of justice”.[53]
[52] Pearce & Pearce [2016] FamCAFC 14; In the marriage of Holland and Holland (1982) FLC 91-243, at 77,341.
[53] In the marriage of Holland and Holland (1982) FLC 91-243, at 77,336.
146It may be readily inferred that, while not expressed as such, this aspect of Mr Monaco’s claim is brought under s 79A(1)(a), asserting that the alleged failure on the part of the registrar appropriately falls under the rubric of “any other circumstance” giving rise to a miscarriage of justice.
147The difficulty with that is clear. While the words “any other circumstance” are not limited by the subclauses that precede them, they are not of “unlimited width” and must relate to a miscarriage of justice, with the subsection being particularly directed to the integrity of the judicial process,[54] as distinct from the merits of the decision itself.
[54] In the marriage of Clifton and Stuart (1991) FLC 92-194.
148Applications under s 79A “are distinct from appeals, which concern whether or not a judge made an error in the making of the orders that he or she made”.[55] Applications under s 79A(1)(a) are directed rather to circumstances where no judicial error appears, “but there has been a miscarriage of justice by reason of some element beyond what appeared on the record or in the evidence so that the trial judge cannot have been fully aware of all the relevant circumstances”.[56]
[55] Badawi & Badawi (2017) FLC 93-784, at [7].
[56] In the marriage of Fagan and Fagan (1985) FLC 91-607, at 79,931.
149In essence, Mr Monaco contends that the proposed consent orders were merely “rubberstamped” and that the materials before the registrar are such that the registrar could not have been satisfied in all the circumstances that it was just and equitable to make them; in other words, that the registrar was in error in making the orders. As the Full Court has observed, “that is a matter that cannot be raised under s 79A and must be raised, if it is to be raised, in an appeal”.[57]
[57] Badawi & Badawi (2017) FLC 93-784, at [10]; see also Melville & Melville (No 3) (2020) FLC 93-985, at [12]-[18].
150No appeal, or more accurately application for review of the registrar’s decision, has ever been lodged.
151This component of Mr Monaco’s claim is misconceived. It has no reasonable prospect of success.

Overall conclusion in relation to the claims brought pursuant to s 79A(1)

152While it was not a matter expressly raised on behalf of Mr Monaco, I have nevertheless considered whether it might be said to “appear that [he] may have a reasonable cause of action” which is not yet in proper form, such that it would be appropriate to afford him the opportunity to “reframe” his case.[58] I did so particularly bearing in mind both the possibility that the broader concept of duress imposed by legal but nevertheless illegitimate means might be applied, and the possibility that it might be suggested that the duress and fraud claims might better have been characterised as claims relying on equitable concepts of unconscionable conduct, or undue influence as amounting to “any other circumstance” for the purposes of s 79A(1)(a).
[58] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251; Bigg v Suzi (1998) FLC 92-799.
153In short, that consideration does not alter the conclusion already outlined. Mr Monaco’s case at its highest has no reasonable prospect of establishing illegitimate pressure of the relevant type or effect from Ms Daniels. Similarly, it has no reasonable prospect of establishing either that Mr Monaco was in a relevant position of special disadvantage such as to ground a claim of unconscionable conduct, or that Ms Daniels exerted undue influence over him.
154The claims brought pursuant to s 79A(1) have no reasonable prospects of success, and will be dismissed.

The s 79A(1A) claim

155Section 79A(1A) is in the following terms:
A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

156It is not suggested that Ms Daniels has at any time given actual consent to the setting aside or varying of the consent orders. Rather, Mr Monaco contends that the consent of both parties should be implied.

The legal principles

157The fact of reconciliation subsequent to the making of consent orders is not, of itself, sufficient to ground a finding of implied consent to the setting aside of those orders.[59] In the absence of any formal or informal agreement in respect of the orders, a finding of implied consent will be grounded in a consideration of whether the evidence established as a matter of inference or conclusion that despite the absence of such agreement the parties nevertheless intended to no longer be bound by the orders.[60]
[59] In the marriage of McCabe and McCabe (1995) FLC 92-634; Sommerville and Sommerville (2000) FLC 93-042.
[60] See for example O’Hurley & O’Hurley [2008] FamCAFC 57, at [67].
158That in turn requires attention not to what might be described as the parties’ “secret intentions”, but to the outward manifestations of their intentions.[61] The conclusions to be drawn will depend on the particular circumstances of the case, not limited to the initial decision to reconcile, and noting that the intentions of the parties “may crystallise into a more precise form as time progresses and as [their] reconciliation continues and they continue their lives together, including their financial affairs, so that [the conclusion that they intended to no longer be bound by the orders] becomes inconsistent with any other conclusion”.[62]
[61] See, albeit in a different context, Byrnes v Kendle (2011) 243 CLR 253, at 275 (per Gummow and Hayne JJ).
[62] In the marriage of McCabe and McCabe (1995) FLC 92-634, at 82,369.
159Again, the establishment of implied consent in the manner described is not conclusive of a claim based on s 79A(1A). While s 79A(1A) does not include as a requirement that there be a miscarriage of justice, the court must still be persuaded in all the circumstances that as a matter of discretion the orders should be varied, or set aside and if appropriate other orders made.[63]

Mr Monaco’s case at its highest

[63] See for example In the marriage of Prowse and Prowse (1995) FLC 92-557 and In the marriage of Morrison and Morrison (1995) FLC 92-573.

160In support of this element of his claim, Mr Monaco relies on paragraphs 100 to 103 inclusive of the 2013 affidavit. He points to no other evidence.[64]
[64] Written submissions filed 28 January 2021, at paragraphs 38 to 40.
161The relevant paragraphs of the affidavit, outlining events which in context are placed as occurring after Ms Daniels’s relationship with Mr Higgs broke down “near the end of 2009” are reproduced below in full:
100.[Ms Daniels] became friendly with me again and we recommenced our relationship. I began to stay at the [Suburb A] house again with [Ms Daniels] and Child A and the other children. In hindsight, this was most probably because [Ms Daniels] needed my financial support after [Mr Higgs] stopped providing his support to her.
101[Ms Daniels] told me that she had been in a relationship with another man, [Mr P], who lived in [Town A], however they had broken up. Later, I realised that [Ms Daniels] was still seeing him a long time after this, because he attended the restraining order hearing in 2011 and [Ms Daniels] moved down to [Town A] in February 2012. I’m not sure whether [Mr P] had any idea about my relationship with [Ms Daniels].
102From the end of 2009 I spent time with [Child A] frequently. I was working in [City A] full-time and was seeing [Child A] three or four times a week, picking her up from day care and taking her home. If I wanted to see [Child A], [Ms Daniels] made me stay at the [Suburb A] property with her and [Ms Daniels] and I were still sleeping together.
103This arrangement continued until about the 1st or 2nd of January 2010, when the “cupboard incident” happened.

162While the submissions filed on behalf of Mr Monaco refer only to that evidence, in fairness to him it must be noted that in subsequent paragraphs of the 2013 affidavit he said:
(a)that on 6 January 2010 he and Ms Daniels had an argument, and he left the Suburb A property early in the morning after having spent the night with her;
(b)that Ms Daniels subsequently made a complaint to the police about him, leading to him being charged with criminal damage;
(c)that at a hearing in April 2010 he was found not guilty of that charge, and Ms Daniels’s evidence was not believed;
(d)that on 13 April 2010, the day after the acquittal, Ms Daniels applied for a violence restraining order against him, but was unsuccessful;
(e)that on 14 April 2010 Ms Daniels’s was admitted to hospital “due to being mentally unwell and having suicidal ideations”, but discharged herself against medical advice;
(f)that the four children then in Ms Daniels’s care were placed with Mr Higgs by the Department, and Ms Daniels was admitted to [a medical centre] on 22 April 2010, spending three weeks there;
(g)that following her discharge, Ms Daniels rang him and asked for his help, which he provided;
(h)that she subsequently professed her love for him and her desire to “grow old” with him;
(i)that on 28 April 2010 Ms Daniels produced and signed a statutory declaration to the effect that he had no child support arrears;
(j)that he subsequently bought her a car;
(k)that on Ms Daniels’s discharge from the medical centre they “continued to sleep together occasionally”, and during that period he was “seeing [Child A] regularly”, with that arrangement continuing for “about a year”;
(l)that throughout that period he was working FIFO, two weeks on and one week off, and “usually stayed at the [Suburb A] property for most of [his] weeks off”;
(m)that in April 2011 when Ms Daniels travelled to State A for a week to visit her mother, he looked after all four children at her request; and
(n)that shortly after Ms Daniels’s return, they argued and she “threw [him] out again”, telephoning the police who attended at the Suburb A property. He told the police that he didn’t care what they had to say, “got some of [his] belongings” and left, describing that as their “final separation”.

Discussion and conclusion as to summary dismissal

163Mr Monaco does not suggest that at any time the parties actually agreed, whether formally or informally, to no longer be bound by the consent orders.
164Mr Monaco’s affidavit evidence does not directly address in any way the question of whether, during the period referred to, either party formed an intention to no longer be bound by the consent orders. His evidence does not point to any action or inaction on the part of Ms Daniels which would lead to an inference that she had formed that intention; tellingly, his evidence does not even suggest that he had formed that intention.
165Indeed, the parts of his affidavit evidence to which Mr Monaco’s submissions directed me if anything contraindicated any such intention being formed by either party. On his evidence, Ms Daniels either sought that he stay at the Suburb A house, or at least acquiesced in him doing so, “probably” because she wanted his financial support after Mr Higgs ceased his. Elsewhere, he says that Ms Daniels “made” him stay at the Suburb A property if he wanted to see Child A. Neither is indicative of a resumption of a relationship such that an intention to no longer be bound by the consent orders could be inferred; to the contrary, Mr Monaco’s evidence is to the effect that Ms Daniels cynically took advantage of him.
166The agreed fact that the parties resumed a sexual relationship after the making of the consent orders does not alter the position, even without the characterisation by Mr Monaco of that relationship as being “occasional” after April 2010.
167In short, even taken at its highest Mr Monaco’s evidence is incapable of establishing that for which he contends; that, subsequent to the making of the consent orders, the parties conducted themselves in such a way as to support an inference or conclusion that they no longer intended to be bound by the consent orders.
168I was not directed to any relevant concession said to have been made by Ms Daniels which would support Mr Monaco’s contention.
169For those reasons, that part of Mr Monaco’s application which is grounded in s 79A(1A) has no reasonable prospect of success. That being so, it is unnecessary to consider further matters raised by Ms Daniels as to (for example) Mr Monaco’s sworn evidence in the context of his application for divorce that the parties had finally separated on 27 July 2007, and as at the date of the application in September 2011 had not at any time resumed cohabitation.
170The s 79A(1A) claim will be dismissed.

Proposed orders

171As is apparent from what is set out above, I propose to dismiss Mr Monaco’s claim against Ms Daniels.
172No submissions by any party were directed to the effect of such a dismissal on Mr Higgs’s claim. My preliminary view is that his claim is unaffected other than perhaps in a practical sense. This court is seized of that claim by the consent of the parties; the fact that the primary claim by Mr Monaco to which it was attached is now to fall away does not alter that.
173Subject to any submission by Mr Higgs or on behalf of Ms Daniels, I have in mind that it would be appropriate to offer those two parties the opportunity to participate in a pre-trial conference with a senior registrar of the court in an effort to resolve their dispute now that it will stand (for the first time) in isolation.
174Subject to any submissions as to form I propose to make the following orders:
1.All outstanding applications of Mr [Monaco] as amended, other than in relation to issues of costs, be and are hereby dismissed.
2.Within 28 days from the date hereof, any party seeking an order for costs must file and serve written submissions in relation to that application
3.Within 28 days thereafter, the other party/parties must file and serve any written submissions in response.
4.Within 14 days thereafter, each party have liberty to seek a relisting of the costs proceedings for the making of oral submissions, failing which, the presiding Judge proceed to deliver reasons and orders from Chambers without the necessity for a further appearance by any party.
5.The first respondent, Ms [Daniels], and the second respondent, Mr [Higgs], and their solicitors or counsel if represented, attend a pre-trial conference before a registrar, on a date to be allocated.
6.The proceedings between Mr [Higgs] and Ms [Daniels] stand adjourned generally, with liberty to either party to seek a relisting for trial directions, such request not to be made until after the pre-trial conference.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KM
Associate
26 MARCH 2021