Moto and Moto
[2019] FamCA 169
•19 March 2019
FAMILY COURT OF AUSTRALIA
| MOTO & MOTO | [2019] FamCA 169 |
| FAMILY LAW – PROPERTY – Section 79A – Where the Consent Orders sought to be set aside were made over twenty years ago – Where both parties sought that the court make a determination of whether there had been circumstances giving rise to a miscarriage of justice under s79A(1)(a) and did not seek that the court exercise its discretion to set aside the orders – Where the husband contends that he did not consent to the orders – Where the legal advice the husband received in relation to the Consent Orders was so inadequate as to constitute an absence of legal advice. – Where English is not the husband’s first language and the Consent Orders were not translated for him – Where I am satisfied that the circumstances surrounding the property settlement orders amount to a miscarriage of justice under s79A(1)(a). |
| Family Law Act 1975 (Cth) ss 44(3), 75(2), 79, 79A |
| Badawi & Badawi (2017) FLC 93-784 Holland & Holland (1982) FLC 91-243 In the Marriage of Clifton v Stuart (1991) FLC 92194 In the Marriage of McIntyre&McIntyre (1994) FLC 92-468 In the Marriage of Patching (1995) 18 Fam LR 675 Liu & Liu (1984) FLC 92-211 Molier & Vanwyck (1980) FLC 90-911 Trustee of Bankruptcy of Hicks & Hicks & Anor [2018] FamCAFC 37 Waterman & Waterman [2017] FamCAFC 23 |
| APPLICANT: | Mr Moto |
| RESPONDENT: | Ms Moto |
| FILE NUMBER: | PAC | 2890 | of | 2016 |
| DATE DELIVERED: | 19 March 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 27 - 29 August 2018, 24 October 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Williams SC |
| LAWYER FOR THE APPLICANT: | Advance Lawyers Group |
| COUNSEL FOR THE RESPONDENT: | Mr Coleman SC |
| LAWYER FOR THE RESPONDENT: | Bricknell Legal Lawyers |
Orders
I am satisfied that the applicant has proved a circumstance under section 79A(1)(a) and there has been a miscarriage of justice by reason of this circumstance.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Moto & Moto has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2890 of 2016
| Mr Moto |
Applicant
And
| Ms Moto |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are (“the Applicant” or “the husband”) and the (“the Respondent” or “the wife”) who divorced in Country A in 1986.
In August 1997 orders were made (“the property settlement orders”) pursuant to section 79 of the Family Law Act 1975 (“the Act”) adjusting the parties’ property interests. The property settlement orders were in terms which had purportedly been agreed between the parties and sought by them. The effect of the orders was that the wife received the vast majority of the property of the parties.
Many years later in 2015 when the husband was in financial difficulty he began investigating the parties’ financial arrangements. This led to him becoming aware of the Application for Consent Orders upon which the property settlement orders were made.
It is the husband’s case that he had never previously seen the Application for Consent Orders and did not sign that document nor did he sign the annexed Terms of Settlement setting out the orders to which he purportedly consented. Alternatively he contends that if he did sign these documents he was not aware of their legal effect when he signed them.
The husband commenced proceedings in 2016 seeking to set aside the property settlement orders pursuant to s79A(1)(a) of the Act. He contends that as he did not give consent to the orders which were made on the basis of his consent there has been a miscarriage of justice.
The wife contends that there has not been a miscarriage of justice. It is her case that the husband did understand the nature and effect of the property settlement orders and gave consent to them being made. She also contends that even if the husband did not consent to the orders there is no miscarriage of justice because of his failure over almost two decades to challenge or dispute the existence or effect of the property settlement orders. She seeks that the husband’s application be dismissed and that the husband pay her costs.
The ambit of the application was a matter of considerable confusion at the hearing and is a matter to which I will return. For reasons I will come to the only matters for me to determine are whether the Applicant has proved circumstances related to the property settlement proceedings and whether there is a miscarriage of justice by reason of those circumstances.
Background
The husband is 88 years old and is retired and the wife is 83 years old and also retired. The parties married in 1954 and lived for many years in Country B where the husband initially worked in a business conducted by the wife’s family.
In 1956 the parties’ first child (“the older daughter”) was born. In 1960 the parties had a second daughter (“the younger daughter”).
The husband subsequently operated a number of businesses himself in Country B.
In 1972, the parties’ third child, a son, was born.
Throughout the marriage and for some time afterwards the parties purchased real property in New South Wales. At least one property was registered in the wife’s sole name and at least another (“the Suburb D property”) was registered in the parties’ joint names.
In 1977 the husband moved to Country A where he then lived for a number of years. The wife contends that the parties’ separated on a final basis in 1978. This is disputed by the husband who contends that although he lived in Country A for many years the parties still regarded themselves as a married couple and he regularly came to Sydney where he stayed with the wife from time to time in a property they had bought together.
The parties’ divorced in Country A in 1986, on a petition in which it was represented by the husband that the parties had not co-habited for five years.
The husband subsequently remarried and had two children who are now adults.
During the years the husband lived separately in Country A (but prior to the divorce) the husband and wife acquired a number of pieces of real estate in New South Wales. The extent of their property dealings is somewhat unclear but there is no dispute that at least they jointly purchased two properties in the F Region (“the F Region properties”).
The husband purchased two business licences after arriving to live in Australia. The first was bought in 1991 and appears to have been sold a short time later. The second was acquired in around 1996.
The husband also purchased one property in his sole name in Sydney in about 1992 which was sold a few years later. The husband’s current wife either purchased or funded the purchase of another a property in 1994 which was redeveloped and became the home of the husband and his second family (“the Suburb G property”).
The circumstances leading to and surrounding the making of the property settlement orders on 6 August 1997 is the central matter in dispute to which I will return. There is no dispute however that an Application for Consent Orders was filed in the Family Court in 1997 (“the original Consent Orders Application”) and that the Registrar declined to make the orders sought as consent had not been given for leave to be granted under s44(3) of the Act for the proceedings to be instituted out of time. A second Application for Consent Orders (“the amended Consent Orders Application”) which bears the same filing date included consent to an Order granting leave under s44(3). In 1997 a Deputy Registrar made the property settlement orders in terms of the amended Consent Orders Application.
Pursuant to the property settlement orders the wife retained two properties in Sydney registered in her sole name and is also recorded as retaining a business licence. The husband is recorded as retaining “his interest” in the Suburb G property and also acknowledged that he has previously received $100,000 from the wife. Pursuant to the orders the husband transferred to the wife his interest in three properties (the Suburb D property and the F Region properties) that the parties had owned jointly.
In 1997 the husband’s interest in the three properties that had been jointly owned was transferred to the wife alone through registration of the Transfers at the Land Titles office. The wife subsequently sold one of the F Region properties that had been transferred to her.
The husband contends that from 1997 to about 2013 the wife gave him amounts of cash every now and then which he understood to be rent.
In early 2015 the husband was experiencing financial difficulty. He says that he attempted to contact the wife seeking assistance but was unable to make contact. He then contacted the parties’ older daughter who told him that he had “signed all the papers and given everything to [the wife]” and that the wife had no obligation to give him anything. The husband then instructed a lawyer to commence property proceedings on his behalf. This lawyer apparently wrote to the wife which prompted a telephone call from the wife’s lawyer who told him that the property proceedings had already been settled. The husband says that he was shocked to learn this as he was not aware that the property proceedings had commenced let alone been finalised.
The husband through his lawyer then received from the Court a copy of the amended Consent Orders Application upon which the property settlement orders were based.
The husband observed a number of irregularities about the documents that comprised the amended Consent Orders Application. The husband was also concerned that Mr H, a solicitor with the firm J Lawyers purportedly acted for him in relation to the Consent Orders Application. Although the husband had engaged Mr K in relation to a conveyance in about 1992 and Mr K had provided him with a character reference in relation to purchasing a licence in 1991 the husband had not engaged Mr K in relation to any property settlement. For this reason, the husband was concerned when he observed that the Terms of Settlement bore Mr K’s signature.
The husband contacted Mr K and arranged to meet him in September 2015. Mr K told the husband that he must have signed the Terms of Settlement on the basis that he knew the husband.
The husband commenced these proceedings in 2016.
In 2017 the parties engaged a single document examination expert who examined the documents on the family law file relating to the property settlement orders including the Terms of Settlement and original and amended Applications for Consent Orders. The expert opinion was generally equivocal and ultimately did not assume significance in the proceedings.
the matters in dispute
The ambit of the dispute
Before turning to a consideration of factual matters in dispute I must first consider the ambit of the dispute. As noted earlier there was significant confusion related to this matter at the hearing which must be resolved prior to identifying which factual matters in dispute require resolution.
This Application is brought pursuant to section 79A (1 )(a) of the Act which is as follows:
(1)Where on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that :
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance…
the court may, in its discretion vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The authorities[1] make it clear that an application under section 79A(1)(a) involves steps as follows:
·Whether the applicant has established fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance.
·Whether there has been a miscarriage of justice by reason of this circumstance.
·Whether the court in it is discretion should vary or set aside the order.
·Whether the court should make another order under section 79.
[1] See especially In the Marriage of Patching (1995) 18 Fam LR 675 “Patching”.
Despite admonitions in various decisions of the Full Court against bifurcating proceedings of this nature it had always been contemplated by the parties that the proceedings would be bifurcated and the application was fixed for hearing on the basis that I would determine “the threshold issue”.
However, while both Outlines of Case refer to the determination before this court as the threshold issue it became apparent that each party may have a differing view of what was encompassed in the threshold issue. In the Applicant’s Case Outline the threshold issue is described as the question of whether the property settlement orders of 6 August 1997 should be set aside. The order sought by the Applicant was in these terms. In other words the matters for my determination contemplated by the Applicant comprised three of the four steps referred to in Patching.
In the Case Outline filed on behalf of the Respondent issues of fact and law related to steps one and two were particularised. The Outline also envisages consideration of the third step, that is the exercise of the section 79A discretion. The Respondent’s Outline identifies various bases upon which it is contended the court should exercise is discretion to deny the relief sought by the Applicant. The Respondent also sets out other matters to be considered such as the dismissal or permanent stay of the application as an abuse of process or on the basis that the injustice which would be visited upon the Respondent by granting the relief would be disproportionate to any injustice visited upon the Applicant by the refusal of such relief. The specific orders sought by the Respondent were that the Applicant’s application to set aside the property settlement orders be dismissed and an order for costs on an indemnity basis.
On the morning of the third day of hearing, 29 August 2018 the husband’s counsel raised the question of a future hearing in the event the application was determined as sought by his client. This led to an interchange between both counsel and the bench about the characterisation of the steps in the proceedings and the potential differing views about the ambit of “the threshold issue”. Unfortunately the language used in this interchange was the “the first and second steps” rather than the established four steps which added to a lack of clarity about the matter.
At the end of the third day when the evidence was complete before making directions concerning the filing of submissions the ambit of the hearing was revisited once again. At that stage both counsel agreed that the issue to be determined is “whether the Applicant had satisfied the court with respect to the property settlement orders made on 6 August 1997 that there had been a miscarriage of justice”. As both counsel seemed firm about this neither of them nor myself raised the question of the third step or exercise of discretion to set aside the property settlement orders.
The proceedings were then listed for oral submissions on 24 October 2018 to supplement written submissions filed by counsel on behalf of the parties prior to that date.
The written submissions filed on behalf of the Applicant husband deal almost entirely with the facts of the “circumstances” relied upon and the question of whether these circumstances establish a miscarriage of justice. Only half a page of the sixteen pages of submission relate to the discretion to set aside the orders. It is also clear in these submissions as it had been throughout the hearing that if the property settlement orders were set aside the husband would be seeking further orders pursuant to s79 following a hearing on another occasion.
The focus in the husband’s written submissions on factual findings surrounding the circumstances of the property settlement orders and whether there had been a miscarriage of justice by reason of these circumstances is completely consistent with the manner in which the hearing had proceeded. The limited attention given to the question of the exercise of discretion to set aside the orders is also consistent with the way in which the husband’s case had been run, notwithstanding that the order he is seeks in his Application is that the property settlement orders be set aside.
The submissions filed on behalf of the Respondent outline clearly that the only matters under consideration in this application are the first two steps, that is whether the Applicant has established a circumstance as contemplated by s79A(1)(a) and whether there has been a miscarriage of justice by reason of the circumstance. However, the submissions also refer to the equitable doctrine of laches and other matters such as the court’s inherent jurisdiction to prevent an abuse of its processes to justify the dismissal of the application in the event that the Applicant establishes a threshold ground for relief. Further, a number of the authorities relied upon by the Respondent (in particular In the Marriage of McIntyre&McIntyre[2], which is extracted at length) are concerned with the exercise of the discretion under s79A after a finding of miscarriage of justice has been made. In other words the “threshold issue” for consideration according to some parts of the Respondent’s final submission seemed to include a question of whether the discretion in s79A should be exercised if enlivened even though elsewhere in the submissions it is clearly argued that this third step is not a matter for determination in these proceedings.
[2] (1994) FLC 92-468.
In the course of oral submissions on 24 October 2018 it was apparent that the husband’s counsel then understood (quite reasonably in my view) that the wife’s counsel had also invited the court to consider the exercise of the s79A discretion in the proceedings.
In oral submissions on 24 October 2018 the husband’s counsel dealt at length with the wife’s contentions about the husband’s delay in bringing the proceedings and the question of whether the husband had provided a reasonable explanation for that delay. It was clear that although the husband’s counsel questioned the applicability of the equitable doctrine of laches raised by the wife in these proceedings he equally understood that the wife raised this issue as relevant to “the discretionary ground”. On this basis I understood that the husband’s counsel was addressing submissions made by the wife’s counsel as to the impact of delay upon the exercise of the s 79A discretion.
In written submissions both parties relied on the Full Court decision Trustee of Bankruptcy of Hicks & Hicks & Anor (“Hicks”)[3]. In his oral submissions counsel for the wife began with Hicks which he contended reaffirmed that the court in a case such as the present is concerned potentially only with the first two steps of the four step process. It was submitted on behalf of the wife that if the husband’s contentions were accepted by the court then this would amount only to a finding that there had been a miscarriage of justice as a result of one of the circumstances set out in s79A.
[3] [2018] FamCAFC 37.
It suffices to say at this stage that it is the wife’s contention that the circumstances contemplated in s79A(1)(a) have not been established by the husband but that if the court does not agree and finds the circumstances proved as a matter of fact the court will not find a miscarriage of justice by reason of these circumstances. Central to this proposition is the wife’s contention that the husband’s delay in bringing the application has caused “unconscionable prejudice” to the wife. In other words it is the wife’s case that the issue of delay and other matters related to prejudice visited upon the wife if the orders were set aside are relevant to whether or not a miscarriage of justice has occurred.
In Hicks the Full Court was considering an appeal brought by a Trustee in Bankruptcy of the estate of a husband against a refusal to set aside consent orders made by the husband and his former wife. The consent orders in question were made a short time prior to judgment being entered against the husband in the Supreme Court of New South Wales for a considerable sum of money in circumstances where neither party disclosed in the Application for Consent Orders any liability to the successful plaintiff nor did they identify him as a person who may be entitled to become a party to the case. In the application to set aside the consent orders it was effectively conceded that a miscarriage of justice had occurred. Having found this to be the case the Judge at first instance then declined to exercise her discretion in favour of the Trustee in Bankruptcy and set aside the property settlement orders.
Two of the three judges who upheld the appeal (for different reasons) expressed the view that the appeal highlights the difficulties in bifurcating the s79A and s79 proceedings rather than determining both issues together as is generally the preferred option.
Murphy J in the majority said the following at [211] – [214] with respect to bifurcation of s79A proceedings:
I respectfully agree with Strickland J that the instant proceedings highlight the difficulties inherent in bifurcating s 79A proceedings. Earlier Full Court decisions in which the practice of bifurcating proceedings has been deprecated have already been referred to.
A separate issue in my view relates to what issues should form what part of the proceedings if it is contended for good reason that, contrary to the general practice, proceedings should be bifurcated.
The first of the preconditions for s 79A relief engage questions which are essentially factual: what ground or ground for relief is contended for and what facts are said to establish that ground. The second and third components of s 79A relief are discretionary: what facts are said to engage the exercise of the s 79A discretion to vary or set aside and, if that discretion is exercised to do either, what facts engage the discretions as to what order or orders, if any, should be made in their stead.
This case highlights how facts relevant to establishing miscarriage of justice in respect of “any other circumstance” can also be relevant in the exercise of the s 79A discretion. In other cases, the factual inquiry necessary to establish a ground and the miscarriage of justice caused by it can be delineated from facts relied upon as underpinning the exercise of the s 79A discretion. In those cases, the argument for bifurcation might be seen to be stronger. That is markedly less so where, as here, the same or similar factual contentions inform each. (emphasis added)
It is the wife’s submission as I understand it that these proceedings are of the type highlighted in bold in the last paragraph extracted from Hicks in which the facts necessary to establish a ground and the miscarriage of justice said to be caused by it can be delineated from facts relied upon in the exercise of the s79A discretion.
In my view the focus in the hearing as can be gleaned from the respective Outlines of Case, the manner in which the case was run and the final submissions are most consistent with this case falling within that category of cases. For this reason the only matter to be determined by me in this application are whether a factual ground in section 79A(1)(a) is proved and whether there has been a miscarriage of justice by reason of that circumstance. Accordingly, the factual matters to be resolved relate to a determination of these two matters.
As it is well settled law[4] that the miscarriage of justice refers to circumstances at the time the property settlement orders were made the only relevant facts relate to the events prior to and around August 1997. No findings are required in this application in relation to the events following the property settlement orders despite those matters having been the subject of considerable dispute and assuming great significance in written submissions particularly those made on behalf of the wife and in subsequent oral argument.
[4] See especially Waterman & Waterman [2017] FamCAFC 23.
The circumstances surrounding the property settlement orders
The central factual issue in dispute is whether the husband gave his consent for the property settlement orders to be made. The resolution of this dispute involves a number of other factual findings within it including whether and when the husband engaged lawyers to act on his behalf, whether those lawyers provided any legal advice, whether it is the husband’s signature on various versions of documents created in the proceedings and the husband’s understanding of the documents when they were signed.
By the time the proceedings were complete and submissions had been made on behalf of the parties the wife conceded through her counsel that the legal advice the husband received from Mr K and Mr H in relation to the Consent Orders in 1997 was so inadequate as to constitute an absence of legal advice. Although this concession did narrow the issues between the parties, factual findings in relation to the circumstances surrounding the application for the orders must be made as they remain central to the husband’s argument that there has been a miscarriage of justice.
Context
As noted when setting out the background to this application there is no dispute between the parties that when the husband was living in Country A separately from the wife from 1978 and prior to their divorce they continued to purchase and sell real estate together. The wife’s lawyer appears to have been first engaged to act for her during this time.
The husband was first introduced to Mr K, a lawyer in Sydney, in 1989 shortly after he came to live in Australia. Mr K assisted the husband in the purchase of a property in about 1991 or 1992 and also provided a character reference for the husband in connection with a license in 1991. The husband asserts that he had no further contact with Mr K from 1991 until about 2012 when he met once again with Mr K a few times at a restaurant.
The husband deposes that he approached the wife about finalising a property settlement in 1995 but says that she refused to discuss the matter with him.
Neither of the parties depose to engaging a lawyer to act on their behalf in relation to settlement of their property affairs.
The wife’s lawyer (who continued to act for her until the second day of the hearing when he became a witness) does not depose to the circumstances in which he was engaged in the property settlement proceedings. His records which form part of the exhibits in the proceedings indicate that the wife was incurring legal fees in relation to this matter as early as March 1992. Although most of the documents which formed part of the file were not produced in the proceedings and are said to no longer exist a Memorandum of Professional Costs which was prepared in 1997 gives some indication about work done on the file by the wife’s lawyer.
Under cross-examination the wife’s lawyer agreed that his firm was instructed in the matter some time in or before March 1992. The witness’s attention was drawn to one of the few documents in existence from this early period dated 5 November 1993 which he said indicated that an employed lawyer, a Ms M was working on the file. He indicated that Ms M worked on the file again sometime between 1995 to 1997 but she had since resigned and he no longer had contact with her. Under cross-examination the wife’s lawyer did not seem to find anything extraordinary in acting for a party in relation to consent orders over a five year period.
When asked about the progress of the matter the wife’s lawyer agreed that one of the few extant documents on the file indicates that as at March 1995 (three years after work began) somebody at Mr K’s office indicated that he or she had not yet received instructions from the husband.
The wife’s lawyer was very reluctant to concede that he rather than Ms M had been undertaking work on the file at least between July and December 1995. During that period it is apparent that the wife’s lawyer had sent a draft Application for Consent Orders on two occasions to Mr H who apparently had carriage of the matter for the husband at J Lawyers but had not received any response.
The documents filed in June 1997 upon which the property settlement orders were made
The wife’s lawyer agreed that an Application for Consent Orders was sent to his client in December 1996 even though there is no record of the wife having provided any instructions about the proposed orders or of any negotiations with the husband’s lawyers.
The wife’s affidavit and her lawyer’s Statement of Independent Legal Advice contained in the Application for Consent Orders were sworn and signed respectively on 4 December 1996.
The wife’s lawyer was taken under cross-examination to two letters of 10 March 1997 in very similar terms to J Lawyers enclosing a copy of an Application for Consent Orders [already completed by the wife] and seeking the husband’s agreement to the same. He agreed that there was nothing in the file to suggest that the husband had consented to the proposed orders at this stage.
The first attempted filing
The wife’s lawyer then agreed that he received a letter from J Lawyers dated 12 March 1997 which contained some “consent orders and transfers” purportedly executed by the husband which he then attempted to file with the court. The wife’s lawyer very reluctantly accepted under cross-examination that he had not noticed when he attempted to file the documents that the husband’s affidavit forming part of the Application sent by J Lawyers had not in fact been executed and the court for this reason rejected it.
The wife’s lawyer agreed that he then returned the documents to J Lawyers a second time under cover of letter of 10 June 1997 and asked that the husband swear his affidavit and Mr H execute the Statement of Independent Legal Advice, which had also not been completed on the first occasion.
The wife’s lawyer agreed that he personally engaged in the proceedings at this stage as he was aware that there was an impending change of the Rules as at 30 June 1997 and he was eager to complete the matter prior to this change.
The husband’s affidavit and Mr H’s Statement of Independent Legal Advice contained within the Application for Consent Orders purport to have been affirmed and executed respectively on 16 June 1997.
The husband deposes that he did not engage Mr H to act on his behalf and has never met Mr H. Under cross-examination the husband did not remain quite as firm concerning this matter and said that he could not recall meeting Mr H and did not believe that he had done so. He said that he could not recall signing any legal papers in the presence of Mr H in 1997. He does not deny in his affidavit that his signature appears on the affidavit purported to have been affirmed on 16 June 1997.
Mr H is recorded as the lawyer for the husband (the Respondent in the property settlement proceedings) on the documents filed with the court. Mr H deposes to becoming the principal together with another lawyer of J Lawyers in late 1995 and to Mr K who had been the previous principal continuing to act as a consultant to the firm between late 1995 to 1997. Mr H deposes to meeting the husband in mid-1997 in relation to the family law property proceedings.
Under cross-examination Mr H could recall very little about the matter. He said he knew that Mr K had acted for the husband in 1993 but was not sure whether that was in relation to the property settlement. When shown various letters written to his firm in 1995 the witness said he had no idea that there were any communications taking place between the wife’s lawyers and J Lawyers about the property settlement proceedings.
When shown a facsimile cover sheet directed to his attention from the wife’s lawyer dated 5 December 1995 indicating that draft Consent Orders were enclosed Mr H said he had no recollection of it and said even though it was addressed to him it could have gone to Mr K who he said he thought was handling it.
Under cross-examination Mr H said that he thought the wife’s lawyer had sent the Application for Consent Orders to him but seemed to have no other memory of dealing with the wife’s lawyer. When shown the correspondence from the wife’s lawyer on 10 June 1997 returning the Application for Consent Orders on the first occasion Mr H agreed that it appeared the affidavit of the husband and Statement of Independent Legal Advice had not been completed and the documents were returned to him for this to occur.
According to his affidavit Mr H met with the husband at J Lawyers office for the purposes of signing “the original consent orders” on or about 16 June 1997. He deposes that he has no specific independent recollection of what was said by he or the husband on that day but that it was his invariable practice before witnessing a client’s signature to satisfy himself that the client knew and understood the contents of the document and its legal effect.
Under cross-examination Mr H could say nothing more about the circumstances of meeting the husband other than that it occurred in mid-1997 and that he met with him on one occasion. It also became clear that he did not speak Language N even though his affidavit suggests he had some understanding of that language. Although Mr H continued to maintain that he definitely saw the husband’s affidavit he was not so sure about other documents stating only that “there would have been some Consent Orders or Terms of Settlement floating around somewhere.”
When taken to both the original and amended Consent Orders Applications filed with the court on 30 June 1997, Mr H agreed that his signature does not appear on any of the pages of the Applications other than the final page which contains only the affidavit of the husband and his Statement of Independent Legal Advice. He agreed that all of the earlier pages bear three or four other signatures. He also agreed that both the original and amended versions of the Terms of Settlement filed in connection with the Application do not bear his signature.
The husband’s affidavit was purportedly affirmed before Mr H and Mr H completed the Statement of Independent Legal Advice. Although each of the documents refer to the “proposed orders” Mr H agreed that he had not signed the attached proposed orders.
Mr H agreed that he did not give any advice to the husband as to the prudence or otherwise of entering into the property settlement as he saw no reason for it. In this regard he said that he was not retained to act for the husband and advise him on the property settlement and could not provide advice on the merits of the settlement as he had no financial information provided to him.
With great reluctance the witness ultimately agreed that it was part of his role to advise the husband on the merits of the property settlement. He said that he allowed the husband to sign the document without giving him any advice “because they had already settled it”. After great obfuscation and qualification Mr H ultimately agreed that his actions on this day amounted to a gross departure from proper professional practice.
The second attempted filing
The wife’s lawyer then attempted to file the Application for Consent Orders with the court for a second time and once again they were rejected by the court. On this occasion they were rejected as the husband had not signed the “proposed orders” attached to the Application. Mr H and the wife’s lawyer both agreed that the documents were then returned to J Lawyers again on 26 June 1997 (for a third time).
When returning the documents to J Lawyers on 26 June 1997 the wife’s lawyer wrote that he had “taken the opportunity of re-engrossing the orders and preparing Terms of Settlement” and requested that the husband sign all the documents. The wife’s lawyer also reminded the husband’s lawyer of the impending Rule change and the need to have the documents signed “on Friday” (the following day was Friday 27 June) and returned to him for signing by the wife “on Monday” (30 June) and lodging at the court on the same day.
The Terms of Settlement annexed to the orders made by Deputy Registrar bear the signature of Mr K though the circumstances in which he signed them are a matter of dispute. In his affidavit Mr K deposes that his only role in relation to the property settlement orders was to witness the signing of “consent orders”. Mr K deposes to the husband contacting him “in 1997” asking him to “witness a document” and that he made arrangements for the husband to come and see him which he did on one occasion only. Mr K communicated at all times with the husband in language N.
The signature identified by Mr K as his appears on all pages of the Terms of Settlement filed with the original Consent Orders Application that was lodged with the court on 30 June 1997. His signature thus must have been affixed to this document between 26 and 30 June 1997. Mr K’s signature does not appear on any page of the Application for Consent Orders (including the pages containing the orders sought).
Mr K deposes that when he witnessed the husband’s signature he asked the husband in language N if he understood the document and says that the husband replied that he did. He deposes that he did not read the orders to the husband “verbatim” but explained each paragraph in Language N. The witness also deposes to witnessing the husband’s signature on the three Transfers relating to the three properties that were to be transferred from the parties’ joint names into the wife’s sole name under the property settlement orders.
Mr K deposes to having no memory of acting for the husband on a previous conveyance or providing the husband with a character reference in 1991. Under cross-examination he accepted that he had acted for the husband on his conveyance and when shown a character reference concerning the husband dated 30 October 1991 agreed that he had signed it. He also conceded that some statements in the reference were inaccurate but he had written it in order to help the husband.
According to his affidavit Mr K had been the principal lawyer of J Lawyers until 1995 when he sold his interest in the business to Mr H. Mr K had no recollection of being in communication with the wife’s lawyer about the property settlement for some years prior to being approached by the husband in 1997. Under cross-examination Mr K said that he was not aware of either he or his firm charging the husband for any services in relation to the property settlement orders.
When shown a file copy of a letter from the wife’s lawyer to him in 1993 Mr K agreed that it appeared that his firm was purporting to act in relation to the matter as far back as 1993 but maintained he had no recollection of his firm being involved. He was also shown further letters from the wife’s lawyer in relation to the matter in March 1995 and July 1995 but had no recollection of acting for the husband. He said that someone else may have done so. When shown an internal file note from the wife’s lawyers firm dated 7 August 1995 to the effect that he had taken over the file from a previous lawyer Mr K agreed that he (Mr K) was working three days per week at that stage but had no recollection of working on the matter or having any dealings with the wife’s lawyer’s firm.
When the witness was shown the Memorandum of Costs relating to the professional work that had been undertaken by the wife’s lawyer he agreed that there were many entries relating to communications in connection with the matter between his firm and the wife’s lawyer. He firmly maintained however that he had no idea what these communications related to and no idea that his firm was acting or purporting to act for the husband in connection with his property settlement.
Under cross-examination Mr K conceded that he did not give the husband any advice as to the prudence or otherwise of signing the property settlement documents even though he understood the effect of the Terms of Settlement was that the husband would lose his interest in three jointly owned properties. In the course of giving this evidence, Mr K appeared to dismiss the significance of his failure to give the husband any advice, saying that “the Terms of Settlement are to be approved by the Court anyway” and that “[the husband] would have been advised by his solicitor who settled the Terms of Settlement with him even though there appears to have been no one undertaking this role. With great reluctance Mr K ultimately conceded that it was part of his role to advise the husband on the prudence of entering into the transaction and as he did not do so he failed in his duty to the husband.
Under cross-examination Mr K remained firm that the only met with the husband once in the property settlement matter for the purposes of witnessing the husband’s signature, but not giving him advice. Although Mr K also maintained that he had explained the documents to the husband at the time they were signed, when pressed under cross-examination he conceded that he could not recall exactly what happened. After much evasion he finally conceded that he had no recollection of the husband coming to his office and signing the documents.
According to his affidavit the husband does not recall seeking any legal assistance from Mr K. He deposes that on the previous occasions when Mr K acted for him the services were paid for, but Mr K did not charge him in relation to the property settlement.
The husband also deposes that after he became aware in September 2015 of Mr K’s signature on documents associated with the property settlement orders he spoke to Mr K about the matter. He says that Mr K told him that he signed the documents on the basis that he “knew” the husband. Under cross-examination the husband was not challenged about his recollection of this conversation.
The husband remained firm under cross-examination that he had not retained Mr K in the proceedings and did not see him at all in the years between 1992 to 2011.
The role of the wife’s lawyer
As previously noted some other documents which form part of both the original and amended Consent Orders Application are not signed by either Mr H or Mr K but appear to bear the signature of the husband. Although it was initially the husband’s case that he had not signed these documents he did not ultimately deny that the relevant signatures are his.
The husband does provide evidence about signing some documents which he believed were connected to the distribution of the parties’ joint property. He deposes in this regard that at some time in 1997 the wife called him and asked him to drive her to her lawyer’s office. He says that when they arrived the wife’s lawyer was the only other person present. The wife told the husband in language N that he “must” sign some papers that would give him the Suburb D property and have her keep the F Region properties.
The husband deposes that the papers he signed were in English and that there was no translator present. He says that the wife’s lawyer handed the wife each document which was then passed to him for signing. He believed the documents to be Transfers for these properties. He did not receive legal advice about the documents or have the documents translated and he did not retain a copy.
Under cross-examination the husband remained firm that he did sign legal papers at the office of the wife’s lawyer in 1997 and that the wife did promise him that he would have the Suburb D property and he would receive rent from the F Region properties which would be transferred to her.
In her affidavit the wife denies that in 1997 or at any other time she and the husband met with her lawyer.
Under cross-examination the wife conceded that she could not remember anything about her property settlement or the circumstances in which any of the documents relating to it were signed. When pressed she specifically had no memory of whether the husband met her at her lawyer’s office. Later she said she believed that one of the transfers she signed was “giving him (the husband) something.”
The wife’s lawyer denies that he witnessed the husband’s signature on any draft or final “Terms of Settlement” for property settlement orders prepared or filed in the proceedings.
The third filing
The court file indicates that the original Application for Consent Orders was successfully filed on 30 June 1997. When considered by a Deputy Registrar on 10 July 1997 the orders were not made as sought because there was no order consenting to leave being granted to commence proceedings out of time. The cover page of the original Application for Consent Orders bears the signatures of the husband and the wife and two signatures that appear to be those of the wife’s lawyer. The other pages of that document are signed by the husband and the wife. One signature of the wife’s lawyer appears next to or below the wife’s signature on some pages of this document.
The fourth filing
The Deputy Registrar wrote to the wife’s lawyer on 24 July 1997 requesting that he amend the proposed orders to include consent that leave be granted under s44(3) so long as the husband did consent to such an order.
In the course of his complicated oral evidence marked by evasion, denial and obfuscation the wife’s lawyer was asked about the additional documents that were required to be prepared after the court declined to make the orders. The wife’s lawyer at one stage agreed that he then prepared another form of proposed orders containing the additional order. He later changed his position and said that following that requisition he did not prepare further documents but returned the same documents for the husband to sign.
After extensive cross-examination about inconsistent features on different pages of the documents finally filed the wife’s lawyer ultimately conceded that the amended Consent Orders Application and the Terms of Settlement upon which the property settlement orders were made consisted of pages prepared and signed at different times. He then assembled pages signed at different times to make up a final version for filing.
Discussion and findings
In making findings about factual matters relating to the circumstances surrounding the property settlement orders I attach no weight to the evidence of Mr H or Mr K where a particular finding depends upon the evidence of either of those witnesses alone. Each of these witnesses after great reluctance made significant concessions that completely undermined their respective affidavit evidence and did so only when faced with apparently reliable contradictory evidence. Neither witness had any real recollection of the relevant events and both appeared to have reconstructed their version of events. Both witnesses also conceded that they had failed to a significant degree in their respective duties towards the husband as solicitors which must in my view ground an adverse credit finding against each of them.
The wife’s lawyer similarly demonstrated that he had a poor memory of all relevant events and was disorganised, vague and particularly evasive when giving evidence. For these reasons I attach little weight to his account, where it is not corroborated by other evidence.
I do not make any general credit findings concerning the parties but observe that each them had poor recollection and appeared generally vague when giving oral evidence which is likely a function of their advanced age.
In general the findings I do make are based upon concessions made by the witnesses or are consistent with undisputed facts or the limited additional supporting evidence available such as the extant records of the wife’s lawyer and the original documents filed with the court in the property settlement proceedings.
I am satisfied that at some time around early 1992 Mr K who had known the husband through previously acting for him, represented to the wife’s lawyer that he had been engaged by the husband in relation to property settlement orders. In this regard I reject Mr K’s quite incredible evidence that he had no knowledge of someone at his firm purportedly acting for the husband over a five year period. The only inference available from the documents remaining on the relevant files is that Mr K and later Mr H did claim when dealing with the wife’s lawyer to represent the husband.
I am further satisfied that the husband did not at any time engage Mr K or any other lawyer at J Lawyers to act on his behalf in the property settlement proceedings. The husband, Mr K and Mr H are all consistent in their evidence in that regard. Both lawyers on their own evidence were at the highest involved only as witnesses to the husband’s signature and both specifically disavow providing legal advice to him.
I find that the Application for Consent Orders prepared by the wife’s lawyer and sent to J Lawyers on 10 March 1997 was returned to the wife’s lawyer without having been completed by the husband. In particular, I am satisfied that the husband had not affirmed his affidavit as Respondent on the final page nor had his lawyer signed the Statement of Independent Legal Advice on the same page.
I find it more likely than not that the husband did affix his signature to the affidavit contained on the last page of the Application for Consent Orders on 16 June 1997 and that Mr H affixed his signature to this affidavit as ‘witness’ on this date. The affidavit bears this date and the correspondence to J Lawyers is consistent with that having occurred at that time. The husband also conceded in oral evidence that he did not recall “signing” the document and having it “witnessed” by Mr H but did not maintain his original denial that this had occurred.
On the basis of Mr H’s concessions I find that the husband did not receive any legal advice on his rights under the Family Law Act 1975 (Cth) as he affirms in his affidavit and that Mr H’s statement to the effect that he had provided advice as to the meaning and effect of the proposed orders was false. Mr H’s conduct also amounted to a gross departure from proper professional practice.
Finally, I can make no definitive finding in relation to the husband’s capacity to read the English language but there is no dispute that his affidavit, a legal document was not translated into his first language, Language N.
For the foregoing reasons I am satisfied that the husband did not understand the purpose and effect of the affidavit contained within the Application for consent orders signed on 16 June 1997.
I am further satisfied that the Application for Consent Orders was returned to J Lawyers without the signature of the husband on the “Orders Sought” that formed part of the Application or on the Terms of Settlement. In this regard I attach weight to the fact that the signature of the “witness”, Mr H, does not appear on either of these documents. Further when the wife’s lawyer attempted a second time on a date after 16 June 1997 to file the documents with the court they were rejected as the “Orders Sought” and Terms of Settlement had not been signed by the husband.
I am also satisfied that when the documents were returned on 26 June 1997 to J Lawyers for a third time, there was some urgency in having them completed and the wife’s lawyer requested they be signed and returned on the following day, a Friday, so that he could file them with the court on the following Monday, being the last day before the change in Rules.
I find that Mr K signed the Terms of Settlement attached to the original Consent Orders Application at around this time.
Although I also consider it more likely than not that the husband executed the Terms of Settlement, I am satisfied that Mr K did not give any advice to the husband at any time about the legal effect of that document. The husband was not challenged about his evidence that Mr K told him in September 2015 that he had signed the document on the basis that he “knew” the husband. Further, Mr K was adamant that had not been engaged by the husband to act for him in the property settlement and conceded that he did not give the husband any advice as to the prudence of signing the documents even though he [Mr K] understood its legal effect. Mr K ultimately conceded that it was part of his role to advise the husband on the prudence of entering into the transaction and he had failed in his duty to the husband in not doing so. I reject Mr K’s evidence that he explained each of the paragraphs of the Terms of Settlement to the husband in language N as that evidence is not supported by any other evidence.
I am also satisfied that the husband received no legal advice concerning the “Orders Sought” that formed part of the original and amended Application for Consent Orders. The only signatures that appear on that document are those of the husband, the wife and wife’s lawyer. The wife’s lawyer was not engaged to act on behalf of the husband, and there is no evidence upon which I could find that the husband received any legal advice in relation to that document which also is in English and was not translated to him.
Having regard to the foregoing I find that the husband did not understand the legal effect of the original Application for Consent Orders or the Terms of Settlement filed with the court on 30 June 1997.
I also find that the husband did not understand the purpose and effect of the amended Terms of Settlement filed with the amended Application for Consent Orders which is the document upon which the property settlement orders were made. The wife’s lawyer conceded that the amended Terms of Settlement document was compiled from at least two documents signed at different times. Of significance, the first page of the Terms of Settlement does not bear the signature of Mr K as witness to the husband’s signature. There is no evidence that any lawyer claims to have played a role in advising the husband, witnessing his signature or otherwise, in relation to this version of the Terms of Settlement. This page of significance includes an order indicating that the husband consented to leave being granted to the wife to file the application out of time. The Deputy Registrar specifically directed the wife’s lawyer to file amended consent orders including this order “if, of course there is the consent of the [husband]”.
In relation to the application and proposed orders overall, I cannot be satisfied that the husband ever agreed to the settlement of his property interests with the wife in the terms contained in the amended Application for Consent Orders for the following reasons. There is no evidence of any lawyer seeking or obtaining the husband’s instructions or of any negotiations between the lawyers about the content of the Consent Orders. Neither party deposes to an agreement being reached or instructing a lawyer to prepare an application reflecting that agreement. The Application for Consent Orders was signed by the wife in December 1996 when her lawyers had not received any instructions from J Lawyers indicating that the husband had consented to the proposed orders even though this firm purported to have acted for the husband for almost five years at this stage. Both Mr K and Mr H were adamant that they each did nothing in relation to the property settlement other than witness the husband’s signature on documents.
I cannot make any positive finding about the circumstances in which the wife’s lawyer prepared the documents upon which the property settlement orders were made. The wife had no recollection about the matter at all. Although it is possible that a former business associate of the parties who introduced the wife to her lawyer played a part in giving instructions on behalf of the wife, that person is deceased. Further light might also have been shed on the matter by the parties’ older daughter who also appears to have had involvement in providing information to the wife’s lawyer but she was not called as a witness in the proceedings.
Effect of the property settlement orders
As noted previously the evidence concerning the parties’ ownership of property prior to the property settlement orders is far from clear.
It appears to be common ground only that immediately prior to the property settlement orders the wife owned at least two properties registered in her sole name, the husband owned at least one property jointly with his wife (or it was registered in his wife’s sole name) and the parties together owned two properties in the F Region and the Suburb D property.
Significant matters in dispute about the property of the parties immediately prior to the property settlement orders include a $100,000 partial property payment to the husband and a license which was retained by the wife.
It is contended by the wife that she had previously paid the husband $100,000 at an unspecified time which she deposes was “by way of partial property settlement”. She provides no other details concerning this matter in her affidavit.
Under cross-examination it became apparent that the wife had very little memory of any of the circumstances surrounding the property settlement proceedings. At one stage she asserted that she gave the husband a cheque (for the $100,000) and said that the record of this payment was in a bank statement which she had given to her solicitors. When that document was called for it was not produced. Later in her oral evidence the wife said that she paid the husband $100,000 when he needed this sum for the purchase of a licence.
It is the husband’s evidence that the wife did not make a payment to him of $100,000 by way of partial property settlement. He deposes that in 1991 (six years prior to the orders) he purchased a business license for $170,000, of which he paid $70,000 with his own money and was loaned $100,000 through a broker. Due to the high rate of interest charged by the broker the husband deposes that the wife gave him a sum of $100,000 to repay the broker. Two weeks later he says she demanded that he repay the $100,000, which he says he did by selling the license for $190,000. The husband produced no documents that support this evidence.
There is insufficient evidence in my view to make a positive finding that the wife paid the husband $100,000 by way of partial property settlement. I also cannot be satisfied that the husband agreed at any time that the wife had paid $100,000 to him as is “acknowledged” in the Terms of Settlement. There is no clear evidence as to how this “acknowledgment” came to form part of the consent orders. It is possible that the suggestion contained in the husband’s written submission is correct (that this “acknowledgement” was included as “window dressing intended to provide some justification for the consent orders”) but there is insufficient evidence to make a positive finding as to this matter.
I also note that pursuant to the property settlement orders the wife is said to retain a licence which is described as “issued and vesting solely in the name of the wife.” There is no reference to this item in the wife’s affidavit in these proceedings. Under cross-examination the wife said she owned a license which she bought from the husband but it appears that she contended this occurred many years prior to the property settlement and no further evidence in relation to the matter was given.
For the foregoing reasons I can only be satisfied to the requisite standard that the effect of the property settlement orders was that the husband transferred to the wife all of the known jointly owned property of the parties and that the wife retained two properties registered in her sole name.
I cannot make any positive findings as sought by the husband as to the respective entitlement of the parties at the time the property settlement orders were made or whether those orders when made were just and equitable.
The Law & Discussion
As set out earlier when discussing the ambit of the hearing there are two steps to be considered at this stage in the proceedings being:
·Whether the Applicant has established fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance;
·Whether there has been a miscarriage of justice by reason of this circumstance.
The circumstances under consideration
For the reasons given when considering the matters in dispute I am satisfied as to the following:
·The husband did not give his consent to the property settlement orders made on 6 August 1997 pursuant to the amended Application for Consent Orders filed on 30 June 1997.
·The amended Application for Consent Orders upon which the property settlement orders were made was a compilation of various pages from previous iterations of the Application prepared and signed on different occasions, each of which had some irregular features.
·The husband did not understand the legal effect of any document he signed in connection with the property settlement orders.
·Each of the documents signed by the husband in connection with the property settlement order were written in the English language and were not translated into the husband’s first language, Language N.
·Neither of the lawyers from the firm that purported to act for the husband gave him advice as to the nature or effect of the consent orders and both accepted that they failed in their duty towards him.
·Neither lawyer said to have been engaged by the husband with respect to the orders provided any other legal advice to him. The Statement of Legal Advice completed by Mr H was false and of no effect as he did not provide any advice to the husband.
·The husband did not agree to the arrangement brought about by the property settlement orders and did not provide instructions to any person to prepare or agree to orders in these terms on his behalf.
·The property settlement orders came about after five years of interaction between lawyers from J Lawyers and the wife’s lawyer. However, no lawyer from J Lawyers carried out any work in relation to the property settlement for the husband such as taking instructions or taking part in any negotiations with the wife’s lawyer.
Do these circumstances give rise to a miscarriage of justice?
It is well settled that when considering whether a miscarriage of justice has occurred the relevant circumstance relates to the time the orders were made. The Full Court in Molier & Vanwyck[5] set out the principle:
… s79A is intended to apply only to circumstances occurring before or at the time of the making of the order
[5] (1980) FLC 90-911 at 6.
The Full Court in Waterman & Waterman[6] (“Waterman”) reaffirmed this principle at [9] when it was said:
It is well settled that this expression refers to circumstances at the time the relevant orders are made and that the expression is not to be read ejusdem generis with the words that precede it in s 79A(1) but, rather, receive their “wide natural meaning”.[7]
[6] [2017] FamCAFC 23.
[7] See, for example, Holland & Holland (1982) FLC 91-243; Liu & Liu (1984) FLC 92-211, per Nygh J.
The words “any other circumstance” found in s79A(1) are not to be construed narrowly or limited to the sub-clauses that precede them but that they ought to relate to a miscarriage of justice.[8] In Badawi & Badawi[9] the Full Court said at [6]:
“Justice” in this context means justice according to the law and the subsection is particularly directed to the integrity of the judicial process…
[8] Badawi & Badawi (2017) FLC 93-784 at 6 and Waterman & Waterman [2017] FamCAFC 23 at 9.
[9] (2017) FLC 93-784.
Resolution of disputes by negotiation and the subsequent making of consent orders is an essential part of the Act and the Rules. As the Full Court emphasised in Waterman at [38]:
Again, although frequently quoted, it seems to me that what the Full Court said in Suiker and Suiker bears repeating in light of the arguments in this case:
Under the Family Law Act 1975, the need for a resolution of disputes by negotiation and the consequent making of consent orders … is an essential part of the legislation and the rules…
It is fundamental to the process that the consent embodied in the consent order to which the court gives it imprimatur is free and informed consent. The Full Court in Waterman said at [37]
Rather, full and frank disclosure is required in the context of orders made by consent because it is essential to the consent of the parties being a free and informed consent.
The notion of informed consent includes full financial disclosure and in the context of the duty of disclosure the courts have noted the duty is one owed not only to the other party but also to the court.[10]
[10] Waterman & Waterman [2017] FamCAFC 23 at 32.
As the Full Court said in Waterman at [39]:
The consent to the order is itself part of the judicial process on which the court places reliance. If that consent is based on misleading or inadequate information, then there may be, in our opinion a miscarriage of justice either by reason of “suppression of evidence” or “by reason of any other circumstance”.
The property settlement orders under consideration were made on the basis that the parties consented to them. The Deputy Registrar in these circumstances made property settlement orders based entirely on the information contained in the application. In particular no financial information was given in the application as a Statement of Independent Legal Advice was included for each party. Each party also completed an affidavit deposing to matters such as that the orders were agreed upon by all parties and that the party had received independent legal advice on his or her rights under the Family Law Act and the effect and consequences of the orders being made in the terms proposed. In their respective affidavits the parties also indicated that they had read and considered ss 79 and 75(2) of the Act and matters set out there. The Statement of Independent Legal Advice included that the lawyer had given the relevant party independent legal advice as to the meaning and effect of the proposed orders and had signed each page of the proposed orders.
In making the consent orders the Deputy Registrar relied almost entirely on the respective lawyers having acted properly. It must have been understood by the Deputy Registrar that the husband had full knowledge of his circumstances including his entitlements. For the reasons given I am satisfied that this was not the case.
In this case the lawyer who signed the Statement of Independent Legal Advice had not in fact given that advice. The husband did nothing more than sign his affidavit. He could not have affirmed that the contents were true as he had not been given legal advice and did not agree to the proposed orders. These are both matters which go to the heart of the consent orders process and their absence is essential to the integrity of the judicial process.
Although the Full Court has expressed a view that professional neglect or incompetence is not of itself sufficient to enliven the subsection [11] it may be sufficient when the representation was so bad as to be the equivalent to no representation at all. This was recently confirmed in Badawi & Badawi[12].
[11] In the Marriage of Clifton v Stuart (1991) FLC 92194 at 78, 335
[12] (2017) FLC 93-784 at 61
The forgoing circumstances are marked by an absence of legal advice and the husband’s lack of informed consent. They are sufficient in my view to give rise to a miscarriage of justice when considering that the orders were made purportedly with the consent of the husband after he received proper legal advice about his entitlement and the effect of the orders.
The other circumstance relied upon by the husband which is said to ground the miscarriage of justice is the terms of the consent orders themselves. It is contended on his behalf in summary that the wife received 85.3% of the “matrimonial pool” if he did not receive the disputed payment of $100,000 or 75.6% of that pool if he did receive such a payment. Added to this, the husband contends that the Suburb G property which he retained should not ever have been included in the orders as it was acquired long after the divorce with money provided entirely by his wife and his wife either solely or jointly owned it. On this basis the husband contends the wife received 100% of the matrimonial pool which on any analysis is “so far out the ambit of what is just and equitable”[13] that it amounts to a miscarriage of justice.
[13] Holland & Holland (1982) FLC 91-243
As I have already found that there has been a miscarriage of justice by reason the circumstances surrounding the making of the property settlement orders it is not necessary to consider the alternative basis for a finding of miscarriage of justice.
As previously observed much of the written submissions and oral argument made by counsel for the wife centred on matters that occurred after the property settlement orders were made. The wife’s counsel contended that these matters were relevant to the question of whether there had been a miscarriage of justice. The matters said to be relevant include the husband’s delay in bringing these proceedings, the unreasonableness of the explanation for that delay, the greater injustice that may be caused to the wife if the orders were made as sought by the husband and the inability of the court to make any findings about whether the property settlement orders at the time they were made were just and equitable.
All matters related to delay after the orders were made are not relevant to a finding of whether there was a miscarriage of justice at the time the orders were made. The balance of the matters are also, in my view, not relevant to the question of a miscarriage of justice having regard to the time at which such miscarriage must be considered.
Each of the matters raised by the wife in relation to the miscarriage of justice appear to be relevant to the exercise of discretion under section 79A and at one stage in the proceedings both myself and counsel for the husband thought they were being put forward on this basis. However, as previously discussed at length the wife’s counsel relied on them in relation to the question of a miscarriage of justice only and reiterated that this court should not be concerned with the exercise of that discretion at this stage. As also explained previously, the hearing proceeded on this basis.
For the foregoing reasons, I am satisfied that the husband has proved a circumstance associated with the making of the property settlement orders and that by reason of this circumstance there has been a miscarriage of justice.
I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 19 March 2019.
Associate:
Date: 19 March 2019
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