Naidu & Seth
[2021] FedCFamC2F 229
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 2
Naidu & Seth [2021] FedCFamC2F 229
File number(s): PAC 1632 of 2018 Judgment of: JUDGE OBRADOVIC Date of judgment: 25 October 2021 Catchwords: FAMILY LAW – Property – Setting aside property orders – consent orders – relevant legal principles. Legislation: Family Law Act 1975 (Cth) ss. 79, 79A Cases cited: Arpas & Arpas [1989] FamCA 37
Briese & Briese [1985] FamCA 23
Florie and Florie [1988] FamCA 26
Gilbert & Estate of Gilbert (deceased) [1989] FamCA 95
Gebert & Gebert [1990] FamCA 105
Holland & Holland [1982] FamCA 31
In the Marriage of Spratley(No.2) (1978) FLC 90-414
Jones v Dunkel [1959] HCA 8
Livesey v Jenkins [1985] 1 All ER 106
Molier & Van Wyk [1989] FamCA 85
Mullane v Mullan [1983] HCA 4
Official Trustee in Bankruptcy & Donovan & Donovan [1996] FamCA 58
Oriolo v Oriolo [1985] FamCA 54
Parker & Parker [1983] FamCA 54
Patching & Patching [1995] FamCA 46
Prowse & Prowse [1994] FamCA 91
Waterman & Waterman [2017] FamCAFC 23Division: Division 2 Family Law Date of hearing: 30 November 2020 & 1 June 2021 Place: Parramatta Number of paragraphs: 76 Appearing for the Applicant: Mr Mishra Solicitor for the Applicant: Reline Legal Counsel for the Respondent: Mr De Brennan Solicitor for the Respondent: Juris Australia Lawyers ORDERS
PAC 1632 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NAIDU
Applicant
AND: MS SETH
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
25 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Amended Initiating Application filed 5 June 2020 is dismissed.
THE COURT NOTES THAT:
A.The Respondent’s cost of the first day of hearing were reserved.
B.The parties may apply pursuant to Rule 12.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for an order for costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Naidu & Seth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
This is an application made pursuant to s.79A of the Family Law Act 1975 (Cth) (“the Act”). The applicant, Mr Naidu, moves the Court under s.79A(1)(a) of the Act for an order setting aside the s.79 property orders made by the then named Federal Circuit Court of Australia, by consent, on 25 September 2018 (“the 2018 orders”). Aside from setting aside the 2018 orders, the applicant does not seek any other final relief.
In summary the applicant alleges that there has been a miscarriage of justice on the basis that:
(a)He agreed to the 2018 orders in the absence of informed consent and legal advice, and
(b)There has been a failure, by the respondent wife, to disclose relevant information.
Background
The parties were married in India in 2007. At the time the applicant was a permanent resident of Australia. The respondent migrated to Australia in 2007.
At the time of the parties’ marriage, the applicant was the owner of a unit at B Street, Suburb C (“B Street, Suburb C property”), which was encumbered by a mortgage. The parties lived in the B Street, Suburb C property for a time, after which they moved into a rental property and the B Street, Suburb C property was tenanted.
In or about 2008, the respondent purchased a business with two partners, who were bought out in or about 2010, after which time the respondent became a sole director and shareholder of the business. The business operated through the company D Pty Ltd. The applicant tells the Court that the business was purchased for $75,000 and that an additional $30,000 was spent on fixtures and fittings. He says “we each contributed equally”. It is unclear whether this is a reference to the parties, or to the respondent and her two partners. The applicant further deposes that the parties purchased the remainder of the business for $70,000 in 2010. The applicant tells the Court that the “business was doing great and the Respondent ex-wife was receiving approximately $1,000 per month as drawings”.
The B Street, Suburb C property was sold in 2010 and the net proceeds of sale of $112,500 or part thereof were utilised to purchase the applicant’s share in a restaurant in Suburb E, called the F Restaurant. In 2013, the applicant and respondent bought the remaining 50 percent of the restaurant business, according to the applicant for $100,000. In or about April 2018, the business operating the restaurant went into voluntary liquidation.
In 2012, the applicant purchased a Motor Vehicle 1 for $65,000 which was under finance. In 2013, the applicant purchased a Motor Vehicle 2 for the respondent for $70,000, which was also under finance for $60,000.
In or about December 2015, the parties jointly purchased land at G Street, Suburb H and built their home (“G Street, Suburb H”). That property was encumbered by a mortgage, which the applicant says at the time of the consent orders was approximately $650,000.
In or about November 2017, the respondent instructed Mr Khan from Juris Australia Lawyers, to act on her behalf in respect of financial and parenting matters.
In or about July 2018, the parties participated in a settlement conference at the respondent’s solicitor’s office. The applicant attended with a solicitor, Mr Kash Syed, from ZRA Lawyers. The property dispute between the parties was not resolved.
Prior to the settlement conference, Mr Syed, corresponded on behalf of the applicant with the respondent’s solicitors proposing an offer of settlement. The offer was made on 5 March 2018, in response to an offer made on behalf of the respondent by her solicitors of 27 February 2018. The email of 27 February 2018, containing the offer from the respondent to the applicant was addressed to Mr Syed.
The parties were divorced on 29 July 2018. The applicant filed the divorce application in April 2018. In granting the divorce, the Court has found that the date of separation was 15 March 2014.
On 21 August 2018, the respondent commenced proceedings by way of an Initiating Application, moving the Court for both parenting and property adjustment orders. At the time of filing the Initiating Application, the respondent also filed an Affidavit and a Financial Statement, as required by the relevant rules of Court. The respondent was represented by Juris Australia Lawyers at the time of the filing of the application and has to date remained represented by the same lawyers.
By letter dated 28 August 2018, the sealed Initiating Application together with supporting documents was served on the applicant. It was posted to Mr Syed of ZRA Lawyers. The applicant said in cross-examination that Mr Syed did not provide him with the documents. The Court does not accept his evidence about this.
The first return date of the Initiating Application before the Court was 26 September 2018.
On 25 September 2018, at 11.29 am, the respondent’s solicitors wrote an email to Mr Syed as follows:
Dear Colleagues,
We refer to the above matter which is listed for directions hearing tomorrow.
We attach herewith the duly signed Consent Orders for your attention and records.
We will be forwarding the said orders to the Associate to Judge Obradovic. In this regard we are seeking to vacate the matter tomorrow.
Please advise, urgently, that you consent to vacating the matter.
Regards…
On 25 September 2018, at 11.33am, Mr Syed wrote an email to the applicant’s solicitors as follows:
Dear…
We are agreeable to vacate the matter tomorrow.
Please copy us into the email which you will send to the associate to Judge Obradovic.
Kind regards…
On 25 September 2018, the Court made final parenting and property orders, referred to earlier in these Reasons as “the 2018 orders”.
The document which was sent to the Court via email on 25 September 2018, by the applicant’s solicitors (with Mr Syed copied into the correspondence) signed by the parties included in the header the following words “Date: 26 September 2018” and “The Court Oordersby (sic) consent pendingfurther (sic) order that:”. It was conceded on behalf of the applicant that he signed the proposed orders and that the 2018 orders are final orders.
The 2018 orders provide inter alia that:
(a)The parties sell the former matrimonial property and distribute the net proceeds 50/50 between the parties.
(b)The applicant pay the wife $1,000.00 per month until the former matrimonial property is sold.
(c)Ownership of the business registered as D Pty Ltd remain in the respondent’s name and the applicant not make any claims whatsoever to the business.
(d)The applicant pay the respondent $70,000.00 for the settlement of joint liabilities including credit cards and business loans.
(e)The respondent retain ownership of a Motor Vehicle 2.
(f)The applicant settle the outstanding loan amount owing on the Motor Vehicle 2.
(g)The applicant retain ownership of the Motor Vehicle 1.
Since the making of the 2018 orders the parties have not adhered to the orders. Instead:
(a)The former matrimonial property has been transferred to the applicant following the parties’ agreement that the property was valued at $1,025,000 and that the applicant pay the respondent $261,264.40;
(b)The applicant has paid the respondent $191,264.40 from the proceeds of sale and a further $6,855;
(c)The business held by the respondent has been sold and the applicant has received $41,000 from the proceeds of sale;
(d)Despite his obligations to pay to the respondent $1,000 per month from the date of the orders until paragraph 1 of the final orders has been complied with, the applicant has paid to the respondent $1,000 per month between January and August 2019 only. The respondent does not raise any issues about this;
There was some confusing evidence before the Court about the business, D Pty Ltd. According to the applicant’s evidence, the respondent was the sole director and shareholder of that business from approximately March 2010.
According to the respondent’s financial statement filed 21 August 2018, the business had a value of $100,000. According to the final orders, the respondent was to retain the business (paragraph 2 of final orders), which she did. The business was sold sometime after the 2018 orders, and the respondent paid to the applicant $41,000 from the proceeds of sale of the business. It is entirely unclear from the evidence what the sale price was and how much, if anything, the respondent retained from the proceeds of sale. In any event, the parties agree that the applicant was paid $41,000 by the respondent upon the sale of the business. This is not something which the 2018 orders contemplated for.
The respondent says that the reason why she paid the $41,000 to the applicant was so that he could pay out the overdraft facility associated with the business. It is unclear why she did not simply make the payment herself and indeed why she gave him any money in this regard as according to the final orders the applicant was to pay to the respondent the sum of $45,000 for the payment of the overdraft.
The applicant’s evidence is that the payment was made to him because he had paid the respondent $1,000 per week instead of $1,000 per month and that this was an overpayment, and that as such she was paying him back the money he overpaid her.
The evidence of both parties is most unsatisfactory.
It is apparent that each of the parties claims that there is an amount outstanding to be paid by the applicant to the respondent, based on the parties’ own calculations consequent upon the 2018 orders and their apparent and informal agreement to vary those orders. The applicant says that he is required to pay the respondent $70,700 (for liabilities as per the 2018 orders) and the respondent says that the applicant still owes her $63,145.17.
Section 79A – Setting Aside or Varying Orders Altering Property Interests
Section 79A(1)(a) is set out in the following terms:
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…
…
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 law in respect of setting aside final orders made pursuant to s.79 is well established.
Once an order (or set of orders) is made for property adjustment under s.79 of the Act, the Court has no power to make a further order under s.79 (see for example Mullane v Mullan [1983] HCA 4; Florie and Florie [1988] FamCA 26). It is a once and for all proposition. Therefore, unless the provisions of s.79A apply or unless some other rule of law applies, the Court does not have the power to deal with a further application by the husband for property adjustment orders.
The Court may, in its discretion, vary or set aside the s.79 order made in 2018, if it is satisfied that there has, for the purposes of the present application, been a miscarriage of justice.
Section 79A is a remedial section (Gilbert & Estate of Gilbert (deceased) [1989] FamCA 95). An application under s.79A(1)(a) involves four steps (Patching & Patching [1995] FamCA 46):
(1)Whether there was fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance;
(2)Whether that fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance amounted to a miscarriage of justice;
(3)Whether the court in its discretion should vary or set aside the order; and
(4)Whether it should make another order.
It is of course, a matter for the Court in the exercise of its discretion, even if it finds one or other of the grounds in s.79A(1) established, whether it will proceed to set aside the order. A s.79A application is not an appeal on the merits of the original decision (Arpas & Arpas [1989] FamCA 37). Even if a miscarriage of justice has been established, it does not follow that an application to set aside or vary the original order must succeed (Prowse & Prowse [1994] FamCA 91). It is the applicant, who bears the onus of convincing the Court that it is appropriate to exercise the jurisdiction to vary or set aside the original order (Official Trustee in Bankruptcy & Donovan & Donovan [1996] FamCA 58).
The choice between setting aside or varying the original order depends on the degree of intervention to be made (Parker & Parker [1983] FamCA 54; (1983) FLC 91-364 (“Parker”) at pp. 328-329). Furthermore, in considering what new order is appropriate, the Court first of all, must consider the existing asset position of the parties and this should be done at the time of hearing (Parker).
A miscarriage of justice within the meaning of s.79A can arise only from circumstances in existence at the date of the order (Molier & Van Wyk [1989] FamCA 85; (1980) FLC 90-911). It is not sufficient for example to establish that there has been a suppression of evidence, the applicant must establish that a miscarriage of justice occurred by reason of that suppression of evidence. The expression itself is very wide, and it extends to any situation which sufficiently indicates that the order was obtained contrary to the justice of the case (Holland & Holland [1982] FamCA 31 (“Holland”); In the Marriage of Spratley(No.2) (1978) FLC 90-414).
Lastly, the words “any other circumstance” found is s79A(1)(a) are not to be read ejusdem generis with the other factors in s79A(1)(a) but are intended to cover other situations where for one reason or another a “miscarriage of justice” has occurred (Gebert & Gebert [1990] FamCA 105, (1990) FLC 92-137 (“Gebert”); See also Holland).
Absence of informed consent and legal advice
The applicant’s affidavit evidence includes the following:
34. On or about 21 August 2018, the Respondent filed an initiating application who amongst others sought orders for both property and parenting. This initiating application was set for first call on 26 September 2018…
35. Prior to the matter being called, the Respondent approached me to resolve our family matters. She brought with her the agreement for both of us to sign so as to resolve our property and parenting matters. During our discussion, I noticed she was crying. She said that she would allow me to see our son anytime. She said that she had dropped her claim to property settlement from 70% to 50%. I agreed based on 50/50 split and her promise that I will be allowed to meet at my convenience.
36. The Respondent was represented by Juris Australia Lawyers. I was not represented. At the time of signing the agreement, the Respondent wife did not tell me that I need to consult a lawyer before signing it.
37. I signed the agreement without any advice from a lawyer. The consent orders were entered on 25 September 2018. I did not obtain any legal advice on the process and my rights and undertakings.
The applicant’s oral evidence is that the respondent had approached him at a park to sign the orders, and that she was crying and upset. The applicant’s evidence is that he had not had any legal advice prior to signing the document.
On the face of the applicant’s affidavit and his oral evidence, there appears to be a blatant inconsistency. The applicant says on the one hand “Prior to the matter being called, the Respondent approached me to resolve our family matters” and on the other that the respondent had handed to him her proposal for a settlement at a park on an unspecified date but on or before 25 September 2018. The orders were made in chambers, and neither party appeared before the Court, the first return date was vacated by consent. The respondent could not have approached the applicant “prior to the matter being called” because the parties did not attend Court on the day the orders were made and the matter was never called.
It was submitted by the applicant that the 2018 orders show “that a Mr Khan appeared” for the applicant, and that the applicant deposes that “Mr Khan did not appear for him on that day and did not consent to the orders. If he wasn’t and if the consent orders which were taken to him by Ms Seth were not properly explained to him by an independent lawyer or his own lawyer then there is informed consent”. The applicant’s submissions are confusing and appear to be contradictory to the applicant’s own evidence.
It may be that the applicant’s affidavit is simply poorly drafted, and that he intended to say that prior to the first Court date the respondent approached him, and that he may be recounting (without much detail) the event in the park. Or it may be that the applicant was not being truthful in his evidence or it may be that he is simply confused and does not recollect what actually occurred.
The respondent’s evidence is that the parties had been negotiating since at least November 2017 through their solicitors, and that the applicant was at all relevant times legally represented. She says that draft terms were sent by her solicitors to the applicant’s solicitors, who after obtaining instructions, sought changes in respect of parenting orders which were then agreed to by the respondent. Those changes were made to the draft document, and ultimately, the applicant signed the terms and sent them across either to her or to her solicitors. These were then executed by her and provided, with the consent of the solicitors for the applicant, to the Court to be made in chambers by consent.
The evidence in the proceedings discloses as follows:
(a)That on or about 23 November 2017, Mr Kash Syed telephoned Mr Ejaz Khan, and represented to Mr Khan that he had been “instructed by the [respondent’s]… former husband to prepare Family Court proceedings to finalise financil (sic) matters” and that there had been an indication that a draft proposal would be forwarded by Mr Syed to Mr Khan in due course.
(b)On 28 August 2018, Mr Khan on behalf of the respondent served on Mr Syed the respondent’s documents filed in the Court. Service was accepted by Mr Syed.
(c)On 25 September 2018 at 11.29am the solicitors for the respondent emailed Mr Syed, attaching duly executed consent orders “for your attention and records”. The email sought consent for the vacating of the first listing. At 11.33am, Mr Syed responded agreeing to vacating the listing and asking to be copied in to the correspondence sent to the Court. There is nothing in that correspondence to suggest that Mr Syed did not hold instructions on behalf of the applicant or that the applicant did not consent to the proposed orders being provided to the Court. The proposed consent orders noted Mr Syed as appearing on behalf of the applicant.
(d)On 25 September 2018 at 11.55am, the solicitors for the respondent emailed the judge’s associate, confirming they acted for the wife and that ZRA Lawyers represented the husband. Mr Syed was noted as being copied in on the email. The email to the Court noted as follows: “Original orders will be hand delivered to the Court before 1.00pm this afternoon… Since the matter is settled, we request that the matter be vacated from the Court List.” As noted, Mr Syed was copied into that correspondence to the Court. The Court file holds the original documents signed by the parties. There was no communication from Mr Syed at that time or any time since, to suggest that he did not hold instructions on behalf of the applicant or that the applicant did not consent to the making of the orders on a final basis.
The applicant’s evidence is that his current solicitors wrote to Mr Syed to verify how his name appeared on the consent orders. The applicant goes on to say “My solicitor received an email dated 6 December 2019 from Mr Syed who confirmed that he did not act for me in any litigated matter in the family court but rather assisted me in limited matters such as attending conference.” Such evidence of the applicant, although not objected to, is hearsay.
Mr Syed was not a witness in the applicant’s case. A Jones v Dunkel [1959] HCA 8 (“Jones”) inference is drawn in respect of the lack of such evidence. The ‘rule’ in Jones can be explained as follows[1], as far as relevant to these proceedings:
(a)The unexplained failure by a party to give evidence or call witnesses, tender documents or other evidence may in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case. The inference entitles the trier of fact to more readily draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or all the evidence;
(b)The rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence or to convert conjecture and suspicion into inference;
(c)The rule only applies when a party is required to explain or contradict something. No inference can be drawn unless evidence is given of facts requiring an answer. If there is no issue between the parties, there is nothing to answer;
(d)The rule cannot be applied where it would not have natural for the party to call the witness or the party might reasonably be expected to call a witness ie. a failure to call evidence which that party was plainly in a position to have given or called; and
(e)The evidence of the missing witness must be such as would have elucidated a matter.
[1] See generally J D Heydon, Cross on Evidence, LexisNexis Looseleaf Service at [1215] – citations omitted.
The Court accepts the evidence of the respondent that there had been negotiations between the parties, through their solicitors, prior to the applicant signing the proposed consent orders. This is despite the respondent not being able to answer a call to produce emails between the solicitors attaching the draft documents. The respondent was cross examined about a document which she says is partial proof of the emails being sent. This document was not tendered.
The applicant’s evidence is that Mr Syed had ‘limited instructions’ regarding other family and business affairs, but that he was not retained in respect of the family law proceedings. The fact is that the applicant did not file any documents in response to the Initiating Application, nor were any documents filed on his behalf. Despite this, negotiations with the respondent’s solicitors in respect of the family law dispute were conducted on the applicant’s behalf by Mr Syed.
The Court does not accept the suggestion that Mr Syed acted on a frolic of his own when he entered into correspondence with the respondent’s solicitors confirming that the first return date was to be vacated and inferentially confirming that the applicant joined in the respondent’s application for orders to be made by consent and on a final basis by the Court in September 2018. Furthermore, the Court does not accept that the applicant had never been provided with any legal advice in respect of the property dispute.
The Court finds that ZRA Lawyers and/or Mr Syed were retained by the applicant at all relevant times in respect of both the parenting and the property dispute between the parties, but that they were not the solicitors on record as no documents were filed by the applicant at the time.
Even if the Court is wrong about this and even if the Court were to accept the applicant’s evidence that Mr Syed was not engaged by the applicant to represent him in the family proceedings, such evidence demonstrates a considered decision by the applicant to not engage a solicitor in this matter.
In his oral evidence, the applicant emphasised the conduct of the respondent that she was crying in a park, as a major contributing factor which lead the applicant to sign the consent orders without first obtaining legal advice. While the Court understands that the applicant was perhaps experiencing emotional stress, the applicant’s evidence, if taken at its highest, does not suggest circumstances which vitiate his consent. The applicant made a decision to swiftly settle his family dispute.
As held by the Full Court in Gebert at [77,937]:
the very expression ‘miscarriage of justice’ used in s79A(1)(a) does not fit happily with the concept of party of full age and with full knowledge of the circumstances entering into an agreement of this nature in circumstances where he had deliberately decided not to seek legal advice, although urged to do so. No doubt had the situation brought about by the order been imposed upon him, it may have amounted to a miscarriage of justice but the law fortunately still allows persons to form their own views as to the arrangement of their affairs…The fact that he later repented of that decision, in no sense elevates his original decision to consent to such an order to a miscarriage of justice nor should such order in our view be interfered with. On the contrary, we would regard it as a considerable miscarriage of justice from the wife's point of view if the husband's then conscious decision entered into free of duress, was now to be interfered with on a paternalistic view as to what might or might not have been in his best interests.
While the applicant complains that the respondent had not urged upon him to obtain legal advice prior to executing the proposed consent orders, such complaint is made about the actual circumstances of the execution of the document. Even on the applicant’s own evidence, Mr Syed had provided limited advice to him, and had been engaged by him in negotiations prior to the commencement of the proceedings. The applicant was well aware that legal advice could be provided to him about the terms of the document he had decided to sign, if indeed he had signed them in the way he alleges.
The applicant’s argument that because he did not obtain legal advice he could not have given informed consent to the 2018 orders in all of the circumstances, also fails.
It is clear that the applicant in the present case regrets his decision to sign the consent orders dated 25 September 2018. Even if accepted and at its highest, the applicant’s decision to not obtain legal advice does not amount to a miscarriage of justice under s.79A(1)(a) and does not warrant the exercise of the Court’s discretion to set aside or vary the orders.
Suppression and non-disclosure of Evidence
There is no doubt that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts (see for example Livesey v Jenkins [1985] 1 All ER 106; Briese & Briese [1985] FamCA 23 (“Briese”); Oriolo v Oriolo [1985] FamCA 54 (“Oriolo”)). The mere compliance with rules of the Court or practice directions does not alter the basic principle of the need for full and frank disclosure. However, disclosure is not an end unto itself. The purpose of full and frank disclosure must be “the need for each party to understand the financial position of the other party, which is at the very heart of cases concerning property” (see Briese, approved by the Full Court in the case of Oriolo).
Fundamental to a decision to agree to terms designed to bring finality to the financial relationship at the end of a marriage is knowledge of the assets, liabilities, financial resources and financial positions of the parties to which the agreed terms pertain (Waterman & Waterman [2017] FamCAFC 23 at [41]).
The applicant’s evidence is as follows:
On or before the entering of the consent orders, the Respondent did not give me the following:
a. Valuation of G Street, Suburb H Property
b. Red Book Valuation of Motor Vehicle 2 registration No …
c. Bank Statement showing ANZ Bank loan - $110,000
d. Bank Statement showing Visa (Citi Bank) - $9000
e. Bank Statement of Master Card – $11,700
f. Bank Statement of D Pty Ltd Business visa – $55,000
It was submitted by the applicant that he “needed to have” the documents referred to above “to make a considered an informed decision. These documents were critical for him… This is why full disclosure needs to be made before there can be an informed decision.”
The applicant’s evidence makes it clear that:
(a)He was aware of the purchase price of the land and the cost of building;
(b)He was aware of the purchase price of the Motor Vehicle 2 and the finance attached to it;
(c)He was aware of the purchase price of the Motor Vehicle 1 and the finance attached to it;
(d)He was aware of the financial details pertaining to D Pty Ltd;
(e)He was aware of the various bank accounts and credit cards held in the respondent’s name;
The applicant’s argument essentially boils down to that without being provided with bank statements or statements pertaining to the various accounts and credit cards, he could not be sure that the amounts noted in the minute of order he signed were correct.
The applicant also complains that the respondent did not provide him with a valuation for the jointly owned property (which he has subsequently retained) and therefore he could not have provided informed consent at the time he signed the orders. Given that the orders the applicant consented to provided for the property to be sold, any argument about not being provided with a valuation is misconstrued.
Prior to signing the terms, the applicant had been served with the Initiating Application, the respondent’s affidavit filed in support of the Initiating Application and her Financial Statement. Those documents disclosed the relevant matters. For example, they disclosed the balances of each of the bank accounts and credit cards, and an estimate of the respondent’s value in the real property.
The real property was jointly owned at the time. The applicant had the ability and capacity to inform himself as to the value of the property, and in any event he agreed for the property to be sold and for the net proceeds of sale to be divided between the parties. Ultimately, the property was transferred to the applicant after he obtained a valuation and after the parties reached an agreement as to the value of the property.
The applicant purchased the motor vehicles and he was aware of their values at the time of purchase, as well as the finance which encumbered the vehicles.
The applicant was aware of all of the respondent’s bank accounts and credit cards, and there was no request for statements that he now complains he did not receive. Indeed, there is no suggestion to date that the amounts disclosed in the Financial Statement and indeed in the terms which the applicant signed, were in any way erroneous or misleading.
There is also an inherent misunderstanding in the applicant’s argument as to the disclosure requirements. These proceedings were commenced in the then named Federal Circuit Court of Australia. The relevant Court rules at the time provided that “a party required … to file a financial statement or affidavit of financial circumstances must make in the statement or affidavit a full and frank disclosure of his or her financial circumstances…” and they also required a party to produce certain named documents within 14 days after the first court date. At the time the 2018 orders were made, the first court date had not yet occurred. The respondent had filed a financial statement fully and frankly disclosing her financial circumstances. She also filed an affidavit setting out relevant matters. The respondent had provided full and frank disclosure.
There is no evidence of any request by the applicant for copies of bank statements, credit card statements, valuations and the like. Even if the applicant did have such documents, the practice of this Court did not demand their production per se.
In all of the circumstances, the applicant has not persuaded the Court that there was any suppression of evidence or non-disclosure by the respondent. Even if there had been a non-disclosure of the documents the applicant argues the respondent should have provided to him, such suppression of evidence and/or non-disclosure did not amount to a miscarriage of justice in all of the circumstances.
Section 79A(1)(c)
While not raised by either party, in the circumstances it may have been arguable by the parties (or either of them) to submit that due to a default in carrying out an obligation imposed by the 2018 orders, in the circumstances that have arisen as a result of the default, it is just and equitable to vary or set aside the 2018 orders.
As noted earlier, the parties have not adhered to the terms of the 2018 orders. They both agree that an amount is outstanding to be paid by the applicant to the respondent. Apart from the outstanding payment it does not appear that there has been default, but rather agreement about implementation and variation of orders. Such circumstances do not enliven s.79A(1)(c).
The applicant admits that he is still to pay the respondent $70,700. The respondent admits the applicant has paid her $6,855 of this and still owes her $63,145.17. Given this admission against interest, the Court expects the applicant to make a payment of $63,145.17 to the respondent forthwith.
Determination
It is undisputed that the proposed consent orders were signed by the applicant and the respondent on or before 25 September 2018, and that the Court made final property orders by consent on 25 September 2018.
The applicant has not established any miscarriage of justice such that the Court would exercise its discretion and set aside the 2018 orders.
If anything, there is simply a sense of disappointment or regret expressed by the applicant in relation to the 2018 consent orders as entered into by the parties. As noted by the Full Court in Gebert (at [77,937]) there would be a considerable miscarriage of justice from the respondent’s point of view, if the applicant’s conscious decision was now interfered with.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment are made.
I certify that the preceding 76 (seventy-six) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 25 October 2021
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