Pearson and Pearson

[2019] FamCA 931

FAMILY COURT OF AUSTRALIA

PEARSON & PEARSON [2019] FamCA 931

FAMILY LAW – PROPERTY SETTLEMENT – Setting Aside Consent Orders – Application by the husband seeking to set aside orders made by consent in 2007 pursuant to ss 79A(1)(a) and (b) and 79A(1A) of the Family Law Act 1975 (Cth) – It was found that the husband failed to satisfy the onus of proof in respect of his claims pursuant to s 79A(1)(a) and (b) and s 79A(1A) of the Family Law Act 1975 (Cth) – Husband’s application to have orders set aside dismissed.

Family Law Act 1975 (Cth)

Bulow & Bulow [2019] FamCAFC 3
SH & DH (No. 1) (2003) 202 ALR 660
Scribe & Scribe (2006) FLC 93-302
Taylor & Taylor (1979) FLC 90-674
Gason & Gason [2007] FamCA 114
Haradene & Hermesly-Lane [2018] FamCA 260
Matthews, LD and Matthews, T (2006) FLC 93-298

APPLICANT: Mr Pearson

RESPONDENT: Ms Pearson

FILE NUMBER: SYC 8557 of 2015

DATE DELIVERED: 6 December 2019

PLACE DELIVERED: Hobart

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 29 April 2019 and 17 October & 18 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Livingston

SOLICITOR FOR THE APPLICANT: Marsdens Law Group

COUNSEL FOR THE RESPONDENT: Mr Kasep

SOLICITOR FOR THE RESPONDENT: Russell Kennedy Aitken Lawyers

Orders

1. The proceedings commenced by the husband on 30 December 2015 and as amended in the initiating amended application filed 17 April 2019 are dismissed.

2. All extant applications are dismissed except any application for costs.

3. Any application for costs must be made in accordance with the Family Law Rules 2004 (Cth).

4. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same twenty eight days after these orders are made or such other time as made by a court exercising jurisdiction under the Family Law Act 1975 (Cth).

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 Pearson & Pearson 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 HOBART

FILE NUMBER: SYC 8557 of 2015

Mr Pearson

Applicant

And

Ms Pearson

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Pearson (‘the husband’) and Ms Pearson (‘the wife’) were married in 1979.  They lived together until at least 10 May 2007.

2. There are three children of the marriage, all of whom are now over the age of 18.  As at November 2007 the youngest of those three children was aged 17 and attained the age of 18 about ten months after the Suburb B Local Court orders were made.

3. On 7 November 2007 an order was made in the Suburb B Local Court making consent orders (‘the Consent Orders’) in relation to property owned by the parties.  That order was put into effect.

4. The wife applied for a divorce in the Federal Circuit Court in January 2015 and an order for divorce made in April 2015.

5. On 30 December 2015 the husband filed an application for property orders and sought interim orders that pursuant to s 79A of the Family Law Act 1975 (Cth) (‘the Act’) the Consent Orders made at Suburb B Local Court be set aside. The application went on to claim orders for property and costs. In addition, he sought interim orders in relation to the wife dealing with property.

6. This proceeding came before me in a call-over on 20 March 2019 and it was listed for the hearing of the Application under s 79A of the Act on 29 April 2019. Directions were made for filing affidavits.

7. On 29 and 30 April 2019 the hearing proceeded.  However, the husband’s case had changed somewhat and it was adjourned for further hearing on 24 and 27 May 2019.  Leave was given to the legal practitioners for the wife to issue some subpoenas and obtain documents, through the husband, from Centrelink.

8. Subsequently, I ordered that a copy of the Transcript of the April 2019 proceedings to be made available to the solicitors for each of the parties.  This was done primarily because after the adjournment of the April 2019 hearing I became unwell and was unable to return to work until mid-October 2019.  The hearing of this matter was administratively adjourned and continued on 17 and 18 October 2019 at Sydney.

9. Part of the material sought by the solicitors for the wife were documents from Centrelink.  Those documents were provided to the husband’s solicitors by Centrelink in a letter dated 8 July 2019.[1]  The documents produced by Centrelink were voluminous and contained about six hundred pages.  Perversely, the husband and his legal advisors did not provide a copy of those documents to the solicitors for the wife until the morning of the re-commencement of hearing on 17 October 2019. 

   [1] See Exhibit E8.

10. This was at best unfortunate and at worst an attempt to prevent a proper and timely examination and consideration of those relevant and important documents.  It caused a waste of about an hour or so of hearing time and could have caused further delay or even an adjournment of the hearing.  It may have given rise to a serious forensic disadvantage to the wife and her legal advisors.

11. The Court was not proffered any adequate reason why these documents were not provided promptly to the wife’s solicitors.  An excuse was issued that the documents were to be produced at court and this was the first occasion; that assertion was a nonsense.  The wife’s solicitors were actively seeking that material and the husband’s solicitor responded with mute dismissal.

12. The husband and those advising him have an obligation for ongoing disclosure. As recently as January 2019 the Full Court in Bulow & Bulow [2019] FamCAFC 3 said:-

    80.    … The obligation of disclosure in financial proceedings is ongoing, including up to the point when orders are made.   Equally importantly, as authority has consistently emphasised, disclosure must be both “full and frank”.  

13. This must apply to the production of documents.

14. This type of delay and obfuscation in production of documents to another party is unacceptable.  It brings the legal profession into disrepute and has the capacity to undermine the judicial process.  Disclosure is not a game to be played by parties and their legal practitioners.  All parties and members of the legal profession are reminded that in family law property proceedings financial disclosure and production of relevant documents are a matter of ‘show and tell’ not ‘hide and seek’.

15. On 17 April 2019 the husband filed an Amended Initiating Application, and I gave leave for him to rely on that application as on the surface it did not substantially change the nature of the relief sought.

16. However, the nature and basis of the Application for setting aside the Consent Orders changed significantly.  The husband asserted and his evidence seemed to be that he resigned from his work due to health issues in 2007 and consequently he and the wife separated in 2007,[2] but lived under the same roof until December 2014.  This was consistent with what he said in his earlier affidavit filed 30 December 2015, except in that earlier affidavit he asserted that he and the wife were ‘initially separated under the same roof’.[3]  He then asserted that he and the wife resumed cohabitation as a couple.[4]

    [2] Husband’s trial affidavit – paragraphs 12 to 15.

    [3] Husband’s 2015 affidavit filed 30 December 2015 – paragraph 6.

    [4] Husband’s trial affidavit - including paragraphs 41 to 97.

17. The effect of the husband’s evidence is that the parties separated in 2007, but their relationship as a couple was soon restored and they lived as a couple until 16 December 2014.

18. In his affidavit filed 17 April 2019 the husband now asserts that he and the wife cohabited as husband and wife from 2007 and that the final separation did not occur until 16 December 2014.  He submitted that he renovated properties owned by the wife; that he and the wife were intimate, and they socialised and they travelled together over that period.  The husband relied upon a number of events at that time which he says shows that the separation was a sham or a concoction so that he could receive sickness benefits whilst the parties continued living together.

19. The affidavit evidence of the husband as to separation was not clear, but in the case outline his counsel submitted that I am to read that as the parties ‘being separate for a brief period (2007-2008) and a continuation of the consortium vitae`.[5]  It was submitted to me in the husband’s case outline that the orders were put in place to ‘create the false and misleading impression that the parties were at arm’s length when in fact they were collaborating so that the husband could apply for a pension’.  

    [5] Husband’s case outline filed 23 April 2019 – pages 1, 2 and 4 - Exhibit E1.

20. The wife disputes the husband’s assertions as to separation and says in her trial affidavit that ‘[the husband] and I separated on 10 May 2007’.[6]  She goes on in her trial affidavit and her May 2019 affidavit that the husband moved out and there was no cohabitation from 10 May 2007.[7]  The only exception to that was when the husband sought to stay overnight in 2012 in unusual circumstances.[8]     

    [6] At paragraph 5.

    [7] See wife’s trial affidavit filed 18 April 2019 and her May 2019 affidavit filed 21 May 2019. 

    [8] Wife’s May 2019 affidavit – paragraphs 6 to 10.

21. The husband asserted that he entered into the Consent Orders which were prepared by the wife’s solicitors and said that he did not receive independent legal advice.  He claimed that the wife had assured him that the settlement was a 50/50 division of property.

22. When the matter came before me the nature of the case had changed significantly and as such, I did not grant an adjournment, but stood the matter over part-heard at the end of the first day.  I made directions to enable the accordance of procedural fairness to the wife.

23. The issues for me to determine were:-

    (a)what was the final date of separation of the parties;

    (b)consequently, whether the parties lived together as a married couple after 10 May 2007; and

    (c)whether the parties concocted a separation to enable them to obtain consent orders and transfer property, and thus enable the husband to receive Centrelink benefits to which he would not otherwise be entitled from some time after May 2007 until 16 December 2014.

BACKGROUND

1. At the time of this hearing the husband was aged 62 and is not in paid employment.  He is in receipt of Centrelink benefits.  He has poor health.  The husband apparently had a kidney transplant in late 2015 or early 2016.

2. The wife is aged 57 and is a process worker by occupation.  She deposes to an income of about $85,000 a year from her employment and from an investment property.

3. The parties married in 1979 in Country G.  The three children of their marriage at the date of hearing were aged 36, 30 and 28.

4. In these proceedings any statement of fact is to be regarded as a finding of fact.

DOCUMENTS

Exhibits

Exhibit E1:     the husband’s case outline;

Exhibit E2:     the annexures to the husband’s trial affidavit;

Exhibit E3:     the wife’s case outline;

Exhibit E4:the wife’s written submissions on exclusion of the husband’s evidence and his request for leave to file his amended initiating application;

Exhibit E5:the wife’s schedule of objections to the husband’s evidence;

Exhibit E6:a letter from the husband’s solicitors to the wife dated 17 February 2015;

Exhibit E7:Order made at the Suburb B Local Court on 26 November 2007 together with the terms of consent orders signed by the parties.

Exhibit E8:Department of Human Services Decision on Freedom of Information Request dated 8 July 2019;

Exhibit E9:New South Wales Transport Road and Maritime Services driver history of the husband;

Exhibit E10:      Centrelink Claim for a Health Care Card document;

Exhibit E11:      Centrelink Income and Assets Update of the husband dated 14 January 2011;

Exhibit E12:      Centrelink document re: Low Income Health Care Card dated 4 March 2008;

Exhibit E13:      Flight Movement details - the husband;

Exhibit E14:      Letters from Marsdens Lawyers (the husband’s solicitors) to the wife dated 17 February 2015 with application for consent orders attached;

Exhibit E15     :     Application for consent orders dated and filed 7 November 2007;

Exhibit E16:      Terms of Settlement Consent Order document;

Exhibit E17:      Bundle of Commonwealth Bank records in the joint names of the husband and the wife;

Exhibit E18:      Outgoing passenger card for the wife dated 14 October 2006;

Exhibit E19:      Incoming passenger card for the wife dated 23 May 2010;

Exhibit E20:      Incoming passenger card for the wife dated 21 July 2013;

Exhibit E21:      Documents on subpoena - H Pty Ltd;

Exhibit E22     :     Customised report printed 22 April 2019 – occurrence sheet 16 December 2014;

Exhibit E23:      Letter from Centrelink to the husband dated 15 July 2013 – Your plans to travel;

Exhibit E24:      Letter from Centrelink to the husband dated 18 March 2013 – Real Estate Asset Review;

Exhibit E25:      Home Visit Risk Assessment checklist for husband dated 4 July 2014 (tabbed); and

Exhibit E26:      Joint bank accounts in names of the husband and wife.

THE EVIDENCE

The husband

1. The husband relied upon his affidavit filed 17 April 2019, his financial statement filed the same day and his amended Initiating Application filed 17 April 2019. 

2. The husband was cross-examined on 29 April 2019 and 17 October 2019.  He was an unimpressive witness.  In giving his evidence he prevaricated, obfuscated and at times fabricated some aspects of this evidence.

3. During the course of his cross-examination the husband was taken to the following documents to which I have had regard:-

   (a)his affidavit sworn 23 December 2015 and filed 30 December 2015;[9] and

   (b)his Initiating Application filed 30 December 2015.

   [9] Husband’s trial affidavit.

4. There were significant objections to the husband’s affidavit material by the wife, which I dealt with during the course of the hearing. 

5. The husband had an interpreter; his trial affidavit was signed by him and there was a certificate as to the translation of it.  In relation to his earlier affidavit, his Initiating Application and the wife’s Application for Divorce, the husband’s present solicitor or paralegal in that office translated those documents to him from English to Country Q language so that he could understand them.

6. I watched the husband giving evidence and listened to his answers carefully during the time he was cross-examined.  There were many occasions where he understood the questions, including some from me, where he answered directly.

7. The husband was cross-examined by counsel for the wife.  He acknowledged that his trial affidavit, his December 2015 affidavit, and his application filed in December 2015 were true and correct.  He dissembled initially in relation to the affidavit of 23 December 2015, but when he realised that it was prepared by his solicitors, he adopted the contents of it.

8. The husband and wife asserted in their 2007 application for consent orders[10] that both of them could speak English ‘very well’.

   [10] Exhibit E15 page 2 question 8.

9. The wife was cross-examined in relation to the husband’s ability to speak English.  After observing her evidence and observing the husband in the witness box and being aware that the husband had, at one time, been a supervisor, I am satisfied that the husband spoke English very well.

10. However, that does not mean he could read and write well.  The husband asserted that he could not read or write.  I am satisfied that the husband had good English speaking skills. I find that he has some ability to read and to write, the extent of which is not clear to me. I have amplified the basis as to why I came to this conclusion elsewhere in these reasons.

11. One of the issues to be determined was the nature of the legal advice received by the husband.  He certified in the Application for Consent Orders that he had read the Application and the Consent Orders, and that he was aware of his right to obtain independent legal advice.  The husband said in that document he had obtained legal advice in relation to the Consent Orders.

12. His then solicitor, Mr J, certified that he had provided independent legal advice to the husband. 

13. The husband had acknowledged that the document was explained to him, although he prevaricated in terms of his answers with regard to that circumstance and he prevaricated in terms of signing of transfers of real property to the wife some time later.[11] 

    [11] Exhibit E2 pages 130, 131 and 132.

14. The husband asserted that he did not understand the nature of the property transfers.  I do not believe him.  He asserted he believed that his interest in the property would remain in place and said words to the effect that ‘[his solicitor] tricked him’.

15. That assertion is inconsistent with information, which I have found was provided by the husband to Centrelink, on 14 January 2011[12] where he asserted on page 9 of 12 that he did not own any real estate.  The answer to that question was clearly wrong in that respect as the husband and wife continued to own some real estate at Suburb F, about which I find the parties had forgotten at the time the Consent Orders were made, which I accept the husband had probably forgotten in relation to the information provided to Centrelink on 14 January 2011.

    [12] Exhibit E11.

16. However, the husband clearly knew that he did not have an interest in the former matrimonial home and the other E Street investment properties.

17. I have discussed this elsewhere in these reasons, but the husband’s evidence in relation to the payment of the mortgage was unsatisfactory.  He prevaricated and used it as a platform to argue his broader case.  He obfuscated in relation to who paid the mortgage and that obfuscation was at times inconsistent with what the husband had said at paragraph 16 of his trial affidavit. 

18. The husband was cross-examined in relation to where he resided.  His case is that he resided primarily at the former matrimonial home between 2007 and 2014.  I am satisfied that this is not true.

19. The husband conceded in his affidavit that there were a number of times when he and the wife had arguments and he, for short periods of time up to two weeks, stayed at friends’ homes.[13]

    [13] Husband’s trial affidavit paragraph 154.

20. This evidence is inconsistent with the material the husband provided to Centrelink on 14 January 2011.  In that document he asserted he was single, and that he paid rent of $100 per week to a relative at K Street in Suburb D.  Further, he asserted that he did not own any real estate and that he had limited assets.

21. The husband conceded in cross-examination that he did not pay rent.  He endeavoured to imply that the document had been completed by the wife however, when pressed it was clear that the document was completed by the relative from K Street, Suburb D.  The husband also provided details of his bank account.

22. I am satisfied that the husband completed that Centrelink form or gave instructions for someone to complete that form, and that it is indicative that he did not, at that time, live with the wife.  

23. In terms of where he lived, the husband had a driver’s licence.  From that driver’s licence the husband asserts to driving authorities that he lived at Suburb Z for about a year and a half, K Street, in Suburb D for over two years, a different address at Suburb D for about three to four months and about four months at L Street, in Suburb D.  The husband asserted that he lived at the former matrimonial home for a few months in 2015.[14]

    [14] See Transport Roads and Maritime Services document Exhibit E9.

1. When cross-examined in relation to the changing addresses on his driver’s licence the husband gave no plausible explanation for why his driver’s licence showed those changes.

2. The husband was cross-examined about a boat and trailer he purchased in July 2009 where he gave his address as K Street, Suburb D.  He initially denied that this was his address, but it showed up on a copy of his driver’s licence.

3. The husband’s explanation for this was likely fabricated and was inherently unbelievable.

4. In addition, the husband provided a copy of the Consent Orders to Centrelink.[15]  I do not accept that this was a document prepared by the wife on the husband’s behalf.  I accept that it was prepared by the husband with the assistance of a relative.

   [15] See Exhibit E12.

5. The husband said that he paid the wife $100 per fortnight and other expenses after separation.  I do not believe him, and I am satisfied that he provided no money to the wife following separation, other than to repay a loan in respect of the dental work undertaken in Country Q.

6. In terms of where the husband lived, the passenger movement records from in and out of Australia were provided to the Court.[16]  The records show that the husband travelled out of Australia in August 2007 for 34 days in the absence of the wife.  He had a number of other departures outside Australia over the following year including:-

   (a)84 days commencing February 2010:

   (b)31 days commencing May 2010;

   (c)59 days commencing April 2011;

   (d)77 days commencing February 2012;

   (e)49 days in Country Q, commencing April 2013;

   (f)41 days commencing July 2013; and

   (g)47 days commencing in December 2013.

   [16] Exhibit E13.

7. All of these trips, apart from one trip to Country Q and one to Country X, appear to have been to Country G.  The husband explained the reasons why he stayed out of the country for less than three months was because it would have otherwise impacted upon his Centrelink benefits.  I take this to mean that the husband understood what his responsibilities were with regard to Centrelink.

8. The parties travelled to Country Q with a group from their Church in April 2013.  The husband said that he and the wife travelled as a couple.  I reject that evidence of the husband.  I accept that the parties travelled with the Church over that period of time as a church group, but not as a couple.  I accept the wife’s evidence in that regard.  I reject the evidence of the husband that he and the wife had at that time, or at other times after separation, engaged in intimate relationships.

9. The purpose of this trip was for dental repairs and the husband stayed longer than the wife as his dental treatment required further work. 

10. As I have said elsewhere, the husband was not an impressive witness.  I am satisfied that he fabricated the evidence in relation to continuing a relationship with the wife after separation including living together, having an intimate relationship, travelling as a couple and the like.  

11. Some of the husband’s evidence in relation to his claim regarding the payment of the rent and not understanding that the difference between rent and providing for living expenses was inherently implausible.  He endeavoured to sheet home blame to the wife, although he thought the document may have been completed by the wife, but he could not identify the hand-writing.  He said that he guessed.

12. When giving evidence the husband prevaricated and obfuscated.  I am satisfied that the husband gave evidence which he believed would support his case whether those matters were accurate or inaccurate.  On many occasions he tried to deflect blame or fault to the wife.  An example of that is in relation to the Centrelink document from 2011[17] where the husband asserted that it must have been completed by the wife, and yet in the document the husband asserted that a relative helped him complete it and said he gave his relative his authority to assist him in respect of the matter.

    [17] Exhibit E11.

13. The husband’s evidence was unsatisfactory and generally unreliable. I have treated it with great care and at times, given the evidence of others, with scepticism.

Ms M

1. The husband sought to rely on an affidavit by Ms M filed 17 April 2019. Ms M has known the husband since 2015.  Virtually all of Ms M’s evidence related to events following 2015 and is irrelevant to the determinations I need to make in the application before me to set aside the November 2007 consent orders.

2. The wife, in her affidavit, raised an issue about whether Ms M was the husband’s wife or carer.  In the context of this dispute it was neither here nor there.  I considered the submissions by counsel for the wife where it is said:-[18]

   Mrs M deposes that she met [the husband] in April 2015 – well after the date [the husband] now wishes to maintain he finally separated from [the wife]. None of the evidence appears to either remotely touch upon whether consent orders should have been set aside pursuant to s 79A of the Family Law Act 1975 (Cth). [The wife] further maintains the entire affidavit should be excluded under s 135 of the Evidence Act 1995 (Cth) on the basis that admitting it will result in an undue waste of time.

   [18] The wife’s schedule of objections to the husband’s evidence page 7 footnote 5.

3. Unfortunately, the wife raised that circumstance in her affidavit filed 18 April 2019.  I have given no weight to what the wife said in her affidavit at paragraphs 101 to 113 of that affidavit and given that circumstance I rejected the whole of Ms M’s affidavit other than paragraphs 1,2 and 3.

The wife 

1. The wife gave evidence in accordance with her affidavit filed 17 April 2019 (‘the wife’s trial affidavit’), affidavit filed 21 May 2019 (‘the wife’s May affidavit’) and her financial statement filed 17 April 2019.

2. The wife tendered a bundle of documents including:-

   (a)a letter of demand by the husband’s solicitors dated 17 February 2015;

   (b)the Application for Consent Orders dated 7 November 2007;

   (c)copy signed transfers (dated 8 August 1988, 1995 and 2005);

   (d)a letter from N Group conveyancing October 2018, letters from O Group Real Estate (market appraisals);

   (e)letters from Aitken Lawyers (March and April 2016);

   (f)letters from Marsdens July 2016 and other correspondence.[19] 

   [19] Exhibit E14.

3. The wife was criticised in relation to alleged ‘fabrications’ in the application for consent orders.  These dealt with the husband’s ability to speak English, to which I have referred elsewhere in these reasons, and the failure for both parties to disclose the property at Suburb F.  I have dealt with that issue elsewhere.

4. I do not regard that as an intentional hiding of assets.  I am satisfied that it was a simple forgetfulness of both parties at a time when their marriage was or had broken down.  There was no intent by the husband or the wife to deceive the Court in that regard.

5. The wife was cross-examined in relation to the husband’s contributions given the assertion in the application for consent orders at Item 58.  I have dealt with that issue elsewhere. 

6. The wife’s demeanour in giving evidence was nervous, but constructive. I am satisfied that the wife endeavoured to give evidence frankly and truthfully.  At times her memory failed however, I am not satisfied that it was obfuscation or avoidance.  From my observations of the wife she endeavoured to tell the truth and be frank.

Mr J

1. Mr J is a solicitor who practices in Suburb B, a suburb of Sydney.  He was retained by the husband and he provided legal advice and legal services to the husband in relation to the Consent Orders made on 26 November 2007. He witnessed the husband’s signature on the Application for Consent Orders dated 7 November 2007 and provided the certification contained in that document.

2. Mr J (‘the husband’s then solicitor’) was called by the husband and in doing so, the husband gave up any legal profession privilege which he may have otherwise have had in relation to this legal practitioner and the legal services he provided.

3. The husband’s then solicitor was a licenced legal practitioner as at November 2007 and remains a licenced practitioner.

4. Exhibits E14 and E15 contain the signed Application for Consent Orders which was a joint application by the husband and wife to the Suburb B Local Court.

5. On 7 November 2007 the husband’s then solicitor witnessed the signature of the husband to the Application for Consent Orders and the Terms of Settlement.[20]  The husband’s then solicitor also witnessed the signature of the husband in relation to the transfer of the three properties.  That document was dated 21 December 2007, although it is not clear when the transfers were signed.

   [20] Exhibit E7.

6. What is not in issue is that the signatures on the three transfers[21] were all signed by the husband.  There is an issue as to the adequacy of the advice and the independence of the husband’s then solicitor.

   [21] Exhibit E2 pages 130 to 133.

7. In the Application for Consent Orders the husband’s then solicitor certifies the following:-[22]

   ·I am a lawyer entitled to practice in this court.

   ·I have given [the husband] independent legal advice as to the meaning and effect of the draft consent orders and explained their rights, entitlements and obligations.

   ·I gave [the husband] a copy of the Family Court’s brochure Marriage Families and Separation.

   [22] Exhibits E14 and E15 – page 25 of E14.

8. Counsel for the husband sought to adduce evidence orally from the husband’s then solicitor, and I gave that leave.  He also sought to cross-examine the husband’s then solicitor and that course was also permitted.

9. The husband’s then solicitor says he has searched, but has been unable to find a file and he has no independent memory of the events leading up to, at or subsequent to the execution of the terms of settlement and the application for consent orders on 7 November 2007.

10. Counsel for the husband cross-examined the husband’s then solicitor as to whether he acted independently and whether he adhered to his certification on the Application for Consent Orders.

11. Whilst he had no independent recollection, the husband’s then solicitor made it clear that he only acted independently and that he, implicitly, adhered to his certification.  The husband’s then solicitor said that his practice was to always see clients on their own and he confirmed that this was always the case.  He has no recollection of seeing the husband and wife together.

12. The husband’s then solicitor said he always gave his client’s written advice. 

13. I make no criticism of the husband’s then solicitor in regard to his evidence.  The work was done in November 2007, almost twelve years ago, and I accept his evidence that files can be and are destroyed after seven years.  In this case that time would have been 2014.

14. It was submitted by counsel for the husband that I ought to treat the husband’s then solicitor’s evidence with some caution.  I observed the husband’s then solicitor giving evidence and I watched his demeanour and he struck me as being frank and clear.  He said that he would normally undertake a conference with a client using the English language and gave an explanation how he satisfied himself that the person understood what information was being given. 

15. There was criticism of the husband’s then solicitor for only spending half an hour with the husband.  That was simply a guess on the part of the husband’s then solicitor, but I accept his evidence and his certificate that he discussed matters thoroughly and confirmed that the person understood the evidence.  I am satisfied that the husband’s then solicitor’s evidence is reliable.

The parties’ daughter Ms R

1. Ms R is the parties’ only daughter (‘the daughter’).  She is 36 years of age, and she is married with children.  She provided evidence in terms of her affidavit filed 18 April 2019. 

2. In that affidavit the daughter deposed that she was aware that her parents separated in around 2007 when her father moved out of the matrimonial home.  She is not aware of the precise date.

3. The daughter met her husband in 2007 and commenced a relationship with him.  She lived in the former matrimonial home until 2011. From that time, viz. 2011 and 2013 she lived either partly at the former matrimonial home or partly at a rented property or partly at a property which she and her husband purchased in 2013 in S Town (‘the S Town property’). 

4. In late 2014, at the time of an allegation of family violence, she was living at the S Town property.  There is some inconsistency in relation to timing in terms of her oral evidence and paragraph 6 of her affidavits.  I have had regard to that, but I am not concerned about such minor issues, particularly given the clear explanation of the daughter during her cross-examination.

5. When she was not living at the former matrimonial home the daughter regularly visited her mother and did not see the husband living there nor did she see him undertaking any dialysis at the wife’s home.

6. The daughter was aware that dialysis material had been delivered to the former matrimonial home, although she did not see the material nor see the husband undertake dialysis.

7. The daughter had limited interaction with her father, the husband, following her parents’ separation in May 2007.

8. On about 16 December 2014 the daughter visited her mother, the wife, at the former matrimonial home.  At that time the daughter was pregnant.  She said that she helped her mother with the bank accounts and the like and there was raised concern about money taken from the accounts.  She also says that on that day the husband was present and the wife asked him to leave. 

9. The daughter then set out an incident of family violence, which is supported by the wife.  The police were called and the husband was the subject of a family violence order.

10. The daughter asserted that the husband was intoxicated at the time and there appears to be no issue that the husband had had consumed some alcohol at this time.

11. In cross-examination the daughter said that she allowed the husband to use her address at her current home and a previous rented property at Gilford and that some mail arrived for him at that address, including mail from Centrelink.  She said she held mail that the husband never collected.

12. In cross-examination the daughter said that she knew her father, the husband, had had a kidney transplant.  The wife had told her, but she did not visit the husband. 

13. From her observations the daughter said that the husband did not live at the former matrimonial home nor did he occupy a bedroom at the former matrimonial home.  In fairness she conceded that she was away from the home quite often given her personal circumstances and her relationship with her now husband.

14. There was an issue about the husband attending her wedding.  He did do so, although he was not invited.  This is consistent with the evidence of the wife and  I am satisfied that that was the case.

15. The wife deposed that in early 2007,[23] before she and the husband separated, they transferred another unit at E Street, Suburb D[24] (‘the E Street property’), to the daughter.  Both the wife and daughter assert that the value of that property and the value of the mortgage on that property were about the same and it had no net value.  The wife says the transfer took place before the parties separated.

    [23] Wife’s trial affidavit paragraph 72.

    [24] Unit 3.

16. In terms of the E Street property the husband says[25] that property was transferred to the daughter and that searches had been conducted by his solicitors.  No documents were produced to me following the searches by the husband’s solicitors, and given those circumstances, I treat the transfer of the E Street property to the daughter as an innocuous transfer.  Further, this transfer fits into the pattern, at that time, of the husband endeavouring to relieve himself from the burdens of the mortgage.

    [25] Paragraph 38 of husband’s trial affidavit.

17. The daughter said she took over the mortgage and has been responsible for it and the E Street property since that time. The daughter has now sold the E Street property.

18. I am satisfied that the E Street property was not an asset or liability of the parties at the date the Consent Orders were made or for that matter at the date of separation in May of 2007.

19. In cross-examination it was put to the daughter that she acknowledged the husband’s address at the former matrimonial home in 2014.  The daughter denied that this was the case and denied informing the police that this was the husband’s place of residence.

20. The daughter said, frankly, that she disliked her father, the husband, but denied that her evidence was coloured by that or tailored to assist the wife.

21. I listened carefully to the evidence of the daughter and she was impressive.  She made admissions against interest.  These included the acknowledgment that she was not always at the former matrimonial home and said it was possible that the husband could have been there when she was not there.  Further, her concession that she disliked the husband given the history of family violence in particular the allegation of violence in December 2014.

22. I treat the daughter’s evidence as frank and truthful and I regard it as reliable.

DISCUSSION

Generally

1. The wife was criticised about her evidence about the husband’s ability to speak English. I have, earlier in these reasons, made findings that the husband spoke English well.  I have had regard to that finding in terms of the other findings made by me in this proceeding.

2. The wife was criticised as to whether she read or did not read s 72, s 79 ss 75(2) and Part VIIIB of the Act at the time she signed the Application for Consent Orders in November 2007. Whether she read these parts of the Act or not is of little moment. I suspect very few parties who sign applications for consent orders have read those provisions and those who have read them would be unlikely to understand them in any event. The real issue is the provision of independent legal advice and consequential quality and understanding of such advice. I am satisfied that the wife received clear and effective independent legal advice and that she understood the nature and meaning of the Consent Orders and the process. Further and relevantly, the wife relied upon the Orders and she paid the mortgages and expenses over the years that followed.

3. The wife was criticised in relation to order 9 of the Consent Orders which provided:-[26]

   9.That there are three children from the wedlock and two children are adults and one child is a minor.  The minor child [A] will stay with both parents and the wife will look after the minor child and will be liable for all expenses of this child including education, accommodation and living expenses.  Neither party will make any claim of any child or spouse maintenance against each other in the future.

   [26] Exhibit E8.

4. Much was made of the term that the child [A] would ‘stay with both parents’.  This child had attained the age of 17 years about two months before the orders were made and turned 18 some ten months after the Consent Orders were made.  I am satisfied that the husband had little or nothing to do with the child following separation and that the wife was the child’s sole carer from at least 10 May 2007.

5. The wife sourced her solicitor from an Indian newspaper and sought legal advice from Mr T in November 2007.  I accept and prefer her versions of events, and conversations as set out in paragraphs 24 to 55 of her trial affidavit.

6. The wife says she knows that the husband obtained advice from the husband’s then solicitor.  She says that she did not go to the appointment and has never met the husband’s then solicitor.  I accept and prefer that evidence. 

7. On the evidence, particularly of the husband’s then solicitor both orally and in terms of his certification in the Application for Consent Orders, I am satisfied that the husband received clear and effective independent legal advice and that he understood the nature and meaning of the orders and the process.  Further and relevantly, the husband relied upon the Consent Orders to relieve him of the burden of making mortgage repayments.

1. I am satisfied that the parties each signed and/or executed the Consent Orders and Application for Consent Orders on 7 November 2007 and either at that time or soon thereafter executed transfers of the real property which was the subject of the orders.  The Consent Orders were made by a Registrar of the Local Court in Chambers on 26 November 2007.

2. In relation to the husband’s kidney issues, the wife said in her May affidavit:-

   14.    Paragraph 10 of [the husband’s] Affidavit: I do not agree that [the husband] resigned from work due to back problems and kidney problems.  In 2007, [the husband] said to me words to the effect of “I had an argument with my boss and I am not going back to work”.

   15.    Paragraph 11-12 of [the husband’s] Affidavit:  I agree that [the husband] and I had arguments about him not working as I believed he had the capacity to work and earn money. 

3. I am not satisfied that the wife knew about the husband’s kidney issues at the time at which the parties entered into consent orders.  The husband did not assert any issues of health in the Application for Consent Orders.[27]  I accept the evidence of the wife set out in her trial affidavit and her affidavit filed 21 May 2019.

   [27] Exhibit E15 paragraph 61.

4. There is, however some evidence that the husband had some sign of ‘renal impairment’ in March 2006.[28]  This report also notes that on 10 May 2007 there was a diagnosis of the husband having depression.

   [28] Exhibit E2 page 75.

5. I do not accept the husband’s evidence of ongoing sexual relations between the husband and the wife after 10 May 2007.  I do accept that from time to time the wife has assisted the husband, such as with the loan to enable his dental work, allowing a trial of dialysis at her home, and providing sanctuary for him on one evening in 2012.  Even after the violence, on 16 December 2014, the wife assisted the husband by enabling quick and effective contact between medial authorities and the husband to enable him to accept a donor kidney for a transplant. She impressed me as being a decent person who, despite the past, had a genuine regard for the husband.  Her evidence ought not to be impeached by her decency, it was quite the contrary.

6. There was some evidence that after the Consent Orders were made and the younger child had attained the age of 18 years, the wife tried to persuade the husband to pay for some dental expenses for that child.  I find that this was not an indication of resumption of cohabitation by the parties, but simply parents addressing a particular need of an adult child.

7. The wife was also criticised in relation to notation 12 of the Consent Orders with regard to the involvement of Family Court counselling services.  This had little bearing on the outcome of these proceedings.  It appears to be a standard order which may have been attached to the Consent Orders or the standard notation and, given the age and maturity of that child, it was of little moment.

8. The husband was cross-examined in relation to making payments on the mortgages on the investment property and on the former matrimonial home.  He denied that the separation was to free him from the mortgages and debt.

9. In the Application for Consent Orders the parties had agreed that at the time of separation they owned three properties: the former matrimonial home at Suburb D and two home units in E Street, Suburb D.  They agreed that the former matrimonial home at Suburb D had a value of $380,000.  There was no mortgage on the former matrimonial home, but the wife had a personal loan liability of about $26,000.

10. Each of the parties owned a car with values asserted as $11,000 for the wife and $13,000 for the husband.  The husband asserted he had a Colonial Life policy with a surrender value of $60,000. 

11. The parties agreed that home unit no. 2 had a value of $155,000 and had a liability against it of the same amount, meaning that the parties agreed that the equity in that property was essentially nil.

12. As to home unit 1 the parties said they agreed it had a value of $130,000 and was subject to a mortgage of about $130,000.  That home unit was also said to have a nil value.

13. The parties asserted that the wife had superannuation entitlements of $33,000 and the husband $60,000.

14. The husband was asked whether he made any payments towards those properties following separation and after the making of the Consent Orders.  He obfuscated and at times made statements which were inconsistent with other material he provided.  An example of this was paragraph 16 of his trial affidavit where the husband said that he did not have any money to give the wife for the mortgage repayments. 

15. I am satisfied that the husband did not make any mortgage repayments in relation to any of the parties’ mortgages and loans from at least November 2007 and likely from May 2007 or earlier.

16. The wife was criticised in relation to a statement made in the Application for Consent Orders where she asserted that the husband did not contribute to the purchase of properties and with which assertion the husband agreed.[29]  This is inaccurate as the husband had made financial contributions through his wages.  Rhetorically, what do I make of this?  Both parties knew that husband made contributions and both parties made this incorrect assertion.  I am satisfied that on the husband’s part it was to relieve him of the burden of mortgages and debt and to allow him to live a life free of the constraints of family, married life, mortgages and the like.

    [29] See Exhibit E15 application for consent orders question 58.

Separation

1. The wife was relatively clear in terms of the circumstances surrounding separation.  She asserted that she had been the victim of domestic violence throughout their relationship and that she and the husband agreed to separate and in fact separated on 10 May 2007.

2. The husband’s evidence on the other hand is somewhat of a moving feast.  At the commencement of the hearing his counsel asserted, and this was later supported by evidence from the husband, that they separated on 16 December 2014 following an incident at the former matrimonial home. 

3. In the Application for Consent Orders, signed by the parties and witnessed by their respective solicitors, it was asserted to the Suburb B Local Court that the separation took place on 10 May 2007.[30]

   [30] Exhibit E14 and E15 - Application for Consent Orders paragraph 11.

4. In an earlier affidavit filed 30 December 2015 the husband initially said:-

   6.      [The wife] and I initially separated under one roof in or about 2007.

5. Later in that affidavit he set out a series of events saying that he and the wife agreed to separate.[31]

   [31] See paragraph 14 amongst those set out in paragraphs 11 to 17 of the husband’s 30 December 2015 affidavit.

6. In his Initiating Application filed 30 December 2015 the husband certified the facts contained in that document were correct, and when taken to paragraph 27 the date of final separation was identified by the husband as being in 2008.

7. In 17 February 2015 a letter was written to the wife by the solicitor for the husband[32] in which it was asserted on the husband’s behalf and adopted by the husband in the course of cross-examination that he and the wife separated in about 2008.

   [32] Exhibit E6.

8. The wife filed an Application for a Divorce on 8 January 2015.[33]  In that document she asserted that the parties separated on 10 May 2007.  That Application was served upon the husband through his solicitors and the husband had that document read to him by Ms M and his lawyers and it was explained to him.

   [33] Exhibit E2 page 158.

9. This needs to be seen in the context of the letter sent by the husband’s solicitors to the wife in February 2015[34] where the husband asserts separation was in ‘about 2008’.

   [34] Exhibit E6.

10. The husband was questioned about this and conceded that the letter was sent on his behalf and on his instructions.  He conceded that he knew about the date in the divorce application and those were assertions made by him with his knowledge.

11. The husband then went on to say that the separation occurred on 16 December 2014 and that the other ‘separation/s’ had not been a real separation/s.

12. When cross-examined about this the husband prevaricated and dissembled saying things such as ‘I don’t remember the date, it has been so long’.  When questioned about his instructions to his lawyer in February 2015 the husband prevaricated about the 2014 date and then tried to get back to the 2008 dates.  The husband said the separation was about accessing the Centrelink money.

13. The husband’s evidence in that respect, like much of his evidence, was troubling.  I am satisfied that he fabricated evidence in relation to his alleged 16 December 2014 separation.  I am satisfied that a violent event occurred on 16 December 2014.[35]  However, I do not accept that this was the end of the relationship event or the end of cohabitation.  I find that the husband had for a short period of time visited the former matrimonial home for the purpose of trialling dialysis as asserted by the wife.

    [35] Affidavit of Ms R, the daughter.

14. I watched the husband’s demeanour in court, and I listened carefully to his answers.  The questions put to him by counsel for the wife were generally careful, thoughtful, and in a measured way so that the husband could understand.  On a number of questions, he answered directly and in English.  It is unlikely that he suffered a failure of memory.  It is more likely that the assertion of a 2014 separation by the husband is a fabrication to enable him to opportunistically make a claim against the property of the wife.  This notwithstanding the passing of many years after the date of the actual separation in May 2007 and after the parties had consented to property orders in November 2007.

15. I find that, notwithstanding the photograph contained in Exhibit E2,[36] that the wife did not jointly attend social events with the husband as a couple after separation in May 2007.

    [36] Page 58.

16. There may have been times when the parties’ paths crossed.  The wife, and indeed the daughter, seem decent people who struggled with their exposure to violence at the hands of the husband, but still helped accommodate him from time to time with problems, such as providing an address for him, the overnight stay when the husband said his life was at risk in 2012[37] and allowing the husband to trial dialysis at the wife’s home from about perhaps as early as July 2014 or as late as September 2014 through to December 2014.

    [37] Wife’s trial affidavit –paragraph 7.

17. As recently as December 2015 the wife received a telephone call from the U Hospital to say there was a kidney available for the husband.  They said they could not contact him.

18. The wife had not spoken to the husband for one year but contacted the husband’s cousin and the tried the husband’s ‘wife’.  The wife spoke to a woman and passed on the information.  This woman put the husband on the telephone and the wife told him of the availability of the kidney.  The next day the wife was informed the husband’s transplant was successful and she visited him until she was asked not to call him anymore.  The husband has endeavoured to convert these acts of kindness to the father of her children as some form of admission of cohabitation.  I reject that submission and that assertion.

19. I am satisfied that, at least on the wife’s part, there was no effort to enter into arrangements to obtain Centrelink benefits to which the husband may not have otherwise been entitled.

20. Since May 2002 the husband has been living peripatetic lifestyle travelling from one address to the other since separation.  He has spent significant time in Country G and has given numerous addresses to Centrelink and to the driver’s licence authorities of New South Wales.  The fact that the husband has from time to time used the former matrimonial home as his address is not, in the circumstances of this case, evidence of a resumption of cohabitation nor is his membership of a club.

21. I accept the evidence of the wife that the husband has undertaken no renovations or work on the properties after separation in May 2007.   

22. The husband asserts that he and the wife travelled to Country Q as a couple.  I have dealt with and rejected the assertion that they travelled as a couple elsewhere in these reasons. 

23. The wife was cross-examined on using the term ‘housewife’ in an Incoming Passenger form in 2010.  That seemed to me to be much ado about nothing.  There was some evidence that the wife filled out a passenger movement form for the husband in 2006.  There was no evidence of her filling out passenger movement forms for the husband subsequent to separation.

24. The wife may have filled out some sort of form as they were leaving for Country Q in 2013, although such a document was not produced.  This is indicative of the wife’s approach to help people when they are in difficulties.

25. I am not satisfied this is indicative of cohabitation.

26. There is a photograph upon which the husband relied.[38]  This was of the wife, the husband and others and came from the Facebook account of the wife’s sister.  The wife says she does not know the source of the photograph and has no recollection of when it was taken.  This did not adversely impact on the reliability of the wife’s evidence.

    [38] Exhibit E3 – page 58.

27. During the course of the hearing the husband asserted that he and the wife met overseas on a number of occasions; it was claimed she met the husband in Malaysia in May 2010 and again in July 2013. 

28. The wife denied that this occurred and for the reasons as to reliability of the respective parties’ evidence, I prefer the wife’s evidence.

29. In many ways it seems an artifice that the husband picked times when they happened to be overseas at times when they may have been in the same city for a day or two or the same country for a short period of time to assert some form of meeting.  Given the evidence I am satisfied that that was not the case of traveling together or meeting overseas as a couple.

30. I prefer and accept the evidence of the wife that she and the husband separated on a final basis on 10 May 2007.[39] There is some inconsistency between what the wife said in her trial affidavit, that is that the parties separated in November 2007,[40] and her May 2019 affidavit, that she separated in May 2007. I had regard to this minor inconsistency and it does not impeach the wife’s overall evidence of separation on 10 May 2007 and my positive assessment as to the veracity of it. It is likely to be a conflation of the relevant dates in 2007, that is the date of separation, the date the Terms of Settlement and the Application for Consent Orders were signed, that date the application was apparently lodged (21 November 2007) and the date the Consent Orders were made on 26 November 2007.[41]

    [39] Wife’s trial affidavit – paragraph 9.

    [40] Ibid – paragraph 12.

    [41] Exhibit E7 – this shows the Application was made 21 November 2007, the Terms of Settlement of consent were dated 7 November 2007 and the Consent Orders made 26 November 2007.

31. I am satisfied, on balance, that the husband travelled to and from Country G after separation and that when he was in Australia he stayed with friends and family.

32. Given the evidence before me, I am satisfied that the husband and wife separated on 10 May 2007 and did not cohabitate nor live together under the same roof from that date, other than the one night in 2012, to which I have elsewhere referred.  They did not cohabit or resume to consortium vitae in any way after May 2007.

Dialysis

1. The husband asserted that his use of the former matrimonial home for dialysis was an indication of a continuing relationship between himself and the wife.  I considered the evidence of the parties and documents produced by one or other of them.

2. The husband asserted in his trial affidavit that:-

   73.    In or around 2013 I was required to go on dialysis for my kidneys to function.

   74.    [The wife] and I continued share the same bed until I went on dialysis.  After this I slept in the spare room where the machine was as it made loud sounds and [the wife] could not sleep with it on.

   …

   87.    In or around 2013 my kidney failure increased.  I was required to go on dialysis for 8 hours per day.  The dialysis machine was delivered to [the former matrimonial home] from H Pty Ltd.

   88.    I went to the hospital before the machine was delivered and the staff there taught me how to set up the dialysis machine and use it.  I attended alone on this occasion. 

3. The implication is that the dialysis machine was used by the husband at the former matrimonial home from sometime in 2013 until 16 December 2014. 

4. The husband exhibited to his affidavit reports from his treating medical practitioners of 24 February 2014, 27 March 2014, 26 August 2014 and 24 November 2014.  I have read that material and it seems that in February/March 2014 the husband was recommended as being suitable for a ‘percutaneous procedure’.[42]  It seems from this evidence that the husband was referred to a renal physician, Dr P, in February 2014. The husband saw Dr P in late March 2014.

   [42] Exhibit E2 page 76.

5. Documents from H Pty Ltd show that material was being delivered to the former matrimonial home on 7 July 2014.

6. On 26 August 2014 the husband attended the V Area Health Service for a report on a ‘CAPB Regime’.[43] Comments were made in that report:-[44]

   [Patient] complaining of [abdominal dissension] due to fluid dialysate.  General bloods adequacy collected.  It due for TX (therapy) workup next week.  Plan for home choice trialling by H Pty Ltd at home next week.

   [43] Ibid – page 77.

   [44] Ibid.

7. That material is consistent with the material provided elsewhere by V Area Health Services.[45]  This later document was a copy of a Home Visit Risk Assessment undertaken by the V Area Health Service dated 4 September 2014, about three months before the incident on 16 December 2014. I have concluded that the date was 4 September 2014 as the CPAD regime document referred to it in the preceding paragraph was dated 26 August 2014. It is also significant to note, given the issue about the husband’s ability to speak English, that the assessment noted that an interpreter was not required.

   [45] Exhibit 25.

8. The evidence of the wife was that a test was undertaken to use dialysis outside a hospital setting at the former matrimonial home for a period of time much less than twelve months.  The husband asserted that the dialysis went on for much longer.

9. I am not satisfied that the dialysis was indicative of a resumption or continuation of the parties cohabiting.  It is evidence of the wife’s generous nature as she agreed to the trial to assist the husband for a relatively short period of time. He was not to stay overnight.  

Representation and explanation as to the Application for the 2007 Consent Orders

1. I am satisfied that each of the parties were separately represented and advised when they individually executed the Application for Consent Orders 7 November 2007[46] and signed the Terms of Settlement, which in turn became the Consent Orders made 26 November 2007.[47] 

   [46] Exhibits E14 and E15. The earlier exhibit has the more legible copy of the application.

   [47] Exhibit E7.

2. Given the evidence of the husband, the wife, the husband’s solicitor and my concerns about the reliability of the husband’s evidence, I am satisfied that the husband clearly knew the nature and effect of the terms of the Consent Orders, the Application for Consent Orders and the transfers of property.  On balance, I prefer the wife’s evidence in relation to the events that occurred at the time the Application for Consent Orders was signed.  I accept the evidence of the wife that she was not at the office of the husband’s solicitor when he executed the documents.

Suburb F

1. Well prior to separation and during their relationship the parties had jointly purchased vacant land at Suburb F (‘the Suburb F property’).  They paid about $6,500 for that property. A $500 deposit was paid by the wife’s father and the remainder of the deposit was paid by the parties.  The balance of the purchase price was paid by a loan.  There was no evidence that that loan had been other than paid off.

1. The parties had both forgotten about the Suburb F property when the consent orders were made.  There was no material non-disclosure as it was clear that both parties knew about the Suburb F property, but each had simply overlooked it when the Application for Consent Orders was being created and executed.  The effect of that error was that the Suburb F property remains in the parties' joint names and is owned equally by them.  If the existence of the Suburb F property had be concealed or perhaps had it been in the wife’s sole name, there may have been some substance to this complaint.  However, it was not.

2. The failure to include the Suburb F property was a significant omission, however, I am not convinced that it amounts to a material non-disclosure by either party. 

3. This is because the property remains jointly owned by the parties and can be sold.  Each party retains a one half interest in it.  The wife believes the Suburb F property has a current value of about $100,000.

4. Given these circumstances, I am not satisfied that this was a material non-disclosure. Even if it was, given the circumstances of this case, I would not have exercised my discretion to set aside the Consent Order. 

Travel to Country Q in 2013

1. The husband generally asserted that the intimate relations between himself and the wife continued following May 2007.  The wife denied that there was any intimacy between herself and the husband following separation.  The wife said that the husband stayed overnight on one occasion which is referred to earlier in these reasons.[48]

   [48] Wife’s affidavit filed 21 May 2019 paragraphs 7 to 10.

2. The husband asserted that he and the wife travelled together to Country Q in about April 2013.  The wife conceded that she went with the husband to Country Q.[49]

   [49] Paragraphs 34, 63 and 71 of wife’s trial affidavit.

3. The wife said that she is part of a small Indian community in her area and that she went to a prayer group which the husband also attended from time to time.  There were a number of people from that group going to Country Q to undertake less expensive dental work, and this group included the wife.  The wife sets out the history of that event in her affidavit of 21 May 2019, including the request by the husband to have his teeth repaired at the same time, saying:-

   63.After [the husband] and I separated, my friends, [R] and [P], contacted me and said to me words to the effect of “we are planning to go to Country Q to get our dental work done.  It is much cheaper in Country Q and we can stay somewhere that is on the same street as the dentist.  We have asked [the husband] to come as well”.

   64.I also had a conversation to the following effect with the Priest at our prayer group:

   Priest:    “I am going back to Country Q to have more dental work done.  It is much cheaper there.  I am going with a group of people.”

   Me:       “Can I go with you?”

   Priest:    “Of course.  We will be going in April.”

   65.I saw [the husband] at the temple and we had a conversation to the following effect:

   [The husband]: “I heard people are going to Country Q to get their dental work done.  I want to go too but I can’t afford it until I get my super.  Can you pay for me and I will pay you back when I get my super?”

   Me:       “That is fine.”

   66.When [the husband] and I were in Country Q, we stayed together with our friends and the Priest.  We all stayed in single beds in the one room and we each had curtain dividers for privacy.  We stayed here because it was only $6 a night and we were on the same street as the dentist. 

   67.I left Country Q after approximately two weeks and to the best of my knowledge [the husband] stayed for three months.

   68.When I got back to Australia, [the husband] called me and we had a conversation to the following effect:

   [The husband]: “I have run out of money.  Can you please transfer me $2,000?  I’ll pay you back when I give you the money from my super for the dental work.”

   Me:       “Ok that’s fine.”

   69.I transferred $2,000 to [the husband]’s account.

   70.When [the husband] came back to Australia, I recall giving him some cash.  I do not recall how much it was.

   71.[The husband] transferred me his superannuation and I deposited it into my home loan account to pay back the money [the husband] had borrowed from me.

   72.[The husband] and I maintained some sort of friendship for the benefit of our children. [The husband] and I live in a small community and we have both remained living in the same area so we see each other from time to time but we have not been in a relationship since we separated in May 2007. 

4. The wife gave evidence that the group travelled together and lived in modest accommodation.  At one stage she said they all were in one room with curtains dividing them and that she and the husband each slept in separate single beds, and on another occasion the whole group shared a motel room and again the wife did not share a bed with the husband.

5. The husband asserted that the couple shared a bed and were intimate.  For the reasons articulated elsewhere in these reasons, I reject the husband’s evidence and I prefer the evidence of the wife.

6. I am satisfied that the wife loaned the husband considerable funds to enable him to have work undertaken on his teeth.  I am satisfied that the payment of $33,305.98 in May 2013 by the husband to the wife after the trip to Country Q was a repayment of monies paid by her to enable the husband to have dental work undertaken in Country Q.  It was not a gift or a contribution by the husband, but a repayment of a loan. The timing of this payment is consistent with the wife’s version of events.

7. For the reasons articulated elsewhere in this judgment I preferred the evidence of the wife than that of the husband.

Alleged loan of $45,000

1. In his trial affidavit the husband alleged that he gave the wife $45,000, saying:-

   82.    In 2007 I developed issues with my kidneys and resigned from paid employment.

   83.    In or around June 2010 I required funds for a kidney transplant.  I withdrew approximately $45,000.00 from my superannuation interest for the kidney transplant.  I gave this money to [the wife] to put it in our joint account so I could use it for the kidney transplant.  [the wife] continued to operate our joint finances and I trusted her with this money.  [The wife] said to me words to the effect:

   “I have put your money in the home loan account for the units and whenever you want I will take it out.”

   84.    I do not know how these funds were applied.  I did ask for these funds on a date I do not now recall and [the wife] responded with words to the effect:

   “The monies are in the investment account.”

   85.    I did not know which investment account [the wife] was referring to and did not have access to the funds at this time.

   86.    I did ask for the funds back though [the wife] said to me it’s in the loan account. I was not on the name of this account and unable to access the funds.

2. The wife denied such money was given to her.[50]

   [50] Wife’s May affidavit - paragraph 38.

3. The removal of $45,000 from an account would likely have been documented somewhere. No documentary evidence was provided.

4. Given my views as to the reliability of the husband’s evidence and that the onus of proof rested with him, I am not satisfied that any such advance to the wife has been established.

The $29,839.21 funds 

1. The husband asserted that in January 2012, about 15 months before the travel to Country Q, he transferred $29,839.21 from his superannuation account to his personal cheque account.  The AMP Exhibit to the husband’s affidavit confirms that the money was transferred to him. 

2. However, there is no evidence that these funds were paid into any joint account or paid to the wife.  In his affidavit the husband did not assert that the funds were paid to the wife.

3. This is not evidence of a loan or advance to the wife in this sum.  I am not satisfied that such an amount was paid to the wife.

Joint Bank Accounts

1. There was evidence before me that the parties from time to time had joint bank accounts following separation.[51]

   [51] Exhibit E26.

2. The first of those accounts was a joint account of the parties with the Commonwealth Bank, account ending 756. There were statements on this account from 28 February 2006 until the account was closed on 14 March 2008. Salary from Y Company was paid into that account until December 2007. Presumably that was income of the wife as it was an agreed fact that the husband had ceased paid employment much earlier that year.  That bank statement is consistent with wife’s assertion that the relationship ended in 2007.  The parties in their Application for Consent Orders disclosed loans for the two Suburb D home units and that the wife had a personal loan, all with the Commonwealth Bank.  The three properties owned by the parties were transferred to the wife pursuant to Consent Orders and the transfers were dated 21 December 2007.  The closure of the joint account is consistent with the conclusion of the transfer of the properties.

3. This account is not indicative of a continuing relationship between the parties.  It is supportive of the wife’s factual assertions.

4. The second joint account was with the Commonwealth Bank, account number ending in …79. This account was opened on 27 March 2012 and closed on 12 April 2012. The wife gave a plausible explanation as to the account and its quick closure, I accept that evidence. This account is not indicative of a continuing relationship.

5. The third joint account was with the Commonwealth Bank, account number ending in 932.  This account was opened on 7 June 2012 and was closed on 21 September 2012.  It had one credit of $50 after it opened and a transfer at the end of $38.80, which was the $50 less bank fees.

6. The fourth joint account was with the Commonwealth Bank, account number ending in 119.[52] This account was opened on 27 December 2012 and was closed on 17 December 2014, shortly after the events of 16 December 2014.

   [52] The account statements of 119 was also tendered as evidence of the payment of the $33,305.98, Exhibit E17.

7. The transactions were large in early 2013 with about $7,500 in and out in January 2013 and $13,700 in and out in February 2013.  This was in the lead up to the trip to Country Q for dental work, and on the evidence of the wife related to expenses for the husband by way of loans from the wife.  This is consistent with the wife’s evidence of using her money and being repaid with the $33,385 later in the year.  In June 2013 there was the $33,385 to which I have already referred.   

8. I am satisfied that these accounts are not evidence of a continuing relationship between the parties, they were merely particular purpose accounts: the first to wind up their joint financial life at the time surrounding separation and the making of the Consent Orders in 2007, two accounts to endeavour to fund an adult son’s dental expenses and the last account surrounding the trip to Country Q for the parties dental work in April/May 2013.  

CONCLUSION

1. The husband seeks to have the Consent Orders made by a Registrar of the Local Court in Suburb B on 26 November 2007 set aside and then to seek orders for adjustment of property between the parties.  Having bifurcated the proceedings, this hearing related to the Application to set aside the Consent Orders.

2. In his case outline, counsel for the husband asserted that the Court should set aside the Consent Orders made 26 November 2007 on a number of bases.

3. First, that there was a miscarriage of justice by reason of fraud, duress, suppression of evidence, including failure to disclose relevant information, and for the giving of false evidence or any other circumstances.  Further, that such a miscarriage was one in which the Court would exercise its discretion to set aside the 2007 Consent Order.

4. Second, that given the husbands contention that the parties had either continued their consortium vitae or reconciled after the Consent Order was made that this amounted to circumstances which made it impracticable for the Consent Order to be carried or continued to be carried out.

5. Third, that pursuant to s 79A(1A) of the Act the actions of the parties in continuing their relationship or resuming their relationship amounted to their implicit consent to set aside the Consent Order, and that the Court in that circumstance should make another order under the Act.

Miscarriage of justice ground

1. Section 79A(1)(a) of the Act relevantly provides:-

   Where, on application by a person effected by an order made by a court under s79 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 circumstances or …

2. In his case outline counsel for the husband asserted a number of contentions with regard to the miscarriage of justice ground. 

3. The first was in essence an allegation of fraud, allegedly committed by both parties and likely with the support of their respective legal practitioner, either with the full knowledge of those legal practitioners or implicitly by the legal practitioners working hand in hand rather than independently. This was in the context that the parties, led by the wife, used the Consent Orders to transfer property to enable the husband to access Centrelink benefits.  This, in alleged circumstances that the parties continued with their marriage or were separated at the time and then resumed the marriage for an extended period after the Consent Orders were made.

4. This ground included a contention that the Consent Orders were made in circumstances of great collaboration between the parties and their respective lawyers.  The Suburb B Local Court was allegedly not told that the parties’ separation was an illusion or a device and that it was intended by the parties that they would carry on or resume living together as a married couple.  The husband contended that such an error, either alone or in combination with the other circumstances was a miscarriage of justice sufficient to set the Consent Orders aside.  

5. The second ground was that that the Consent Orders did not deal with the whole of the property of the parties as they continued to jointly own the Suburb F property and had not disclosed that to the Suburb B Local Court in their Application for Consent Orders.  The husband contended that such an error, either alone or in combination with the other circumstances was a miscarriage of justice sufficient to set the Consent Orders aside.  

6. The third ground was that the parties made a statement in the Application for Consent Orders that the husband had made no financial contributions to the relationship prior to 10 May 2007, when in fact he did make financial contributions.  The husband contended that such an error, either alone or in combination with the other circumstances was a miscarriage of justice sufficient to set the Consent Orders aside.

7. The fourth ground was that the outcome of the division of property was so far outside the range of such property division so as to constitute a miscarriage of justice sufficient to set the Consent Orders aside.  In this regard the wide disparity of the parties’ financial outcomes was said not to be explained or justified.  The husband contended that this alleged circumstance, either alone or in combination with the other circumstances should base the application to set aside the Consent Orders.     

8. The fifth ground was that it was alleged that the legal advice provided to the husband by his then solicitor was not independent.  The husband contended that such a circumstance, either alone or in combination with the other circumstances was a miscarriage of justice sufficient to set the Consent Orders aside.

9. The sixth ground was that the legal advice provided to the husband by his solicitor was either incomplete and/or incompetent.  Whilst even incomplete and/or incompetent advice would not necessarily result in the consent orders being set aside, in the husband’s case is that the advice he obtained was so incomplete and/or incompetent that it would either alone or in combination with the other grounds amount to a miscarriage of justice that would be sufficient to set aside the Consent Orders.  Additionally, a subset of this ground was that the husband alleged that he did not adequately speak English and could not read or write English.    

10. The parties seemed in agreement as to the law regarding s 79A(1a) applications, that is as set out by Ryan FM (as her Honour then was) in SH & DH (No. 1) (2003) 202 ALR 660 where she outlined the four stage structure in these applications, namely:-

    1.      Whether the ground, such as duress under the section is established.

    2.      Whether the existence of that ground amounted to a miscarriage of justice.

    3.      Whether the court in its discretion should vary or set aside the order.

    4.      Whether the court should make another order under s79.

11. The first ground of the husband’s contentions regarding the alleged fraud is not made out.  The onus is on the husband to establish various facts on which to base such an allegation.

12. First, he must establish that he and the wife jointly entered into an explicit or implicit agreement or arrangement, before and/or at the time of the making of the application for Consent Orders, to put orders for the purpose of enabling the husband to access Centrelink benefits.

13. The only evidence in support of that contention comes from the evidence of husband.  The wife denies that assertion and says that she and the husband separated on 10 May 2007 after a difficult marriage and they have not cohabited together as a couple since May 2007.  The wife’s evidence in that regard is supported by the evidence of the daughter.

14. The evidence of the husband’s then solicitor does not support the husband’s contention both in the solicitor’s oral evidence and in his certification to the Application for Consent Orders.  The only evidence of the wife’s solicitor was contained in the certification to the Application for Consent Orders which directly contradicts this assertion by the husband.

15. Each of the parties’ solicitors separately certified that they ‘gave independent legal advice as to the meaning and effect of the draft Consent Orders and explained their [the respective parties] rights entitlements and obligations’.[53]  There is no reliable evidence that the parties and their legal representatives colluded as is asserted by the husband.

    [53]Exhibits E14 and E15 – pages 24 and 24 of Exhibit E14.

16. The husband’s evidence is unreliable.  He has not discharged the civil onus of proof to establish this ground and as such this ground fails.

17. The second ground was that that the orders did not deal with the whole of the property of the parties as they continued to jointly own the Suburb F property and had not disclosed that to the Suburb B Local Court in the Application for Consent Orders. 

18. What then do I make of the Suburb F property being forgotten by both of the parties?  It is clearly not a suppression of evidence or fraud.  It is simply that both the husband and the wife forgot about this piece of real estate which had, according to the wife and not disputed by the husband, a value of about $100,000 at the time of hearing.[54]  There is no evidence of its value as at the date of the Consent Orders

    [54] Wife’s trial affidavit paragraph 81.

19. In terms of the failure to deal with that property in the orders, I have had regard to the comments of the Full Court in Scribe & Scribe (2006) FLC 93-302 at paragraphs 81, 82 and 83 where the Full Court said:-

    81.In both his written and oral submissions, Counsel for the appellant husband placed particular reliance on the following passage from the judgment of Mason J (with whom Aickin J agreed) in Taylor v Taylor (1979) FLC 90-674:

    What s. 79A(1) does is to give the court a discretion to set aside an order when it has been obtained by false evidence. In such a case the court will be extremely reluctant to exercise its discretion in favour of setting aside the order unless something more appears than that false evidence has been given and has procured the making of the order. The importance of bringing an end to litigation and the evil of allowing cases to be retried on the same evidence are powerful deterrents against setting aside a judgment whenever it appears that it has been obtained by false evidence without more… [our emphasis]

    82.Notwithstanding some amendments to s 79A(1) since the decision in Taylor (supra), and notwithstanding that in this case only misleading as opposed to false evidence is relied on, we consider that the appellant’s reliance on Mason J’s observations are well placed and are matters to which regard should have been had in the exercise of the discretion in this case.

    83.We note also that in Rohde v Rohde (1984) FLC 91-592 at 79,770, Gee J sitting at first instance, considered that in the exercise of the discretion under s 79A(1), he was bound to have regard to the principles stated by Mason J in Taylor (supra) and also to the following principle (at 79,770):

1. The failure of the parties was not, on the evidence, an endeavour to procure the orders.  Given the split of property in favour of the wife, if the value of the Suburb F property (whether that be $6,500 or $100,000 or somewhere in between) had been included as an asset the parties retained as 50 per cent for each, it would have increased the husband’s overall percentage of the property division.

2. The Suburb F property was in joint names and remains in joint names.  It is a joint asset of the parties and if one or other forces the other party to sell that property then, if the wife is correct as to its value, each would receive about $50,000.

3. I am not satisfied that the failure to recall ownership of that property by both parties could amount to a miscarriage of justice and I note the comments of Mason J in Taylor & Taylor (1979) FLC 90-674 where he said at 79,770:-

   It is in the public interest, that parties who have been the primary contributors to their own financial troubles in the way the husband has been in this case, should not be allowed to relitigate matters with a view to getting themselves out of those troubles.

4. The husband suffered no financial consequences as a result of that failure to recall.  He retained an interest in a property and did not complain about retaining the interest in that property from November 2007 until the commencement of these proceedings in late 2015.

5. It was a failure to disclose and, as I indicated earlier, I am not satisfied that it was such as would in the circumstances amount to a miscarriage of justice.  Even if it did reach the level, given the circumstances of the parties, I would not have exercised the Courts discretion to vary or set aside the Consent Orders.

6. The third ground was that the parties made a statement in the Application for Consent Orders that the husband had made no financial contributions to the relationship prior to 10 May 2007, when in fact he did make financial contributions.

7. I made findings earlier in these reason regarding the circumstances of this agreed ‘error’ in the material fact of the husband’s contributions.  The wife asserted that ‘[the] wife made financial contribution to purchase investment properties and matrimonial home.  The husband did not contribute to purchase of the properties.[55]  The husband stated that he ‘agreed’ with that proposition.

   [55]Exhibit E14 – page 20 being paragraph 58 of the Application for Consent Orders.

8. The fact that the wife made that assertion and the accuracy of it was the subject of cross-examination, and she conceded that the statement was incorrect. However, the reason why the assertion was made was not extensively explored.  It was open for the husband to raise a concern about that assertion at the time he executed the Application for Consent Orders.  He was legally represented and in the Application for Consent Orders he acknowledged that and his rights, obligations and entitlements pursuant to the orders were explained to him.

9. Given those findings, I am not satisfied that the statement, alone or a as part of a group, amounts to a miscarriage of justice within the meaning of s 79A(1)(a) of the Act. Further, had it have reached the threshold point within the section of being a miscarriage of justice, I would not have exercised the discretion that the provision provides. This because of the period of time that has passed, the implementation of the Consent Orders, the clear consent provided by the parties.

10. The fourth ground was that the outcome of the division of property was so far outside the range of such property division so as to constitute a miscarriage of justice sufficient to set the Consent Orders aside.  In this regard the wide disparity of the parties’ financial outcomes was said not to be explained or justified.

11. I accept that the effect of the Consent Orders gave rise to a wide disparity in the party’s financial circumstances.  The wife retained the matrimonial home with an agreed value of $380,000, a car with an agreed value of $11,000, furniture with an agreed value of $20,000.  These were subject to a personal loan of $26,000.  She had superannuation with an agreed value of $33,000. 

12. The husband retained his car which had an agreed value of $13,000, his furniture had an agreed value of $20,000, his life policy had an agreed surrender value of $60,000.  He retained his superannuation with an agreed value of $60,000.

13. The wife retained the two investment units, which at the time had an agreed value of $130,000 for unit 1 and $155,000 for unit 2.  They had mortgages of $130,000 on unit 1 and $155,000 on unit 2, consequently they had a zero net value.  It was left to the wife to meet all expenses on those investment properties, including the repayments due under the mortgages.

14. The non-superannuation percentage of the property division pursuant to the Consent Orders was significantly in favour of the wife.  The superannuation percentage of the property division pursuant to the Consent Orders was significantly in favour of the husband.  I have not included the investment properties in these calculations, as their net value is zero.

15. I prefer and accept the wife’s evidence that the husband wanted his freedom and to be released for the obligations on the various loans and mortgages. The husband and the wife had transferred an onerous investment property to their daughter some months earlier in 2007.  The Consent Orders enabled the husband transfer the parties' investment properties and the former matrimonial home to the wife, on the basis that she takes over the liabilities including the liabilities for the personal loan.  The wife says that she heard the husband say to her solicitor, Mr T:-[56]

    I don’t want anything to do with [the wife] and [the kids].  I don’t want to have to deal with the mortgages and the bills.  I just want freedom.

    [56] Wife’s trial affidavit paragraph 28.

16. This is what the Consent Orders and the subsequent implementation of the orders achieved.  The husband wanted no financial responsibility for the children or for the wife.[57]  I reject the notion that the disparity of the parties’ financial circumstances was not explained or justified, it was explained and justified by the parties in their discussion and that outcome was reflected the terms of the Consent Orders.

    [57] Exhibit E16 terms of settlement notation 13.

17. I am not satisfied that in the circumstances the division of property was so far beyond the range, if it was beyond the range, in such a way as to have reached the threshold of being a miscarriage of justice within the meaning of the section of the Act. Even if it was to be construed as a miscarriage of justice, given the implementation of the Consent Orders and the wife meeting those expenses over the years 2007 to 2015, I would not have exercised the discretion to set the Consent Orders aside, either as a stand-alone situation or as part of a group of issues in that regard.

18. The fifth ground was that it was alleged that the legal advice provided to the husband by his solicitor was not independent.

19. I adopt the reasoning of Stevenson J in Gason & Gason [2007] FamCA 114 at paragraphs 82 and 83 where her Honour said:-

    82.Mr O completed and signed the section of the Application for Consent Orders headed “Statement of Independent Legal Advice”.  He certified that he gave independent legal advice to the husband “as to the meaning and effect of the attached proposed orders”. 

    83.Mr O is an officer of the court.  I am most reluctant to find that he failed in his duty to provide independent legal advice only on the word of the husband. There was no evidence called from either Mr O or Mr N.  No documents from their files were tendered.  In my opinion, the husband failed to establish that he did not receive independent legal advice.

20. The husband contended that the lack of independent advice was a circumstance, either alone or in combination with the other circumstances was a miscarriage of justice sufficient to set the Consent Orders aside.

21. The wife gave evidence as to how she found her solicitor and how the husband was referred to his solicitor. I accept that the husband saw his solicitor in the absence of the wife (this is consistent with the wife’s evidence and the invariable practice adopted by the husband’s solicitor).  In the certifications which make up part of the Application for Consent Orders[58] the husband and wife depose under oath that they had been given independent legal advice.  Each of the parties’ solicitors certified that they gave their respective clients independent legal advice.  The then solicitor for the husband had no recollection of seeing the husband and with the passing of time his file had been destroyed.

    [58]Exhibit E14 – pages 24 and 25.

22. I do not accept the evidence of the husband about the lack of independent advice was credible and/or reliable.

23. I am satisfied that each of the parties received independent legal advice. Consequently, in the circumstances there is no evidence of a miscarriage of justice within the meaning of the section of the Act on this ground.

24. The sixth ground was that the legal advice provided to the husband by his solicitor was either incomplete and/or incompetent.  Whilst even incomplete and/or incompetent advice would not necessarily result in orders being set aside, it is the husband’s case the advice he obtained was so incomplete and/or incompetent that it would either alone or in combination with the other grounds amount to a miscarriage of justice that would be sufficient to set aside the Consent Orders.  Additionally, a subset of this ground was that the husband claimed that he did not adequately speak English and could not read or write English, which if accepted could give rise to an issue that the husband did not understand the advice and in those circumstances it would have been incomplete or incompetent, given the certification required from the solicitor.     

25. Given the certification by the husband and his solicitor on the Application for the Consent Orders, that is that the husband was aware and had explained to him his rights, entitlements and obligations under the Act and in terms of the Consent Orders, the onus of proof was on the husband. He needed to establish on the evidence, to the civil standard, that he did not understand the Consent Orders and/or that it was incomplete and/or incompetent.

26. It was submitted by counsel for the husband that the limited time that the husband’s then solicitor provided to the husband to explain the Consent Orders and the process for consent orders would not have been sufficient to give the husband adequate legal advice.  That is a bridge too far.  The husband’s then solicitor certified at the time that he gave appropriate advice and he gave written advice.  He said, in cross-examination by the husband’s counsel, that it was his invariable practice to see clients alone and to provide written advice, although he has no particular recollection of this matter. I accept the evidence of his solicitor as being credible and reliable. 

27. Claims made by the husband in terms of this application included that he did not understand the Consent Orders as he could not understand or read English.  While the husband may have had some trouble reading the consent orders and the application, I am satisfied that these were read and explained to him and that he understood the nature and effect of the then proposed orders.  I have rejected his evidence that he did not understand the nature and effect of the application and the consent orders.  I reiterate the comments and findings I have made in this regard elsewhere in these reasons.  I accept as reliable the oral evidence of the husband’s then solicitor in terms of the practices of the solicitor to ensure that his clients are aware of that which they sign.  In addition, I have the reliable evidence of the wife.  I am satisfied by the evidence contained in the certificate in the Application for Consent Orders by the husband’s then solicitor that the husband understood in the terms of the certificate.  

28. I am satisfied that the husband could and can speak and understand English very well.  To a lesser extent the husband could both read and write English.  I have come to this conclusion having observed the husband giving evidence.  I accept the evidence of the wife that the husband was for a time a supervisor in a factory and that the husband wrote from time to time.  The husband’s counsel, to a limited degree, conceded some limited writing ability of the husband in terms of the acknowledgment that the husband wrote an address on the sale of boat form.[59]

    [59] Exhibit E9 final page.

29. The husband has not established that the legal advice provided to him by his solicitor was either incomplete and/or incompetent.  As such this ground relied upon to make a finding of a miscarriage of justice must fail.    

30. In conclusion, I am not satisfied that pursuant to s 79A(1)(a) of the Act that there were the miscarriages of justice by reason of fraud, duress, suppression of evidence, including failure to disclose relevant information, the giving of false evidence or any other circumstances, as was asserted by the husband.

31. As such this part of the husband’s claim fails.

Circumstances have arisen since the Consent Orders were made giving rise to an impracticality of the Orders or part of them to be carried out

1. Counsel for the husband in effect submitted that the alleged reconciliation of the parties or the continuation of their relationship was such it was impracticable for the orders to be carried out. Section 79A(1)(b) of the Act relevantly provides:-

   S79A(1)(b) Where, on application by a person effected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:

   …

   (b)in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or …

2. Counsel for the wife submitted on 18 October 2019 the following:-[60]

   Now, upon the consent orders being made, properties were transferred to [the wife].  Now, the properties were transferred subject to an obligation that [the wife] assume the mortgage liabilities in relation to those properties.  She did assume the mortgage liabilities in relation to those properties and refinanced them.  That is the price that she paid for receiving those particular properties.  The transfers were also made in circumstances where the husband did not want to be liable in relation to mortgages.  That is [the wife’s] evidence.  It is also supported by the fact that after the making of the consent orders, [the husband] did not contribute to the mortgages.[61] 

   The mortgages were refinanced into [the wife’s] own name and thereafter, she was responsible for the mortgages.  Now, this was not some sham – sorry, the orders were not some sham in that [the husband] and [the wife] intended to continue to live together.  I’ve already addressed your Honour on the date of separation and [the husband’s] own statements about that, but the case also is illogical in the sense that [the husband] does not identify or even say that [the wife] was receiving any benefit from the Centrelink payments.  That is what he says the aim of it was.  That he and the wife would receive Centrelink benefits, that [the husband] would receive. 

   The Centrelink benefits were deposited into [the husband’s] own account and he accepted that [money and] he spent those moneys as he pleased.  He did not make any contribution to the mortgages, and [the wife] was responsible for those mortgages.  In my submission, that simply is entirely consistent with what the parties intended as a consequence of finally separating on 10 May 2017.  Now, the suggestion that the sham was that the parties intended to continue to live together as if they had before finally separating on 10 May 2007 is simply one that must be rejected on the evidence.  [The husband] simply has not demonstrated that he and [the wife] continued in some sort of husband and wife marriage relationship.

   You have the evidence of the information that [the husband] was supplying to Centrelink.  He was claiming rental assistance since 2007.  You have the evidence about his repeated changes of residential address on his driver’s licence.  My submission is the evidence is entirely consistent and dismissive of [the husband’s] case that he continued to live at [the former matrimonial home] after the making of the consent orders.  Now, yes, there’s no doubt [the husband] identified on some documents that as being at least a mailing address.  My submission is that speaks very little.  There is very little in support of the contention that [the husband] continued to live at [the former matrimonial home].

   Having said this the husband put in place the transaction to enable him to have his freedom which he seemed to take regular trips to Country G and in terms of his lack of interaction with the parties’ children.

   [60]Transcript of Proceedings dated 18 October 2019 – page 9 lines 4 to 42.

   [61]I accept the analysis of the wife’s evidence.

3. This is a reasonable analysis of that evidence.

4. As to the events that followed in terms of the husband’s contention that separation did not occur or that the parties resumed cohabitation after the orders were made, I have considered all of the various facts and circumstances, individually and as a group, asserted by the husband to demonstrate that the consortium vitae was in existence up to 16 December 2014.  I do not regard the husband’s evidence as reliable and, consequently, I reiterate my finding that parties finally separated on 10 May 2007.

5. I am also satisfied that the husband made no efforts to see the parties’ youngest child nor did he provide any support for that child between the date of the orders and the child’s 18^th birthday.  There is some evidence that some money was provided to this child when he was aged about 20 or 21 and needed some financial assistance for dental work.  This was a modest amount from the husband and was not in itself indicative of resumption or continuity of the parties' cohabitation. 

6. The wife’s kindness and generosity of spirit in allowing the husband to stay one night when he alleged that he was at risk of someone hurting him and to have his testing of dialysis machine at her home for a few months is not indicative of a resumption of cohabitation or continuation of cohabitation.  I have discussed this earlier.

7. The husband asserted in his submission to Centrelink on 14 January 2011[62] that he was single, that he paid rent of $100 per week to CS at K Street.  He seemed to resile from this during the evidence which was one of the basis of which caused me to have doubts as to the reliability and at times truthfulness of his evidence.

   [62] Exhibit E11

8. The $45,000 that the husband asserted was transferred to the wife has not been established.  The $29,000 was money transferred from the husband’s superannuation fund to his own account.  There is no evidence that it was transferred to the wife apart from the implied evidence by the husband.

9. I am satisfied on the evidence that the parties did separate on 10 May 2007 and have remained living separately and apart since that time.  I am satisfied that the husband and wife have not presented publicly as a couple, have not socialised together except in accidental circumstances or circumstances such as travelling with a group to Country Q to have dental work undertaken.

10. For the reasons articulated earlier, I am satisfied that the parties did separate on 10 May 2007 and that the allegation by the husband of that the parties had no plan to permanently separate was a fabrication by the husband to enable these proceedings.

11. Consequently, I am satisfied that the parties had separated and had wholly put into effect the Consent Orders, including the wife meeting expenses in regard to the properties, from at least November 2007. As such the claim by the husband for relief under s 79A(1)(b) of the Act fails.

Implied consent to set aside orders

1. The husband’s case is also implicitly a case under s 79A(1A) of the Act which provides:-

   A court may, on application by a person effected by an order made by a court under section 79 in the property settlement proceedings, and with the consent of all parties to the proceedings in which the order was made, vary the order or set aside the order, and if it considers it appropriate, make another order under section 79 in substitution of the orders so set aside.

2. The husband contends in his evidence that the orders were made for the purpose of him receiving Centrelink benefits and that he and the wife had effectively reconciled until 16 December 2014. Consequently, there is an implied consent to set aside of the orders under s 79A(1A). This aspect of implied consent to set aside the orders by reason of the parties alleged continuation of cohabitation or reconciliation is one where the husband bears the onus of proof.

3. This assertion of consent was discussed by Gill J in Haradene & Hermsely-Lane [2018] Fam CA 260 where at paragraphs 32 to 34 his Honour set out the key elements in setting aside the provision and consent and said: -

   32.Section 79A(1A) provides as follows:

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

   33.The key element to setting aside under this provision is that it be by consent, and it is settled law that the consent required under s 79A(1A) need not be communicated explicitly but may be inferred from the conduct of the parties. In the Marriage of N W and S F McCabe (1995) FLC 92-634 concerned a married couple who separated, entered into property consent orders and shortly thereafter reconciled. There, upon reconciliation, neither party took steps to implement the terms of those consent orders. With respect to whether the trial judge rightly held that the parties’ conduct evinced an agreement to set aside the previous consent orders, the court commented:

   [i]n cases of this nature conclusions about intention which should be attributed to the parties will depend upon the particular circumstances of each case. That material would not necessarily be confined to the initial decision to reconcile … Their intention may crystallise into a more precise form as time progresses and as the parties’ reconciliation continues and they conduct their lives together, including their financial affairs, so that it becomes inconsistent with any other conclusion.

   34.In Waterman & Waterman [2017] FamCAFC 23 a couple whose relationship spanned a period of nearly thirty years separated for 18 months. After this initial separation, the parties entered into consent orders relating to property. Subsequently, the parties resumed cohabitation and reconciled. When considering the nature of consent, Murphy J stated that:

   [t]he relevant inquiry … is whether the post-reconciliation circumstances over the time frame of the reconciliation establish an inference that the parties intend the orders to not bring an end to their financial relationships, and, consequently, an end to a later determination of later contributions made within that relationship.

4. I was also taken to the elegant description of implied consent discussed by Carmody J (as he then was) in Matthews, LD and Matthews, T (2006) FLC 93-298 where he discussed the nature of consent and said:-

   31.The Court has no power to even consider making a new order altering the current property interests of the parties without relief under s 79A(1A) being granted with the consent of both parties.

   32.The relevant concept of ‘consent’ is not confined to a subsisting agreement as at the date of hearing but may be established by evidence of a prior express written or oral statement of intention which remains binding or inferred from conduct:  Bourke (No 2) (1994) FLC 92-479. The consent required by subsection (1A) is simply to have a pre-existing s 79 order set aside. It does not have to relate to the making of a new one.

   33.Used in this context consent means concurrence not consensus.  It implies authority, approval or permission and denotes something more than merely acquiescing in or accepting a settled situation.  It may include but is more than submission. 

   34.The term ‘consent’ suggests that the consenting party knows what is being consented to and the consequences of doing so.  It involves a deliberate choice demonstrated in some positive or affirmative way either by what is said or done which clearly conveys the impression, to an objective onlooker, that consent has been given.

   35.While both parties must consent, they do not have to do so in the same way, at the same time or for the same reasons. 

   36.Where conduct is relied on as proof it must be obvious and overt. It must be unequivocally referable to consent and equally inconsistent with refusal.

5. In this case the allegation of the husband, that the parties continued to reside together and that the whole of the consent orders was a sham, fails.  The onus was on the husband who must discharge the onus of proof.  Given the findings in this case he has not come close.

6. The contention that the husband and wife regularly attended social functions such weddings and funerals as a couple was not established on the evidence.

7. There was no shared residence, no mutual connection; the photograph provided was either earlier or of limited value and I did not find the wife evasive as was submitted.

8. As such the contentions pursuant to s 79A(1A) of the Act fails.

9. The husband has not established a basis to set aside the Consent Orders made 26 November 2007 and as such his proceedings and application will be dismissed. 

I certify that the preceding two hundred and seventy seven (277) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 6 December 2019.

Associate:     

Date:              6 December 2019