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

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

The proceedings commenced by the husband on 30 December 2015 and as amended in the initiating amended application filed 17 April 2019 are dismissed.
All extant applications are dismissed except any application for costs.
Any application for costs must be made in accordance with the Family Law Rules 2004 (Cth).
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

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

Mr Pearson (‘the husband’) and Ms Pearson (‘the wife’) were married in 1979. They lived together until at least 10 May 2007.
There are three children of the marriage, all of whom are now over the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pearson and Pearson

Details

AGLC: Pearson and Pearson [2019] FamCA 931
Case: [2019] FamCA 931
Decision Date: 6 December 2019

CaseChat Overview and Summary

This matter came before Benjamin J in the Family Court of Australia, concerning proceedings initiated by the husband. The dispute centred on the husband's application to set aside property settlement orders previously made by the court. The husband asserted that these orders should be discharged due to alleged miscarriages of justice, including fraud, suppression of evidence, and the giving of false evidence, as well as the impracticability of carrying out the orders due to circumstances arising since their making.

The court was required to determine whether the husband had established grounds for setting aside the existing property settlement orders under section 79A(1) of the Family Law Act 1975 (Cth). Specifically, the court had to consider whether there had been a miscarriage of justice due to fraud, duress, suppression of evidence, or false evidence, and whether it had become impracticable to carry out the orders due to subsequent events, such as an alleged reconciliation.

Benjamin J found that the husband had not satisfied the court that a miscarriage of justice had occurred under section 79A(1)(a). The court referred to the principles established in *Taylor v Taylor* and *Scribe & Scribe*, emphasising the reluctance to set aside orders based solely on the assertion of false evidence without more, and the importance of finality in litigation. The court noted that the husband had retained an interest in a property and had not complained about this for a significant period, indicating he suffered no financial detriment from the alleged failure to recall its ownership. Furthermore, the court rejected the husband's submission that the orders were impracticable to carry out due to an alleged reconciliation, accepting the wife's evidence that property transfers and mortgage refinancing were undertaken with the intention of final separation and that the husband's subsequent actions, including his Centrelink declarations and residential address changes, were inconsistent with a continuing marital relationship.

Consequently, the proceedings commenced by the husband were dismissed. All extant applications were also dismissed, with the exception of any application for costs, which were to be made in accordance with the Family Law Rules 2004 (Cth). The court also ordered the return of subpoenaed documents and exhibits.

Orders

Orders of the court

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

All extant applications are dismissed except any application for costs.

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

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

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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): 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. 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. 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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