Pease and Hatch

[2014] FCCA 281

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEASE & HATCH [2014] FCCA 281

Catchwords:
FAMILY LAW – Section 79A Application – consideration of delay in commencement of proceedings – the intersection of statutory remedy and equity.

Legislation:

Family Law Act 1975, s.79A

Cases cited:
Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362
Lancer & Lancer [2008] FamCAFC 112
Holland v Holland (1982) FLC 91-243
Gebert & Gebert (1990) FLC 92-137
Suiker & Suiker (1993) FLC 92-436
Crawley v Short [2009] NSWCA 410
Savage v Lunn [1998] NSWCA 203
Savage v Lunn (No 2) [1998] NSWCA 204
Lindsay Petroleum v Hurd (1874) LR 5 PC 221
Baburin v Baburin (No.2) [1991] 2 Qd R 240

Applicant: MR PEASE

Respondent: MS HATCH

File Number: SYC 2769 of 2013

Judgment of: Judge Myers

Hearing date: 27 November 2013

Date of Last Submission: 18 December 2013

Delivered at: Newcastle

Delivered on: 21 February 2014

REPRESENTATION

Counsel for the Applicant: Mr Othen

Solicitors for the Applicant: Sharee Cassel & Associates

Counsel for the Respondent: Mr Davies

Solicitors for the Respondent: Rice More & Gibson Solicitors

ORDERS

1. The orders made in the Local Court at Armidale on 22 December 2009 in respect of proceedings numbered (omitted) be set aside.

2. That the proceedings be listed for direction on a date to be advised by the Court in respect of the determination of the Applicant’s application for orders pursuant to section 79 of the Family Law Act.

IT IS NOTED that publication of this judgment under the pseudonym Pease & Hatch is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

SYC 2769 of 2013

MR PEASE

Applicant

And

MS HATCH

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are proceedings commenced by the applicant Mr Pease (hereinafter referred to as “the applicant”) relying upon the provisions of s.79A of the Family Law Act seeking to set aside orders made by the Local Court at Armidale on 22 December 2009 pursuant to section 79 of the Family Law Act for a property settlement by consent.

2. In addition to the orders seeking to set aside the orders made in the Local Court, the applicant seeks orders for a property settlement whereby the respondent pay to the applicant the sum of $500,000.00 and then consequential enforcement orders if such payment is not made.

3. The respondent in the proceedings Ms Hatch (hereinafter referred to as “the respondent”) seeks orders for the dismissal of the applicant’s application; that the orders made by the Local Court at Armidale be confirmed and that the applicant pay the respondent’s costs of the application.  

4. The proceedings were listed for determination of the threshold issue of whether the orders made by the Local Court at Armidale on 22 December 2009 should be set aside pursuant to section 79A of the Family Law Act.

5. Both the applicant and the respondent consented to the determination of the threshold issue prior to the court hearing or considering evidence in relation to any adjustment pursuant to section 79 of the Family Law Act that ought to be made between the parties if the orders made in the Local Court at Armidale were set aside.

6. The applicant relied on the following documents in support of his application that the court has read and considered:

   a)Amended Initiating Application filed 23 August 2013;

   b)Paragraphs 1-43, 48-56, 70-76 and the first sentence of paragraph 101 of the applicant’s affidavit filed on 21 May 2013;

   c)Affidavit of Dr J filed 22 October 2013;

   d)Case outline Document dated 22 November 2013;

   e)Written Submissions of the applicant filed 5 December 2013;

   f)Submissions in Reply on behalf of the applicant filed 18 December 2013.

7. The respondent relied on the following documents in support of her response that the court has read and considered:

   a)Response filed 24 July 2013;

   b)Financial Statement sworn 23 July 2013;

   c)Affidavit of the respondent affirmed 26 September 2013;

   d)Case Outline document of the respondent dated 22 November 2013;

   e)Written Submissions of the respondent filed 17 December 2013.

8. The court has read and considered the documents tendered during the course of the hearing forming exhibits “A” “B” and “C”.

9. The court does not propose to recite in great detail the history of the parties’ relationship. The brief facts giving rise to the section 79A application by the applicant are set out in the paragraphs below.

10. The applicant was born on (omitted) 1956 and at the time of the hearing of the application was 57 years of age.  The respondent was born on (omitted) 1965 and at the time of the hearing of the application was 48 years of age.

11. There are two children of the parties’ relationship namely X born (omitted) 1997 and Y born (omitted) 1999.

12. The applicant and respondent commenced cohabitation in 1990, were married on (omitted) 1996 and separated on 1 August 2003.  The parties’ application for Divorce was heard on 16 March 2010 and with such Divorce becoming final on 7 April 2010.

13. On 20 December 2009 an Application for Consent Orders was filed in the Local Court at Armidale New South Wales. Attached to the Application were Terms of Settlement seeking to finalise between the parties a settlement in relation to parenting pursuant to part VII of the Family Law Act and in relation to property pursuant to section 79 of the Family Law Act.

14. For the purpose of clarity, the court will not identify the parties as they were referred to in the Application for Consent Orders to the effect that all references to the parties as the “applicant” and “respondent” relate solely to their identity as defined at paragraphs 1 and 3 above.

15. It is agreed between the parties that the Application for Consent Orders and Terms of Settlement were drafted by the solicitors for the respondent namely Watson McNamara & Watt Solicitors of Armidale. It is further agreed that the applicant did not obtain independent legal advice at the time of execution of the Application for Consent Orders and Terms of Settlement. 

16. The Application for Consent Orders sets out at paragraphs 9 to 11 that the parties commenced living together in April 1992, married on (omitted) 1996 and separated on 1 August 2003.

17. Within the Application for Consent Orders at paragraph 23, information is provided about the two children of the parties’ relationship X and Y.

18. At paragraph 27 of the Application for Consent Orders, information is provided about the children’s education, health and particularly financial support detailing that the “Respondent Father pays $400 per week to the Applicant Mother for each child, pursuant to an informal verbal child-support agreement”.  The court forms the view that the ordinary reading of such passage would have allowed the Local Court Magistrate (who the court takes judicial notice would have read the Application for consent orders and Terms of Settlement) to have reasonably concluded that the applicant in the current proceedings was paying to the respondent the sum of $800 per week by way of an informal child support agreement.

19. At paragraph 40 of the Application for Consent Orders, the applicant’s and the respondent’s respective gross weekly incomes are detailed as the applicant receiving E$1950.00 per week and the respondent E$$640.00 per week.

20. At paragraphs 42 and 43 of the Application for Consent Orders details are provided that set out the applicant paid to the respondent the sum of $800 per week as child support.

21. Details are provided in the Application for Consent Orders relating to each party’s ownership of property at paragraphs 44 through to 52.  At paragraph 44 under the heading “Real Estate”, details of the property at Property C are provided whereby each party held a 50% share in the property with this parties’ share being valued at $750,000.00 each.

22. The parties set out their ownership of motor vehicles including the applicant’s ownership of a Nissan Patrol, some funds in the parties’ bank accounts and furniture or furnishings. The applicant now disputes that he owned a Nissan patrol at the time he entered into the Application for Consent Orders. 

23. At paragraph 50 under the heading “Life Insurance Policies” two policies were listed.  The information at paragraph 50 provided that the respondent was at the time of the execution of the Application for consent orders the owner of a policy with (omitted) being policy number (omitted). The Application for Consent Orders requires the parties to set out the surrender value of that party’s share of the policy.  The details provided set out that the surrender value of the respondent’s interest in the insurance policy was at the time of the execution of the Application was worth $551,300.00.  Additionally at paragraph 50, a policy was listed as being owned by the applicant with (omitted) being policy number (omitted) and that such policy had a surrender value of $405,300.00.

24. The Application for Consent Orders details the liabilities of the parties and the total value of the parties’ respective superannuation interests.

25. At paragraph 70 of the Application for Consent Orders, details were provided about the proposed percentage division of property including superannuation between the parties. 

26. Paragraph 70 of the Application for Consent Orders provided that the respondent would receive 78.70% of the total property being divided between the parties and that the applicant would receive 21.30%.

27. At paragraphs 71 and 72 of the Application for Consent Orders, the parties set out through the marking of boxes that the parties’ financial contributions pursuant to section 79(4)(a) and section 79(4)(b) were equal but at paragraph 73 that the respondent’s contributions were greater than that of the applicant’s with respect to the respondent’s contribution as homemaker and parent.

28. Details with respect to the respondent’s contributions at paragraph 73 set out that “the applicant wife was the primary care giver of the children during the marriage and since the date of separation. The applicant wife has taken primary responsibility for home-schooling of the children.”

29. Part I of the Application for Consent Orders required the parties to fill out a balance sheet that is set out at paragraph 75 through to 79 of the Application.  At paragraph 79 under the heading Life Insurance Policies, the applicant was listed as receiving $405,300 for the value of his Life Insurance policy and the respondent in the proceedings $551,300 for her insurance policy. 

30. It is not disputed between the parties that both of the insurance policies had no surrender or otherwise redeemable value. The parties further agree that had the value of the life insurance policies been omitted from the application for consent orders, the effect of the settlement would have been one whereby the respondent would have received in excess of 98% of the overall property pool then available for the division.

31. During the course of cross examination of the respondent, she conceded that the value of the property at Property C was worth more than listed in the Application for Consent Orders.

32. Interestingly, during the course of cross examination, the applicant conceded that he understood that he would receive nothing from the property settlement but rather would not be obliged to pay child support as a result of what the applicant describes at paragraph 34 of his affidavit as an agreement between the applicant and respondent whereby if he transferred “the entire (omitted) property to her for her and the children, the need for child support payments would be nil as the ongoing income generated from the property would be more than ample to cover the needs of X and Y till way past the age the children turn 18 years when the child support payments would cease”. The applicant went on to state in his affidavit that he:

    “understood the agreement between us to be that having forfeited my rights to property settlement, Ms Hatch would not claim periodic child support from me”.

33. The applicant deposes that on or about 3 December 2009 he attended the offices of the respondent’s solicitors Watson McNamara and Watt so that he could formalise what the applicant describes at paragraph 17 as the “verbal agreement in respect of our property settlement and divorce”.

34. The applicant deposes that upon attending the offices he met and spoke with a Ms B, who among other things, is deposed at paragraph 22 of the applicant’s affidavit to have said to the applicant “it is my duty to inform that you should seek legal advice” to which the applicant deposes he replied “it’s only to sign divorce papers”.

35. The applicant deposes Ms B said to him “you will need to have someone witness your signature, you can have this done at the Police Station or the Post Office”.

36. At paragraph 24 the applicant deposes that he then went to the police station and a lady called Ms H witnessed his signature.

37. At paragraph 25 of the applicant’s affidavit he deposes to honestly believing that when he signed the application for consent orders he:

    “was just signing paperwork in relation to a divorce which included the agreement between Ms Hatch and I in respect of our property”.

38. Unchallenged by way of expert evidence filed on behalf of the respondent in the proceedings, is that of the evidence provided by Dr J contained within her affidavit sworn 10 October 2013.

39. Dr J deposes to being a certified “Irlen Diagnostician”.  Attached to the affidavit of Dr J is a report prepared by her dated 7 February 2013.  The report details that the applicant has been diagnosed as having what is described as “the visual perceptual dysfunction called Scotopic Sensitivity/Irlen Syndrome.”

40. Dr J’s report sets out that the said syndrome causes:

    “a problem with the efficient processing of visual information, not an optical problem. The dysfunction principally affects reading, study and writing/spelling activities. It has been related to a possible retinal dysfunction, or to difficulties with the Magnocellular visual pathway, which may cause confusion of letters and words between consecutive eye fixations when reading or writing…..The most common symptoms may include poor spelling, slow reading rate, inaccurate reading, inadequate basic reading skills, poor reading comprehension and inability to undertake continuous reading. In cases of severe visual perceptual distortions, reading may become impossible after a short space of time, resulting in visual dyslexia…. In pressured situations, it can be difficult to comprehend both written and verbal information making it difficult to express information clearly.”.

41. Having heard the evidence of Dr J, the court is concerned (when applying the provisions of Reg 11.08 of the Federal Circuit Court Rules 2001) that the applicant is a person who needs the assistance of a Litigation Guardian as such evidence tends to suggest that the applicant may not understand the nature and possible consequences of the proceedings and may be incapable of adequately conducting or giving adequate instructions for the conduct of the proceedings.

42. During the course of cross examination a call was made by Counsel for the respondent for the production of notes that were taken by the applicant’s solicitor Ms Cassell at around the time the applicant first obtained legal advice and prior to the full implementation of the orders made by the Local Court at Armidale. A copy of handwritten notes was produced in answer to the call and was subsequently tendered. Those notes form exhibit “A” in the proceedings.  Contained within the exhibit is the hand written notation “verbal child support agreement”. 

43. It was suggested during cross-examination to the applicant that he did not have a verbal child support agreement whereby the applicant would not pay child support to the respondent in the future if the respondent received the matrimonial property at the time he executed the Application for Consent Orders.  The applicant maintained his position.

44. Having considered all of the evidence and having observed the parties give evidence during cross-examination, the Court accepts that the applicant was of the belief that he had a verbal child support agreement and that such agreement was a collateral agreement to the orders sought in the Application for Consent Orders where the majority if not near totality of the matrimonial property was being provided to the respondent.

45. In circumstances where the evidence of Dr J remained unchallenged, the court finds that the applicant would have found it difficult to comprehend the documents he was signing.  The court finds that the applicant would have been unaware that by signing the application for consent orders, he was giving away his statutory rights to seek a property settlement from the respondent and further that the verbal collateral agreement described by the applicant with respect not paying child support was of no effect.

46. In circumstances where the respondent did not seek to file any evidence in contradiction to that provided by Dr J, Counsel for the applicant in submissions suggested “the respondent’s evidence was to the effect the document was drawn up in circumstances of trust between the two parties”.  The court might properly suspect that the respondent would have known about the applicant’s shortcomings as set out in the evidence of Dr J and if so, acted unconscionably towards the applicant.

47. The doctrine of unconscionable was summarised by Kitto J in Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362 (at 415) in the following terms:

    “It applies whenever one party to a transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands.”

    The court is not on the evidence able to make any finding about unconscionability and does not give the issue of unconscionable behaviour any weight.   

48. The court finds that the information provided to the Local Court at Armidale by the parties in the Application for Consent Orders with respect to the value of the property being divided between the parties and the overall effect of the settlement that was sworn/affirmed by the parties as being correct was false. 

The Law

1. Section 79A of the Family Law Act provides:

   Setting aside of orders altering property interests

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

   (a)     there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or

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

   (c)     a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or

   (d)    in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or

   (e)     a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;

   the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

   (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.

   (1AA)For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:

   (a)the person is a parent of the child with whom the child lives; or

   (b) a parenting order provides that:

   (i)     the child is to live with the person; or

   (ii)    the person has parental responsibility for the child.

   (1B)  An order varied or made under subsection (1) or (1A) may, after the death of a party to the marriage in which the order was so varied or made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

   (1C)Where, before proceedings under this section in relation to an order made under section 79 are completed, a party to the marriage dies:

   (a)  the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;

   (b) if the court is of the opinion:

   (i)  that it would have exercised its powers under subsection (1) or (1A) in relation to the order if the deceased party had not died; and

   (ii)  that it is still appropriate to exercise its powers under subsection (1) or (1A) in relation to the order;

   The court may vary the order, set the order aside, or set the order aside and make another order under section 70 in substitution for the order so set aside; and

   (c)  an order varied or made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

   (2)In the exercise of its powers under subsection (1), (1A) or (1C), a court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.

   (3)  In this section, a reference to an order made by a court under section 79 includes a reference to an order made by a court under section 86 of the repealed Act.

   (4)  For the purposes of this section, a creditor of a party to the proceedings in which the order under section 79 was made is taken to be a person whose interests are affected by the order if the creditor may not be able to recover his or her debt because the order has been made.

   (5)        For the purposes of this section, if:

   (a)  an order is made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them; and

   (b)  either of the following subparagraphs apply to a party to the marriage:

   (i)     when the order was made, the party was a bankrupt;

   (ii)    after the order was made, the party became a bankrupt;

   The bankruptcy trustee is taken to be a person whose interest are affected by the order.

   (6)        For the purposes of this section, if:

   (a)        a party to a marriage is a bankrupt; and

   (b)  an order is made by a court under section 79 in proceedings with respect to the vested bankruptcy property in relation to the bankrupt party;

   The bankruptcy trustee is taken to be a person whose interests are affected by the order.

   (7)        For the purposes of this section, if:

   (a)  an order is made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them; and

   (b) either of the following subparagraphs apply to a party to the marriage:

   (i)  when the order was made, the party was a debtor subject to a personal insolvency agreement;

   (ii)  after the order was made, the party became a debtor subject to a personal insolvency agreement;

   The trustee of the agreement is taken to be a person whose interests are affected by the order.

1. The applicant relies upon section 79A(1)(a) in his application to set aside the orders made in the Local Court at Armidale.

2. In Lancer & Lancer [2008] FamCAFC 112 (17 July 2008) Bryant CJ considered the scope and test to be applied when considering section 79A and held:

   “It is pertinent in my view to note that section 79A itself contains two aspects. One is essentially a fact-finding exercise, that is whether the applicant can establish on the relevant evidentiary standard, namely the balance of probabilities, that there has been a miscarriage of justice by reason of one of the matters set out; in this case, suppression of evidence. That is often referred to as the threshold test.

   The second part which follows from a positive finding about the first is a discretionary one, namely that the court may in its discretion vary or set aside the original order and, if appropriate, make another order. The decision in each case about whether to hold a single hearing, will, as Warnick J has said, be a matter to be determined by the trial judge in the exercise of discretion having regard to the circumstances of each case.”

3. The court has made a positive finding that the parties gave false evidence to the Local Court about the assets of the parties and the effect of the orders on the parties. Submission by Counsel for the respondent were made that section 79A is “not simply concerned with whether there has been false evidence or some other reason. That occurrence must result in a miscarriage of justice”. The court agrees with such a submission.

4. Counsel for the respondent went on to further submit that the applicant “knew he was not to receive anything out of the property settlement” and asserted “that with the orders as made irrespective by what means they were made did not result in any miscarriage of justice”. 

5. The court does not wholly agree with this submission. 

6. The phase “irrespective by what means” cannot rest comfortably with the court given the requirements set out at section 79(2) that provide the “court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”.

7. While the Full Court in Holland v Holland(1982) FLC 91-243 made it clear that “Agreement to a consent order which may not adequately reflect a party’s entitlements under sec. 79 does not, in itself, show that there has been a miscarriage of justice”, it must be remembered that the making of final property orders by way of Application for Consent Orders is not a ‘rubber stamping’ exercise by the court exercising jurisdiction to make the order. Rather section 79(2) requires the court to exercise judicial discretion and not make an order unless it is just and equitable to do so.

8. In advancement of the respondent’s contention that there had been no miscarriage of justice Counsel for the respondent relied on the decision in Gebert & Gebert (1990) FLC 92137 at 77,935 that states:

   “It is we think clear from the last sentence of the above passage, that the court considered that there maybe circumstances where the order is so unreasonable as to give rise to an inference that some matter has affected the party’s reasoning, which would vitiate the order.  On the other hand, we think that it must be appreciated, as the Full Court said, that the fact alone of an apparently unreasonable order does not necessarily lead to such a conclusion.  If the order is apparently unreasonable and there is no rational explanation of it having been agreed, then the inference referred to by the Full Court may be capable of being drawn.  On the other hand there may be quite rational explanations for such an order having been made. There may be many situations where a party acting perfectly rational, for reasons of his or her own, is prepared to make a more substantial allowance to the other spouse than would normally be the case.  Indeed, there may be some cases where a party will voluntarily concede the whole of the matrimonial property to the spouse”.

9. The court accepts what while this is a case where the applicant conceded the whole of the property to the respondent the applicant did so under the belief that he would not thereafter be liable to pay child support. Such a belief is of course wrong.

10. Counsel for the respondent further relied on the decision in Suiker & Suiker (1993) FLC 92348 that states:

    “It is clear from the decisions in the case of Gebert and Clifton and Stuart that the fact that the result in the case under consideration may have been unfair to one of the parties, is not necessarily mean that there has been a miscarriage of justice. Seems to me to follow from those decisions that, if that party was in full possession of all relevant facts, that if he or she was aware of his or her rights under the family Law act or chosen to take advice on the matter and freely and voluntarily consented to orders property settlement, he or she could not say the impending miscarriage of justice.”.

11. Without the evidence provided by Dr J in the proceedings, it would have been open for the court to find that the husband had freely and voluntarily consented to orders for a property settlement in the terms filed with the Application for Consent Orders in the Local Court.  Given the evidence of Dr J and the applicant’s belief regarding the verbal child-support agreement, the court is of the view that there has been a miscarriage of justice.

12. Counsel for the respondent raised during the hearing, the issue of delay in the commencement of the proceedings by the applicant as an issue to be determined when deciding whether to exercise the court’s discretion and set aside the orders.

13. Such argument is founded on contents of the letter of the applicant’s solicitor Messrs Sharee Cassell & Associates dated 30 June 2010 that at pages 2 and 3 provides:

    “The Application for Consent Orders under “Property” No.45, list a 1991 Nissan Patrol valued at $8,000.00.  We are instructed that our client has never owned a Nissan Patrol nor did he receive any motor vehicle in the property settlement or furniture, furnishings and effects.  We also confirm that our client did not receive any independent legal advice in respect to the Orders and it appears that not all the assets and liabilities have been listed correctly…we confirm that our client will be paying child support as assessed by the Child Support Agency…In the event we do not receive a reply within 7 Days from the date of this letter, we shall be seeking instructions from our client whether he intends to have the Orders made on 21 December 2009 set aside…”

14. It is somewhat bemusing that the solicitor for the applicant specifically mentioned the Nissan Patrol (listed as being worth $8000.00 in the Application for Consent Orders) but omitted to mention the fact that the applicant did not receive an insurance policy that was listed in the Application for Consent Orders as worth $405,300.00.

15. In light of the evidence of Dr J, there is some doubt in the mind of the court about whether the applicant’s solicitors were properly instructed when they wrote the letter dated 30 June 2010. Nevertheless there is certainly a delay between the time of the sending of the letter dated 30 June 2010 and the commencement of the current proceedings.

16. In cases involving equity, courts often consider issues related to delay examining what is termed as the maxim or equitable defence of laches.

17. The current proceedings are not ones commenced under equity but rather statute. In many cases however, the relationship between the general law and statutory remedies is not clear. In such cases equitable concepts will play a role in shaping the statutory remedies.

18. While equitable defenses such as laches may only be applied as a defense to a proceeding in which a plaintiff seeks equitable relief where statutes are silent as to the meaning of key concepts such as whether the court should exercise its discretion, equitable approaches to the remedy may become relevantly and applicable. 

19. The provisions found at section 79A(1) of the Family Law Act provides for a statutory remedy in the form of declaratory relief and require the court to exercise its discretion if the court is to vary or set the an order if certain findings are made. The court is of the view that it is pertinent to consider laches when exercising the courts discretion.

20. Laches is based on the legal maxim "Equity aids the vigilant, not those who slumber on their rights". Laches provides a recognition that over the passage of time a party to an action may lose evidence, witnesses, and in doing so be deprived of a fair chance to defend himself or herself.

21. The provisions within the Family Law Act found at sections 44(3), 44(3A), 44(3B), 44(5) and 67G encourage a timely resolution for claims made pursuant to the Act. Section 79A is not however governed by statutory limitation as to time.

22. The essential elements of the defence of laches are knowledge of the facts and the rights to justify commencement of proceedings, delay, and unconscionable prejudice to a defendant as a result. See Crawleyv Short [2009] NSWCA 410 and Savage v Lunn [1998] NSWCA 203.

23. In Savage v Lunn (No 2) [1998] NSWCA 204, the Court of Appeal maintained that "actual or inferred knowledge of the facts" is a necessary requirement of the defence. Courts have held unconscionable prejudice to include circumstances such as the loss of probative documents by virtue of the passage of time, the loss of witnesses or fading memory of events and the transfer of property to the effect that a defendant is deprived of defending the action visited upon them following delay. See Lindsay Petroleum v Hurd (1874) LR 5 PC 221 and Baburin v Baburin (No.2) [1991] 2 Qd R 240.

24. While the letter of the applicant’s solicitor dated 30 June 2010 allows the court to accept that the applicant had knowledge of the facts and the rights to justify commencement of proceedings and that there was delay in the commencement of the section 79A application, the court is not satisfied that there has been any unconscionable prejudice to the defendant as a result of the applicant’s delay. Accordingly, a consideration of the principle of laches can give no foundation to the argument that the court should not exercise its discretion setting aside the orders.

25. The court finds that there has been a miscarriage of justice by reason of giving false evidence and the court exercises its discretion and sets aside the orders made by the local court at Armidale.

26. For the reasons stated above, the court makes the orders as set out at the beginning of this judgement.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Myers

Date: 21 February 2014