Pompidou & Pompidou

[2007] FamCA 879

FAMILY COURT OF AUSTRALIA

POMPIDOU & POMPIDOU [2007] FamCA 879

FAMILY LAW – PROPERTY -  Application to set aside final property orders - Ground of duress proven  -  Threats to kill -  Discretion exercised in applicant's favour -  Final orders varied
FAMILY LAW - CHILD SUPPORT  -  Application for departure from administrative assessment

Family Law Act 1975 (Cth), s.79A, s.75(2)
Child Support (Assessment) Act 1989 (Cth), s.116(1B)(a),(b), 117(b), 117(2)(c), s.123, Part VIII, Division 7

Bigg  v  Suzi (1998) FLC 92-799
Gerbert  v  Gerbert (1990) FLC 92-137
Clifton  v  Stuart (1991) FLC 92-194
Suiker  v  Suiker (1993) FLC 92-436
Kokl & Kokl (1981) FLC 91-078
Pelerman & Pelerman (2000) FLC 93-037
Crescendo Management Pty. Ltd.  v.  Westpac Banking Corporation (1988) 19 NSW LR 40
Director of Public Prosecutions for Northern Ireland  v.  Lynch [1975] AC 653
Scribe v  Scribe [2006] FLC 93-302
McIntyre  v  McIntyre (1994) FLC 92-468
L and L (unreported, Full Court of the Family Court of Australia, 27 February, 1996)

Jones  v  Dunkel (1959) 101 CLR 298
Fabre v Arenales (1992) 27 NSW LR 437
Prpic  v  Prpic (1995) FLC 92-574
Bendeich  v  Bendeich (1993) FLC 92-355
Prowse  v  Prowse (1995) FLC 92-557
Morrison  v  Morrison (1995) FLC 92-573
Patching  v  Patching (1995) FLC 92-585

HUSBAND: Mr Pompidou

WIFE: Mrs  Pompidou

FILE NUMBER: MLF 2509 of 2005

DATE DELIVERED: 24 August, 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J.

HEARING DATE: 14, 15 March, 2007

REPRESENTATION:

COUNSEL FOR THE HUSBAND: Mr Glover

SOLICITOR FOR THE HUSBAND: Donald S. Lampe

COUNSEL FOR THE WIFE: Mr De Vries

SOLICITOR FOR THE WIFE: J.A. Middlemis,

Orders

1. That the final orders made herein on 7 July, 2004 be varied by deleting paragraph (10) and by inserting in lieu :

   “That the husband be solely liable for and indemnify the wife against all payments with respect to the credit card debt of approximately $17,000.”

2. That save as provided in paragraph (1) hereof, the final orders made on 7 July, 2004 remain in full force and effect. 

1. That there be a departure from administrative assessment of child support in respect of the children of the marriage B born in 1994, P born in 1996 and L  born in 1998, payable by the husband to the wife, as follows :

(a)from 1 July, 2005 to 1 April, 2008, the annual rate payable (in total) is $6,500;  and

(b)then such rate be adjusted on 1 April, 2008 and 1 April in each year thereafter in accordance with any change in the consumer price index for Melbourne for the preceding calendar year.

(4)That until the youngest of the children of the marriage turns 18 the husband be and is hereby restrained from selling, transferring, further encumbering, assigning or otherwise dealing with his interest in the following real properties (save as provided in paragraph (5) hereof) without first giving two month’s notice in writing to the wife :

(a)The CL property;

(b)the CC1 property; and

(c)the PA property”.

1. That notwithstanding paragraph (4) hereof, the husband may further encumber a property described in that paragraph  PROVIDED THAT  the total sum secured against any one property does not exceed 85% of its value (as determined by the lender) from time to time.

1. That any submission in support of an application for costs be filed on or before 14 September, 2007, and

   (a)any submission in response be filed on or before 28 September, 2007;  and

   (b)any submission in reply be filed on or before 12 October, 2007.

1. That each submission filed pursuant to paragraph (6) have endorsed on the coversheet the date on which it was served on the other party. 

1. That within 48 hours of filing a submission pursuant to paragraph (6) the party filing the submission email a copy of it to the associate to the Honourable Justice Brown on… .

1. That all extant applications (other than applications for costs) be otherwise dismissed.

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS
That the judgment of the Honourable Justice Brown delivered this day will for all publication and reporting purposes be referred to as POMPIDOU & POMPIDOU.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2509  of 2005

MR POMPIDOU

Husband

And

MRS POMPIDOU

Wife

REASONS FOR JUDGMENT

1. The parties began living together in 1992 and married in 1994.  They have three children, aged 12, 10 and 9.  The wife has a 16 year old son, F from an earlier relationship and two children (A born in 2005, and U born in 2006) from her current relationship with Mr S.  The parties separated in 2004, the wife and children leaving the family home and moving to live in a rented property with Mr S. 

1. On 21 July, 2004 final property and parenting orders were made in the Regional Victorian Magistrates’ Court, by consent, pursuant to a form 11 application filed on 7 July, 2004 (the consent application). The wife now seeks that the final property orders be set aside pursuant to the provisions of s.79A of the Family Law Act1975 and other property orders made in their place.  It is her case that she signed the consent application because she was too scared to do otherwise, the husband having threatened to kill her if she did not co-operate.  She also seeks a departure order from assessed child support, and that child support be paid by way of a lump sum, and an injunction restraining the husband from discussing the proceedings with the children.

LEGAL PRINCIPLES

1. Section 79A relevantly provides as follows :

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

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

1. Thus s.79A(1) sets out five grounds, the first of which relates to events which occurred at or prior to the final orders. The remainder relate to subsequent events. If one or more of the grounds are satisfied the court may, in its discretion, vary the final order or set the order aside and, if it considers appropriate, make another order under s.79 in substitution for the order set aside. The process is essentially a two step one; the wife must establish one or more of the grounds and, if successful, satisfy the court that its discretion should be exercised in her favour.

1. The wife relied in her application on the ground contained in s.79A(1)(b) but her counsel did not press that ground. Although the wife’s evidence was that the value of her business in the consent application was wrong (the value of $265,000 had been given by her to her solicitor but, she deposed, wrongly included stock at retail value) she did not rely on this as evidence of “the giving of false evidence” for the purposes of s.79A(1)(a); her counsel could not have been more clear about that. Her case was squarely put as reliant on the establishment of duress for the purposes of s.79A(1)(a).

1. Miscarriage of justice means no more than that justice has miscarried or that an order has been unjustly obtained.  It concerns the integrity of the judicial process, as reiterated by the Full Court in Bigg  v.  Suzi (1998) FLC 92-799. One can find judicial support for the principle that the term should not be interpreted too narrowly (for example, Gerbert  v.  Gerbert (1990) FLC 92-137) or too widely (for example, Clifton  v.  Stuart (1991) FLC 92-194 and Suiker  v.  Suiker (1993) FLC 92-436).

1. When considering the meaning of duress, reference is often made to the decision of Gee J. in Kokl & Kokl (1981) FLC 91-078 although his Honour dealt only briefly with the concept. Considering the then provisions of s.79A, and the potential grounds contained in those provisions, his Honour, having dealt briefly with the concept of “fraud”, moved to “duress” and said (at 76,557) :

   There was no evidence of “duress”, in the sense that I think that word is used in this provision, namely “the compulsion of a person by physical or mental harm”.  See, for example, Meagher, Gummow and Lehane, Equity Doctrines and Remedies, especially at para.1,509.

1. In Pelerman & Pelerman (2000) FLC 93-037 the Full Court (Ellis, Lindenmayer and Rose JJ.) noted that in the trial which gave rise to the appeal, counsel had not relied on duress as interpreted in Kokl (referred to as “common law duress”) but on the equitable concept as defined in Barton  v.  Armstrong (1973) 2 NSW LR 589 at 631 and 634, where the court referred to the need for the party asserting duress to have been subjected to an improper motive for action and to the need to show that some illegitimate means of persuasion had been used.  At 87,580 the Full Court in Pelerman referred to the concept of economic duress as interpreted in Barton  v.  Armstrong as :

   . . .containing the twin elements of pressure amounting to compulsion of the will of the victim and the illegitimacy of the pressure exerted.

1. In Crescendo Management Pty. Ltd.  v.  Westpac Banking Corporation (1988) 19 NSW LR 40 the New South Wales Court of Appeal considered an appeal from a decision that the defendant bank had not applied economic duress in relation to the execution of mortgage documents. While it was not asserted that economic duress plays any part in the case to be determined by me, a number of principles enunciated by McHugh JA. (as he then was) (with whom Samuels and Mahoney JJA. agreed) are as relevant to allegations of duress arising from the threat of physical harm. At 45, McHugh JA. noted that the rationale of duress is that the law will not give effect to an apparent consent which was induced by pressure exercised upon one party by another party when the law regards that pressure as illegitimate. He referred to the decision of Lord Diplock in Universe Tankships Inc. of Moravia  v.  International Transport Workers Federation [1983] 1 AC 366 where (at 384) his Lordship pointed out the consequence, which is that “consent is treated in law as revocable unless approbated either expressly or by implication after the illegitimate pressure has ceased to operate on his mind.”

1. As McHugh JA. noted in Crescendo Management  v.  Westpac, at 45, the reference in earlier cases to the necessity for pressure amounting to compulsion of the will of the victim was unfortunate.  In Director of Public Prosecutions for Northern Ireland  v.  Lynch [1975] AC 653 (a case concerning duress in the criminal law) the House of Lords rejected the notion that duress is concerned with overbearing the will, Lord Simon of Glaisdale noting (at 695) :

   . . . that duress is not inconsistent with act and will, the will being deflected, not destroyed.

1. McHugh JA. continued (at 45-46) :

   In my opinion the overbearing of the will theory of duress should be rejected.  A person who is the subject of duress usually knows only too well what he is doing.  But he chooses to submit to the demand or pressure rather than take an alternative course of action.

1. This is an important distinction.  At times, the thrust of the wife’s evidence was that she did not know what she was doing when she signed the consent application;  she deposed that she was depressed and anxious and “not of the sound mind I am today”.  Whilst her state of mind (and, indeed, her psychological health) could be relevant to an assessment of her alleged fear and the nexus between it (if genuine) and her actions, to establish duress she must satisfy the court that, at least in general terms, she knew the nature and effect of the consent application and signed it (and instructed Mr. Middlemis to file it) through fear of the potential consequences were she not to do so. 

1. Counsel for the husband submitted that the situation was analogous to that in Scribe v.  Scribe [2006] FLC 93-302. In that case the wife obtained legal advice that she should not agree to the terms of the consent orders proposed by the husband. She alleged a long history of mental and verbal abuse by the husband; her evidence was of harassment by him immediately after separation, which was ongoing, and the trial judge found that he made significant allegations against her new partner. The trial judge found that the wife was distressed by the husband’s behaviour and desperate to have the matter resolved in the hope that would remove pressure on her. He indicated that he was satisfied the wife had made out the ground of duress “in the sense that she was in a fragile emotional state at the time and was subjected to considerable pressure by the husband who himself was very anxious to have the matters finalised” but concluded he would not base his decision to set aside the consent orders on a finding of duress. Rather, his Honour determined that he would set the orders aside on the basis of a miscarriage of justice by reason of “any other circumstance”.

1. The trial judge found that the miscarriage of justice had occurred as a result of misleading information provided to the court in relation to three significant areas which, in summary, were the wife’s income, her interest in a business and her capitalised child support liability.  Although the trial judge found that she had received “brief legal advice”, had been advised not to sign the documents, and had also been informed by the husband’s solicitor that she should seek independent advice, and that it was likely she would be entitled to more than she was to receive under the proposed orders, he found that she had not received proper or detailed legal advice. 

1. The Full Court (Bryant CJ. Finn and May JJ.) analysed the fundamental question as whether the wife was the author of her own predicament and should bear responsibility for her actions.  The Full Court referred with approval to the earlier decision of Gebert  v.  Gebert (1990) FLC 92-137 where, at 77,937, the Full Court (Nicholson CJ., Baker and Burton JJ.) held :

   The very expressions “miscarriage of justice” used in sec.79A(1)(a) does not fit happily with the concept of a party of full age and with full knowledge of the circumstances entering into an agreement of this nature in circumstances where he had deliberately decided not to seek legal advice, although urged to do so. No doubt had the situation brought about by the order been imposed upon him, it may have amounted to a miscarriage of justice but the law fortunately still allows persons to form their own views as to the arrangement of their affairs. In the present case, there appears to be no doubt that this is precisely what the husband did. The fact that he later repented of that decision, in no sense elevates his original decision to consent to such an order to a miscarriage of justice nor should such order in our view be interfered with. On the contrary, we would regard it as a considerable miscarriage of justice from the wife’s point of view if the husband’s then conscious decision entered into free of duress (emphasis added), was now be interfered with on a paternalistic view as to what might or might have not been in his best interests.

1. Commenting on that paragraph, Finn J. in McIntyre  v.  McIntyre (1994) FLC 92-468 at 80,856, made the following observations :

   I would suggest that what was said by the Full Court in the final paragraph of its decision in Gebert to the effect that the law still permits persons, who have deliberately decided not to take legal advice, to make their own arrangements, must be taken as applying only to situations where such persons have, in the language of the Full Court, “full knowledge of the circumstances”. 

2. The Full Court in Scribe  v.  Scribe noted (at 81,104) that Finn J’s observations were the subject of comment by the Full Court (Fogarty, Kay and Mushin JJ.) in L & L (unreported, Full Court of the Family Court of Australia, 27 February, 1996) where Fogarty J. said :

   The other matter I wish to mention is this, that it seems to me that the Full Court in Gebert’s case correctly stated the principles to be applied and they emphasised the importance of parties being able to reach their own decision and the undesirability of a retreat from that. 

   I have two comments to make about that.  Sometimes, unwittingly I think, this Court tends to adopt a paternalistic approach and that Gebert’s case demonstrates that husbands sometimes are not as easily able to retreat as wives are.  Now, there may be social background factors or individual factors in each case which would justify that, but I think it cuts both ways and there is an end point to these sorts of cases. 

   The second point is that Finn J in interpreting Gebert’s case in her judgment in McIntyre may have overstated the position where she said that there must in effect be full knowledge of the circumstances.  The balance of her Honour’s judgment may suggest that her Honour may not have meant that in the precise sense that it is capable of being interpreted as meaning. 

   It does seem to me that it can be full knowledge or the opportunity to acquire full knowledge or a conscious decision not to obtain information or knowledge that was available. 

1. At 81,104 the Full Court in Scribe  v.  Scribe endorsed Fogarty J’s comments, observing (at paragraph 73) :

   We agree with his Honour’s comments which we interpret to mean that the law still permits persons who have deliberately decided not to take legal advice, to make their own arrangements, in circumstances where such persons have full knowledge of their entitlements, or the opportunity to acquire full knowledge of their entitlements, have made a conscious decision not to obtain information or knowledge about the entitlements or about the orders that was available, and have made a conscious decision to proceed in the face of advice that it would not be in their interests to do so.

2. Counsel for the husband submitted that, in this case, the wife was the author of her own predicament and, like the wife in Scribe  v.  Scribe, should bear responsibility for the consequences of her actions.  However, that is to ignore the grounds on which she sought to set the orders aside.  The wife did not assert that she had no or inadequate legal advice;  she saw Mr. Middlemis on a number of occasions over two months and received detailed written advice from him.  She did not deny that she knew the nature and effect of the consent application, which she signed.  She did not deny instructing Mr. Middlemis to file the consent application.  It was her submission that while she knew what she was doing, she did it only as a result of fear of the consequences of not doing it.  In Gebert  v.  Gebert the Full Court was careful to enunciate the principle as relating to a “conscious decision entered into free of duress”.

EVIDENCE

1. Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses.  In what follows, statements of fact constitute findings of fact.

1. The wife relied on her application filed 16 August, 2005, affidavits sworn by her on 10 August, 2005 (her first affidavit) and 11 December, 2006 (her second affidavit) and a financial statement sworn on 11 December, 2006.  The husband relied on his response filed 15 June, 2006, affidavits sworn by him on 6 June, 2006 (his first affidavit) and 4 December, 2006 (his second affidavit) and a financial statement sworn on 4 December, 2006.  His first affidavit was sworn in response to the wife’s first affidavit.  An earlier financial statement sworn by the husband on 6 June, 2006 was tendered by the wife.

1. The evidence of both parties was, at times, internally inconsistent, confused and contradictory.  At times each tailored evidence to suit the outcome sought and I have little confidence in the commitment of either to tell the whole truth if they believed it would impact adversely on their case.  Their hostility to each other was manifest.  The husband initially lied about his recent employment and much of his financial evidence sounded as if he were making it up as he went along.

1. The difficulty of making sense of the parties’ bitterly disputed competing historic narratives was exacerbated by the failure to call evidence from witnesses in a position to provide admissible evidence to prove, clarify or corroborate facts in issue.  Cross-examined about his capacity to pay living expenses and to service debt, the husband deposed that his mother, sister and family friends variously gave or lent him significant sums of money and, in one case, a car or use of a car.  Not one of those benefactors was called, a glaring omission in his case.  Nor did he call as a witness a staff member employed by him in 2004, called Ms R, who (he deposed) was present when he made comments about a siege in a regional Victorian city and who he planned to call in an appeal in the County Court (relating to an intervention order), prior to abandoning that appeal.  Given the importance of the siege comments, and the conflicting evidence of the parties as to the substance of them, that, too was an important omission.

1. No satisfactory explanation was given for the failure to call these witnesses.

1. The wife’s state of mind was clearly in issue and state of mind is a matter of fact, to be proved like any other fact.  One would have expected her to call her solicitor, Mr. Middlemis, to give evidence referable to her state of mind when she first consulted him, and during subsequent consultations.  No explanation was given for her failure to call Mr. Middlemis.  In final submissions her counsel advised that the failure was a deliberate decision but that is not evidence.  Even if it were, it would not take the matter further. 

1. The significance of the failure to call Mr. Middlemis was ameliorated by two factors.  First, no objection was taken by the husband to hearsay evidence which went to the very core of the wife’s case.  In paragraph 19 of her first affidavit and paragraph 10 of her second affidavit the wife deposed to correspondence passing between her solicitor and the husband’s solicitor on 6 July, 2005, in which her solicitor advised of advice (in the form of instructions) from the wife of previous threats by the husband to kill her and a threat (relating to a siege) made that very day.  Second, in the course of proceedings the husband tendered correspondence between the wife’s solicitor and the wife (no privilege being claimed by the wife) dated 4 May, 2004 in which Mr. Middlemis summarised the wife’s initial instructions about threats made to her by the husband and the reason she wanted the final orders made, notwithstanding advice from him that the proposed orders were not just or equitable.

1. In civil litigation parties may elect not to object to inadmissible evidence and there may be good reasons for taking that course.  This evidence having being adduced, the court is entitled to rely on it and determine the weight to be given to it. 

1. The wife did not call any expert evidence going to her medical, emotional or psychological health at the time she consulted Mr. Middlemis or when the consent application was signed.  She did depose that she was depressed and anxious and “not of the sound mind I am today” when she signed the consent application.  Her evidence was of consulting a medical practitioner in the period prior to its signing. 

1. It is difficult to be confident about the perceived relevance of the wife’s evidence of anxiety and depression, and her oral evidence of significant and demoralising stress.  It may have been put forward as evidence of the consequences of the alleged threats and/or evidence going to the genuineness of her fear and her submission to pressure.  No satisfactory explanation was given for the failure to adduce expert evidence;  she did say, in cross examination, that “my doctor in Melbourne doesn’t practise anymore so I can’t get him”, however given the failure to provide any evidence of consultations in her affidavit, and the irrelevance of continuing practise to evidence of consultations prior to retirement, but that is hardly an adequate explanation.

1. Each counsel sought to rely on the other party’s failure to call evidence, submitting that the court should draw an adverse inference pursuant to what is often called the rule in Jones  v.  Dunkel (1959) 101 CLR 298. Counsel for the husband made more of the failure to call expert medical evidence than he did of the failure to call Mr. Middlemis; that may have been a pragmatic decision, having regard to the admission of the hearsay evidence to which I have referred. Counsel for the wife relied on the husband’s failure to call evidence corroborative of his alleged financial position.

1. In Jones v. Dunkel, at 320-321, Windeyer J. said :

   Then, I think, his Honour should, when the juryman asked his question, have given an answer in accord with the general principles as stated in Wigmore on Evidence 3^rd ed. (1940) vol.2, s.285, p.162 as follows :  “The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.  These inferences, to be sure, cannot fairly be made except upon certain conditions;  and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party’s fear of exposure.  But the propriety of such an inference in general is not doubted.”

1. Courts have recognised that there are circumstances in which such an inference should not be available or, if available, be of little significance.  In Fabre v. Arenales (1992) 27 NSW LR 437, at 449, Mahoney JA. gave a number of illustrations; the party may not be in a position to call the witness, or sufficiently aware of what the witness would say to warrant the inference that he feared to call him, or the party simply might not know what the witness would say, or the witness may have a reason for not telling the truth or refusing to assist if called, of which the party is aware.

1. The wife’s case was clear.  She was the subject of threats (including threats to kill) as to the consequences were she not to agree to the orders proposed by the husband.  An applicant in her position must establish not only that the threats were made, but also establish a causal connection between them and the signing of the consent application.  The causal nexus between the threats and the actions may be established by the context itself;  expert evidence is certainly not essential to establish the genuineness of the alleged submission to illegitimate pressure.  I do draw the inference that evidence from her medical practitioner would not have assisted her case.

1. Mr. Middlemis continues to act for the wife in these proceedings and the decision not to call him was of some concern.  Nevertheless, the admission into evidence of the hearsay to which I have referred ameliorated what might otherwise have been a significant gap.  I do not draw the inference his evidence would not have assisted the wife.

1. The husband’s failure to call the various relatives and friends who allegedly provide him with significant financial support is more damaging.  On its face, much of his evidence to this effect was improbable.  I do draw the inference that evidence from these lenders and/or donors would not have assisted his case.  I draw the same inference from his failure to call Ms R.

1. Listening to the wife it was often hard to know what application she was referring to when responding to a question.  The evidence eventually established that five applications were filed by the wife in the Regional Victorian Magistrates’ Court between April and October 2004.  Three were applications for intervention orders filed, variously, on 26 April, 27 May and 11 October.  One was the consent application, filed on 7 July.  Another application brought pursuant to the Family Law Act1975, naming the wife as applicant and the husband as respondent, was filed by her on 2 July.  It is hardly surprising that when asked questions about “applications” or “preparing papers” or “filing documents”, without a specific reference to the contents and purpose of the particular document, the wife’s answers sometimes confused rather than clarified. 

1. A simple illustration of the gaps and inconsistencies in the evidence is the evidence going to the date on which the parties separated.  Neither in any affidavit filed by them, nor in oral evidence, did the wife or husband depose to the actual date on which the wife moved from the former matrimonial home.  In her first and second affidavits the wife deposed that the parties “separated under the one roof on 26 December, 2003” and that they were divorced in the Federal Magistrates’ Court of Australia on 31 May, 2005.  In his responsive affidavit the husband took no issue with those statements, although his oral evidence was that the parties separated in April 2004, not under the one roof on 26 December, 2003 as the wife alleged.  He said that he raised this matter with his solicitor, who told him not to worry about it.  He agreed they were divorced in the Federal Magistrates’ Court on 31 May, 2005.  Assuming the wife deposed in the application for divorce to separating under the one roof on 26 December, 2003, she would also have had to depose to the date on which one of them moved from that same roof.  Neither party tendered the application for divorce.

1. For the purpose of these proceedings it is not necessary to find if, or when, the parties separated under the one roof.  The date on which the wife left the home may be more relevant, as at times she deposed to taking action “before” or “after” it.  A letter sent by Mr. Middlemis to her soon after her initial consultation with him, dated 4 May, 2004, was addressed to her at the former matrimonial home, indicative of her still living there when she first consulted Mr. Middlemis.  It is probable she left after 4 May, 2004 and probably in the first half of that month.

CHRONOLOGY

1. The bare bones of the relevant chronology are not in dispute.  In early May (she could not recall if it were before or after she left the family home) the wife consulted Mr. Middlemis, a regional Victorian solicitor.  On instructions from her, a form 11 application for parenting and property orders to be made by consent was prepared, together with a draft of the proposed orders.  The document notes the wife as the applicant.  The consent application records that she signed the affidavit of applicant in front of Mr. Middlemis on 7 June, 2004 and that the husband signed the affidavit of respondent in front of Steven Edward, solicitor, on 5 July, 2004.  The wife’s evidence was that she signed it on 7 July, 2004, the notation (7/6/04) transposing the figures for the day and month.  I accept that to be correct.  On 7 July, 2004 the application was filed by Mr. Middlemis at the Regional Victorian Magistrates’ Court and orders were made, in the terms proposed, on 21 July, 2004 (the final orders).

1. The property orders had the effect of the wife receiving 46% of the nett assets disclosed in the consent application.  It noted that the husband had made the greater financial contribution, a proposition supported by the evidence;  this included an inheritance of $80,000 received during the marriage.  

1. Pursuant to the orders the wife received an unencumbered property at “the CC2 property”, valued at $200,000.  She retained a Mitsubishi station wagon ($18,000), furniture and effects ($5,000), 100 D shares ($2,000) and her businesses ($265,000).  Rental from the CC property  was to be paid to the husband until a tenant was obtained for another property to be retained by him, or 90 days, whichever occurred first.  She was to discharge credit card debts of some $17,000 and accepted responsibility for liabilities of her businesses of $120,000.  The net value of property to be received by her was said to be $353,000.

1. The husband received three real properties, valued at $890,000 and encumbered with mortgage debt of $481,000, a Holden car ($2,000), furniture and effects ($5,000) and a business ($4,000).  He was to refinance the mortgages to relieve the wife of all responsibility for them, and for personal guarantees.  The net value of property to be retained by him was said to be $420,000.

1. On 31 May, 2005 a decree nisi of dissolution of marriage was pronounced in the Federal Magistrates’ Court. 

1. On 16 August, 2005 the wife filed an application seeking to set aside paragraphs 6 to 13 of the final orders, pursuant to s.79A(1)(a) and (b). No particulars were provided as to either the alleged miscarriage of justice (s.79A(1)(a)) or the impracticability of implementing the orders (s.79A(1)(b)).

1. The wife did not adduce any evidence of circumstances since the final orders were made which rendered it impracticable for the orders, or part of them, to be carried out.  The orders were implemented.  The only uncompleted aspect of the orders is that the wife has not complied with the obligation to discharge the credit card debts of $17,000.  Real properties were transferred pursuant to the orders.  No enforcement proceedings were ever taken by either party. 

1. The wife’s financial situation now may be very different to that which existed when the orders were made, but that is not the test to establish a ground under s.79A(1)(b).

1. The wife’s evidence was that Mr S had been a friend for a long time.  She said they formed an intimate relationship in April 2004 and she moved to live with him in early May that year.  In October 2004, some three months after the orders were made, the wife and Mr S bought land for $75,000 on which they built a house, incurring a total debt of some $275,000.  In February 2006 they bought another property at PA for $210,000, borrowing $225,000.  Thus, since the orders were made, the wife has assumed responsibility for half of mortgage debts of some $500,000.  She deposed to being in the process of winding up a business (the last of three she ran during the marriage and retained pursuant to the final orders) and her evidence was that when it closed after Easter this year, she would have an additional debt of some $68,000.  In her second affidavit she deposed to an intention to close the business at the end of January 2007, which did not occur.  The wife and Mr S have two children. 

1. The husband’s asset position has not changed as markedly as the wife’s;  he retains ownership of the three properties and the mortgage debt is only marginally less than it was when the final orders were made.

Initial discussions

1. In his second affidavit the husband deposed that negotiations were conducted between his solicitor and the wife’s solicitor during the early months of 2004 and, as a result of those negotiations, consent orders were made on 21 July, 2004.  Cross-examined, the husband spoke of consulting between four and six solicitors between May and July 2004 but there was no evidence of any “negotiations” between solicitors.  Indeed, his evidence then was of an agreement not to use solicitors at all and of being upset to learn the wife had consulted Mr. Middlemis and instructed him to prepare the consent application. 

1. According to this version, the parties agreed to sort out the division of property between themselves, to do it amicably, and not to end up in a court.  They discussed how they intended to structure a property division, he accepting that she had “moved on”, which I understood to be a reference to her relationship with Mr S, which was well established by the time she left the former matrimonial home.  He said it was agreed that she would retain one real property which would be unencumbered;  she wanted an unencumbered property because she and Mr S wanted to build a house.  While he would retain three real properties, he would be responsible for the whole of the mortgage debt. 

1. The husband’s evidence was that, in furtherance of this agreement, he prepared transfers of the four properties, pursuant to which three would be transferred to him and one to her.  One of the existing titles needed to be amended and the Titles Office sent a form, which they both filled in.  They agreed that three clothing businesses conducted by her would be retained by the wife and he would continue to carry on the juice bar business. He said they signed the transfers at the juice bar. 

1. The husband’s evidence was that he knew they would need to have their agreement formulated into court orders but also knew that a kit was available from the court;  they planned to make the application together, using that kit.  He said he was not aware the wife intended consulting Mr. Middlemis and learnt of it only when he was shown the consent application.  He said while the consent application prepared by Mr. Middlemis reflected the agreement made between him and the wife, he was not comfortable about it as the wife was “pushing the issue” and he feared he would be mislead.  According to him, it was when he learnt that the wife had consulted Mr. Middlemis that he told her Mr. Middlemis had a poor reputation in the town and had been responsible for the biggest siege ever seen in regional Victoria, the siege being perpetrated by a party to litigation in which Mr. Middlemis acted.  As subsequent evidence shows, he probably learnt of Mr. Middlemis’ involvement on or soon after 18 May.

1. The wife’s evidence was very different.  Her evidence was that the husband threatened to kill her throughout their 12 years together.  She said he made a threat to kill her, or have her killed, a matter of days before she signed an application for an intervention order on 26 April, 2004, shortly prior to leaving the family home.  The application was in evidence, as exhibit H-2;  the complaint is in these terms :

   ON 24.04.04 AT 5AM THE AFM WALKED INTO HER HOUSE, THE DEFT WAS STANDING BEHIND THE DOOR WITH HIS ARM RAISED AS IF HE HAD A KNIFE. THE DEFT TOLD THE AFM THAT HE WOULD KILL HER SO SHE SHOULD WATCH HERSELF, THE AFM TRIED TO PUSH PAST THE DEFT BUT HE STOPPED HER AND SAID THAT SHE WOULD NOT BE AROUND FOR LONG.  AFTER 2 HOURS THE DEFT LET THE AFM GO TO BED.  THE AAFM WAS SCARED AND COULD NOT SLEEP.  THE NEXT MORNING THE DEFT WAS STANDING OVER HER.  THE PARTIES HAVE DRUGS FOR SLEEPING DEER ON THE PROPERTY AND THE DEFT HAS THREATENED TO USE THESE ON THE AFM.  THE AFM FEELS THAT THE DEFT IS A MANIPULATIVE CONTROL FREAK AND SHE IS SERIOUSLY SCARED OF HIM AND NEEDS HIM STOPPED.  THE AFM HAS HANDED THESE DRUGS INTO THE VET ON THE WEEKEND.  THIS BEHAVIOUR HAS BEEN CONTINUOUS FOR THE PAST TEN YEARS AND THE AFM HAS FEARED FOR HER LIFE ON NUMEROUS OCCASIONS BUT IT IS GETTING WORSE.

1. The wife’s evidence was of withdrawing that application prior to the return date, through fear of the consequences of continuing with it. 

1. The wife’s evidence was that the husband told her what property she would get and made it clear that he would impose the “structure of the settlement” on her.  She said he forced her to “do the papers in the first place” and that the figures for assets she gave to Mr. Middlemis were the husband’s figures, not hers, apart from the stock figure relating to businesses run by her, of which the husband knew nothing.  The husband told her what she had “to have written up” and wanted her to arrange it with a solicitor, so he would not be responsible for the costs.  The wife did agree that she wanted the property settlement so she and the husband could go their separate ways but she insisted her main motive was her desire that she and the children not be threatened further.  Her evidence was that she did it so she “could actually live to bring up my children”.

1. The husband denied any violence directed at the wife prior to their separation and when he was first asked about her evidence of signing the consent application under duress and of being fearful for her life, he vehemently denied it.  To the contrary, he said the wife made many threats to him over the years and had “come back at me” with knives on three occasions.  These allegations were not put to the wife or included in either affidavit filed by him.  It was his case that far from being a passive victim, the wife was the instigator of arguments and the aggressive party in the marriage.  Cross-examined further he did agree that he had threatened to kill the wife, but only retaliating to threats she had made to him.  He said he had “never laid a pinkie on her” and that she knew that any threats he made were not made seriously.  He described her as being rather obnoxious, irrational, illogical and controlling. 

The wife consults Mr. Middlemis

1. On or shortly prior to 4 May, 2004, while still living in the family home with the husband, the wife consulted Mr. Middlemis.  While the husband may not have known the specific solicitor consulted, I accept her evidence that the husband wanted her to get the relevant papers drawn to obtain final property and children’s orders;  I find her account of the initial discussions the more probable. 

1. A letter from Mr. Middlemis to the wife, dated 4 May, 2004 (tendered by the husband) provides evidence of what the wife told Mr. Middlemis at that consultation.  In the letter Mr. Middlemis confirmed that the wife had asked him “to prepare a property settlement document recording the property settlement agreed upon between yourself and the Husband”.  Mr. Middlemis accurately summarised the relevant law and listed the assets described by the wife.  He advised that, on her instructions as to contributions, a court would probably divide the property “somewhere between 55% and 60% to him and 45% to 40% to you”.  He then referred to “future needs of the parties” and, after reference to issues of child support and parenting obligations, advised that he thought the court “would make a 15% loading in your favour to compensate you for the heavy financial burden having to raise your children”.

1. Mr. Middlemis advised that he thought she might receive 60% of the pool if she went to court, that the settlement she proposed (characterised as 47%) was inadequate and she should receive at least another $50,000 to $70,000 to move it into an acceptable range.  The letter continued :

   I note that you understand these concepts.  I note that you have instructed me that you want me to prepare the settlement documents based on the abovementioned proposed settlement as agreed between yourself and your Husband. 
   I note that you have told me that you have applied for an Intervention Order following your Husband making threats against you.  He is telling you he wants that Application withdrawn he wants to settle as proposed.
   It is my view that you should proceed with your Application for an Intervention Order and that you should get an Intervention Order against your Husband.  That would then give you the protection provided by the law and you could then move to a more reasonable property settlement.
   I am concerned that you are settling under duress and acting in fear.  This is unsatisfactory and I believe that if you agree to his proposed settlement you will later come to regret that decision because you are not receiving sufficient funds.  Once the settlement is concluded you cannot go back to Court and ask for another settlement.
   I note that notwithstanding my concerns you have firmly instructed me to prepare the documents as previously agreed and I request that you confirm those instructions and confirm that you understand my advice by signing the bottom of the duplicate copy of this letter and returning it to me.

2. In that letter Mr. Middlemis said he was in the process of preparing the consent application and it should be completed “within the next day or so”.

1. I am satisfied that at that time the wife told Mr. Middlemis that the husband was threatening her, that he wanted her to withdraw the application for an intervention order filed on 26 April and that notwithstanding Mr. Middlemis’ advice that the proposed settlement was not reasonable, she wished him to proceed. 

The consent application

1. Although Mr. Middlemis’ letter of 4 May, 2004 envisaged the consent application being prepared “within the next day or so”, the evidence supports a finding that it was not completed until 18 May, 2004.  On that day, Mr. Middlemis provided a copy of the consent application to the wife.  His letter to her was tendered by the husband.  The letter is addressed to the wife at the former matrimonial home although it may have been prepared for collection, as it refers to her needing “to take that home and give a copy to your husband for his perusal and consideration”.

1. Attached to that letter is a second letter, addressed to the husband, at the former matrimonial home, also dated 18 May, 2004, in which Mr. Middlemis advised that he acted for “your estranged wife” with respect to family law matters.  That letter to the husband noted that the wife had instructed Mr. Middlemis to prepare a property settlement document “to reflect the property settlement agreed between the two of you”.  He advised the husband that he should take the letter and the document to a solicitor and receive independent legal advice about the contents and effect of the document and could then sign the document and have it witnessed by his solicitor.  He advised that the solicitor should also sign the certificate attached to it.

1. In the letter to the wife dated 18 May Mr. Middlemis advised that he thought a more reasonable outcome would be 55% of the nett asset pool to the wife, rather than the 46% she was to receive under the orders.  He confirmed his previous advice in the letter dated 4 May, 2004 and her indication to him that, notwithstanding the contents of his letter of 4 May, that “you still wish to settle in the terms instructed”. 

1. Although Mr. Middlemis’ letter of 18 May, 2004 was addressed to the wife at the former matrimonial home, I am confident that she was not then living with the husband.  It is probable the wife gave the consent application, and the letter from Mr. Middlemis addressed to the husband, to the husband.

1. In his second affidavit the husband deposed that the application was prepared by the wife’s solicitor, who also signed the statement of independent advice given to her.  He said he swore an affidavit in support of the consent orders and a statement of independent legal advice provided to him was signed by Steven Edward, a regional Victorian solicitor. 

1. According to him, the husband consulted a number of solicitors, settling on Mr. Edward after seeing numerous others.  As found earlier, there is no evidence the agreement contained in the consent application was negotiated between Mr. Middlemis and Mr. Edward, or between Mr. Middlemis and any other solicitor acting for the husband.  When the document was eventually signed, some time later, it was in the same form as when first seen by the husband. 

1. Despite confirming that the consent application embodied the agreement on which the husband relied, the husband was in no hurry to sign it. 

1. In late May the parties were in conflict over what contact the husband was to have with the children and there were a number of acrimonious confrontations, some at the wife’s home, when the husband came and insisted on seeing the children.  One such incident led to the wife filing another application for an intervention order on 27 May.  In the complaint she stated that she had moved out of the house three weeks earlier (the inference being this was the family home) and had moved to her new residence.  She deposed to police having been called to remove the husband from that residence.  She said that the husband hit the glass panels of the front door and swore at her until police arrived, and that he “has made threats to kill her and has sworn at her constantly in front of their children”.  She said he had threatened he would continue the harassment every night until allowed into the house, and that she feared for the safety of the children.  That complaint and summons was listed for hearing on 2 June, 2004.  I accept her evidence that she filed that application on the recommendation of police.

1. It is probable that after the husband was served with that application for an intervention order, he telephoned the wife and said he was prepared to sign something to the effect he would not harass her further.  It was then that he signed the note referred to in paragraph 9 of the wife’s second affidavit, which said “I am psycho and have been all my life.  I will not cause any problems at the [K property]”.  The K property was the property at which the wife was living with Mr S and the children.  The husband’s evidence was that it was the wife who wrote out the note, and that he signed it at her house, adding hugs and kisses.  That was never put to the wife. 

1. The husband’s oral evidence was that from the time he received the consent application, the wife constantly pressured and pestered him to sign it.  They were conducting businesses close to each other and he said she came to his shop daily, to check whether he had signed.  His evidence was that he was the one under duress, not her.  On this account, the wife’s constant threat was that Jim (Mr. Middlemis) had told her that she could get more money out of him, and that she would take him to the cleaners if he did not sign.

1. The wife’s evidence (when cross-examined about an alleged inconsistency between her evidence that it was the husband who insisted the final orders be made and evidence of his tardiness in signing the consent application) was of a belief that he held onto the application in order to maintain his manipulation of her.  The husband’s explanations were not convincing; her assessment was probably accurate.

1. It is probable the wife became increasingly annoyed and frustrated by the husband’s refusal to sign the consent application.  From her perspective, she had hoped to be free of his harassment and threats once she gave him what he wanted, which was the property division described in the consent application.  Until he signed she was in limbo, and still fearful.  It is probable that the wife did, on occasions after 18 May, threaten that if the husband did not sign the document she would renege on the agreement, issue proceedings against him, and seek to obtain sole occupation of the former matrimonial home, in which he lived.

Husband’s evidence of first threat to kill

1. Re-examined about his evidence (given in cross-examination) of making two threats to kill the wife, the husband’s recollection was that the first was made after December 2003.  Asked whether it was before or after the parties reached agreement, he said it was after the consent orders had been handed to him and before they were signed, which would place it between 18 May and 5 July.  As he dated a second threat some five to seven days prior to signing the orders on 5 July, it is probable the first threat was made between 18 May and late June.  According to him, the wife had been lashing out at him and he retaliated, after she said she would have him thrown out of the house.  He said she threatened to make a phone call to Melbourne which would result in him being removed and have him killed;  although he had not given any detail of a telephone conversation when he was cross-examined, he did (when giving evidence about the allegations of threats to kill) say that “she made a statement about making a telephone call”. 

1. The husband’s allegations that the wife threatened to have him killed were not put to the wife and I find them improbable.  I am satisfied he threatened to kill the wife after receiving the consent application and prior to 2 July.

The application naming the husband as respondent

1. By mid to late June the wife was so frustrated by the husband’s refusal to progress the consent application that she instructed Mr. Middlemis to file an application seeking final parenting and property orders.  It is probable she had seen the consent application as a way to escape her fears of the consequences of the husband’s threats;  she saw his refusal to sign the consent application as yet another instance of him endeavouring to control her.  At one point she said that she instructed Mr. Middlemis to file the application for final property orders because of threats made to her between the preparation of the consent application and 2 July, 2004.  I am satisfied the first threat to which the husband referred was made in that period.  It may have been the final straw.

1. Regrettably, the application filed by the wife at the Regional Victorian Magistrates’ Court on Friday 2 July, 2004 was not in evidence so I am unable to say what final property orders were sought by the wife.  What was in evidence was a copy of an affidavit of the wife, signed by her on 1 July, 2004, which (on its face) clearly relates to a pending application for sole use and occupation of the former matrimonial home and final parenting and property orders. 

1. In the affidavit signed by her on 1 July, the wife deposed that she left the home “on the basis that the husband assured me that we would reach an amicable and peaceful property settlement.  Despite my best endeavours that has not happened.”  She sought an order that she resume occupation of the former matrimonial home, and that the husband vacate that home.  She deposed to being “concerned about the psychological health of the husband” and that “the husband presently appears to be acutely depressed”. 

1. In that affidavit the wife deposed to twice making applications for an intervention order and, on each occasion, withdrawing the application because persuaded by the husband to do so. 

1. In paragraph 11 of the affidavit signed on 1 July, 2004 the wife deposed as follows :

   I left the former matrimonial home and took the children of the marriage with me, because I was fearful of my safety and also for the safety of our children.
   The husband had told me on a number of occasions that he was going to kill me.  I made application for an Intervention Order with respect to these threats, but on each of the two occasions I made such application, the husband contacted me and persuaded me to withdraw the applications, and promised me that he would not again threaten me and would not harm me.
   Since those two applications and since his promise not to harm me the husband has continued to harass me, and has also continued to make inferred threats against my life.  He has made comments to me along the lines of ‘it will only take me one telephone call to fix me and end the whole thing’.
   I take his reference to ‘the whole thing’ as meaning our Family Law dispute.
   I take his comments to mean he will have me killed.

2. Much of that affidavit relates to the wife’s application for final parenting orders.  Her evidence in it about the applications for intervention orders and the threats is not specifically tied to any property settlement, although there is the reference to her understanding of “the whole thing” as meaning “our Family Law dispute”.  That affidavit says nothing of any prior agreement with the husband.

1. In paragraph 19 of that affidavit the wife set out the asset pool in identical terms to the consent application.  She again valued her businesses at $265,000, less creditors of $120,000.  She noted there was a shortfall between mortgages and rentals on the three leased properties and that she thought the husband had been paying that shortfall. 

1. In paragraph 21 the wife referred to continuing harassment by the husband as follows :

   The husband presently appears to be acutely depressed.

   He continues to harass me notwithstanding that I have made two applications for intervention orders which I have withdrawn at his request.

   The husband has interfered with the running of the three businesses which I have operated for a lengthy period of time.

   The husband threatens to remove the stock from those businesses.

   The husband threatens to try and take our children away from me to disadvantage me.

   The husband is acting irrationally and I am concerned that unless he is restrained he may damage our property or cause the value of our various assets to be reduced. 

Effect of filing application on 2 July

1. Whatever agreement the parties had made prior to 2 July, by her actions in instructing Mr. Middlemis to file an application for sole use and occupation of the former matrimonial home, and final parenting and property orders, the wife rescinded her consent to the orders proposed earlier.  The evidence up to that point would have been sufficient for the court to find that she was acting under duress when she gave instructions for the preparation of the consent application, and sought to proceed with it.  It is idle to speculate on the factors that resulted in her feeling able to give instructions to file the application on 2 July, but the court must find that, at that point, she was not acting as a consequence of illegitimate pressure.  Her state of mind was such that she was able to give instructions to seek an order that would (were she successful) result in the husband being removed from the home in which he lived and she, the children and her new partner taking possession of it.  Mr. Middlemis would have been in a position to give evidence of her instructions just prior to 2 July and anything said by her referable to the fear which, she had earlier instructed him, was the reason she had agreed to the orders described in the consent application.

1. Although the evidence does not support a finding that the application for final orders was served on the husband, I am satisfied that he learnt of it, probably through the wife.  From his perspective, she had put into effect the threats made to him;  he had not signed the consent application and she was taking him to court. 

1. The husband’s evidence was of signing the consent application on Monday 5 July, after learning of the application for final orders.  He said that on the day he signed the consent application, and prior to signing it, the wife said to him that “this is the last day;  sign it or I’ll see you in court”.  He said he then told Mr. Edward he wanted to go ahead with it.  He signed the document on 5 July and personally handed it to the wife that day. 

Husband’s evidence of second threat to kill

1. This version takes no account of two pieces of evidence.  The first is the husband’s evidence of a second threat to kill, which he said was made “possibly just before signing” or, on another occasion “possibly a week or five days before”.  Again, his evidence was that the wife had been lashing out at him, and he retaliated.  He said the threat to kill was probably made at the juice bar and that the wife gave no reaction at all.  The allegation of the wife lashing out at him was not included in his affidavit evidence and not put to the wife.

1. The second is the evidence relating to what might be called the siege comments.  In her affidavit sworn 10 August, 2005 the wife deposed (in paragraphs 17 to 20) :

   “17.Orders were made in the Magistrates’ Court of Victoria at [regional Victoria] on 21^st July 2004.

   i.Those orders were made pursuant to a Form 11 Application for Consent Orders.

   ii.Annexed hereto and marked with the letters ‘TMGP-2’ is a true copy of that Application.

18.During negotiations leading to those Orders being made I was represented by my current Solicitor and I believe the husband received advice from several legal firms.

iii.I signed the Application and the Orders against my Solicitor’s advice.

19.In correspondence passing between my Solicitor and the husband’s Solicitor, my Solicitor wrote (6^th July 2005) to the husband’s Solicitor in (inter alia) the following terms :-

‘I act for [the wife] and I note that you act for [the husband].
My client has now signed the Form 11 Application and the Minute of Proposed Consent Orders, and I enclose herewith a photocopy for your records.
I am instructed to lodge the Application with the Court, and I will let you know as soon as the Orders are made.
I am instructed that my client was reluctant to proceed with the Application for Consent Orders because your client had delayed the signing of those Orders, and my client had consequently issued proceedings which were about to be served on your client.
I am instructed that my client today had a discussion with your client about this matter, and that he made it very clear to her that if she did not proceed with the Application for Consent Orders he would make a telephone call to Melbourne and there would be the biggest siege ever seen in [regional Victoria].
My client puts that comment together with your client’s previous threats to kill, and takes this most recent comment as another threat to kill.
She has signed the Application under that duress and against my advice.’

20.I say that I did sign the Proposed Consent Orders under duress and that at the time of signing same I was fearful for my life.  That is one of the basis (sic) for my Application to set aside those Orders.

1. That evidence was repeated in paragraphs 8 to 11 of the affidavit sworn by her on 11 December, 2006, save for a variation which resulted in paragraph 11 reading : 

   11.I say that I did sign the Proposed Consent Orders under duress and that at the time of signing same I was fearful for my life and concerned that if I did not sign the Orders the husband may carry out his threats to kill me.

1. As noted earlier, no objection was taken to paragraph (19), and I place weight on it as an account of her conversation with Mr. Middlemis on 6 July.

1. In his first affidavit, the husband responded to the evidence in paragraph 19 of the wife’s first affidavit, as follows :

   That as to the matters set out in paragraph 19 thereof I agree generally with the matter set out in the first part of the letter passing between my then Solicitor and the wife’s Solicitor.  However the comment in relation to the siege in [regional Victoria] relates to previous conduct by my wife’s Solicitor in relation to one of his previous clients.

2. There is nothing in that response to suggest that the siege comment (whatever its form) was made at any time other than 6 July, as described by Mr. Middlemis in his letter to the husband’s solicitor.  By 6 July, the husband had signed the consent application;  the wife was yet to do so.

1. Cross-examined, the wife and the husband gave inconsistent evidence about the siege comment.  The husband agreed that he had made a comment about a siege and Mr. Middlemis, but deposed that it had been deliberately misconstrued by the wife.  His evidence was that the statement was made in the course of a discussion or argument about her retaining Mr. Middlemis, well prior to the filing of the consent application.  When he discovered that Mr. Middlemis was her lawyer, he told her that public opinion in the town was that Mr. Middlemis had a bad reputation and that he had found from a friend that he (Mr. Middlemis) had been responsible for causing the biggest siege in this regional Victorian city, this being a reference to a previous siege, instigated by a party in a case in which Mr. Middlemis acted.  In his opinion Mr. Middlemis deliberately instigates conflict between parties so as to profit from it;  he told the wife that he thought they “should do it themselves” and save the money for their children.

1. While that account is not consistent with the letter from Mr. Middlemis to the husband’s solicitor dated 6 July, 2004 or with the husband’s response in his second affidavit, it is consistent with one version given by the wife, in which she dated the siege comment as being made prior to filing the application for final orders on 2 July, 2004.  However, that answer may have been the result of some confusion about what was meant by “application”.  Certainly, when cross-examined earlier, she said that it was when she filed the application for final property orders that the husband threatened that, if she proceeded with that application, he would do something which would result in the biggest siege this regional Victorian city had ever seen.

1. I cannot rule out the possibility that the husband said something about a siege and Mr. Middlemis on more than one occasion.  However, I am satisfied on the evidence that the husband did say words to the wife on Tuesday 6 July which she reasonably understood to be a threat to harm her.  I am satisfied that the import of his statement was that if she did not proceed with the consent application (which he had signed the previous day) he would make a telephone call to Melbourne and there would be the biggest siege ever seen in this regional Victorian city, and that the wife reasonably construed that as a threat to involve her in a siege.

1. It is probable that the husband was galvanised into action (signing the consent application) on the Monday because he had learnt she had filed an application seeking final orders the previous Friday.  I am satisfied he then made threats to the wife of the consequences were she not to sign the original consent application and, at that point, she submitted to that illegitimate pressure.

1. I am satisfied that when the wife signed the consent application on 6 July and instructed Mr. Middlemis to file it, she did so because she feared the husband would carry out his express threat to kill her (referred to by him as the second threat) and the implied threat contained in his threat to arrange the biggest siege this regional Victorian city had ever seen.

EXERCISE OF THE DISCRETION

1. Having found a ground proven, the court must determine whether to exercise its discretion to vary or set aside the final property orders.  While the Full Court has referred to circumstances which may justify the exercise of the discretion (see, for example, Prowse  v.  Prowse (1995) FLC 92-557) the categories are not closed. On the other hand, the establishment of a “miscarriage of justice” within s.79A will not necessarily lead to the setting aside of the order (Morrison  v.  Morrison (1995) FLC 92-573). The applicant bears the onus of satisfying the court that the original orders should be set aside or varied; that includes the onus of satisfying the court that there has been a “miscarriage of justice” and that the discretion should be exercised (Prowse  v.  Prowse at 81,673).

1. Relevant consideration in this case includes the delay between the final orders and the application to set them aside; the reasonableness of the final orders at the time they were made; the range of final orders which might be made now, were the s.79 discretion to be exercised on the evidence of the parties’ current circumstances; and the turpitude of the conduct found to have caused a miscarriage of justice.

Delay between final orders and filing s.79A application

1. The final orders were made on 21 July, 2004 and the s.79A application filed on 16 August, 2005, some thirteen months later. The wife’s explanation was twofold. First, and in summary, her state of mind was such that it was not until then that she felt able to consider acting. Second, it became very hard to raise the children without financial assistance and her financial position “got really difficult”. The husband’s evidence was that it was in August 2005 that he moved to live with his mother in Melbourne; I cannot say whether that move had anything to do with the wife’s decision to file the application to set aside the final orders.

1. Having regard to my findings of duress, the wife’s evidence of continuing anxiety and stress is explicable.  It is probable that the final orders did not stop the husband from harassing the wife, about the children and other matters.  On 11 October, 2004 the wife filed a third application for an intervention order and on 14 October, 2004 an intervention order was made, to last until 14 October, 2007.  It restrained the husband from assaulting or harassing the wife and from being within 200 metres of her home or any other property where she lived or worked, subject to the usual exceptions for Family Court orders and police presence.  The husband was present and unsuccessfully contested the wife’s application for the intervention order.  He appealed to the Country Court but withdrew the appeal a few days prior to the hearing.

1. In her application for the intervention order filed 11 October, 2004 the wife complained of threats made by the husband, on 23 September, 2004, to hurt her, her father and her partner, in the course of an abusive and threatening conversation.  She alleged the husband pushed her over on 20 September, in front of the children, and bruised her arm.  According to her complaint, some five months after she left the family home, things were getting worse, rather than better.

1. The wife deposed in her second affidavit to evidence from which it can be inferred that the husband endeavoured, for some time, to evade serve of the s.79A application. A report of attempted service on 22 and 24 September, 2004, at the husband’s mother’s home in L Street notes that the husband’s mother advised the process server that she had not seen her son and had no contact number. She then said, in Greek, (understood by Mr T, the process server) “she can go and cut her throat”. During an earlier attempt on 17 September, the husband’s father advised the process server that the husband had left a year earlier, and he had no contact details for him. No objection was taken by the husband to the wife’s reliance on that evidence.

1. The wife’s solicitor then wrote to the husband, on 5 October, 2005.  The body of the letter is included at paragraph 40 of the wife’s second affidavit;  again, no objection was made to it.  In it the wife’s solicitor confirmed the process server’s report, instructions from the wife that the husband’s mother had approached her and asked her not to proceed, and that the husband had sent a message through the children to “back off”.  The solicitor endeavoured to make arrangements for service, in vain.  Eventually, the wife’s solicitor applied for an order for substituted service, which was made;  the documents were served by post addressed to the husband at his mother’s home.

1. Events after 16 August are obviously not referable to the wife’s state of mind prior to that time but they are corroborative of a continuing climate of hostility and pressure that endured after the final orders were made.  I do not find the delay between July 2004 and August 2005 to be unreasonable or a factor weighing against the exercise of the discretion in the wife’s favour.

Reasonableness of final orders

1. When considering whether to exercise the discretion to set aside the final orders the court can consider whether the orders then made might have come within the broad ambit of a s.79 discretion exercised at that time by a court pursuant. In order to do that, the court needs to look at the contributions made by the parties to the time the orders were made, the probable asset pool at that time and relevant s.75(2) factors then.

1. Most of the evidence relating to the acquisition of assets during the marriage and the parties’ respective contributions is contained in the second affidavit of the wife, the husband saying little or nothing about these aspects in his affidavits.  I have more confidence in the accuracy of the wife’s recollection of that period than those of the husband.

1. When the parties commenced living together in 1992 the husband owned a shop and dwelling in D, in which they lived.  The wife conceded that she did not know the value of the property but believed it was subject to a mortgage and that there was little equity when they sold the property prior to moving to regional Victoria in about 2001.  Both parties owned cars and it is probable each had some furniture.

1. The wife agreed that the husband received an inheritance from his late father in 1996 or 1997 (not 1993 as deposed in her second affidavit).  It was her recollection that those funds were used to pay off the home loan.  That evidence is not consistent with her earlier evidence of little equity in the D property when it was sold in 2001. 

1. The wife’s evidence in her second affidavit was that when the parties commenced cohabitation they both operated the D property convenience store.  Her oral evidence was that the husband had been operating an electrical shop from those premises and it was her initiative which transformed that business into a successful convenience store.  The husband worked in the business and she completed the books and accounting requirements, as well as other aspects of management of the business. 

1. In about 2001 the parties sold the D property and moved to regional Victoria.  By then they had three children and the wife’s son F, who was probably less than two when they commenced living together, was treated as a member of their family.  At some point the wife and F’s father were involved in litigation about his father’s contact with him and it was the wife’s evidence that about $10,000 of matrimonial funds were spent on that litigation.

1. When the parties moved to regional Victoria the wife set up a small retail business from their home.  As it prospered, she moved it to premises at the Village shopping centre.  That business subsequently closed and she opened another in the area, which became known as “[P store]” in about September 2002.  Subsequently, she operated a second shop under the name of V at the Village and a third shop, called S, which traded at the H centre. All businesses were primarily clothing retailers.  It is probable they operated through the P Family Trust, of which the trustee was X Pty. Ltd.  The husband is the sole director and sole shareholder of X.

1. The wife’s evidence was that the husband was unemployed for about three years after they moved to regional Victoria and would often sleep until around 1:00 pm.  In addition to running the businesses she was primarily responsible for all parenting and home making.  Some time after moving to regional Victoria the husband commenced a food outlet in the Village, also run through the P Family Trust and the wife’s evidence was of him then spending long periods at work. 

1. When the parties separated they owned four real properties.  As a family they lived at the CL property.  They owned two properties in CC, and a property at PA. 

1. The evidence does not allow me to make findings about the financial arrangements which resulted in the parties owning these four properties by mid-2004, save that the proceeds of sale of D property went into acquisition of real property in regional Victoria, the inheritance played some part in improving their financial position and the parties conducted the four businesses to which I have referred.

1. The parenting orders made in July 2004 provided for the husband to have contact with the children as agreed between the parties and for the wife to have sole responsibility for the children’s day to day care, welfare and development.  In the consent application both parties answered “no” to the questions “Are you paying child support and are you receiving child support?” and both said “the wife will maintain the child”.  I accept the wife’s evidence that she did not think that meant that the husband would have no financial responsibility for his children. 

1. Pursuant to the consent orders the wife retained the CC2 property and the husband retained the other three properties.  There have been no changes to the ownership of those properties since.  For the purpose of the consent orders, The CL property was valued at $450,000, the PA property at $200,000, the CC2 property at $200,000 and the CC1 property at $240,000.  The CC2  property was unencumbered;  the total outstanding mortgage debt on the other three properties (all retained by the husband) was $481,000.

1. No sworn valuations of the real properties for 2004 or 2007 were in evidence.  The parties agreed on current valuations.  These are set out in Part G of the joint case summary document save that in his opening address, counsel for the wife amended the value of the CL property from the figure of $450,000 (which appeared in the joint case summary document) to an agreed value of $380,000.

1. In her financial statement sworn 11 December, 2006 the wife attributed a value of $210,000 to the CC2 Property.  In his financial statement sworn 4 December, 2006 the husband estimated the value of the CL property at $380,000, the PA property as $200,000 and the CC1 property as $230,000.  These are consistent with the figures in the joint case summary document, as amended, and I act on the values attributed by the parties to these properties.  In his financial statement the husband estimated a total current mortgage debt of $477,000.

1. It is useful to note the disparity between these 2007 figures and those which appeared in the consent application in 2004.

   Property       Consent application              Value advanced in         Discrepancy

   value                 these proceedings

   CL property              $450,000                 $380,000                 ($70,000)
   PA property              $200,000                 $200,000
   CC1 property            $240,000                 $230,000                 ($10,000)
   CC2 property            $200,000                 $210,000                  $10,000

1. Only one of the properties has appreciated since the final orders were made, being the property owned by the wife.  One property retained by the husband is valued today as it was in July 2004.  The other two properties retained by him are valued, together, at $80,000 less than the value attributed to them in the consent application. 

1. The wife’s evidence was that the husband fixed the values for the real properties to be included in the consent application and she was not cross-examined about that.  Whilst it is possible that two properties have depreciated since mid-2004 it is unlikely that the depreciation on the CL property, which was the parties’ former matrimonial home, would be $70,000 in that short period.  It must be more probable that the value attributed to that property in the consent application was unrealistically high.  

1. If one redid the figures in the consent application using the current valuations, they would look like this :

   Value of property will receive

   Wife  Husband

   CC2 property            $210,000                 CL property                 $380,000
   Car      18,000                  PA property.                   200,000
   Furniture etc.                  5,000                  CC1 property.                          230,000
   Business    265,000                  Car  2,000
   Shares        2,000                  Furniture etc.  5,000
   Total  $500,000                 Business                            4,000
     Total   $821,000

   Liabilities
   Credit cards                 17,000                   Mortgages  481,000
   Business
        liabilities                120,000      ________
   Total   137,000

   Nett value of property  Nett value of property
     $363,000  $340,000

           Car        5,000
   $338,000

Liabilities :
  NAB Visa                    $17,000
  Other loans                   27,156  44,156
           Nett assets   $293,844

1. The asset pool is now $440,954, of which assets in the wife’s possession represent $147,110 and assets in the husband’s possession represent $293,844.  The husband has made no contribution to the acquisition by the wife and Mr S of the two real properties purchased by them.  The wife’s equity (assuming half ownership) is only $17,110.  The wife has made a far more significant contribution as homemaker and parent since separation and has received minimal child support.  She has had the benefit of the sale of the water rights but paid $3,000 of matrimonial debt.

1. The husband has serviced the mortgages over the three properties retained by him;  the balance due now is $477,000, rather than $481,000 when the final orders were made.  He has had the benefit of the rental of those properties (I place little weight on his evidence of the minimal rent allegedly received for the CL property) but has also been responsible for outgoings.  Those properties are valued at $80,000 less than their valuations noted in the consent application;  only the property retained by the wife has appreciated, and that by a modest $10,000.

1. The court could take the view that the wife’s very significant homemaking and parenting contributions since separation would substantially diminish the weight to be given to the contributions made by the husband in bringing a real property and business (albeit encumbered) to the marriage, and the inheritance of $80,000.  A finding of equal contribution to date might be made.

1. Were the court then to consider an adjustment for s.75(2) factors these would certainly favour the wife now, as they should have done in 2004.  Her own evidence was that it was her hard work and enterprise that made the businesses successful during the marriage and inherent in that is an acknowledgement of her earning capacity.  Nevertheless, she now has the care of six children and is presiding over the dying days of a business.  Her earning capacity is likely to be limited by her child-minding obligations.  Mr S is in receipt of a modest income only and, assuming the past to be a good guide to the future, the wife may struggle to receive child support as assessed or ordered, even if fixed at more than the present minimal rate.

1. In these circumstances, a court could find a significant adjustment to be warranted.  For the purpose of this exercise, I put it as 20%, which would result in the pool being divided 70% to her and 30% to the husband.

1. On the nett pool found now, 70% is $308,668.

1. Pursuant to the final orders the wife was said to receive nett assets valued at $353,000, $44,332 more than an entitlement to 70% of the current asset pool.  If one were to factor in the $17,000 debt never paid by her, the difference between the two figures would be $61,332.  That would go a fair way to making an allowance for the mistaken value attributed to stock in the businesses in 2004. 

The “miscarriage of justice” found

1. In my judgment, in considering whether to exercise the discretion to set aside, the court should not ignore the turpitude involved in the conduct of the husband, which has been found to constitute duress. The gravity of the conduct found to constitute a ground for intervention under s.79A can weigh in the scales when deciding whether to exercise the discretion in an applicant’s favour. Not all grounds set out in s.79A involve unconscionable conduct; an order can be set aside because it is impracticable to put it into effect or because exceptional circumstances are found to relate to a child of the marriage. I have found the threats to kill in this case constitute duress; a threat to kill is also a criminal offence. This court should not lightly dismiss its finding that the final orders were the result of illegitimate pressure by the husband, constituted by threats to kill the wife.

CONCLUSION

1. I am satisfied the discretion should be exercised in the wife’s favour. For the reasons foreshadowed when earlier considering the range of results were the s.79 discretion to be re-exercised now, I am satisfied the wife should receive 70% of the asset pool. In theory, she received $44,332 more than that under the final orders. It is impossible to quantify what she actually received, in the absence of reliable evidence of the real value of the businesses retained by her in July 2004. In practise, the fact she has not complied with her obligation to discharge the $17,000 credit card debt, means she is better off than envisaged by the final orders, to that extent. That does not mean that the husband could not take enforcement proceedings against her in respect of her obligation to pay that $17,000 debt, if the final order stands. In my view, the wife should be protected against that possibility. When considering what, if any, variation to the final orders should be made, I have factored in the non-payment by her of that sum, which she was ordered to pay pursuant to paragraph (10) of the final orders.

1. In all the circumstances, I am satisfied that paragraph (10) of the final orders made on 7 July, 2004 should be discharged. Save to that extent, I am not satisfied that a re-exercise of the s.79 discretion on the evidence now available to the court justifies any other variation to the final orders made on 7 July, 2004.

INJUNCTION SOUGHT BY THE WIFE

1. In her application filed 16 August, 2005 the wife sought an order that the husband be restrained from discussing “Family Law conceptual matters relating to the residence of the children” with the children of the marriage.  Nothing was said about that application during the trial and, in those circumstances, I assume it was not pressed.  In any event, having regard to the lack of any evidence that the husband has, in the relatively recent past, had inappropriate discussions with the children, the threshold for an injunction was not established. 

CHILD SUPPORT

1. In her application filed 16 August, 2005 the wife sought a departure order from the assessment dated 4 November, 2004, back dated to 1 July, 2005.  She sought that the husband pay child support for each of the three children of $4,000 per annum (a total of $12,000 per annum) and that such child support be paid by a lump sum totalling $104,000.  That figure was arrived at by simply multiplying the number of years between each child’s age and 18, and multiplying it by $4,000 per annum;  there was no discount for lump sum payment.

1. In that application the wife also sought, pursuant to s.116(1B)(a), (b) of the Child Support (Assessment) Act 1989 that the Court hear her departure application together with her application for final property and parenting orders. 

1. Section 116(1B) was repealed by Act No.146 of 2006 (Schedule 4, Item 18) operative from 1 January, 2007.  It provided that then sub-section (1A) did not apply if the person seeking departure was a party to an application pending in a court having jurisdiction under the Child Support (Assessment) Act1989 and the court was satisfied that it would be in the interests of the carer and the liable parent for the court to consider both applications at the same time, in the special circumstances of the case. Section 116(1b) now makes provision to the same effect, allowing a court to make a departure order if the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under the Child Support (Assessment) Act1989 and the court is satisfied that it would be in the interests of the liable parent and the carer entitled to child support for the court to consider whether or not an order should be made, in the special circumstances of the case.

1. It was submitted on behalf of the husband that the court should not hear and determine the wife’s application for departure from assessed child support, as she had taken no steps to review the assessment through the Child Support Agency.  Having regard to the delay between the filing of the application in this court and the final hearing;  the litigation between the parties in relation to the final property orders;  the potential cost were the wife to be required to now make an application to the registrar and, if the result displeased either party, for there to be further proceedings in this court, or in another court having jurisdiction under the Act;  I am satisfied that, in the special circumstances of the case, I should hear the departure application and determine it now. 

Legal Principles

1. Section 117(b) of the Child Support (Assessment) Act1989 provides that a court may make a departure order where it is satisfied in the special circumstances of the case that one or more of the grounds for departure mentioned in sub-section (2) exists and that it would be just and equitable (as regards the child, the carer entitled to child support and the liable parent) and otherwise proper to make a particular order.  Although her counsel did not spell this out, it was clear that the wife relied on the ground contained in s.117(2)(c), which provides :

   (c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:

   (i)        because of the income, earning capacity, property and financial resources of the child; or

   (ia)     because of the income, property and financial resources of either parent; or

   (ib)      because of the earning capacity of either parent;

2. That is, the wife submitted that the income, earning capacity, property and financial resources of the husband meant the existing assessment was unjust and inequitable.  The primary purpose of child support is to ensure that carers of children receive regular periodic support to meet the day to day needs of children.  While the Child Support (Assessment) Act1989 makes no specific reference to a preference for periodic support when describing the objects of the legislation in ss. 3 and 4, the framework of the child support scheme and the legislation implicitly records a preference for periodic support. The automatic first assessment of child support is for periodic payments. Only periodic support is provided for by way of administrative assessment; an order for lump sum support can only be made by agreement or by a court, pursuant to s.123 of the Child Support (Assessment) Act1989.  Further, the court must have regard to a number of specific matters when determining an application for lump sum support.

1. As the wife seeks a lump sum payment in substitution for a periodic assessment (by way of the sought departure order) it is not necessary to consider whether the provisions in Part VIII, Division 7 of the Child Support (Assessment) Act 1989 provide an independent source of power to order child support.

1. In Prpic  v.  Prpic (1995) FLC 92-574 the Full Court (Ellis, Lindenmeyer and Kay JJ.) observed, at 81,688 :

   Capitalisation orders may well be appropriate where there are difficulties in enforcement or where it is proper to sever the financial link between the parties.  However, as a general rule, given that payments of child support depend upon circumstances prevailing from time to time which circumstances cannot be predicted with any significant degree of certainty, it seems to us that the provision of child support by way of lump sum should not be considered to be a readily available alternative but one that is only exercised when there are circumstances that make it appropriate so to do.

1. The Full Court endorsed observations made by Mushin J. in Bendeich  v.  Bendeich (1993) FLC 92-355 at 79,754, where his Honour said :

   The rationale underlying the general approach of the court was that the longer the lump sum order operates the greater the chance of change in circumstances necessitating a variation of that order, thereby making the order unjust.  Those changed circumstances might be in relation to the liable parent, custodial parent or the children.  Incomes may increase or decrease and children may change their living arrangements from one parent to another.

1. Lump sum orders have usually been considered where there are difficulties in enforcement or where a liable parent is asset rich and income poor.  That said, the circumstances in which a lump sum order can be made are not limited, and each case will depend on its own facts.

1. While the submissions made by her counsel were very brief, I understood the wife’s case to be that the court should make a lump sum order because the husband is likely to manipulate his affairs to obtain a minimal assessment and will not voluntarily provide a reasonable level of child support for the children.

1. The child support assessment issued on 4 November, 2004 is annexure TMGP-5 to the second affidavit of the wife.  It shows that the husband was assessed to pay the total monthly amount of $21.67 for the period from 1 December, 2004 to 28 February, 2006.  Annexure TMGP-6 to the same affidavit is another document from the Child Support Agency, confirming that the assessment for the period 1 July, 2006 to 11 December, 2006 (the date of the document) was $26.67 per month.  There was no evidence the assessed figure had increased since 11 December, 2006.  It is thus clear that the husband has been assessed to pay the minimum child support, based on a child support income amount of nil. 

1. In her first affidavit the wife swore that the husband had never paid child support to her, despite the assessment.  She deposed to her “understanding” that the agency had endeavoured to collect arrears from him and “he has simply refused to pay”.

1. In her second affidavit the wife deposed that the husband had been assessed to pay child support of $26 per month and had “only paid limited child support” to her.  She deposed that he was first assessed to pay child support on or about 10 June, 2004 and refused to pay any child support for the first five months of the assessment.  It is hard to reconcile that evidence (from which one could infer that he paid some child support from about November 2004) with her earlier evidence that he had paid no child support whatsoever when she swore an affidavit on 10 August, 2005.  In her second affidavit she deposed that the husband’s then current arrears of child support were $226.73.  It was common ground that those arrears were paid off by three payments in January and February 2007.

1. The wife annexed to her second affidavit a statement from the Child Support Agency dated 11 December, 2006, being the husband’s transaction statement for the period 10 June, 2004 to 11 December, 2006.  The first payment shown on it is for $101.63, credited on 5 November, 2004.  The last payment noted on it was made on 6 December, 2006, some five days prior to the date of the transaction statement.  That statement records only payments received from the husband and paid to the wife;  there is no running tally of arrears.

1. It was not submitted by the husband that the sum sought by the wife was in excess of a reasonable contribution to the children’s support and her evidence of the costs of maintaining the children was not challenged.

1. In his first affidavit the husband “joined issue” with the wife’s evidence in relation to child support and said nothing further about it.  In his second affidavit he referred to his financial statement.  He deposed to regularly paying child support;  it was his evidence that he was not in a financial position to pay increased “maintenance” and he opposed any order for a lump sum payment. 

1. Despite that evidence, when he was re-examined the husband deposed that the existing assessment was “not fair”;  he said it was “too light”.  He had earlier given evidence of items purchased for the children and pocket money given to them;  in re-examination he said he bought a mobile phone so his daughter could communicate with him as the wife would not speak with him.  He said that a couple of months earlier he had told the Child Support Agency that he was looking at part time or fulltime work.  Asked by his counsel what he would say was just, he said he would like to discuss it with his ex-wife.  He then referred to the current assessment (which he described as some $5 per week) and said “I would quite easily do $50 to $100 per week”.

1. I have earlier made findings about the husband’s evidence of his financial situation.  I place no weight on his evidence of present earnings;  whilst I cannot quantify his earnings in the past twelve months, I am satisfied he has had access to significantly higher sums than he was prepared to concede.  He volunteered that he had a capacity to pay $50 to $100 per week, and I act on that admission. 

1. Applying the formula, a liable parent assessed to pay $100 per week in total for three children would have a child support income of $30,250 and an adjusted income of $16,267. 

1. The amount sought by the wife (a total of $12,000 per annum) is equivalent to $230 a week.  Child support in that sum would be assessed in respect of a liable parent found to have a child support income of $51,500 and an adjusted income of $37,517.  The husband’s expenditure (on the evidence in his financial statement) is $1,375 per week ($1,167 plus $208), equivalent to $71,500 per annum.  His evidence, of which I am sceptical, is of needing to borrow to meet that expenditure.  If he borrowed $20,000, he would still have to find $51,500.

1. The husband attributed an estimated figure of $131 per week to expenses he paid for the children.  As found earlier, much of that evidence was absurd.

1. The husband’s capacity to earn an income is demonstrated by his own evidence of eight part-time positions in the last twelve months (some concurrently) and his current employment.  He envisaged an income after April 2007 of $600 per week.  The figures in his financial statement were computed on the basis of a weekly income of $460, made up of rent.  To that needs to be added the income from his personal exertion, as well as income by way of rent from the property at the CL property.

1. In the absence of any evidence from those who allegedly assist him financially, I act on the basis that he is likely to continue to have a capacity to make mortgage payments as they fall due, as he has in the past.

1. The husband has an equity in real property of $333,000.

1. Taking into account his admitted capacity to pay up to $100 per week by way of child support, his equity in real property and his failure to make full financial disclosure, I am satisfied in the special circumstances of the case that the husband has the capacity to pay total child support of $125 per week, or $6,500 per annum, and that he has had that capacity since 1 July, 2005.  I am satisfied the figure should be adjusted annually for CPI increases.  His rental income and income from paid work can be expected to rise and CPI figures are a reasonable benchmark to recognise that.  The first increase will be on 1 April, 2008.

1. I am not satisfied the evidence supports a finding that child support should be capitalised and paid in a lump sum. 

1. Enforcement is a matter for the Child Support Agency.  One avenue for enforcement, were significant arrears to accrue, would be a forced sale of real estate.  To allow the wife to give notice to the Child Support Agency of any sale or diminution in the interest of the husband in real property presently owned by him, I propose to enjoin him (until the youngest child of the marriage turns 18) from selling, transferring, assigning or otherwise dealing with his interest in any of the three properties presently owned by him without giving two months notice in writing to the wife.  He will be able to encumber those real properties without giving notice provided that the encumbrances on any one property do not exceed 85% of its value. 

COSTS

1. The wife sought that the husband pay her costs;  he sought a similar order against her.  No submissions went to this issue.  In those circumstances I will make orders for the filing of submissions in support of any costs application.

ETHICAL DILEMMA

1. Although no submissions went to this point, in my judgment the ethical obligations of a legal practitioner in the position of Mr. Middlemis need to be considered.  He was instructed by the wife, and is bound by his instructions.  He is also an officer of the court. 

1. Orders made by consent in this jurisdiction are not analogous to orders made, by consent which settle, for example, contractual litigation in another court.  This court’s obligation is to make final property orders which are just and equitable.  The requirement to provide the financial information contained in the application for consent orders is imposed in furtherance of the court’s obligation.

1. Much of the evidence contained in the consent application is in summary form.  So, for example, the statement that one party made a more significant financial contribution to the marriage than the other is not fleshed out;  the judicial officer who reads that statement is not in a position to know whether what was brought to the marriage was (as in this case) an unquantified equity in a property and small business or, for example, the bulk of the assets which remain in the parties’ hands when they separate.  In those circumstances some weight must be given by the judicial officer to the fact that both parties have obtained legal advice (although the judicial officer does not know the content of that advice) and that the application is brought by both parties.

1. Mr. Middlemis was placed in a difficult position.  He had done the best he could:  he advised the wife to seek protection through the court;  he advised her that she was entitled to a greater share of the parties’ assets;  he advised her against proceeding with the consent application.  Unless she waived her privilege, her instructions to him were privileged.  He could advise her to go to the police but could not himself do that on her behalf, without instructions.

1. On the other hand, his instructions required him to file an application to seek orders by consent which, on his instructions, were the product of a threat to kill and which were not just and equitable within the framework of s.79 of the Family Law Act 1975.  It may be that the only ethical option was to withdraw from the case at that point.  No doubt the wife would then have filed the consent application herself;  by then it was signed by both parties, in proper form, and able to be filed.  No doubt the orders would have been made, as they were.  The issue is whether a solicitor in the position of Mr. Middlemis is implicated in the unconscionable conduct and inequitable outcome if he files the application and allows the court to act on it.

2. I make it clear that I do not make any adverse finding about Mr. Middlemis in this case.  Nevertheless, the ethical issue is one which might well be addressed by Law Institute Victoria, which is often the first port of call for solicitors seeking ethical advice.  In those circumstances I propose to refer the judgment to Law Institute Victoria for consideration of the ethical dilemma, if it deems it appropriate.

I certify  that the preceding
203 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2007.

…………………………………………
Associate