Rader & Haines (No 2) - [2023] FedCFamC1A 115

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Rader & Haines (No 2) [2023] FedCFamC1A 115

Appeal from: Haines & Rader (No 5) [2023] FedCFamC1F 132

Appeal number(s): NAA 73 of 2023

File number(s): SYC 1641 of 2019

Judgment of: ALDRIDGE, JARRETT & STRUM JJ

Date of judgment: 17 July 2023

Catchwords: FAMILY LAW – APPEAL – Where appeal was doomed to fail – In circumstances where appellant did not appear at final property hearing, did not file written submissions pursuant to orders following that hearing and did not seek to re-open case – Where appellant filed an application pursuant to s 79A of the Family Law Act 1975 (Cth), which was dismissed – Where appellant appealed dismissal of his s 79A application – Where appellant asserts respondent supressed evidence (including failed to disclose relevant evidence) by not tendering documents proposed to be tendered by him at final hearing – Where onus was not on respondent to tender appellant’s evidence – Where appellant asserts respondent failed to disclose to Court employment obtained after close of trial and before delivery of judgment, notwithstanding that appellant was aware thereof and made no inquiries of respondent or application to re-open final property hearing – Where no suppression of evidence (or failure to disclose relevant information) as alleged by appellant – Where no error at first instance – Appeal dismissed.

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth) s 62C

Family Law Act 1975 (Cth) s 75(2), 79, 79A

Family Law Amendment Act 2000 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 8.15(3)(e), 10.13, 13.23(2)(a)

Cases cited:
Barker & Barker (2007) 36 Fam LR 650; [2007] FamCA 13

Bigg & Suzi (1998) FLC 92-799; [1998] FamCA 14

Ebner & Pappas [2014] FLC 93-619; [2014] FamCAFC 229

In the Marriage of Kokl (1981) FLC 91-078; [1981] FamCA 60

Krebs & Krebs (1976) FLC 90-117; [1976] FamCA 88

Lane & Lane (2016) FLC 93-699; [2016] FamCAFC 53

Pelerman v Pelerman (2000) FLC 93-037; [2000] FamCA 881

Public Trustee v Gilbert (1991) FLC 92-211; [1991] FamCA 10

Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38

Taylor & Taylor (1977) FLC 90-226; [1977] FamCA 31

Waterman & Waterman (2017) FLC 93-762; [2017] FamCAFC 23

Number of paragraphs: 134

Date of hearing: 29 June 2023

Place: Sydney

Counsel for the Appellant: Mr Howe

Solicitor for the Appellant: Swiftly Legal

Counsel for the Respondent: Ms Messner

Solicitor for the Respondent: Dettmann Phair
ORDERS

NAA 73 of 2023
SYC 1641 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR RADER

Appellant

AND:
MS HAINES

Respondent

order made by:

ALDRIDGE, JARRETT & STRUM JJ

DATE OF ORDER:

17 July 2023

THE COURT ORDERED ON 29 JUNE 2023 THAT:
1.The appeal is dismissed.
2.Costs of the appeal are reserved.

THE COURT FURTHER ORDERS THAT:
1.The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $17,151.23.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rader & Haines (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, JARRETT & STRUM JJ:

Some appeals, admittedly in the minority, are destined or highly likely to succeed from the outset. Other appeals, probably in the majority, are arguable and may or may not succeed. And some appeals, again admittedly in the minority, are doomed or highly likely to fail from the outset. This appeal falls in the last category; it should not have been brought. At the conclusion of the appellant husband’s submissions, we did not call upon counsel for the respondent wife to respond. We dismissed the appeal and reserved our reasons for judgment, as well as our judgment on the question of costs.
These are our reasons.
BACKGROUND
Some of the background to this appeal is not readily apparent from the reasons for judgment the subject of this appeal or otherwise from the appeal book, but is contained in the respondent’s Summary of Argument, with which the appellant did not take issue.
The parties commenced cohabitation in 2003, married in February 2009 and separated in August 2017. Proceedings were commenced in 2019 and a divorce order was made in March 2020.
On 21 December 2022, the primary judge made final orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“final property orders” and “the Act” respectively). The appellant had failed to appear at trial (“property trial”), which was listed to commence and commenced on 6 September 2022, by himself or by a lawyer, having discharged his counsel and withdrawn his instructions from his solicitor on the record. He had not made any application (other than a “request” by email) to adjourn the proceedings, nor even filed a Notice of Address for Service. Although he alleged that he was sick with COVID-19, he did not provide any cogent evidence to support this assertion, even though he was apparently requested to do so on a number of occasions.
In the circumstances, the primary judge ordered that, insofar as the appellant moved the Court, by email, to adjourn the trial, such request be dismissed.
The trial proceeded on 6 September 2022, undefended by the appellant, and concluded that day. At the conclusion of the trial, the primary judge ordered, in summary, that the parties be provided with the transcript of the hearing that day and the appellant be provided with an opportunity to make written submissions within 14 days thereafter, failing which her Honour would proceed to judgment.
The appellant was duly sent a copy of the transcript but did not avail himself of the benefit of those orders. He did not file any submissions, nor an application for an extension of time. Further, he did not make any application to re-open the proceedings prior to the delivery of judgment on 21 December 2022, nor did he appeal the orders made that day.
He did, however, bring an Application in a Proceeding on 9 December 2022, seeking inter alia to set aside the orders made prior to the commencement and at the conclusion of the property trial, pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), and that “the matter be set down for final hearing”. It appears that the matters now relied upon by the appellant in support of his subsequent application pursuant to s 79A of the Act (“s 79A application”), the dismissal of which is the subject of this appeal, were not raised in that previous application. That application was dismissed on 20 December 2022 and the primary judge proceeded to make the final property orders and deliver reasons therefor the following day.
On 25 January 2023, the respondent filed an Enforcement Application in respect of the final property orders. Directions were made for the appellant to file a Response to that Application by no later than 10 February 2023. He failed to file a Response within the time ordered, only doing so on 13 February 2023 which, in any event, relevantly did not seek the dismissal thereof. He also filed his s 79A application, albeit by Application in a Proceeding, that day, which also sought that the final property orders be set aside pursuant to r 10.13 of the Rules. The parties’ competing applications were listed for hearing and heard on 3 March 2023. On 7 March 2023, the primary judge dismissed the appellant’s application and her Honour proceeded to make enforcement orders, as sought by the respondent. He now appeals against the dismissal of his s 79A application.
In respect of the appellant’s application pursuant to r 10.13 of the Rules, the primary judge (at [25] and [27] of her reasons for judgment) observed that, in his Case Outline and at the hearing, “little, if anything, was said about r 10.13”, which “received very little attention”.
SECTION 79A(1)(A)
The appellant’s s 79A application was founded upon subsection (1)(a) thereof. Section 79A(1)(a) relevantly provides:
Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;
...
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
At paragraph 3 of his affidavit filed 13 February 2023 in support of his s 79A application, the appellant deposed:
3.I am seeking that the Orders dated 21 December 2022 be set aside on the basis of a suppression of evidence leading to a miscarriage of justice in respect of the following:
(a)Documents in my tender bundle contradicted evidence and submissions made by and on behalf of [the respondent].
(b)I have been informed that as at October 2022, [the respondent] had full-time employment. There is potential that [the respondent’s] forthcoming employment was known to or anticipated by [the respondent] at the time of or prior to the final hearing, which matter was not disclosed and was in conflict with [the respondent’s] evidence and submissions.
(Appellant’s affidavit filed 13 February 2023, paragraph 3)
The primary judge termed these the “tender bundle ground” and the “employment ground”.
Her Honour observed (at [38]) that, whilst the appellant deposed to a suppression of evidence, his counsel made submissions more so about the giving of false evidence and that no submissions were directed to “any other circumstance” to which s 79A(1)(a) also refers.
At [39]–[47], her Honour carefully considered the authorities in relation to suppression of evidence (including failure to disclose relevant information) and the giving of false evidence, as well as miscarriage of justice. In particular, at [40] her Honour said that a suppression of evidence involves the wilful concealment of a fact that a party is under a duty to disclose. Further, at [42] her Honour said that failure to disclose relevant information will not be sufficient for the purposes of s 79A(1)(a) if the other party is aware of the information, referring to Ebner & Pappas (2014) FLC 93-619 (“Ebner & Pappas”) at [65]. Her Honour said:
41.For suppression of evidence and a failure to disclose relevant information (as for all matters under s 79A(1)(a)), it will not be sufficient for [the respondent] to just establish that has happened on the balance of probabilities. What is necessary is for [the respondent] to establish that there has been a miscarriage justice for either of those reasons (or indeed any of the other reasons in s 79A(1)(a)). However, [the appellant’s] grounds here were suppression of evidence (including the failure to disclose) and the giving of false evidence.
In relation to the giving of false evidence, the primary judge referred at [43]–[45] to the decision of the High Court in Taylor v Taylor (1979) 143 CLR 1 at [5] and [14]. Her Honour accepted that this term is to be distinguished from fraud, which is separately mentioned in s 79A(1)(a), and is to be given its literal meaning. Her Honour said:
43.… “False” does not then mean wrong or incorrect. It cannot mean one-sided or a memory failure or a poor recollection of events. “False” suggests the giver of the evidence knows it to be false and gives it anyway.
In relation to miscarriage of justice, the primary judge referred at [46] to Public Trustee v Gilbert (1991) FLC 92-211, where the Full Court held that “a miscarriage of justice can only occur by reason of a fact or event which occurs before or at the time of the making of the order which is sought to be set aside”. Her Honour also referred at [47] to Barker & Barker (2007) 36 Fam LR 650 (“Barker & Barker”) at [120] and [123], where the Full Court referred to Bigg v Suzi (1998) FLC 92-799 and the line of authority following it. In particular, the Full Court in Barker & Barker said that whilst:
120.… the words “miscarriage of justice” should not be construed narrowly and the phrase “integrity of the judicial process” should not be taken only to refer to the hearing in the court, the circumstances creating the miscarriage must nevertheless have been such as to have had an influence on the outcome of the litigation.
The approach taken by the primary judge was an entirely orthodox one. However, we observe that, insofar as her Honour considered miscarriage of justice and the discretion to vary or set aside an order, this only became relevant if one of the vitiating factors, namely, fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance was established and then found to constitute a miscarriage of justice, thereby enlivening the discretion to vary or set aside an order. Not every such vitiating factor, if made out, will necessarily amount to a miscarriage of justice.
THE TENDER BUNDLE GROUND AT FIRST INSTANCE
Before the primary judge, the appellant’s affidavit suggested that his tender bundle had been suppressed, by or on the half of the respondent, and that, had this not occurred, it would have “contradicted evidence and submissions made by an on behalf of” the respondent (appellant’s affidavit filed 13 February 2023, paragraph 3(a)).
Insofar as he deposed that his tender bundle was filed on 2 September 2022, the primary judge found (at [52]): “It was not. It was never filed”. Her Honour continued at [53]–[55]:
53.Rather, it was accepted, very appropriately by [the appellant’s] counsel, that emailing a tender bundle to a registry email address did not make the Tender Bundle evidence, much less evidence before me at trial. It was also accepted, again entirely appropriately, that there was no evidence before me that [the respondent] had read or engaged with [the appellant’s] proposed Tender Bundle. Again, appropriately, it was accepted that [the respondent] had no duty to bring any material in [the appellant’s] proposed Tender Bundle to the Court’s attention. This was not an ex parte application; it was an undefended hearing.
54.If [the appellant’s] affidavit is to be read that it was his Tender Bundle that was supressed and had it not been, then [the respondent’s] evidence would have been contradicted, then, I do not accept that. By virtue of [the appellant’s] own choices, the Tender Bundle was simply not in evidence before me. A party cannot rely on their own non-disclosure to have orders set aside (by analogy I refer to Badawi and Badawi (2017) FLC 93-784; In the Marriage of Rohde and Rohde (1984) FLC 91-592; Lane).
55.I am thus not satisfied the consequence of [the appellant’s] decision not to participate in the trial, and thus not put his own Tender Bundle into evidence (subject to any evidential objections) constitutes a suppression of evidence. It is simply disingenuous of [the appellant] to claim suppression of evidence when he is the one who failed to put his Tender Bundle before the Court. That is even more so, given he was sent the trial transcript and directions made for him to file written submissions, but he did not.
The primary judge then said:
56.Counsel for [the appellant] took a different approach though. Her submissions were not so much about suppression of evidence but about [the respondent] giving false evidence when it came to [the respondent] deposing “joint savings” were used to acquire the former matrimonial home. However, this submission links back to [the appellant’s] Tender Bundle which was said to contain the contradictory information. I have already highlighted the problem with [the appellant] relying either directly or indirectly upon his own failings to support his s 79A(1)(a) ground.
Her Honour said (at [57]), having confirmed with counsel for the appellant at first instance, that the submissions in this regard could be distilled to the following: when the respondent deposed, for the purposes of the property trial, that the appellant and she acquired the Suburb J home with “joint savings”, that was false. Her Honour recorded that it was further submitted by the appellant that:
(a)It was implausible that the respondent did not recall the purchase arrangements, albeit in 2006;
(b)It was implausible that the respondent did not remember the purchase arrangements, albeit in 2006;
(c)The “joint savings” claim was “not truthful”;
(d)It was just not plausible that they used “joint savings”;
(e)There was an onus on the respondent to be truthful; and
(f)The respondent had a duty to “be truthful” and she could not have been.
The primary judge continued:
58.A problem with these submissions (in addition to the link back to [the appellant’s] Tender Bundle) is that they rest on the foundation of “joint savings”. It seems to be [the appellant’s] contention that joint savings means joint or delineated contributions (for example he put in more, to put it very frankly). In any event, for all I know [the respondent] was referring to the parties, having been together for three years, were an economic unit where each contributed to the family endeavour in different ways. Or, as I found in the substantive proceedings at [159]:
…I reject [the appellant’s] contention that [Suburb J] was bought with his funds, because by the time of purchase, the couple had been cohabiting for several years. He also gave no evidence in support of the purchase being from his funds. [Suburb J] was plainly the home for the family unit, which by this time included [X] and [Y]. I accept [the respondent’s] unchallenged evidence that matrimonial funds were used for its acquisition.
59.It is hard to see that when [the respondent] deposed to “joint savings” being used to purchase the Suburb J property three years into the relationship and two children later, that she had supressed evidence in doing so, or failed to make disclosure about the issue, or gave false evidence.
60.As for giving false evidence (which was the emphasis in oral submissions), [the respondent’s] use of “joint savings” may be her best recollection, or her view of the matter, or even one-sided evidence or maybe even wrong, but none of those come close to establishing false evidence under s 79A(1)(a).
Her Honour concluded, in this regard, that the burden of proof rested with the appellant and that he had failed to discharge the onus. Pithily, her Honour said (at [61]): “Saying it is false, does not, in and of itself, make it so”.
Having so concluded, the primary judge nevertheless proceeded, albeit unnecessarily, to consider whether a miscarriage of justice might have occurred. As we have observed above, the establishment of a vitiating factor in s 79A(1)(a) will not inexorably constitute a miscarriage of justice such as to enliven the discretion provided by that sub-section. Her Honour observed that the transcript of the property trial, which was sent to the appellant following his non-attendance that day, made it clear that his proposed tender bundle was not before the Court. Nevertheless, he did not address this in the opportunity given to him by the orders made that day to provide written submissions. Similarly, it was not addressed in his application to set aside the orders of 5 and 6 September 2023, which was filed and determined in December 2023, prior to the making of the final property orders. In this regard, her Honour referred at [65] to that which she had said at [27] of her reasons for judgment delivered on 21 December 2022, accompanying those orders:
65.…
The Outline referred to a “Tender Bundle of [the appellant]”. That Tender Bundle was not put before me. Similarly, [the appellant’s] affidavit referred to annexures, but nothing was annexed to his affidavit that was before me. It may be the Tender Bundle and Annexures were one and the same thing. I do not know. I will do the best I can on the evidence before me.

The primary judge observed that the appellant’s tender bundle was not before her at trial because he himself had failed to participate in the proceedings that day and that, had he chosen to do so, by himself and/or by a lawyer, they would have had the opportunity to tender the documents therein “in the usual way, subject to any evidential objections” (at [67]). Further, he had the very clear opportunity to put on submissions after the evidence was closed but did not do so; that was his choice. Moreover, there was no application prior to judgment to re-open the evidence (the prospects of which, her Honour said she made no comment about) (see [66]–[69]). In the circumstances, the primary judge was not satisfied that the appellant’s own actions (or inactions) constituted a miscarriage of justice, being a flaw in the judicial process (at [70]).
In relation to the judicial process, the appellant’s argument before the primary judge was that, if she accepted the joint savings claim was false (or involved a suppression of evidence), it followed that she would have given greater weight to his contributions to the purchase of the former matrimonial home which her Honour observed at [71] was “three years into the relationship and after the birth of two children”. Notwithstanding her finding that the respondent had not given false evidence or suppressed evidence with respect to the “joint savings” claim, her Honour continued:
72.Even if [the appellant] had actually put on evidence to demonstrate he had applied more money to the purchase than [the respondent], it is still but one contribution during the relationship which by this time had produced two children.
In circumstances where the appellant was given the opportunity to make submissions after the close of the property trial but did not do so and where, having received the transcript and read what the respondent said, he could have applied to reopen the case but did not do so, her Honour did not accept that “[the appellant] sitting on his hands, well-armed with the wife’s position constitutes a defect in the judicial process” (emphasis in the original). See [73]–[74].
Again, albeit unnecessarily, the primary judge turned to consider whether, had a vitiating factor amounting to a miscarriage of justice been established, she would have exercised her then-enlivened discretion to vary or set aside the final property orders. Her Honour concluded at [79] that she would not have done so, inter alia, because:
79.Ultimately, if there was any defect in the matter, it was [the appellant’s] choices to not participate and not take advantage of the procedural fairness opportunities that were afforded to him. Sitting on ones [sic] hands, and complaining after the fact, does not make for a defect in the judicial process.
THE EMPLOYMENT GROUND
It was submitted on behalf of the appellant before the primary judge that this ground too involved a suppression of evidence (including a failure to disclose relevant information) or the giving of false evidence.
Her Honour said:
81.To give context to this ground, it must be recorded that [the appellant’s] Case Outline relied upon information, which had been used contrary to a s 62C Administrative Appeals Tribunal Act 1975 prohibition order. To [the appellant’s] Counsel’s great credit, when this prohibition was brought to her attention, she did not press the tender of documents which were referred to in her Outline. I therefore disregard what was said in [the appellant’s] Case Outline that relied upon the prohibited material.
The appellant asserted, in his affidavit in support of his s 79A application, that he had been informed that, as at some unspecified date in October 2022, the respondent had full-time employment and that, accordingly, there was “potential that [the respondent’s] forthcoming employment was known to or anticipated by [the respondent] at the time of or prior to the final hearing, which matter was not disclosed and was in conflict with [the respondent’s] submissions and evidence” (at [82]). Further, the appellant deposed that he was:
82.…concerned that the Court may have been misled in relation to [the respondent’s] employment prospects and future earning capacity if it transpires that, at the time of the hearing, [the respondent] was aware of the possibility of her commencing the employment she commenced very soon after the completion of the hearing.
(Emphasis in original)
In this regard, the primary judge said:
83.The highest the evidence goes is that well before my judgment, someone told [the appellant] something about [the respondent] having some kind of job, and there was “potential” [the respondent] knew or may have “anticipated” this prior to the final hearing. Consequently, [the appellant] is “concerned” the Court “may have been” misled “if it transpires” [the respondent] was aware of possible employment.
84.That is it.
Her Honour noted at [85] that the appellant’s counsel conceded (and she agreed) that the appellant’s evidence “constituted rank hearsay and would attract little weight”. Her Honour continued that, on that basis alone, she could conclude her consideration of this ground at that point. However, again unnecessarily, her Honour proceeded to consider the respondent’s evidence in this regard.
The primary judge recorded at [86] that, in her affidavit filed 27 February 2023 in opposition to the appellant’s s 79A application, the respondent denied that she had misled the court as to her earning capacity and that, at the time of trial in early September 2022, she had a job or an offer of employment. It is noteworthy, in our view, that the appellant did not seek to cross-examine the respondent in this regard at the hearing on 3 March 2023. In the circumstances, her Honour concluded:
86.…There is nothing in the evidence before the Court that leads me to conclude [the respondent] has suppressed evidence, failed to provide full and frank disclosure or gave full evidence. All I have is [the appellant’s] speculation about a potential or possible job based on rank hearsay. The currency of a court is evidence; I have very little, if any.
Her Honour continued at [87] to observe that, if the appellant had chosen to participate in the trial and/or not withdrawn his retainer of counsel and instructions to his solicitor, the respondent’s evidence at the substantive trial could have been tested. However, he did not do so.
Nevertheless, the appellant submitted before the primary judge that the respondent had a duty to disclose information about possible jobs. However, as her Honour noted at [88], there was no evidence before her at the hearing of the s 79A application of “any potential or possibility that actually existed (if a possibility or potential can be evidenced) at trial”.
As for disclosure after the substantive trial concluded, her Honour noted that it was plain, from the appellant’s affidavit in support of his s 79A application, that he acquired some information in any event.
In relation to the appellant’s submissions in support of the employment ground, the primary judge recorded as follows:
89.It was submitted that it was “implausible” that [the respondent] did not know of offers of employment that were made, apparently, after trial, when she was before me at trial. [The respondent] denies this to be so. I do not accept the submission about implausibility because it is a bald assertion with no evidence to support even an inference being drawn of the variety contended for. Respectfully, it elevates [the appellant’s] hearsay speculation about a potential or a possible to a level that is not open on his evidence.
90.It was also submitted that [the respondent] should have disclosed the employment information to the husband after trial. That is, respectfully, rather redundant – [the appellant] had the information himself in October. [The respondent] does not have a duty to disclose that which is already in the hands of [the appellant]. Perhaps [the respondent] should have disclosed the apparent employment to [the appellant] sooner, but the reality is, he was armed with the information in October, well prior to my delivering judgment. That is, he was aware of the information (Ebner at [65]).
Her Honour at [91] referred to the decision of the Full Court of the Family Court in Barker & Barker at [124] in which it was said that where “there is some intervening factor known to one party, but not the other, this may lead to a result which is unfair and unjust and can be characterised as a floor in the judicial process by which the orders were made” (primary judge’s emphasis). Her Honour noted that, on the appellant’s own evidence, such as it was, he had information about the respondent’s apparent employment in October 2022. Her Honour did not deliver judgment in the substantive proceedings until 21 December 2022 and, in the intervening period, the appellant did not apply to re-open the case to bring this information to her attention, and certainly not in an admissible form. Her Honour continued:
92.…Instead, he now complains via a s 79A application after the pronouncement of Orders and reasons. The “intervening factor” of [the respondent’s] apparent employment was known to both parties, and specifically [the appellant], well prior to my delivering reasons.
In the circumstances, on the basis of what the primary judge described at [93] as the appellant’s “own frail and feeble evidence (and objectionable evidence, had objection been taken)” her Honour did not accept that the respondent suppressed evidence, failed to disclose or gave false evidence.
Nevertheless, again, the primary judge turned to consider whether, had a vitiating factor been made out in respect of the employment ground, it would have amounted to a miscarriage of justice. Her Honour noted at [95] that it was difficult for the appellant to claim a miscarriage of justice when he was privy to some form of information well prior to the judgment and did nothing about it.
Further, insofar as it was submitted that the appellant did not know, prior to the delivery of judgment on 21 December 2022, that the parties’ disparity of income or the respondent’s poor employment prospects would result in an adjustment to her, the primary judge rejected same. Her Honour noted at [96] that he had the transcript from the hearing on 6 September 2022, where it was clear that the respondent sought an adjustment in her favour on the basis of, inter alia, income disparity or poor employment prospects but that the appellant did not take up the opportunity provided to him to make any submissions. Further, the adjustment in the respondent’s favour on account of s 75(2) did not rest on those factors alone. Rather, her poor employment prospects were but one consideration, her Honour having found that his “woeful non-disclosure” and conduct impeding the single expert were others (see [97]–[98]).
In the circumstances, the primary judge did not accept that the appellant’s decision “to sit on his hands and await the final outcome” in any event constituted a miscarriage of justice and concluded that his “choices to sit back, armed with the information about which he now points to” did not make for a flaw in the judicial process (at [99]).
APPEAL
The appellant’s amended Notice of Appeal contains 11 grounds which were grouped under three headings, namely, grounds relating to the tender bundle; to the respondent’s employment; and to both the tender bundle and the respondent’s employment. Whilst, in his Summary of Argument, each of the grounds was addressed individually (as required by r 13.23(2)(a) of the Rules), counsel for the appellant nevertheless addressed the grounds (such as he did) generally thematically before us. The respondent’s Summary of Argument was of little assistance to us in considering and determining this appeal, other than by way of background.
Grounds relating to the tender bundle
These grounds are as follows:
1.The primary judge erred by proceeding on a wrong principle, namely, that the respondent wife was not obligated to disclose the contents of the appellant husband’s tender bundle.
2.The primary judge erred by proceeding on a wrong principle: “A suppression of evidence involves the wilful concealment [emphasis added] of a fact that a party is under a duty to disclose.”
3.In the alternative to ground 2, in finding that the respondent wife did not wilfully conceal the contents of [the appellant’s] tender bundle, the primary judge failed to consider that the knowledge possessed by her solicitor about the tender bundle was imputed to the respondent.
4.The primary judge erred by proceeding on a wrong principle, namely: relying on the “false evidence” ground in respect of an application under s 79A of the Family Law Act 1975 requires the applicant to demonstrate that “the giver of the evidence knows it to be false [emphasis added] and gives it anyway.”
5.In determining whether [the respondent’s] suppression of evidence caused a miscarriage of justice, the primary judge failed to consider the wife’s obligation to disclose the tender bundle.
(Emphasis in original)
Ground 1
Insofar as the primary judge said at [53] of her reasons for judgment that counsel for the appellant conceded that the respondent “had no duty to bring any material in the appellant’s Tender Bundle to the Court’s attention”, the appellant contends that no such concession appears in the transcript. However, that is not correct. In the course of a submission by counsel for the appellant relating to the tender bundle, there is the following exchange between the primary judge and counsel:
HER HONOUR: But doesn’t that (a) require her to have engaged with whatever your document is, (b) understood it, (c) have read it? But isn’t – I mean, I’m just trying to think. One of the authorities quoted in Trustee in Bankruptcy & Bryan and Gatenby, in 2006, talks about:
Suppression of evidence which, in our view, and in the context of section 79A, speaks of fraud, duress and false evidence must go beyond the mere giving of one-sided evidence an amount to a wilful concealment of matters which it was –
in that case “her”, as it is here:
her duty to put to the court.
So how is it [the respondent’s] duty to engage with your documents and come up with a different – whatever – recollection?
[COUNSEL FOR THE APPELLANT]: Your Honour, it’s - - -
HER HONOUR: It’s not her duty, is it?
[COUNSEL FOR THE APPELLANT]: Your Honour, it’s not my duty [sic] that it’s [the respondent’s] duty. It’s my submission that it was [the respondent’s] duty to be truthful, and it’s my submission that [the respondent’s] statement that there were – [the respondent’s] evidence that there were joint savings – and that is in her affidavit – that there were joint savings that were used to purchase that property was untruthful and that it cannot have been truthful given the history of the parties’ post-cohabitation, post-commencement of cohabitation employment that [the respondent] herself gives. I’m not asking [the respondent] - - -
HER HONOUR: Why is her one-sided evidence – why isn’t it her one-sided evidence? But how do I find positively that it was her being – her wilfully concealing a matter as opposed to one-sided evidence?
[COUNSEL FOR THE APPELLANT]: Your Honour, I’m asking your Honour to draw a distinction between one-sided evidence and untruthful evidence. My submission is that if one looks at those aspects of [the respondent’s] evidence which describe the parties’ activities and employment from the time of commencement of cohabitation to the time of the purchase of [the Suburb J] property, it cannot have been the case that the parties together had amassed joint savings equivalent to 44 per cent of the purchase price.
HER HONOUR: Wouldn’t that all have been cured if your client had turned up and engaged with the process or not disengaged with his solicitor and not withdrew [his previous counsel’s] instructions on the eve of trial? Don’t worry about answering that. I think the answer is obvious.
(Transcript 3 March 2023, p.12 line 34 to p.13 line 30)
Viewed in context, it is readily apparent that counsel for the appellant at first instance effectively conceded that it was not the respondent’s duty to bring any material in the appellant’s proposed tender bundle to the Court’s attention.
Further, the passage cited and complained of by the appellant in his Summary of Argument ignores the immediately following sentence by the primary judge at [53] of her reasons for judgment, namely, that her Honour was dealing with an undefended hearing, not an ex parte application.
In so far as the appellant contends that the primary judge erred at [42] of her reasons for judgment in her reliance upon Ebner & Pappas at [65] as authority for the proposition that “failure to disclose relevant information will not be sufficient if the other party is aware of the information”, it matters not that, as he submits, that paragraph “merely affirms the trial judge’s application of the test for summary judgment”. Read in its entirety, the Full Court said:
65.The trial judge concluded that, as the husband was aware, from earlier disclosure, of the wife’s assets and had evidence as to their value, there could not be a miscarriage of justice by reason of their non-disclosure in the 16 May 2012 financial statement or by the wife’s various statements to the court. Thus, the judge found that the husband’s application had no reasonable likelihood of success. In doing so her Honour properly applied the correct test.
(Emphasis added)
Similarly, insofar as the appellant contends that the primary judge erred at [91] of her reasons for judgment in her reliance upon Barker & Barker at [124], albeit in relation to the employment grounds, the Full Court there said:
124.But s 79A is a remedial section designed to avoid a miscarriage of justice. Where there is some intervening factor known to one party, but not the other, this may lead to a result which is unfair and unjust and can be characterised as a flaw in the judicial process by which the orders were made. There may also be circumstances in which the judicial process could be impugned by a sale after orders were made and in the absence of bad faith by either party or suppression of some relevant fact, if it led to a significant miscarriage of justice.
We respectfully agree with those observations. In particular, s 79A is a remedial section designed to avoid a miscarriage of justice. Even if the respondent had some obligation to put the appellant’s case before the primary judge, which she did not, the establishment of a vitiating factor in s 79A(1)(a) does not, ipso facto, amount to a miscarriage of justice.
The appellant, citing Pelerman & Pelerman (2000) FLC 93-037 (“Pelerman & Pelerman”) at [77], further submits that the principle that applies in the context of an undefended hearing is set out by the Full Court in Krebs & Krebs (1976) FLC 90-117 (“Krebs & Krebs”) at 75,533, namely:
Applications seeking settlement of property which come on for hearing in undefended suits create obvious difficulties since almost inevitably only one side of the matter is presented to the court. However if the other party chooses not to defend the matter it becomes necessary for the court to determine the proceeding on the evidence before it. It is essential in a case of that sort that there be a full and frank disclosure by the applicant of all relevant facts and circumstances so as to enable the court to make an order which is proper and just in the circumstances.
However, in Krebs & Krebs, unlike in the present case, the matter proceeded undefended by reason of a misrepresentation and threat by the husband to the wife, first, that if she did not contest his application for principal relief (i.e. divorce) and ancillary relief (i.e. parenting and property orders), he would make a collateral payment to her and, secondly, that if she did so, he would “blacken [her] name everywhere”. In the circumstances, she did not persist with legal representation, nor did she appear at trial and orders were made in her absence. Immediately thereafter, the husband resiled from the collateral agreement and the wife sought to set the orders aside.

Prior to the passage upon which the appellant relies, the Full Court in Krebs & Krebs at 75,532 said as follows:
In our view the orders, at least relating to questions of custody and property, were obtained as a result of suppression of evidence by the husband and further that there are such elements of unfairness that to allow the decree to stand in its present and inalterable form at least so far as the property order is concerned would clearly amount to a substantial “miscarriage of justice” which ought not to be allowed.
We consider that the evidence of the husband given on the hearing of the petition clearly gave, and was intended to give, the impression to the trial judge that -
(i)the wife had contributed nothing to the acquisition or improvement in value of the property, notwithstanding that she was registered as a joint owner;
(ii)that she was in full time and well remunerated employment and·in addition was being supported. by the co-respondent;
(iii)the wife left her husband in June 1975 to live with the co-respondent and that this had continued to be the case up to the time of the hearing of the petition;
(iv)that she had made no claim against the husband in respect of the maintenance of the children;
(v)that there had been no “claim” by the wife in respect of her interest in the property, and that indeed there had been no discussions between the parties or their legal advisors as to this, and that in effect the wife had abandoned to the husband her interest therein;
(vi)that the wife, having been properly served with the petition, had taken no steps to defend or otherwise object to any of the claims contained therein.
It appears to us that not only were each of these substantially incorrect, but each was incorrect to the knowledge of the husband.
Following the passage upon which the appellant relied, the Full Court in Krebs & Krebs at 75,533 further said as follows:
Further, once such an order has properly been made there are severe restrictions upon the circumstances in which it may be varied or set aside, and equally upon any appeal from such an order there are real restrictions upon the Court which hears the appeal going beyond the evidence which was adduced at the hearing of the application itself.
Some Family Court judges therefore make orders requiring the applicant to serve the order on the absent respondent and granting the respondent liberty to apply to set aside the order on proper notice.
It is therefore readily apparent that the facts in Krebs & Krebs are materially distinguishable from those in the present case and, viewed in that context, the selected passage therefrom upon which the appellant relies is inapplicable. In this case, the appellant is the sole author of his own misfortune and the respondent cannot be said (and was not found by the primary judge) to have contributed thereto in any way.
Moreover, in Krebs & Krebs, insofar as the Full Court, in the passage upon which the appellant relies, referred to undefended proceedings “if the other party chooses not to defend the matter”, that was a case in which the aggrieved party had not defended the proceedings at any stage, based upon the other party’s misrepresentation and threat. The present case is entirely distinguishable on the facts.
Further, insofar as the appellant relies upon the decision in Pelerman & Pelerman, where the Full Court at [77] referred to the passage in Krebs & Krebs at 75,533, that was in a successful appeal from the summary dismissal of a s 79A application where the Full Court held (at [63], [70] and [79]) that summary dismissal is not available when the circumstances particularised may be held to constitute a miscarriage of justice by reason of suppression of evidence or any other circumstance.
The appellant’s submissions in support of this ground proceed upon a fundamental misapprehension in relation to the tender bundle. The Rules do not refer to “tender bundles”, nor make any provision for the filing of any such category of documents. Whilst they are often provided to the Court for ease of reference, no document therein constitutes evidence unless and until it is tendered. For the reasons set out in the following paragraph, neither tender bundles, nor individual documents therein, should be perused by the Court until a document therein is sought to be tendered. In some cases, including the present, tender bundles comprise (or include) the documents identified in, and said to be annexures or exhibits to, an affidavit or affidavits. In other cases, they may comprise (or include) documents proposed to be tendered in evidence in chief and/or in cross-examination. In the present case, the tender bundle, comprised of 352 pages, consisted of the annexures to the appellant’s trial affidavit filed on 29 August 2022, just over a week before the trial was listed for final hearing. In his affidavit filed on 13 February 2022, in support of his s 79A application, the appellant deposed at paragraphs 5–6 that the tender bundle “was over 100 pages, and so was unable to be eFiled, meaning that it was to be filed by email”, and that on 2 September 2022, it was emailed to the Sydney Registry of the Court and to the respondent’s solicitor.
However, r 8.15(3)(e) of the Rules provides that a document that is to be used in conjunction with an affidavit (namely an annexure or exhibit thereto) must not be accepted as evidence in the proceeding unless and until it is tendered in evidence at the hearing of the application and accepted into evidence by the Court. It was for the appellant, and not the respondent, to tender, one by one if necessary, in support of his case, all or some of the documents in his “tender bundle”, being documents identified in his trial affidavit as annexures or exhibits thereto.
The fallacy in the appellant’s contention that the respondent was obligated to disclose the contents of his tender bundle is readily apparent. It did not inexorably follow from the fact that he provided a tender bundle to the Court and the respondent that he would, in fact, seek to tender each and every document therein and that any documents sought to be tendered would necessarily be accepted into evidence, or if admitted, be given any weight. It was not for the respondent to trawl through those documents, in his deliberate absence, and endeavour to divine which documents he might consider might be relevant to his case. This became starkly apparent when, in the course of the appellant’s submissions, his counsel took us to paragraph 8 of his affidavit filed 13 February 2023, in support of his s 79A application, where he deposed as follows:
The tender bundle included relevantly, the following documents:
(a)At pages 28-30, a letter from the conveyancer acting on the purchase of [the Suburb J] Property which attached a Statement showing that (a) in the Statement, that an amount of $481,561.42 would be paid by towards settlement of the property; (b) in the Statement, that an amount of $73,267.50 was paid in respect of Stamp Duty; and (b) in the Settlement Sheet, that a deposit of $153,150 had been paid; and
(b)At page 33, a letter from [W Lawyers] to myself dated 15 November 2012 confirming that a settlement of 85,000 pounds was made by transfer to me on 5 March 2008.
Counsel for the appellant could not demonstrate to us how, even if those two documents had been tendered and accepted into evidence, they would have illuminated anything, all the more so in his absence. As to the first of those documents, the letter and the settlement sheet and statement from the conveyancer acting on the purchase of the Suburb J property in December 2006 disclosed that the purchase price was $1,531,500; a deposit of $153,150 had been paid; the balance owing of the purchase price at settlement was $1,379,233.39, of which $899,743.50 was to be funded by O Limited and $481,561.42 was payable by the appellant and the respondent; and stamp duty owing on the contract and the mortgage totalling $73,267.50 had been paid by them. The letter, under cover of which the settlement sheet and statement were provided, was addressed to the appellant and the respondent jointly. Further, inexplicably, although the letter and the settlement sheet both refer to settlement being due on 14 December 2006, the letter itself is dated 28 August 2022. Therefore, not only would those documents, if tendered simpliciter, not have added anything; in fact, at most, they might have assisted the respondent’s case by the references therein to the sums of $73,267.50 and $481,561.42 respectively being paid and payable by them.
As to the second of those documents, that is simply a letter dated 15 November 2012 from a firm of United Kingdom solicitors to the appellant, in relation to an accident in 2004 (the year following the commencement of cohabitation), advising that a settlement of £85,000 was made by transfer to him on 5 March 2008 (nearly a decade prior to separation) by way of damages for personal injury, which sum was not liable to taxation in United Kingdom. Again, other than tending to evidence the receipt by the appellant of that sum, that document, if tendered and accepted into evidence, would not have illuminated anything, in and of itself.
Ground 1 fails.
Ground 2
The appellant contends that, in holding at [40] that a “suppression of evidence involves the wilful concealment of a fact that a party is under a duty to disclose”, the primary judge erred by proceeding on a wrong principle.
In so holding, the primary judge referred to Taylor & Taylor (1977) FLC 90-226 at 76,197; In the Marriage of Kokl (1981) FLC 91-078 at 76,557 per Gee J; Pelerman v Pelerman at [75]; and Lane & Lane (2016) FLC 93-699 at [139].
Counsel for the appellant did not specifically address us in relation to this ground. Nevertheless, it is addressed in his Summary of Argument. It can be disposed of briefly.
The appellant submits, correctly, that s 79A(1)(a) was amended by the Family Law Amendment Act 2000 (Cth) by inserting, immediately after the words “suppression of evidence”, the clarifying words “(including failure to disclose relevant information)”. He further submits, in purported reliance upon Taylor & Taylor (1977) FLC 90-266 at 76,197, that “[b]efore this amendment, ‘suppression of evidence’ referred to intentionally hiding relevant information that a party was obliged to disclose”, such that the authorities predating the 2000 amendment do not represent the current state of the law (Appellant’s Summary of Argument filed 31 May 2023, paragraph 7).
That is not the case. Rather, at 76,197, Asche and Dovey JJ said that “suppression of evidence” in s 79A(1)(a) (as it then stood) –
… in the context of s 79A which speaks of “fraud”, “duress” and “full evidence”, must go beyond the mere giving a one-sided evidence and amounted to wilful concealment of matters which it was her duty to put to the court. Apart from that clear duty which he owed to the court, she would not bound to put the case for the other side (see also Birkbeck v Birkbeck (1970) 16 FLR 78 at 92).
In our view, the addition of the words “(including failure to disclose relevant information)” (our emphasis) is merely inclusive of what may constitute a suppression of evidence. Indeed, this point is demonstrated by the passage in the decision of the Full Court in Waterman & Waterman (2017) FLC 93-762 at [37], upon which the appellant relies, albeit that in our view it does not support his case. Justice Murphy (with whom Bryant CJ and Kent J agreed) said:
… a failure to disclose at the heart of a s 79A case need not involve any deliberate attempt to defraud or deceive the other party, matters which are, in any event, embraced by s79A(1)(a) grounds.
(Emphasis added)
Ground 2 fails.
Ground 3
The appellant contends that, in the alternative to Ground 2, in finding that the respondent did not wilfully conceal the contents of the appellant’s tender bundle, the primary judge failed to consider that the knowledge possessed by her solicitor about the tender bundle was imputed to her.
Again, counsel for the appellant did not specifically address us in relation to this ground. Nevertheless, it too is addressed his summary of argument. It can be disposed of similarly briefly.
The appellant, in reliance upon the fact that his tender bundle was served upon the respondent’s solicitor, contends, in the circumstances, that “it would have been open to the court to infer that the knowledge of the respondent wife’s solicitor concerning the tender bundle was imputed to the respondent wife”; that “then it would also have been open to the court to infer that the respondent wife wilfully concealed the contents of the tender bundle from the court”; and that the primary judge failed to consider how these matters might support a finding that the respondent wilfully failed to disclose the tender bundle, such that her Honour failed to take relevant considerations into account (Appellant’s Summary of Argument filed 31 May 2023, paragraphs 16–17 and 19–20) (emphasis added).
However, neither in the appellant’s Case Outline before the primary judge, nor at the hearing of his s 79A application before her Honour, was this argument raised. Before us, counsel for the appellant did not seek leave to argue a matter not raised at first instance. In the circumstances, it is not open to him now to raise it on appeal.
In any event, as in the case of the respondent, we reject the proposition that her lawyers were under any obligation to trawl through 352 pages of documents in the tender bundle, in the appellant’s deliberate absence, endeavour to divine which documents he might consider might be relevant to his case and then seek to tender same.
Ground 3 fails.
Ground 4
The appellant contends that in holding at [43] that “false evidence” for the purpose of s 79A(1)(a) does not mean “wrong or incorrect … one-sided or a memory failure or a poor recollection of events” but “suggests the giver of the evidence knows it to be false and gives it anyway”, the primary judge proceeded on a wrong principle.
Again, counsel for the appellant did not specifically address us in relation to this ground but it too is addressed his summary of argument and can be disposed of similarly briefly.
In support of this ground of appeal, the appellant relies upon the dicta of Mason J in Taylor v Taylor (1979) 143 CLR 1 at [12] that:
12.…the words “false evidence” in s. 79A (1) do not mean evidence which is wilfully false. The subsection should be read according to its terms. To say that “false evidence” should be read as “wilfully false evidence” is to introduce a qualification not expressed by the provision…
However, the appellant’s submission overlooks or disregards that which Mason J said thereafter at [14], and which the primary judge cited at [44] of her reasons for judgment, namely:
14.What s. 79A (1) does is to give the court a discretion to set aside an order when it has been obtained by false evidence. In such a case the court will be extremely reluctant to exercise its discretion in favour of setting aside the order unless something more appears than that false evidence has been given and has procured the making of the order. The importance of bringing an end to litigation and the evil of allowing cases to be retried on the same evidence are powerful deterrents against setting aside a judgment whenever it appears that it has been obtained by false evidence without more. Where, however, more appears, as, for example, that the judgment was obtained ex parte without the benefit of the evidence to be given by one of the parties, then the court will the more readily exercise its discretion in favour of setting aside the judgment. Then the setting aside of the judgment will not result in a retrial on the same evidence but in a trial on the evidence given by both parties…
Admittedly, the latter passage from the judgment of Mason J goes to whether false evidence amounts to a miscarriage of justice such as to enliven the discretion to vary or set aside an order pursuant to s 79A(1). See the reasons for judgment of the primary judge at [45].
The appellant baldly and boldly contends that the respondent’s evidence regarding the parties’ contributions to the acquisition of the Suburb J property was false and, in support thereof, points to the documents referred to at paragraph 8 of his affidavit filed 13 February 2023 in support of his s 79A application, namely pages 28–30 and 33 of the tender bundle, to which we have referred in relation to Ground 1. However, the primary judge did not find, and before us the appellant could not establish, that the respondent gave false evidence at trial.
At [57]–[58] and [60]–[61] of her reasons for judgment, the primary judge said:
57.The gravamen of the submissions distilled to this (which [the appellant’s] counsel confirmed) – when [the respondent] deposed they acquired the Suburb J home with “joint savings”, that was “false”. It was further submitted that:
(a)It was implausible that [the respondent] did not recall the purchase arrangements, albeit in 2006;
(b)It was implausible that [the respondent] did not remember the purchase arrangements, albeit in 2006;
(c)The “joint savings” claim was “not truthful”;
(d)It was just not plausible that they used “joint savings”;
(e)There was an onus on [the respondent] to be truthful; and (f) [the respondent] had a duty to “be truthful” and she could not have been.
58.A problem with these submissions (in addition to the link back to the husband’s Tender Bundle) is that they rest on the foundation of “joint savings”. It seems to be [the appellant’s] contention that joint savings means joint or delineated contributions (for example he put in more, to put it very frankly). In any event, for all I know [the respondent] was referring to the parties, having been together for three years, were an economic unit where each contributed to the family endeavour in different ways. Or, as I found in the substantive proceedings at [159]:
…I reject [the appellant’s] contention that [Suburb J] was bought with his funds, because by the time of purchase, the couple had been cohabiting for several years. He also gave no evidence in support of the purchase being from his funds. [Suburb J] was plainly the home for the family unit, which by this time included [X] an [Y]. I accept [the respondent’s] unchallenged evidence that matrimonial funds were used for its acquisition.
…
60.As for giving false evidence (which was the emphasis in oral submissions), [the respondent’s] use of “joint savings” may be her best recollection, or her view of the matter, or even one-sided evidence or maybe even wrong, but none of those come close to establishing false evidence under s 79A(1)(a).
61.It is [the appellant] who must discharge the onus in this regard, and he has failed. Saying it is false, does not, in and of itself, make it so.
Further, as we have observed above, in relation to Ground 1, counsel for the appellant could not demonstrate to us nor is it otherwise apparent to us how, even if the two documents referred to at paragraph 8 of the appellant’s affidavit filed 13 February 2023 had been tendered and accepted into evidence, they would have established that the respondent’s was false, all the more so in his absence. In the circumstances, we agree with the primary judge that the respondent’s evidence that “joint savings” were used to acquire the Suburb J property (which was the former matrimonial home) may have been her best recollection or view of the matter or even one sided or wrong evidence but that none of these came close to establishing false evidence under s 79A(1)(a).
Ground 4 fails.
Ground 5
The appellant contends that, in determining whether the respondent’s alleged suppression of evidence caused a miscarriage of justice, the primary judge failed to consider her asserted obligation to disclose the tender bundle.

Again, counsel for the appellant did not specifically address us in relation to this ground.
However, as we have held above, in relation to Ground 1, the respondent had no such obligation. Therefore, Ground 5 fails.
Grounds relating to the respondent’s employment post-trial
These grounds are as follows:
6.The primary judge erred by proceeding on a wrong principle, namely, that [the respondent] was not obligated to disclose information about her employment because the appellant husband was aware of the relevant information.
7.The primary judge erred in rejecting [the appellant’s] unchallenged evidence that the respondent wife had secured employment after the final hearing of the principal proceedings.
8.In determining whether the respondent wife’s suppression of evidence or giving of false evidence in respect of her employment caused a miscarriage of justice, the primary judge failed to consider [the respondent’s] obligation to disclose information about her employment.
9.That the primary judge erred in interpreting the orders made by the Administrative Appeals Tribunal (“AAT Orders”) in relation to review number […] (“Review Proceedings”).
10. The primary judge erred in failing to give adequate reasons explaining:
a.How Her Honour concluded that the AAT Orders restricted the use of documents or information obtained in connection with the Review Proceedings in proceedings under the Family Law Act 1975 unless the proceedings Family Law Act 1975 “related” to child support; and
b.What is meant by “relate.”
Ground 6
The appellant contends that, in holding that the respondent was not obligated to disclose information about her employment (obtained after the close of the trial) because he was aware of the relevant information, the primary judge erred.
In support of this ground of appeal, the appellant refers to his earlier submissions in support of Ground 1 in relation to Ebner & Papas and Krebs & Krebs, which we have addressed above and do not require repetition. It suffices to recall (as did the primary judge at [91]) that in Barker & Barker at [124] the Full Court referred to s 79A being a remedial section, designed to avoid a miscarriage of justice, such that where there is some intervening factor known to one party, but not the other, this may lead to a result “which is unfair and unjust and can be characterised as a flaw in the judicial process by which the orders were made”.
The primary judge noted at [90] that, in the circumstances, any disclosure by the respondent to the appellant, between the close of the trial (on 7 September 2022) and the delivery of judgment (on 21 December 2022), would have been redundant as he had the information himself in October 2022. Accordingly, her Honour concluded that the respondent did not have a duty to disclose that which was already in the hands of the appellant.
Her Honour further noted that, whilst the appellant was armed with information about the respondent’s employment well prior to her delivery of judgment, he did not apply to re-open to bring this information to her attention.
Before us, counsel for the appellant conceded that, possessed of such information, even if incomplete, he or his solicitors could also have written to the respondent’s solicitors seeking confirmation of her employment and/or particulars thereof. This too, did not occur.
In the circumstances, aware of some information, even if incomplete, having chosen (as the primary judge found) to sit on his hands and await the property judgment, we agree that he cannot be heard to complain. Any misfortune, as opposed to miscarriage of justice, is entirely of his own making.
Ground 6 fails.
Ground 7
Insofar as this ground contends that the primary judge erred in rejecting the appellant’s unchallenged evidence that the respondent had secured employment after the final hearing of the principal proceedings, his counsel conceded before us that nowhere in her Honour’s reasons for judgment, nor in the transcript of the hearing before he, did she reject such evidence. Indeed, it is clear from her Honour’s reasons for judgment that she in fact accepted and proceeded upon the appellant’s evidence, albeit hearsay, that the respondent had secured employment after the conclusion of the property trial. Rather, her Honour held (at [88]) that there was no evidence before her of “any potential or possibility that actually existed (if a possibility or potential can be evidenced) at trial” of that employment. Further, insofar as it was submitted at first instance that it was implausible that the respondent did not know of “offers of employment that were made, apparently, after trial, when she was before [the primary judge] at trial”, the respondent denied this to be so and her Honour (at [89]) rejected the submission about implausibility because –
89.… it is a bald assertion with no evidence to support even an inference being drawn of the variety contended for. Respectfully, it elevates [the appellant’s] hearsay speculation about a potential or a possible to a level that is not open on his evidence.
In the circumstances, counsel for the appellant properly abandoned Ground 7.
Ground 8
The contention in this ground of appeal, namely, that in determining whether the respondent’s alleged “suppression of evidence or giving of false evidence” caused a miscarriage of justice, the primary judge failed to consider the respondent’s obligation to disclose information about her employment, is largely a repetition of the appellant’s complaint in Ground 7, which we have already dismissed.
Not having found that there was a vitiating factor (namely a suppression of evidence or the giving of false evidence), it was strictly unnecessary for the primary judge to proceed to consider whether same would have amounted to a miscarriage of justice. However, we acknowledge that, in the circumstances, there was a degree of overlap between these two steps.
In circumstances where s 79A is a remedial section and where the appellant was aware or, at least, had grounds to believe that the respondent was employed in the month following that of the trial but did nothing at all, we agree with the observations of the primary judge at [95] and [99] that it is difficult for him to claim a miscarriage of justice and that his “choices to sit back, armed with the information about which she now points to, does not make for a flaw in the judicial process”.
Ground 8 is dismissed.
Ground 9
By this ground, the appellant contends that the primary judge erred in her interpretation of orders made by the Administrative Appeals Tribunal (“AAT”) in relation to child support payable between the parties.
It will be recalled that the primary judge at [81] recorded that the appellant’s Case Outline relied upon information which her Honour described as having “been used contrary to a s 62C Administrative Appeals Tribunal Act 1975 prohibition order” and that, when this was brought to his counsel’s attention, she did not press the tender of those documents. That is all her Honour said in this regard in her reasons for judgment.
The appellant contends that the primary judge “declined to accept” those documents; that this was predicated upon a “finding” that the said AAT order limited the use of documents and information acquired in connection with those proceedings; and that her Honour erred in her interpretation of that order and, therefore, in her refusal to accept documents obtained in connection with the child support review.
The transcript reveals a lengthy exchange in this regard between the primary judge and counsel for the parties. Counsel for the respondent submitted that the AAT documents, in relation to the child support review before it, could not be used be used by the appellant in support of his s 79A application. Her Honour initially expressed a preliminary view concurring with that submission. The transcript reveals the following exchange between counsel for the appellant and her Honour:
[COUNSEL FOR THE APPELLANT]: If that is your Honour’s interpretation of order (2)(e), then that is your Honour’s interpretation of order (2)(e).
HER HONOUR: No. Convince me why I am wrong. …
(Transcript 3 March 2023, p.19 lines 9–12)
A further, lengthier exchange between counsel for the appellant and her Honour concluded as follows:
HER HONOUR: …I will give some very short reasons why I am against you on that interpretation. I have had put before me document from the Administrative Appeals Tribunal with its own review number, and I highlight the word, “Review”, number […], which is, of course, a completely different file number from that I had before me. Again, I highlight the second like says:
Review number.
The orders direct – order 1 directs [the appellant] is not to disclose other than to people specified in paragraph 2, information about [the respondent], and I will – I extract (a), (b), (c), (d) and (e), and that will be on the transcript. The people for whom the material can be disclosed in order 2 is: (a) a lawyer, it gives particular conditions; (b); (c); (d); it is said that (e), though, a member of an officer of a court hearing an appeal under section 44 or 44AAA of the Administrative Appeals Act 1975, or proceedings under the Child Support (Registration and Collection) Act 1998, or the Family Law Act 1975, or the Family Court Act 1997 (WA) between the parties to this highlighted, emboldened and underlined review.
It was contended on behalf of [the appellant] that because the parties essentially were the same then I was able to receive the material. I have no child support proceedings in front of me. There is nothing being appealed under section 44 or 44AAA of the Administrative Act. There are no proceedings before me under the Child Support Act. There are proceedings before me under the Family Law Act, obviously the Western Australian one does not apply. There are proceedings before me under the Family Law Act, and whilst those proceedings are between the parties, they are not, in any way, related to this review, being […]. I am against [the appellant] on the interpretation of that. Concerningly, then, given my ruling on that, the note at the bottom of this review number says this:
A contravention of orders 1 to 3 is a criminal offence punishable by imprisonment for 12 months or 60 penalty units or both. See section 60(2)(c) of the Administrative Appeals Tribunal Act.
Having determined that point of interpretation, I will not take the contravention issue any further right now, but I will hear parties about that. Next.
[COUNSEL FOR THE APPELLANT]: Thank you, your Honour. Given that your Honour is against me in relation to the interpretation of those orders, and that I cannot rely on the documents that I had wanted to tender, I would like to call on the notice to produce that was served on my friend on 13 February.
(Transcript 3 March 2023, p.20 line 45 to p.21 line 38)
The AAT order the subject of the debate between the primary judge and counsel for the parties is not contained in the appeal book, nor was it sought to otherwise take us to it at the hearing of the appeal. The list of exhibits tendered at the hearing of the s 79A application appears in the appeal book. Exhibit 2 is there described as the appellant’s “Tender Bundle Items 5 and 6”. The first page of Exhibit 2 is the index to the appellant’s tender bundle in support of his s 79A application. It lists five documents (or categories thereof). The first document is described as “Administrative Appeals Tribunal Orders 12 August 2022”. The fifth document is described as a letter from AA Firm dated 23 October 2006 and the sixth document is described as an O Bank transaction history from 14 October 2008 to 15 October 2008. Accordingly, we are not (and were not placed by the appellant) in a position to consider whether or not the primary judge erred in her interpretation of the AAT orders.
However, even if the primary judge did err in her in her interpretation, there was no attempt by counsel for the appellant to demonstrate to us what may have been the relevance to his s 79A application of the documents from the AAT proceedings sought to be tendered by him.
At [81], her Honour “recorded that [the appellant’s] Case Outline relied upon information, which had been used contrary to a s 62C Administrative Appeals Tribunal Act 1975 prohibition order”. We note that the order appears to have been made by the AAT on 12 August 2022, more than three weeks prior to the trial before her Honour. However, her Honour set out the appellant’s evidence at [82] and said:
83.The highest the evidence goes is that well before my judgment, someone told [the appellant] something about [the respondent] having some kind of job, and there was “potential” [the respondent] knew or may have “anticipated” this prior to the final hearing. Consequently, [the appellant] is “concerned” the Court “may have been” misled “if it transpires” [the respondent] was aware of possible employment.
84.That is it.
(Emphasis in original)
There is no attack upon this finding in the appeal.
The primary judge referred to the appellant’s Case Outline at [81]. Although the documents which the appellant sought to tender were not accepted into evidence, it is illustrative to consider his submissions in relation thereto in his case outline. At paragraph 36 of his Case Outline, referring to the second document in his tender bundle, he submitted:
It now transpires that [the respondent] signed an Employment Contract with [BB Company] on 12 September 2022, only 3 business days after the hearing concluded. The date of commencement of employment was the same day, 12 September 2022. The Contract provided for a salary of $73,000 pa plus superannuation.
(Footnotes omitted)
At paragraph 37 of his Case Outline, he submitted that it was –
… simply implausible that on Tuesday, 6 September 2022 [the respondent] did not know that she was due to start work, in a-time role earning $73,000 pa, the following Monday. [The appellant] submits that [the respondent’s] interviews and negotiations with [BB Company] must have either been concluded or very far advanced by the time of the final hearing on 6 September. Yet no mention was made of these circumstances by [the respondent] when she gave oral evidence, nor by her Counsel in his closing oral submissions …
At paragraph 38 of his Case Outline, referring to the third document in his tender bundle, he submitted:
A month later, on 12 October 2022, [the respondent] received another offer of employment.
This time from Westpac Banking Corporation, for a full-time permanent role of [a manager], commencing on 31 October 2022, with a salary of $130,000 pa plus superannuation and a potential bonus of approximately $8,000 per year.
(Footnotes omitted)
At paragraph 39 of his Case Outline, he similarly submitted that it was –
… simply implausible that as at 6 September 2022, [the respondent] was not well advanced in the interview process with Westpac, which process was concluded by the issue of an offer of employment only 5 weeks later. Yet [the respondent] gave no evidence of that interview process.
However, the primary judge noted that, in her responding affidavit, the respondent denied having a job or an offer of employment at the time of the property trial and we note that the appellant did not seek to cross-examine her at the subsequent s 79A trial before her Honour.
In the circumstances, even if these documents, both of which post-date the property trial, had been accepted into evidence, given the respondent’s unchallenged denials, the appellant’s case in this regard would have remained entirely speculative, as the primary judge found it to be.
Ground 9 fails.
Ground 10
The appellant contends that the primary judge failed to give adequate reasons explaining:
10.…
(a)how her Honour concluded that the AAT orders restricted the use of documents or information obtained in connection with the child support review proceedings in the AAT in the s 79A proceedings in this Court unless the latter “related” to the former; and
(b) what was meant by the term “relate”.
This ground of appeal was only vaguely alluded to by counsel for the appellant, in the course of addressing us in relation to Ground 9. He submits at paragraph 50 of his Summary of Argument filed 31 May 2023 that it “is unclear how proceedings under the Family Law Act 1975 could ‘relate’ to a review about child support under the Administrative Appeals Act”. However, that was the very point with which the primary judge invited his counsel at first instance to grapple. She did not do so – at least not to her Honour’s satisfaction. As we have noted in relation to Ground 9, her Honour gave oral ex tempore reasons at Transcript 3 March 2023, p.20 line 45 to p.21 line 33 for declining to receive into evidence the documents the appellant sought to tender.
Given that Ground 9 fails, Ground 10 must similarly do so.
Ground relating to both the tender bundle and the respondent’s employment
This ground is as follows:
11.In determining whether the court should exercise its discretion pursuant to s 79A of the Family Law Act in favour of [the appellant], the trial judge failed to take account of various relevant considerations.
The asserted relevant considerations are said to be: the degree and nature of the miscarriage in question; alterations in the parties’ positions in the meantime; factors that are relevant under s 79 of the Act; and prejudice to the appellant (Appellant’s Summary of Argument filed 31 May 2023 at paragraph 51).
This ground was also not addressed before us, beyond the appellant’s Summary of Argument.
However, it is entirely misconceived. Having found that no vitiating factors were established by the appellant, either in relation to the tender bundle or the respondent’s employment, the primary judge could not have found there to have been a miscarriage of justice. Accordingly, no discretion was enlivened to be exercised by her Honour.
Ground 11 fails.
COSTS
The respondent’s schedule of costs particularises professional costs and disbursements totalling $17,575.72.
The appeal having been dismissed at the conclusion of the hearing, counsel for the appellant advised us that no issue was taken with that quantum. However, upon closer scrutiny, it is apparent that the quantum claimed includes the sum of $424.49 by way of counsel’s fees to appear to receive a reserved judgment. That will not be necessary and, accordingly, the total claimed should be reduced by that amount to $17,151.23.
Further, counsel for the appellant sensibly did not make any submissions in opposition to an order for costs being made in favour of the respondent.
The appellant has been wholly unsuccessful in the appeal. Further, we are of the opinion that the appeal was entirely devoid of any merit whatsoever. In the circumstances, we propose to make an order for costs.
Whilst the amounts claimed in the respondent’s schedule of costs are referrable to item numbers in the Scale of Costs prescribed in Schedule 3 to the Rules, it does not follow that they are necessarily party/party costs, as opposed to solicitor/client costs. Nevertheless, in the circumstances of this case, we are satisfied that this is an appropriate amount.

I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Jarrett & Strum.
Associate:
Dated: 17 July 2023

NAA 73 of 2023 SYC 1641 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR RADER Appellant
AND:	MS HAINES Respondent

Appeal from:	Haines & Rader (No 5) [2023] FedCFamC1F 132
Appeal number(s):	NAA 73 of 2023
File number(s):	SYC 1641 of 2019
Judgment of:	ALDRIDGE, JARRETT & STRUM JJ
Date of judgment:	17 July 2023
Catchwords:	FAMILY LAW – APPEAL – Where appeal was doomed to fail – In circumstances where appellant did not appear at final property hearing, did not file written submissions pursuant to orders following that hearing and did not seek to re-open case – Where appellant filed an application pursuant to s 79A of the Family Law Act 1975 (Cth), which was dismissed – Where appellant appealed dismissal of his s 79A application – Where appellant asserts respondent supressed evidence (including failed to disclose relevant evidence) by not tendering documents proposed to be tendered by him at final hearing – Where onus was not on respondent to tender appellant’s evidence – Where appellant asserts respondent failed to disclose to Court employment obtained after close of trial and before delivery of judgment, notwithstanding that appellant was aware thereof and made no inquiries of respondent or application to re-open final property hearing – Where no suppression of evidence (or failure to disclose relevant information) as alleged by appellant – Where no error at first instance – Appeal dismissed.
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 62C Family Law Act 1975 (Cth) s 75(2), 79, 79A Family Law Amendment Act 2000 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 8.15(3)(e), 10.13, 13.23(2)(a)
Cases cited:	Barker & Barker (2007) 36 Fam LR 650; [2007] FamCA 13 Bigg & Suzi (1998) FLC 92-799; [1998] FamCA 14 Ebner & Pappas [2014] FLC 93-619; [2014] FamCAFC 229 In the Marriage of Kokl (1981) FLC 91-078; [1981] FamCA 60 Krebs & Krebs (1976) FLC 90-117; [1976] FamCA 88 Lane & Lane (2016) FLC 93-699; [2016] FamCAFC 53 Pelerman v Pelerman (2000) FLC 93-037; [2000] FamCA 881 Public Trustee v Gilbert (1991) FLC 92-211; [1991] FamCA 10 Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38 Taylor & Taylor (1977) FLC 90-226; [1977] FamCA 31 Waterman & Waterman (2017) FLC 93-762; [2017] FamCAFC 23
Number of paragraphs:	134
Date of hearing:	29 June 2023
Place:	Sydney
Counsel for the Appellant:	Mr Howe
Solicitor for the Appellant:	Swiftly Legal
Counsel for the Respondent:	Ms Messner
Solicitor for the Respondent:	Dettmann Phair

order made by:	ALDRIDGE, JARRETT & STRUM JJ
DATE OF ORDER:	17 July 2023