RJ & AJ
[2005] FamCA 1075
•14 November 2005
[2005] FamCA 1075
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No SA32 of 2005
AT MELBOURNE File No MLF6158 of 1988
BETWEEN:
RJ
Appellant Husband
- and -
AJ
Respondent Wife
REASONS FOR JUDGMENT
CORAM: KAY, HOLDEN & BOLAND JJ
DATE OF HEARING: 3 October 2005
DATE OF JUDGMENT: 14 November 2005
APPEARANCES: The Appellant Husband in person.
RJ & AJ
SA32 of 2005
Date of Hearing: 3 October 2005
Date of Judgment 14 November 2005
Catchwords: APPEAL –application sought to reopen property proceedings that concluded in 1988 – application dealt with previously and dismissed –the constituent elements of the doctrine of res judicata were established – trial Judge correctly dismissed application – appeal dismissed.
APPEAL - SPOUSAL MAINTENANCE – application for leave to bring proceedings out of time - nothing put before the Full Court that demonstrated that the trial Judge fell into error in dismissing the claim for leave – appeal dismissed.
This is an appeal against an order made by the Honourable Justice Carter on 22 April 2005 dismissing the appellant husband’s amended application filed 22 March 2005.
The relief sought by the appellant in the dismissed application was principally the reopening of property proceedings that had been concluded in 1988. The exact nature of what was hoped to be achieved is not capable of a simple description and it is perhaps convenient that we set out verbatim the orders sought::
“Sections 79 and 79A.
1. Half her superannuation or pension;
2. Half her late Father’s estate, left to her after he died;
3. Half her net assets as at 13.10.88;
4.Spousal maintenance of $60 per week inclusive of whatever is paid by [EJ];
5. Interest since 12.10.88 or some other relevant date or dates;
6.There has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance;
7.In the [circumstances] that have arisen since the order of 13.10.88 was made it is impracticable for the order to be carried out or impossible for a part of the order to be carried out;
8. The Court should make another order or orders;
9.The Court should make such order as it considers appropriate altering the interests of the parties in the property including an order for settlement of property in substitution for any interest in the property - section 79 (1);
10.Such further and other relief orders directions or declarations as shall be just.
B.
11.In addition to Superannuation and some of Pop's Estate or gift and to straightening up the deficiency on the Consent Order of 12th October 1988, l now also seek a substantial part of my loss on the forced and cheap sale of the farm.
C.
12.In addition to sections 79 and 79A of the Act, l now also seek orders pursuant to sections 90K (1) (a) and 87 (8) (a) of the Act. The order of 13th October 1988 was clearly a maintenance order in favour of the Respondent, who, at that time, was aged 51.
D.
13.If [PS], [the respondent’s] solicitor… was guilty of any fraud, then such fraud rests with the respondent and taints her case.
14.The same applies to any unconscionable conduct by [PS], which is clearly fraud in equity.”
In his amended Notice of Appeal the husband seeks the following orders:
“1. An Order setting aside the Order of 13.10.1988;
2.A new Order or Orders providing satisfactorily for me and my welfare;
3. Spousal maintenance.”
The wife through her solicitor by letter dated 21 September 2005 advised she would not appear on the hearing of the appeal, but would abide any orders made by the Court.
At the commencement of the appeal the husband was given the opportunity to make an application that Kay J be disqualified given that Kay J had dealt with and dismissed an earlier application of the husband that dealt with some of the matters canvassed by the trial Judge and the subject of this appeal. The husband indicated that he did not wish to make any such application.
Background
The appellant and the respondent were formerly husband and wife and for our purposes it is convenient to continue to describe them as “the husband” and “the wife” albeit that their marriage has been dissolved for over 16 years.
The parties married in 1960 and separated in June 1988. Orders were made by consent on 13 October 1988 that provided (inter alia) for the wife to receive the proceeds of the former matrimonial home at a beachside Melbourne suburb and for the wife to transfer to the husband her shareholding in a company known as R Pty Ltd and her interest in the RJ Family Trust. There was a notation to the orders that the parties intended that they would so far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
Those orders were made on an application filed on behalf of the husband by his then solicitors and supported by an affidavit in which the husband swore that he was in full time employment as a barrister and, although he had very little income because he had been endeavouring to complete a PhD thesis, he said he was able to rely on outstanding fees for his support. He deposed that his wife was employed as a lecturer earning $40,000 per annum. He indicated that apart from the equity in the former matrimonial home of approximately $337,000 the assets of the family included two motor vehicles, the husband’s superannuation entitlement said to be worth $30,000 and an interest in his chambers said to be worth $150,000.
It would appear that the main effect of the settlement reached between the parties was that the wife retained the equity in the former matrimonial home whilst the husband retained the equity in his chambers and his superannuation.
The parties divorce became absolute on 19 August 1989.
Some 19 years earlier, in about 1970, the parties sold a family property country Victoria which the husband describes as a property he had with his late father. He said that it was sold “for whatever price I could get, which was not much”. The husband asserted in the course of the proceedings before Carter J that he sold the property on the advice of his then psychiatrist, Dr K, who counselled him to do so for the sake of preserving his marriage with the wife.
On 13 August 2003 the husband filed an application seeking to set aside the property orders made on 13 October 1988 and seeking orders that the respondent pay money to him.
On 20 November 2003 that application was dismissed by Kay J. His Honour published short reasons for judgment which read as follows:
”1.In this matter there is an application filed by the husband on 13 August 2003 wherein he seeks to set aside some property orders that were made by consent on 13 October 1988. He then seeks property orders different to those that were made by consent in 1988.
2.He has been directed by the Registrar to file an affidavit particularising the matters he seeks to rely upon in relation to his claim pursuant to s 79A and his reasons for delay in bringing the proceedings on.
3.There are some affidavits filed by the husband. Doing the best I can in searching for the material that complies with the directions, it is not abundantly clear why there is a delay. Insofar as it is suggested there is some basis for the application in law, the best of it seems to come from a paragraph in a statement annexed to his affidavit filed 10 November 2003 in which he says as follows after giving a history of the marriage and the like and its breakdown:
‘21(b)She wanted me to give her the property settlement in 1988, whereby she got far more than half our assets. I gave her the consent order of 13th October 1988 in the Family Court because I felt a bit bad walking out on a woman then aged 51; If I had known the truth about her drinking over the years or about Pop's previous drinking, I would not have given her more than I was absolutely forced to do by the Court. This is because if I had know [sic] that Pop is/was an alcoholic, I would have known or at least been most concerned that, for genetic reasons, [AJ] might also be an alcoholic, drinking on the side.’
4.A little of that is a bit cryptic. The reference back to Pop being an alcoholic seems to come from the beginning of the affidavit where the husband says, and I summarise, that in July of this year he was speaking to one of the parties' children. He recited to that child the Serenity Prayer from Alcoholics Anonymous. The son then said, ‘That's Pop's prayer. Pop often said to me it was his favourite prayer.’ Pop is described as the wife's father who died aged 96 five years ago. The applicant then swears as follows:
‘Immediately, I formed the conclusions:
That Pop must have been a bad drinker in the past and had overcome this with the help of AA;
That [AJ] was/had always been since I had known her an alcoholic.’
Then he sets out some matters that he had made observations about her.
5.Whether there was or was not a history of alcoholism in her family or whether she was or was not an alcoholic and whether he was or was not feeling guilty about his position in 1988 and whether his position might have been different had he known of the family history does not, in my view, disclose anything that vaguely could arguably come within the provisions of s 79A of the Act which enables the Court to set aside s 79 property orders if 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.
6.Accordingly, on the application made by and on behalf of [AJ] it seems to me it is appropriate that the application be dismissed on a summary basis. The substantive application cannot possibly succeed on the material so far relied upon. (see Ferrall and Mc Taggart v Blyton (2000) FLC 93-054.) This does not necessarily preclude the application from being renewed if proper basis exists under s 79A and is supported by proper material.
7.I should also add that in that Form 3 there was an application for some interim relief, namely the payment of $60,000. No entitlement to interim relief could exist until the s 79A application itself was successful. The time has expired for any maintenance proceedings to be brought inter partes without leave and no leave application is before the Court. The existence of the 1988 orders for property settlement preclude any other property settlement orders being made until they are themselves set aside.
8. The orders will be:
1.The form 3 application filed 13 August 2003 is dismissed.
2.No order as to costs.”
Apparently undeterred by the dismissal of his application to set aside the earlier orders, the husband simply brought the application again.
The proceedings before Carter J
By the time Carter J came to deal with the application it was undefended in the sense that the wife did not partake in the hearing before her Honour and had not complied with directions requiring her to file any documents in opposition thereto.
The husband sought to rely upon seven affidavits filed by him between 7 February 2005 and 19 April 2005. In addition, her Honour indicated in her reasons for judgment that she had read affidavits sworn by the husband in November 2003 in support of the application that was dismissed by Kay J.
The train of thought and the logical sequence of events set out in the various affidavits of the husband is not always easy to follow. As indicated by Kay J in the earlier judgment the husband had asserted that in July 2003, as a result of some comments by one of the parties’ children, the husband concluded that:
“Pop [the wife’s father] must have been a bad drinker in the past and had overcome this with the help of AA. Further, that the wife was/had always been since I had known her an alcoholic”.
In those proceedings and in the material filed in the proceedings before Carter J the husband asserted that had he been made aware either of Pop’s history of alcoholism or of the wife’s history of alcoholism he would never have consented to the orders made in 1988.
In the material before Carter J the husband sought to add another event which he indicated would have led him not to consent to the orders made in 1988, namely an admission by the wife said to have been made in 2004 or thereabouts that when the wife was 14 years of age she had been sexually assaulted by her father. The correlation between that asserted admission and the consent orders entered into by the husband in these proceedings some 37 years after the alleged assault does not appear to us to have been adequately explained to Carter J nor to us, except it appears from the husband’s oral submissions that he asserts the wife’s alleged commencement of consumption of alcohol can be traced to that event.
After making references to passages from the husband’s affidavit material dealing with the wife’s asserted alcoholism and that of her father, and its relevance to the consent orders that were entered into in 1988, her Honour said:
“The passages I have read make it clear that the husband is relying now on matters he relied upon in his first application pursuant to s 79A.”
She then turned her attention to some issues raised in the husband’s fourth affidavit concerning the role of the wife’s solicitor PS. Her Honour said:
“28.There are some new matters relied upon. In pars 27, 28 and 29 of the fourth affidavit, the husband raises [PS’s] involvement as a solicitor in the case. He was, or is, I am not certain, given that there has been no Notice of Ceasing to Act filed by the wife’s solicitor.
29.In par 27 the husband noted that on 7 March 2005 [PS] attended at the proceedings before the deputy registrar together with an articled clerk who was granted permission, according to the husband, to appear for the wife on that day. Also on that day the husband contends that [PS] announced that he was no longer acting for the wife and he is said to have left the Court or the hearing before the case started.
30.In par 28 the husband posed the question as to why [PS] was no longer acting for the wife and as to why an articled clerk appeared for her instead of the husband. The husband said as follows:
‘Is it that he is an alcoholic, as I said might be the position in my first affidavit, or is it that he is so associated with the [S] companies transporting gravel from my previous farm mentioned in my third affidavit that he has a clear conflict of interest with (the wife) and so cannot act for her.’
31.He then goes on to raise further matters in par 29, including the following:
‘It is well recognised that most alcoholics are very clever, so what has [AJ] been up to in this case? Was she clever enough, as set out in my first affidavit, to have found an alcoholic solicitor who would do or try to do whatever she wanted, or was she deviously clever in some other way? I just do not know, but I would really like to find out, if I can, why [PS] is now out of the matter. I would also like to find out how I was outwitted by two women: [AJ] and [EJ]: perhaps they were both able to work out for themselves in their clever, alcoholic, deceitful ways that I could probably not get onto their alcoholism because of my late mother.’
In par 30 the husband links this to the question of fraud, asking rhetorically, ’What does all of this say about [AJ]’s propensity towards fraud?’
32.There are further mentions about [PS], for example, in par 3 and par 9 of the husband’s second affidavit, together with Annexure A; in pars 3 and 4 of the husband’s third affidavit, and in par 8 of the husband’s fifth affidavit. Those new matters could not possibly, in my view, support a case pursuant to s 79A.”
We share her Honour’s difficulty in following clearly the appellant’s line of logic with regard to how PS’s involvement as the wife’s solicitor in the proceedings in 2003 could somehow be supportive of his application to set aside the 1988 orders.
In 1997 the husband commenced proceedings in the Supreme Court of Victoria against his former psychiatrist Dr K. He claimed damages against her on the basis of her earlier advice to him that he should sell the country Victoria farm. He asserted in his statement of claim that a subsequent owner of the farm had on-sold it as a gravel quarry for millions of dollars more than he had received for the property in 1969. The Supreme Court proceedings were subsequently withdrawn by the husband.
In the proceedings before Carter J the husband deposed that he had been told by a truck driver that he (the truck driver) had often seen trucks “with [S] written on them in large letters and, underneath, the word ‘Gravel’”. The husband then posed the question that if the wife’s solicitor PS was part of a family which was delivering gravel that family might be closely related to the company responsible for the gravel pit on his old farm and, if that was so, it would be inappropriate for PS to continue in the proceedings.
We would share her Honour’s conclusions that none of the matters raised in the husband’s material regarding PS’s role in appearing for the wife could in any way amount to an appropriate basis for setting aside the 1988 orders under s 79A of the Family Law Act 1975.
Having dealt with the relevance of the claims (if any) that involved PS’s role in the proceedings, her Honour said:
“33. Accordingly I am left with an application which is otherwise, as I have described, an abuse of process given that it relies on the same material as was relied upon in the earlier proceedings. I also should note that in my view the application as framed by the husband can not succeed on the merits.
34.The question of alcoholism and of the other matters raised by the husband do not, in my view, disclose anything which could possibly come within the provisions of s 79A of the Family Law Act. The evidence and the submissions do not support any of the grounds under s 79A.”
Accordingly her Honour dismissed the husband’s application.
The appeal
At the hearing of the appeal the husband indicated to us that he sought to rely upon his summary of argument filed 14 September 2005 indicating that the matters set out therein were so compelling that there was nothing further to which he wished to direct our attention.
In his written summary the husband again appears to assert that the trial Judge and Kay J were both in error in determining that there had not been a relevant fraud established by him. He says:
“5. The FRAUDS of the Respondent were:
(i)The fact she was alcoholic since teenage and drank on the side throughout the marriage without every letting the Appellant know…
(ii)The fact that she never told Appellant during the marriage or until about 12th June 2003 that it was her late Father who assaulted her…when she was young;
(iii)The fact that during the courtship and marriage she either organised or went along with her late Mother and sister and brother in law and late Father in keeping from Appellant any knowledge that it was her late Father who had assaulted her;
(iv)The fact that in 1988 she got her psychiatrist, Dr [G], to persuade Appellant’s psychiatrist Dr [K] to get the Appellant to sell the farm, as a result of which Appellant lost many millions of dollars on the gravel which he was starting to develop at the time of sale. This aspect of her frauds was not before Kay J, who confined himself to alcoholism.
6.If Appellant had known of her alcoholism or her late Father’s assault upon her:
(i)Appellant would never have settled her case with her on 13th October 1988;
(ii)Appellant would never have given her more than half the net assets in the settlement of 13th October 1988;
iii.Appellant would have demanded:
(a)At least half the nett assets;
(b)Something in writing signed by Respondent’s late Father that he would give Appellant on his death half of what he gave to Respondent on his death; Appellant would never have blackmailed Respondent’s late Father;
(c)Half of the superannuation that the Respondent was due to receive - at 13th October 1988, half of superannuation was not then payable; however, it was known that the rule was soon to be changed, so, if there was any opposition by Respondent, Appellant would have sought an adjournment;
(d)Damages in respect of the loss of the farm.”
His written submissions then descend into a personal and vituperative attack upon Carter J submitting that he:
“…has great experience in intuitively summing up various persons, which he is doing with her. She is absolutely, absolutely hopeless and her judgment herein simply cannot be accepted by any Court.”
His submissions then go on to detail the nature of his potential claim against the respondent ($3,375,000) before returning to the assertion that the non-disclosure during the course of the marriage of matters which the applicant asserted were indeed fact, namely the respondent’s alcoholic problems and the sexual misconduct of her late father constituted a fraud within the meaning of s 79A(1)(a) either being a common law fraud or unconscionable conduct.
Ultimately her Honour’s decision to dismiss the husband’s application under s 79A appears to be firmly based on her view that the matter had already been decided by Kay J and that bringing the action once again was an abuse of process. She added however her own view that the application could not in any event succeed on its merits even if the husband was not otherwise barred from bringing it by reason of the earlier judgment.
Her Honour also found that the only further basis that was relied upon by the husband and not argued before Kay J was the involvement of PS in the proceedings which her Honour found could not possibly support a case pursuant to s 79A.
Once an order is made under s 79 of the Family Law Act for the alteration of property interests the parties are precluded from bringing any further proceedings under that section unless the order is set aside. The circumstances in which the order may be set aside are set out in s 79A of the Act.
Relevant to the application that was before Carter J and which is the subject matter of this appeal are the provisions of s 79A(1)(a) which provides
“(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;
…
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.”
Whilst the husband had argued before Carter J that his case was based upon fraud, in his oral submissions to us he implored us to find in his favour under any of the heads of power contained in s 79A(1).
We have already discussed as best as we can understand them, the facts said by the husband to constitute fraud. They seem to be a complaint reliant entirely upon the Court’s acceptance of the husband’s unchallenged evidence, that the wife had admitted to him several years after the marriage had ended that she had during the entire 33 years of their relationship secretly been an alcoholic and further that at age 14 had been sexually assaulted by her father. He further asserted that he had been wrongly persuaded by his psychiatrist that in order to appease the wife’s unhappiness in the course of the marriage, that it was appropriate that he sell the farming property some 18 years before the final property settlement which many years later turned out to be, according to the husband, a very valuable asset which with hindsight he was foolish to have sold.
The issue had already been decided
The law on the application of the doctrine of res judicata is well settled.
“res judicata is a decision pronounced by a judicial tribunal having jurisdiction over the cause and the parties which disposes once and for all of the matters decided, so that except on appeal they cannot afterwards be relitigated between the same parties or their privies … The decision estops or precludes any party to the litigation or his privies from disputing, against any other party or his privies, in any later litigation, the correctness of the earlier decision. The same claim cannot be raised again between them, and this principle extends to all matters of law and fact which the decision necessarily established as the legal foundation of the conclusion reached by the court.”
Spencer et al, The Doctrine of Res Judicata 3rd ed, p 1.
In Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464 Dixon J said at 531:
“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.”
The necessary elements were referred to by the Full Court in Kemeny and Kemeny (1998) FLC 92-806; (1998) 23 Fam LR 105 when their Honours said:
“12.3.2 The constitutent [sic] elements of the doctrine are set out in ‘The Doctrine of Res Judicata’, Spencer Bower, Turner and Handley, Butterworths, Third edition, at p. 17 paragraph 19, being those laid out in Marginson v Blackburn Borough Council [1939] 2 KB 426:-
1. the decision was judicial
2. the decision was in fact pronounced
3.the tribunal had jurisdiction over the parties and subject matter
4. the decision was final and on the merits
5.the decision determined the same question as that raised in later litigation
6.the parties to the later litigation were parties to the earlier litigation.”
It would seem to us that each of those constituent elements were present in the present case. Kay J had determined on the merits of the case argued before him that the husband had failed to establish the existence of a ground for setting aside the 1988 orders. It was not open to the husband to simply renew the same application asserting the same facts. Carter J correctly held that no new relevant matters were raised by the further application and correctly dismissed it.
Leaving aside entirely the matters discussed relating to the application of the doctrine of res judicata, in our view her Honour was entirely correct in concluding that none of the matters as described by the husband, if accepted, would appropriately constitute a basis upon which it would be proper to set aside the orders that had been made in 1988. There was nothing demonstrated by the appellant to the trial Judge which would properly indicate that in any way either the appellant or the Court was relevantly misled by any alleged conduct of the appellant in failing to disclose any information that ought to have been relevant to the orders that were made in 1988. There was nothing indicated by any of the evidence that could possibly be interpreted as amounting to duress in the sense of inappropriate or improper pressure placed upon the appellant to consent to the orders that were made in 1988.
In T v T [2003] FamCA 1066 the Full Court accepted the definition of duress as found in The Laws of Australia, Vol 79 at 265 which reads:
“Duress as a ground for restitution is the application of illegitimate pressure by one party which contributes to causing another party to enrich the first. Illegitimate pressure takes various forms, including threats directed at the other party or a close relative, threats to a property or business interest and threats of industrial action.”
If we accept that as an accurate statement of principle, the appellant seems to be entirely confused in relation to the application of any doctrine of duress to his imagined grievances over the disposition of the country Victoria property at the alleged urging of his then psychiatrist. There does not appear to have been demonstrated any relevant nexus between the events that occurred at the time of the disposition of the country Victoria property and the orders that were made some 18 years later in relation to the settlement of the action between the husband and the wife. Nor is it rationally suggested that the husband’s psychiatrist was somehow acting as the agent of the wife when any “illegitimate” pressure was applied to him to sell the farm and subsequently consent to the 1988 orders.
Maintenance
One of the orders that had been sought before Carter J, and as far as we can determine was sought to be further agitated before us, was a claim by the husband for an order for spousal maintenance.
Her Honour had dealt with that claim by saying:
“16.The husband seeks an order for spousal maintenance. Section 44(3) imposes a time limit on such applications. Given that the decree nisi became absolute in 1989, the husband requires the leave of the Court to institute any such application. Leave has not been sought. Even if I granted leave to the husband to make an oral application for leave to institute maintenance proceedings out of time, there is no evidence capable of supporting it. Accordingly the husband’s application for spousal maintenance will be dismissed.”
Nothing has been put before us that would demonstrate that the trial Judge fell into any error. Section 44(3) of the Family Law Act 1975 precludes the institution of proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage after the expiration of 12 months after the date on which a decree nisi has become absolute except by leave of the Court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage.
We do not have the benefit of any transcript of the proceedings before the trial Judge but we have no reason to assume that her Honour was incorrect when she indicated that no such leave had been sought before her. In any event it seems abundantly clear that there was no evidence before the trial Judge capable of supporting an application for leave to institute proceedings some 16 years out of time.
At the appeal hearing the husband sought an order from the Full Court that he be granted leave to claim spousal maintenance. In order for the Full Court to exercise any of its powers when sitting as an appellate court, it would need to be demonstrated that the trial Judge had fallen into error and that it would then be appropriate for the Court exercising its powers under s 94(2) of the Family Law Act to affirm, reverse or vary the decree or decision the subject of the appeal.
It would be an inappropriate exercise of power by the Full Court to entertain an application effectively being made to the Court as if it was sitting at first instance without the consent of the respondent to the proceedings first being had and obtained or without the respondent being put on proper notice of the application and without any material that would have founded the making of such an order. None of the material sought to be relied upon by the appellant before us would create an appropriate basis for the granting of leave. The mere fact that the husband has deposed to a present impoverishment, and that he was once married to the respondent, is not in our view a sufficient basis for granting leave to bring an application for maintenance 16 years after the marriage has been dissolved and 17 years after the parties had entered into orders which were expressed to end the financial relationship between them.
In our view nothing has been demonstrated that would indicate that the trial Judge fell into any error in this matter when dismissing the husband’s amended application. Accordingly the appeal will be dismissed.
I certify that the 50 preceding
paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.
Associate
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