ROOKS & GENNER
[2018] FCCA 2054
•1 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROOKS & GENNER | [2018] FCCA 2054 |
| Catchwords: EVIDENCE – Evidence of negotiations to settle a dispute – allegations of abuse of power. |
| Legislation: Family Law Act 1975 (Cth) ss.79, 79A Federal Court of Australia Act1976 (Cth) s.31A Evidence Act 1995 (Cth) ss.11, 131 |
| Cases cited: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 |
| Applicant: | MR ROOKS |
| Respondent: | MS GENNER |
| File Number: | SYC 3779 of 2014 |
| Judgment of: | Judge Harper |
| Hearing date: | 18 June 2018 |
| Date of Last Submission: | 18 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Ms Kennedy |
| Solicitors for the Respondent: | Biddulph & Salenger |
ORDERS
Pursuant to Rule 13.10 of the Federal Circuit Court Rules, the Initiating Application filed 28 March 2018 be dismissed.
I DIRECT this matter be removed from the active case list.
IT IS NOTED that publication of this judgment under the pseudonym Rooks & Genner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3779 of 2014
| MR ROOKS |
Applicant
And
| MS GENNER |
Respondent
REASONS FOR JUDGMENT
On 22 May 2015, proceedings were commenced in this Court by the husband, Mr Rooks (“the husband”), filing an Initiating Application seeking property adjustment orders.
On 2 November 2017, these property proceedings were listed for final hearing on 7 February 2018, with an estimate of two days.
On 7 February 2018, the parties entered into final consent orders (“Final Orders”).
In broad terms the Final Orders required the sale of the former matrimonial home at Property A, and an equal division of the net proceeds of sale, and an equal division of the parties’ interests in the Genner Rooks Super Fund. In other respects the Final orders left the parties with ownership of the property then in their possession, after a process of selecting furniture.
The Final Orders were amended pursuant to the “slip rule”, Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth) (“the Federal Circuit Court Rules”) on 21 February 2018.
By an initiating application filed 28 March 2018, the wife, Ms Genner (“the wife”), sought orders pursuant to section 79A(1)(a) of the Family Law Act (“the Act”) that the Final Orders be set aside on the ground there had been a miscarriage of justice by reason of, relevantly, duress or other circumstance, being an abuse of process.
In summary, the wife argued that she was misled by the husband into believing that the final hearing listed on 7 and 8 February 2018 would not proceed but the parties would enter into consent orders. She argued that she was misled because the husband engaged in continuous negotiation with her, right up until the morning of 7 February 2018, at all times giving her the impression that the trial would not proceed. As a result, she took no steps to prepare for the hearing, and lost the opportunity to achieve an outcome more favourable than the outcome embodied in the Final Orders.
For his part, the husband made application for summary dismissal of the wife’s application. In this Court, section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) provides as follows:
(1) The Federal Circuit Court of Australia may give judgment for one party against another party in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
Subsection (3) states:
For the purposes of this section, a defence or a proceeding or a part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail; for it to have no reasonable prospect of success.
Section 17A is supported by rule 13.10 of the Federal Circuit Court Rules, which provides as follows:
“13.10 Disposal by summary dismissal
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Note: For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see sections 102QB and 118 of the Family Law Act.”
As observed by Judge Scarlett in Pullman & Pullman (2013) 50 Fam LR 460; [2013] FCCA 31, section 17A creates a different test applicable in this Court to that which may apply, for example, in the Family Court of Australia. The test is not whether the application is “doomed to fail” but whether or not the application has “reasonable prospects of success”.
In considering the same wording in s.31A of the Federal Court Act, 1976, Hayne, Crennan, Kiefel and Bell JJ held in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at 139 [52]-[53]:
52. ...effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. ...[I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
53. In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.
Despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution (Spencer at 131 [24] (French CJ and Gummow J) and 141 [60] (Hayne, Crennan, Kiefel and Bell JJ))
The husband as the moving party bears the onus of persuading the Court that the wife’s application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 at 271 [45] (Reeves J).
Evidence
It is often said that the question whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 at 408-409 [28]
In Cassimatis Reeves J also said at 271-272 [46] that:
...the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
The husband read his affidavit sworn 15 June 2018.
The wife represented herself at the final hearing on 7 February 2018. She also represented herself at the hearing before me. She presented as intelligent, capable and articulate.
The wife relied upon an affidavit filed on 28 March 2018. On the face of the affidavit it records the date of swearing or affirming as 4 February 2018. This date must be incorrect, because the affidavit covers events after 4 March 2018.
The majority of the paragraphs in this affidavit set out the content of conversations between 11 January 2018 and 7 February 2018 between the husband and the wife.
The husband took objection to part of paragraph 12, part of 13 and 15, 16, 17, 18, 19, 20, 21, 22, 23, part of 24 and 25. The objections were all based upon s.131 of the Evidence Act 1995 (Cth) (“the Evidence Act”), as being communications made between persons in dispute in connection with an attempt to negotiate a settlement of the dispute.
However, apart from paragraph 12, I allowed the paragraphs because, in my view, they may have provided grounds for concluding, within section ss.131(2)(k) of the Evidence Act, that a person, being the husband, knew or ought reasonably to have known that the relevant communication was made in the furtherance of a deliberate abuse of power.
Abuse of power was a fact put in issue by the wife. In truth it was at the heart of her argument.
The question of admissibility of the paragraphs objected to was to be determined in the context of an application for summary dismissal pursuant to s.17A, where the husband bore the onus of establishing the wife had no reasonable prospects of success.
In addition to s.131, s.11(2) of the Evidence Act is also relevant to the question of admissibility. S.11 is in the following terms:
“11 General powers of a court
(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.
(2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.”
Hodgson JA (with whom Mason P and Santow JA agreed) in Van Der Lee v New South Wales [2002] NSWCA 286 at [62] explained the operation of the these two sections as follows:
“... I think s.11(2) does have the effect that, when evidence is tendered that could be evidence of an abuse of process, albeit evidence of without prejudice settlement negotiations, the Court may receive that evidence on voir dire; and then, if that evidence does either by itself or in combination with other evidence establish an abuse of process, the Court may rule the evidence admissible and make appropriate orders to deal with that abuse of process. In my opinion, the powers of a court with respect to abuse of process include its powers to receive evidence, and in my opinion the authorities relied on by the claimants show that, at common law, communications evidencing abuse of process will not be protected by without prejudice privilege. I do not think that s.131 provides otherwise, either expressly or by necessary intendment, particularly if s.132(2)(k) does not apply in cases of abuse of process.”
In Van Der Lee at [68] Santow JA held that abuse of “power” included abuse of process.
In the matter of Petrolink Pty Ltd; Smith v Bone [2014] FCA 1024 at [34]-[35] the issue was the admissibility of letters. Wigney J considered the authorities concerning the operation of ss.11 and 131(2)(k), including Van Der Lee, as follows:
[34] It should be noted that, in addition to s 11(2) of the Evidence Act, s 131(2)(k) of the Evidence Act provides that s 131(1) does not apply when one of the persons in dispute knew or ought reasonably to have known that the communication was made “in furtherance of a deliberate abuse of power”. Section 131(4) provides that, for the purposes of s 131(2)(k), if the abuse of power is a fact in issue and there are reasonable grounds for finding that a communication was made in furtherance of the abuse of power, “the court may find that the communication was so made”. The balance of authority is that the reference to “power” in s 131(2)(k) includes a power to make an application to a court: Van Der Lee at [68] (Santow JA) and [24] (Mason P); Ryder v Frohlich [2006] NSWSC 1324 at [11]; Re Mulsanne Resources Pty Ltd (in liq) [2013] NSWSC 358 (Mulsanne Resources) at [5].
[35] It follows that, if there are reasonable grounds for finding that the relevant correspondence here was made in furtherance of the alleged abuse of power, the letters can be admitted despite s 131(1) of the Act.
Wigney J also pointed out at [38]:
[38] It does not follow from the admission of the letters into evidence pursuant to either s 11(2) and s 131(2)(k) that the alleged abuse of process has been made out. As appears to have been accepted by the Court of Appeal in Van Der Lee, the exception in s 131(2)(k) can apply, and s 11(2) can operate to allow the admission of evidence that would otherwise be excluded by s 131(1) even if, ultimately, the abuse of process is not made out. It would be a curious result indeed if evidence that did tend to prove an abuse of process was nevertheless excluded because, ultimately, on the whole of the evidence, the abuse of process could not be made out.
In my view, in an application for summary dismissal pursuant to s.17A, it was not necessary or appropriate to adopt the voir dire procedure identified in Van Der Lee. Neither party asked for such an approach. The task before the court was an evaluation of the wife’s prospects of success for the purposes of s.17A. As Wigney J pointed out in Petrolink if the evidence of negotiations was allowed pursuant to ss.11(2) and 131(2)(k) it does not follow that the alleged abuse of process is made out. Rather the combination of ss.11(2) and 131(2)(k) permit evidence to be admitted the evaluate the contention that there has been an abuse of process.
Evaluation of Prospects of Success
The question then is how an evaluation of the wife’s prospects of success should be approached for the purposes of s.17A and rule 13.10.
Several decisions of the Federal Court of Australia elucidate this question, although in the context of a summary dismissal application pursuant to s.31A of the Federal Court of Australia Act1976 (Cth).
In Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352;(2006) 236 ALR 770 at [45] Rares J held:
“…the Court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell [1947] HCA 54; (1947) 75 CLR 125, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorize a summary termination of the proceedings which s 31A envisages.”
In Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 (“Dandaven”), Gilmour J observed that:
a)“… in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading”: at [6(c)]; and
b)“… if there was a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claims succeeds that there is ‘no reasonable prospect of success’”: at [6(e)]; and
c)“… evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects”: at [6(h)].
Gordon J (as she then was) said in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 at [130]:
130 A fifth principle is that where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success: see Boston Commercial Services at [44]. So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has "no reasonable prospect of success": see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] (stating that summary judgment should be made by reference to the pleadings, affidavits, and other evidence as appropriate under the circumstances) and Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 at [32]. On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim.
I have admitted the evidence upon which the wife relies. To the extent the husband’s evidence disputes, or is inconsistent with, the wife’s evidence, I prefer the wife’s evidence for the purposes of the summary dismissal application.
It is not necessary in my view to resolve a factual contest on this application for summary dismissal. Taking the evidence of the wife at its highest, and applying the test of Rares J in Boston Commercial Services, it cannot be said that there is any room for ambiguity or that there exists “a real factual dispute and that factual dispute must be resolved to determine whether the [wife’s] claims succeeds”.
Consequently, the evidence relating to the grounds for setting aside the Final Orders under s.79A was effectively complete and before the court. I am satisfied that the court had “a full and complete factual matrix” for the purposes of assessing the wife’s prospects of success.
The wife’s claim to set aside the Final Orders can be assessed on that basis.
The scope of s.79A has been the subject of much judicial comment. The wife referred to In the marriage of Holland (1982) 8 FamLR 233, which held that the applicant must show some circumstance, existing at the time of the final orders were made, leading to a miscarriage of justice. In Holland the Full Court also held that agreement to a consent order which may not adequately reflect a party’s entitlements under s.79 does not, of itself, show there has been a miscarriage of justice.
In Barker & Barker [2007] FamCA 13; (2007) 36 Fam LR 650 the Full Court following Holland said at [120]:
“A miscarriage of justice under s 79A(1)(a) will occur if circumstances exist which “for some significant reason, make the order contrary to law and justice according to law as it relates to the integrity of the judicial process” … 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.”
In Barker the Full Court said further at [120]: “As previously discussed, in order for a claim under s 79A(1) to succeed, the Court must be satisfied that a miscarriage of justice has resulted. It is not sufficient to merely establish the existence of one or more of the stated grounds, such as suppression of evidence…”
The wife’s claim of miscarriage of justice was put on the basis that the husband, in conversations starting on 6 January 2018, led her to believe that the parties would enter into consent orders and a trial would not be necessary. In submissions, the wife appeared to contend that if she had been granted an adjournment and given the opportunity to prepare her case, she would have, on the balance of probabilities, succeeded in achieving a better result than an equal division of assets with sale of the former matrimonial home and superannuation. The wife contended that she would have been able to retain the former matrimonial home on a sixty-forty split and it was a miscarriage of justice for her to be denied the opportunity to put that case.
It should be pointed out here that on 11 January 2018, the wife applied for an adjournment of the final hearing dates on the basis that she had lucrative work contracts which she did not wish to lose by reason of having to prepare for the hearing, bearing in mind she was proposing to represent herself. Consequently, it is clear that at all times after 11 January 2018 the wife knew the proceedings remained listed for final hearing on 7 and 8 February 2018.
The wife’s affidavit gives evidence that she and the husband had a series of conversations between 11 January and 7 February, 2018, as follows:
a)On 15 January 2018, the husband came to the former matrimonial home for a meeting and at that meeting there was a discussion of possible outcomes, including one party taking the super fund and retaining a percentage in the former matrimonial home. The wife states at paragraph 15 of her Affidavit dated 4 February 2018 that “I asked Mr Rooks if my (occupation omitted) at (employer omitted) should be all right to fulfil as the date spanned 7 and 8 February the same dates as the trial. Mr Rooks said to me “I have only kept those dates so they are reserved for “stamping” and “signature” of documents. This should only take Wednesday morning and because they are joint consent orders and my solicitors will work on them before the day, you might not even have to be there.”
b)The next day, 16 January 2018, the husband again met the wife at the former matrimonial home. On that occasion he said “I need to tell you that my solicitors will be submitting an updated affidavit. They told me this is just part of the process.” The wife asked why an updated affidavit was needed if the parties were not going to trial and the husband replied “We are not going to trial but the solicitors said it is just part of the process to have an updated affidavit.”
c)On 21 January 2018, the parties again met at the former matrimonial home where they discussed some options in the husband said “I will work on some conditions for this option, it will be things like you remain in the home and pay the mortgage and other things I need just need to write down.” On 22 January the parties again met at the former matrimonial home on that occasion the husband said “I am thinking of the conditions and you need to get a solicitor.” the wife responded “Yes, I will do that. Once your lawyers draft what we have decided together, I would like Lou (my previous solicitor) to look over them.”
d)The parties met on 25 January 2018 in the city. On that occasion the wife said “Can you get those conditions to me because the dates are soon. I know solicitors are used to doing this sort of thing, but when your solicitors write the joint consent orders, I would like to take them to a solicitor to look over them.”
e)On 29 January 2018 the parties communicated by text message to arrange for a meeting to consider the options so that consent orders could be drafted. The wife asked the husband to forward to her “the conditions for this option” and he said he would.
f)On 1 February 2018, a week before the trial dates, the parties arranged to meet at the former matrimonial home on 2 February 2018. The wife states in paragraph 21 of her affidavit “I was very concerned at the tardiness. At just after 5:00pm, I said to Mr Rooks “I am getting very concerned, we need to get this to the solicitors now as it is really close to the trial and Ms Bardetta (Mr Rooks’s solicitor) has sent me an email today saying she is filing your case summaries and documents.” The husband replied “I told you to get a solicitor.” At this point I became increasingly concerned and said to him “What is happening, your solicitors have sent me information for trial, what is happening?” I was very uncomfortable and felt upset at this point. Mr Rooks said “I don’t know I am not a solicitor, this is just part of the process.”
g)On Saturday 3 February 2018, the husband sent the wife conditions for proposed consent orders to then forward to his solicitor.
h)On 4 February 2018, the wife sent an email to the husband attaching detailed “conditions” and calculations. These record possible outcomes in the range 50/50 to 60/40 in the wife’s favour. They also appear to involve complicated refinancing proposals, renovation of the former matrimonial home and the home being retained on a 50/50 basis. (Appendix 5 to the wife’s affidavit)
i)On 5 February 2018, the husband sent a text message to the wife which she says she retrieved at 4:30 PM in which he said “I have forwarded my draft conditions to Maryanne [his solicitor] and also your feedback on them. I think that’s just as much as I can do. At the moment I don’t see we have a mutual agreement.” The wife gives evidence that this point she was extremely upset. She annexed to her affidavit filed 28 March 2018 copies of text messages she sent on the afternoon of 5 February 2018 in which he said “You planned this all along. You deliberately provoked and had full intention to place me unprepared in a trial. God protect your soul as it is…” The balance of the message is not reproduced in the annexure.
j)The wife gave evidence that on 7 February 2018 at Court she requested an adjournment. This was refused by the trial judge. She alleges in her affidavit “At this point, I was under much duress… I had no final orders to reflect what would be considered reasonable together with my affidavit as a settlement to the other party and I was not prepared for trial as Mr Rooks had said it would not go to trial and that we would have everything prepared by way of consent orders before the day of the 7 February, 2018.”
k)The trial judge gave the parties time for discussions. The wife says “At this point, the conversations that ensued are just a blur to me. I was under much pressure and all I could think of was my commitment to my (occupation omitted) at the (employer omitted) and that I needed to be there.”
l)Finally the wife gives evidence as follows:
“I was left in the courtroom with Mr Rooks’s barrister and solicitor. Much of what transpired at the time was a blur. I wished to retain the home and I had no preparation for trial and evidence to support a claim for a 60:40 division of assets. I can remember the thought constantly in my mind, “I must be with my (employer) tomorrow as I have accepted this commitment.” At this point, I was submitting to great pressure. I understood adjournment was not possible and the duress I felt so great, that I was giving consent to just be away from the situation. It was a terrible feeling, and as a very professional person who is always very prepared, to have no preparation for this event at all, made me feel sick and that I was going to faint. The time I would have dedicated to trial was spent working with Mr Rooks on a completely different scenario to that which his solicitors presented on the day. I felt entrapped, and betrayed and restricted in my capacity to give consent and certainly felt the overbearing presence of Mr Rooks’s two solicitors. I recall his barrister saying to me, when I did remember a figure the bank had given me, “No he does not want that.’ Mr Rooks’s orders were for a 50/50 division. I also remember thinking at the time that what was occurring was a travesty and miscarriage of justice, and I just continued signing and signing whatever was placed in front of me, not really listening or hearing what was presented and just feeling trapped and wanting to leave the premise.
For the purposes of assessing the wife’s prospects of success, the following seem clear:
a)Between 6 January and 7 February 2018 the parties were negotiating. The statement of husband on 16 January 2018 “We are not going to trial” could reasonably have been understood by the wife as a representation by the husband that he did not wish to go to trial and would try to reach agreement. However, it could not reasonably be understood as some commitment by the husband to reach agreement on any basis. The parties were negotiating and putting differing positions. The husband urged the wife to engage a solicitor on 22 January 2018 and on 25 January 2018 the wife told the husband she wanted a solicitor to look over proposed consent orders.
b)According to her own evidence, the wife became concerned by 1 February 2018 about “tardiness” and that the negotiations were not proceeding to consent orders when she received case summaries and documents prepared by the husband’s solicitors in anticipation of the trial on 7 February. According to her evidence the husband stated “I told you to get a solicitor.” In these circumstances, the wife should reasonably have understood that the husband was preparing for trial since the parties had not reached agreement. The very fact that the wife became concerned raises the inference that she understood at that point that earlier representations by the husband that no trial would take place may no longer be operative.
c)On 5 February 2018, the negotiations broke down. On that day the wife accused the husband of leading her into a trap.
d)As already noted, in her affidavit the wife asserted that she had “no preparation for trial and evidence to support a claim for a 60:40 division of assets.” But on 6 February 2018, the wife actually filed a detailed affidavit, sworn the day before, setting out her evidence of current assets, contributions before and during the marriage, renovations needed to the former matrimonial home, the needs of the daughter Julia, and her proposals for settlement including a division of assets on a 60/40 basis in her favour, and s.75(2) factors (“trial affidavit”).
e)The wife was able to appear in Court on 7 February 2018 and negotiate further with the husband’s lawyers before signing the Final Orders.
f)The wife gives no evidence that she made her application for adjournment to the trial judge on the basis that she had been misled, or because she was suffering from duress or internal confusion.
Accordingly, I am not satisfied that the wife has established that she was misled into not preparing for trial. The highest her evidence goes is to suggest she delayed in preparing for trial. Whether this can be laid entirely at the feet of the husband is difficult to say. His representations in early January 2018 may have played a part. However, the wife’s evidence makes clear that her primary focus on 11 January 2018 when she made her first application for adjournment was a desire to concentrate upon the contracts supplying her with remuneration. According to her own evidence, that remained a significant focus thereafter.
Be that as it may, even if initially mislead, on her own evidence by 1 February 2018, a week before the trial, the wife was concerned about the lack of agreement with the husband, and knew he was preparing for trial. She then in fact took steps to prepare for trial by preparing and swearing her trial affidavit on 5 February 2018 and filing it on 6 February 2018. As already noted, the wife appeared for herself at the hearing before me and presented as capable and articulate. Apart from saying “all was a blur” and she felt intimidated, the wife gives no evidence of why she could not have put her case for a 60/40 division of assets on the basis of her trial affidavit on 7 February 2018. Appendix 5, referred to above, shows the wife had given detailed consideration to her position, and the basis for a 60/40 split in her favour, and was in fact well prepared. Consequently, I am not satisfied the wife lost the opportunity to present a case for a division of assets on a 60/40 basis in her favour. If she felt unable to do so on 7 February 2018, she gives no evidence of informing the trial judge and I am not satisfied that the husband or his lawyers should be held responsible.
Furthermore, even if that conclusion be wrong, I am not satisfied any miscarriage of justice has been established by the wife. To recap, the Final Orders, amongst other things, stated in summary terms, provided for the sale of the former matrimonial home, being Property A, and an equal division of the net proceeds of sale and an equal division of the available superannuation. The evidence of the wife fails to persuade me that the outcome embodied in the Final Orders was outside the likely range of outcomes in the exercise of discretion under s.79 or that it does not adequately reflect her entitlements under s.79. As I understood her argument, the wife did not submit to the contrary. Rather she pointed to a loss of opportunity to seek a different outcome. But as already discussed, the evidence does not establish that any such opportunity was in truth lost.
Accordingly, I am satisfied that, on the evidence of the wife, only one conclusion can be said to be reasonable, which is contrary to her claims of miscarriage of justice. There is no real factual dispute that must be resolved to determine whether the wife falls within s.79A(1)(a).
I am satisfied that the wife has no reasonable prospect of success in prosecuting her proceedings under section 79A of the Act, and it follows that her application should be dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Harper
Date: 1 August 2018
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