S v W

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. BR 4745 of 1996

BETWEEN:
MR S
Husband

AND:
MS W
Wife

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 18, 19 & 20 June 2001

Date of Judgment: 7 February 2002

Appearances: Mr Page of Senior Counsel, instructed by Jones Mitchell, Solicitors, appeared on behalf of the Husband

Mr R M Hamwood of Counsel, instructed by Saunders Downing, Solicitors, appeared on behalf of the Wife

Ms W and Mr S married in 1991. The marriage subsequently broke down. On 30 April 1996, on request of the parties, orders were made in respect of their financial affairs.
The wife has now applied to have those orders set aside and fresh orders made by way of alteration of property interests. She also seeks an order for spousal maintenance. She asserts that her consent to the orders was given in circumstances that constitute a miscarriage of justice or, alternatively, that in the circumstances of a subsequent resumption of co-habitation by the parties, they impliedly agreed to the setting aside of those orders.
The husband seeks that the wife’s application be dismissed.
The matter is addressed under the following headings:
a)Terms of the 30 April 1996 orders.
b)Evidence and contentions of the parties.
c)Credibility of witnesses.
d)The bases of the application by the wife.
e)Was there a miscarriage of justice?
f)Was there implied consent to set the orders aside?
g)Should the orders of 30 April 1996 be set aside and/or varied and if so, what order shall be made?
h)Spousal maintenance
(a) Terms of the 30 April 1996 orders.
There are four orders made this day and one notation. Order 1 is headed “property settlement to the wife”. Order 2 begins “property settlement to the husband”. Order 3 provides, in effect, for the husband to keep property in his possession, not otherwise dealt with in the orders, and order 4 is as follows:
“This an order to which section 77A of the Family Law Act applies. The portion of the payment or the value of the portion of the property attributable to the provision of maintenance for the wife pursuant to these orders is the sum of $50,000.”
Pursuant to the terms of order 1 the wife received title to a motor vehicle, indemnity in respect of certain loans, the discharge of a mortgage debt owed by the wife (by way of a loan to the wife to be repaid out of future distributions to be made to the wife by a Trust under the control of the husband) and a transfer to the wife of a one third interest held by the husband in a residential property, the other two thirds being held by the wife’s parents, subject to the wife discharging any mortgage liability.
The husband was to indemnify the wife in relation to possible claims and taxation liability arising out of the intended distributions and pay the wife $2,000 on account of legal costs.

b) Evidence and contentions of the parties

The wife was born in 1954.
The parties commenced co-habitation in late 1989. As seen above, they married in 1991.
The wife says that, prior to the commencement of co-habitation, she had conducted a number of businesses. She was financially independent. She owned a house, subject to a mortgage. At the commencement of co-habitation with the husband, she was in partnership with her sister in a business, C Pty Ltd. She says that the half interest in the business was valued at about $7,500.00. In early 1990, the husband purchased the interest of the wife’s sister.
As well as the house and business, she owned Motor Vehicle 1, which she says was worth approximately $20,000.00, chattels of about the same value, and she had savings, jewellery and personal effects worth about $12,500.00.
According to the wife, at the commencement of co-habitation the husband had equity in a building at Town B. He had owned a home, but sold it shortly before commencing co-habitation with the wife, in her home. He had a boat and 2 motor cars.
At the commencement of co-habitation, the husband was working in a consultancy role with D Company.
The husband says that the business the wife was involved in at commencement of co‑habitation was known as “[E Business]”, and was conducted in partnership with Mr F. He also says that the wife leased a motor vehicle, but was unable to meet lease payments as they fell due. He asserts that the wife was not financially independent. The husband says that it was later in the relationship of the parties that he provided the funds to assist in setting up the C Pty Ltd business.
The husband annexes to his affidavit, a statement of assets and liabilities owned and/or controlled by him, which he says were his estimated assets, at about the time co‑habitation commenced. That statement shows net assets of $4,441,000.00.
In early 1990, the husband lent $102,700.00 to the wife to discharge the loan on her home.
The wife says that sometime during 1991 the husband insisted she sell her business to concentrate on spending more time looking after him. He retained the sale proceeds.
The husband says that C Pty Ltd was sold for approximately $7,000.00 which equated with the capital which he had provided to it.
The wife says that subsequently, she was a full-time homemaker but, at the husband’s request, commenced managing a complex owned by the husband which included entertainment venues. In 1991, the wife commenced work with another business. She ceased work however after a short time, when assaulted by the husband in 1991. The wife suffered a break to a bone. Treatment involved multiple operations by a surgeon, including what is described as an extremely painful procedure. She took 12 months to recover from the injuries and operations. She still has a plate.
The husband’s version of this event (in 1991) is that the wife arrived home late on a weekend afternoon. He “indicated my concern about her state”. The wife kept pushing her face in front of his in order to get his attention, at the same time shouting obscenities at him. He pushed her away. She fell backwards over the lip between the carpet and the tiles in the family room.
During the period of co-habitation the husband engaged in a number of real estate developments.
The parties, or at least the husband, purchased the matrimonial home at G Street, Suburb H for $1,000,000.00 together with an exchange of other real property and a motor vehicle.
After the parties moved into that residence the wife’s house was rented.
In mid-1991 the husband said he needed the $100,000.00 approximately that he had lent to the wife. The wife obtained finance on the security of a first mortgage over her property.
The wife resumed working after her recovery from her injuries in mid-1992, at J Business.
In about late 1992, (the wife says) the husband assaulted the wife and caused an injury.
As to the wife’s allegations in this regard, in his affidavit the husband simply says:
“17. The incident referred to in paragraph 27 did not occur”.
In 1994, the wife worked for a short period during a time when the parties were living apart, selling motor vehicles, but after the parties resumed co-habitation, the husband insisted the wife cease this work.
The wife says she undertook all household chores, although from the time of her broken bone onwards she had the help of a housekeeper who attended once a week.
In paragraph 32 of her affidavit filed 17 November 2000 (wife's primary affidavit), the wife says that the injuries that she suffered at the husband's hands included to her arms, face, back, chest and other injuries that have since mended.
The husband says that the injuries referred to in paragraph 32 of the wife’s affidavit all arose from two incidents.
The wife says in paragraphs 33 and 35 of her primary affidavit,
“33. During co-habitation with the husband, I became increasingly nervous, suffering sleeplessness and nightmares as a consequence of the husband’s verbal and physical abuse. Indeed, as a result of the husband’s constant harassment, criticism and denigration of me throughout my relationship with him and the physical and verbal abuse of me by the husband, I became increasingly dependant upon the consumption of alcohol as an “escape” from my life with the husband. I was also constantly consuming prescription drugs […] to relieve my sleeplessness and anxiety.
…
35. The husband frequently verbally taunted me and I often responded. If an argument then broke out, the husband would resort to physical aggression. If I defied the husband or sought to take refuge from him, he would follow me with a verbal tirade, usually accompanied by pushing, shoving or hitting.”
It is the husband’s contention that the wife had a “problem with alcohol” at the time co-habitation between them commenced, and this problem persisted.
Sometime in the early 1990’s the parties purchased a property, on the wife’s recommendation, at K Street, Suburb H. A considerable profit was made in a short period of time upon resale of that property.
The parties separated on 25 April 1995.
In her primary affidavit the wife says, as to the separation at that time:
“38. I left the former matrimonial home on 25^th April 1995 after an argument with the husband during which I was again subjected to a violent assault. I attempted to call the police however the husband tore the telephone from my hand before hitting me with it then tearing if from the wall. With my car keys in hand, I made to leave the front door of the home but was chased by the husband. He kicked me […] (causing [an injury]) before I fell to the floor. The husband then grabbed me […] and banged my head into the floor several times. He smashed my mobile phone and threw my handbag and money in the pool. As the husband was [assaulting] me, I escaped from his grasp by biting [him] and then tried to escape in my car however the husband had already disabled it as he had done many times before. I ran to the next door neighbours house and they called the police.”
As to events of 25 April 1995, the husband admits that there was an argument between himself and the wife and says:
“26. …there was physical contact between us in the course of that argument. The physical violence was two-sided.”
The day following this incident the husband sought a domestic violence order. The wife responded with an application herself. Each party obtained domestic violence orders. After being treated at the emergency department at the L Hospital, the wife moved into her sister’s home in Region M. She stayed there for several months. As to the period following the wife says:
“41. Over the days and weeks immediately following separation the husband would constantly phone me at my sister’s home or call in to the home unannounced. He invariably walked into the home uninvited. The husband’s contact with me during this period was threatening in nature. He warned me that if I was to “go him” I’d get nothing. He told me that he would have little difficulty in hiding his assets to ensure that I would get nothing. On other occasions, however, the communications with the husband were of a conciliatory nature. He tried to persuade me that he would always look after me and that I should realise that he’d always loved me and always would and he would ensure things were sorted out. He frequently promised to treat me as an equal and to cease his physical, psychological and financial abuse.
42     I first sought legal advice in relation to matrimonial matters [in] or about [mid] 1995. I consulted [Mr N] in Brisbane that day. I told [Mr N] that the husband had net assets of over $5,500,000.00 and gave to him a statement of assets and liabilities of the husband that I had in my possession. [Mr N] and I verily believed that, having regard to the history of my marriage and the contributions that I had made, that I was entitled to a settlement of property and lump sum maintenance of between 10% and 20%. I instructed [Mr N] to submit to the husband a settlement offer on my behalf which he did [in] June 1995.”
43.     Over the ensuing weeks, I continued to receive a constant stream of telephone calls from the husband. I continued to refuse to meet him at the matrimonial home in light of the domestic violence to which I had previously been subjected and given the existence of domestic violence orders prohibiting contact between us.
44.     At all times during my negotiations, the husband had effective control over me from the combination of threats, inducements and emotional blackmail. Whilst in some conversations the husband would describe me as being a “money grubbing bitch” in other conversations he would suggest that if I ever really loved him or had any hopes for a reconciliation, I would not pursue a settlement on terms more favourable than he was prepared to offer as an interim measure. The husband constantly assured me that if I cooperated with him, I would be “looked after”.
45.     At about this time in 1995 I attended a few sessions of counselling with [Mr O], a psychologist at [Suburb P]. I did not inform [Mr O] about the physical abuse that I had suffered during the marriage as I was seeking advice on how to resolve issues that had contributed to the marriage breakdown. I wanted to understand whether the husband could genuinely change as he promised, not only with respect to the physical abuse but to the sharing of our financial resources. Throughout constant telephone calls from the husband during which he promised to change, to stop his abuse, to respect me as an individual and to share his life and our financial resources, I was also told by the husband that the marriage breakdown was really my fault and that I caused the numerous assaults and arguments that had lead to our separation. The husband also told me that if I wanted to pursue a reconciliation with him, I would have to put the question of a property settlement behind me so that we could sort out all of our differences and start dating each other again at arms length.
46.     I really wanted to find a way of continuing my marriage but I wanted the abuse to stop and to live a happy, normal life without fear or abuse.
47.     In July 1995, without consulting with [Mr N] and without the husband disclosing the real extent of his assets or income, I agreed to a settlement on terms prepared by the husband. The husband telephoned me at my sister’s home and said that he wanted to meet with me. He said that I was to go to his place and talk to him about what I was going to get out of the settlement. He repeated that if I gave him a “hard time” I would get nothing and that all of his money would be hidden, never to be found. I told the husband that I wouldn’t meet him at the matrimonial home because I was fearful of abuse. Instead, I met the husband at a coffee shop [in Suburb Q] where again he said that if I really loved him I wouldn’t want anything from him. He told me that if there was any hope for a reconciliation, I would have to sign a form that he was going to get drawn up and I had to consent to his proposal otherwise the settlement would drag on for years and I would recover nothing.
48.     Shortly after the meeting at the coffee shop, the husband rang me to say he had had the document drawn up and again requested hat I meet him. On this occasion I went to the former matrimonial home. The husband’s youngest son, [Mr R] was present. The husband produced a pen and said “sign this”. He then asked [Mr R] to witness our signatures. I was humiliated by the process, particularly as the husband demanded that I sign other company and taxation documents thrust at me in [Mr R’s] presence.
49.     In addition to clinging on to the prospect of a reconciliation, I was also in difficult financial circumstances for the 12 months following separation. I had gained some employment […] in a sales capacity but my net income for the year ended 30^th June 1996 was only a little over $5,000.00. I was depressed and unsure as to what the future would hold. I felt isolated and vulnerable.
50.     I’ve never had an intimate knowledge of the husband’s business affairs and I am not well-versed in corporate, trust or taxation matters. The agreement which I signed was, I understood, intended to provide for the discharge of the mortgage on my home and the provision of maintenance of $3,000.00 per month. The husband also agreed to transfer to me his interest in the property in which my parents resided. The settlement also entailed my retaining [Motor Vehicle 2] and that the debts that I “owed” the husband’s trust would be forgiven. I asked the husband why I was indebted to the trust at all. He told me that the money that he gave me for housekeeping each week (initially $200.00 and later $400.00 per week) was in fact loans that the trust was making to me. He told me this had tax advantages and helped him pay the mortgage. I did not understand fully what the husband was arranging but I had never agreed to “borrow” housekeeping that would have to be “repaid”. On the other hand, I saw the terms of what the husband was proposing as being consistent with his promises to help me. The husband had told me that a reconciliation was possible if I agreed with his terms.”
The husband admits calling unannounced at the home of the wife’s sister on one occasion in the weeks following separation. He denies phoning the wife constantly and being threatening at any time. He denies the suggestion that he said he would hide assets or that the wife would get nothing.
However, the husband admitted in the course of the hearing that he called the wife several times a week in the post-separation period. He says he was concerned that the wife discussed with him a property settlement. Though he did not recall calling the wife a "money-grubbing bitch", he said he may have assured her that she would be looked after. He may also have said that if she really loved him, she wouldn't want anything.
Under cross-examination the wife acknowledged that she informed Mr N in mid-1995 that all she wanted was the mortgage paid off on the house, to retain Motor Vehicle 2, purchase the husband’s one third interest in her parent’s property and have some cash to get going. At no time did she inform Mr N that she did not consider the document she delivered to him to be an accurate statement of the husband’s worth.
However, five days later, Mr N sent the husband a letter (Exhibit 2) indicating that the wife would be seeking a property settlement and maintenance and seeking the disclosure of financial information.
The wife saw a draft letter in the form of Exhibit 3. With her approval, Exhibit 3A was sent to the husband. She was aware that that contained a request by Mr N that the husband provide full particulars of his financial circumstances.
She was also aware that the letter communicated her proposal for overall property settlement and a lump sum spousal maintenance. She sought:
“1. [Motor Vehicle 2];
2.That you transfer to my client your one third (1/3) interest in the house property at [T Street] in which my client’s parents presently reside;
3.That you relinquish any claim you have to my client’s ownership of the house property at [U Street, Suburb V], which is subject to a first registered bill of mortgage in the sum of $100,000, approximately, with my client to be responsible for that mortgage; and
4. That you pay to my client the sum of $414,000.”
The calculations behind the offer to the husband are set out in a letter that Mr N sent to the wife on 31 May, 1995 (Exhibit 4).
On 3 June, 1995, the husband replied (Exhibit 3B). Mr N responded to the husband’s letter (Exhibit 3C) on 6 June 1995.
The husband says that following the receipt of that letter from Mr N, he had discussions with the wife and informed her of the advice that he had received from FF Lawyers. He told her that his advice was that the wife would retain her home at Suburb V and receive a percentage of the increase in the value of the assets in the course of the marriage, the range of that percentage being between 10-20%.

The husband denies holding out the hope of a reconciliation to the wife as consideration for a settlement on more favourable terms to him than the offer that had been made. He says he at no time suggested the property settlement as an interim measure.
On 5 July, 1995, the wife advised Mr N, that following further discussions with the husband, the matter had been settled to include in addition maintenance at $3,000.00 a month for six months.
However, the wife also says that she told Mr N that she would not pursue a proper property settlement and lump sum spousal maintenance as she was convinced that if she disputed the husband’s proposal she would end up with nothing and lose any prospect of reconciliation.
The Deed of Agreement dated 6 July 1995, is Exhibit 5. Parts of the document are difficult to follow and to compare with the offer put by the wife. Clause (d) seems to provide for the wife to buy out (rather than receive as part of settlement) the share of the husband in the property in which the wife’s parents also held an interest. The interest of the husband is described as a half interest.
Clause (g) provided for the husband to pay the wife maintenance to the extent of $3,000 per month in arrears by way of disbursements from the Mr S Family Trust with effect from the 25^th of April, 1995. Provision was made, however, for certain deductions from that payment.
The husband says that over the following months after the deed of agreement was signed, there was considerable correspondence between lawyers with a number of proposed amendments to the deed of agreement. However, the evidence does not support there having been any immediate discussion, or any of an extensive nature.
The wife did not send Mr N a copy of the deed of agreement.
Exhibit 6 is a copy of a letter dated 18 September, 1995, (i.e. 2 1/2 months after the agreement was signed) sent by Mr N to the wife. It opens
“I *enclose a copy of the Deed of Agreement which has been sent to me by [X Lawyers] who now wish to formalize matters by way of consent orders to be filed in the Family Court.”
The balance of the letter went on to ask questions about the terms of the Deed both as to whether certain terms had been carried out and as to apparent ambiguities and inconsistencies with earlier instructions. The terms of that letter are strongly suggestive of an absence of any communication between the wife and Mr N subsequent to the signing of the Deed of Agreement and preceding that letter.
It does seem that there was then some discussion through solicitors about the terms of consent orders. Exhibit 7 is a letter dated 10 November 1995 from Mr N to the wife containing a proposed clause to the effect that the husband indemnify the wife against a number of present or potential liabilities.
In her primary affidavit (paragraph 52) the wife says of the terms of settlement drafted by the husband solicitors as follows:
“52.The husband’s solicitors subsequently drafted terms of settlement which did not even contain any provision for spousal maintenance. Instead, the husband explained to me that in order to discharge the loan secured by my home, he would cause to be made to me taxable distributions from his family trust of an amount sufficient to discharge my “debt” and the funds would then be used to discharge the ANZ Bank mortgage. The husband told me that these distributions were my spousal maintenance payments which would last for at least 5 years. I understood that the husband would attend to the payment of any taxation assessed in respect of the distributions made to me from the family trust.”
In or about January 1996 an application for consent orders was prepared and the wife executed the affidavit annexed to that document. The husband says he does not know why the documents were not filed in the Family Court at that time.
The wife says that she received the following as a result of the orders approved on 30 April 1996:
[Motor Vehicle 2]  $15,000.00
Indemnity for loan  $6,242.00
Indemnity for loan  $20,007.00
One third interest in parents’ property
At [T Street, Suburb V]  $17,000.00
Mortgage discharged on my residence  $99,361.34
Total:  $157,610.34
In addition, she retained the equity in her property at U Street, Suburb V estimated to then have a value of $100,000.00, bringing the total property and spousal maintenance settlement “package” to a value of $257,610.34.
The husband denies the wife’s calculation of what she received under the settlement. He says that the correct figures are as follows:
“45. As to clause 53 of the applicant’s Affidavit, I say that there was never any discussion at any time between the applicant and I as to the value of net assets. I deny that there was ever any discussion between the applicant and I that my net assets were valued at over $5.5m or indeed, any other figure at all. Further, I deny that the figures set out in paragraph 53 are correct. I say that:
(a)The retail value of [Motor Vehicle 2] at that time was approximately $25,000.00;
(b)The clause omits the following further assets or payments received by the applicant:
(i)Indemnity for[…] loan  $65,000
(ii)Spousal maintenance  $18,000
(iii)A further cash payment of:  $10,000
(iv)[Asset]  $10,000
Including the abovementioned assets and payments, the total assets and/or benefit received by the applicant was in the order of $270,610.34. In addition to that payment the applicant also retained her interest in the home at [Suburb V].”
He says the total property settlement package received by the applicant was therefore in the order of $370,000.00.
Subsequent to the making of the consent orders the parties still had reasonably frequent contact, as the wife saw it, with the objective of reconciliation.
The wife contends that the parties resumed co-habitation in Europe in 1997 and later in the former matrimonial home in late 1997.
The husband says that the parties did not resume co-habitation until about late 1997.
The wife says that during discussions while the parties were together in the United Kingdom they reached agreement on a number of matters that would be done in relation to giving the wife additional financial security and in relation to the improvement of the wife’s property and the former matrimonial home in which it was intended the parties resume co-habitation.
The wife then sets out the events that occurred during the resumption of co-habitation which she says were inconsistent with the agreement reached in the United Kingdom. Notwithstanding this, the wife says, in paragraph 64 of her affidavit:
“64. In every respect, the husband and I considered the marriage to be back on foot. Despite a number of promises made in the United Kingdom prior to the resumption of co-habitation that remained unfulfilled, I was satisfied that the husband was making a genuine attempt to remedy the faults that had plagued our marriage and the husband constantly assured me that we were now working as a partnership building up assets for our mutual benefit. Despite how the husband dealt with the joint account into which our earnings were pooled, I saw the pooling of our respective incomes as a positive sign that we were at last working together.”
The husband denies that the matters set out by the wife were matters which represented conditions upon which the reconciliation would proceed, and that all of the matters referred to by the wife were agreements reached at any stage, during the period of reconciliation or otherwise.
The parties again separated on 12 June 1998 after the husband allegedly assaulted the wife on that day.
As to the final incident, the husband simply says in his affidavit:
“62. In relation to the incident referred to in paragraph 70, I say that this incident occurred when the wife was intoxicated. One of the terms which we had reached as part of the agreement that we reconcile was that if there was ever another incident of physical violence between us, that we would then separate finally. That was this act. It was initiated by the wife. It resulted in the final separation, consistent with the understanding which we had reached.”
The marriage did not produce any children.
A decree nisi of the marriage of the husband and wife was made in 1999.
The wife relied upon two affidavits by a Mr Y, a psychologist. Mr Y’s first report issued on 13 October 1999.
Mr Y recorded that he had interviewed the wife in depth on 8 October 1999 and she had completed a “battery of selected psychological tests”. Mr Y recorded information given by the wife and obtained by him from a reading of her affidavit sworn 12 July 1999, to the effect that the wife had endured chronic and severe verbal, emotional, psychological and physical abuse by the husband. He also recorded her report that she had accepted an inadequate property settlement as she was convinced that if she disputed her husband’s settlement proposal she would end up with nothing and would lose any prospect of there being a reconciliation.
Mr Y assessed the wife as having depressed and anxious mood, characteristic traits of a dependent personality disorder.
In his conclusion, Mr Y said that the wife, as a result of the abuse she endured by her husband, has developed a chronic post traumatic stress disorder. She was suffering major depressive disorder of moderate to severe symptomatology and had a dependent personality disorder as well as alcohol dependency. He further said:
“She has also developed a Dependent Personality Disorder – these dependent traits would have been operating at a sub clinical level prior to her abusive marriage.
However, the abuse she suffered throughout the marriage, triggered florid dependency characteristics.
These include:
·     Her experiencing difficulty in making everyday decisions,
·     A need for her to have others assume responsibilities for the other areas of her life,
·     Her difficulty with expressing disagreement with others for fear of loss of support or approval,
·     Her tendency to go to obsessive lengths to obtain nuturance and support,
·     Urgently seeking another relationship when her marriage ended,
·     Her unrealistic preoccupation with fears of being left alone by herself.
It is my strong opinion that a combination of her posttraumatic stress disorder, depression and dependent personality disorder resulted in her being in such a poor emotional, psychological and cognitive state that she was unable to negotiate a reasonable property settlement.”
Mr Y also expressed the view that the wife at the time of his report was psychologically and cognitively incapable of maintaining employment. He believed that she required extensive psychological therapy and psychopharmocological intervention over a number of years before she would be capable of maintaining employment. However, he also said that her continuing psychological problems were the result of her financial insecurity and that, if her financial situation improved, he would expect a commensurate improvement in her psychological, emotional and cognitive health and that would facilitate her return to the workforce together with treatment. However, Mr Y concluded that the wife’s prognosis was guarded. He said it was his experience that women who had been abused over a lengthy period, developed high levels of residual psychological disabilities even with the best treatment and the passage of time.
Mr Y again examined the wife on 29 November 2000. His report issued on 30 November 2000. He recorded that he had counselled the wife on a number of occasions earlier in 2000, the last session being on 19 May 2000.
Mood testing indicated that the wife still suffered severe to extremely severe depression, featuring some suicidal ideation.
Mr Y considered that the wife was still suffering from the disorders diagnosed by him a year earlier.
In oral evidence Mr Y accepted that he could not confidently say what the wife’s mental/psychological state would have been in 1995 or 1996.
Other supporting witnesses in the wife’s case were Ms Z, who has known the wife from when she was about 16 years of age. She says that she first noted changes in the wife’s personality and demeanour in about 1991 coinciding with her breaking a bone. The wife became more aggressive and angry and her consumption of alcohol noticeable increased. These traits have increased in the wife since 1991. Ms AA has know the wife for 20 years. Her affidavit is to similar effect as that of Ms Z.

c) Creditability of Witnesses

I have considerable reservation about the reliability of the evidence of each of the husband and the wife. The husband lacked frankness about the violence between him and the wife. Admissions of any involvement on his part had to be extracted from him in cross-examination. Ultimately, his oral evidence makes his affidavit evidence on the topic at least glib.
There was much about his attitude to evidence of his financial affairs of at least an uncooperative, if not obstructive, approach to a proper assessment being made.
Significant parts of the wife’s evidence were vague. It was difficult to tell whether this was genuine or not. I refer to such matters as, money lent to her brother, and the purpose of that loan, and her lack of explanation as to use of moneys received from the BB Bank Account.
Though the information given to Mr Y and recorded in his reports is part of the evidence, given the affidavit material filed by the wife covering the same topic, I think it undesirable to rely upon information given to Mr Y beyond what is contained in the wife’s depositions, or given in oral evidence. Statements to Mr Y are not on oath and might be seen as being made in unconstrained circumstances.

d) The bases of the Application by the wife

The wife filed her initiating proceeding on 13 July 1999. An amendment was made by a document filed on 14 February 2000. In that document it was sought that the orders of 30 April 1996 be set aside pursuant to section 79A of the Family Law Act 1975 or alternatively, the time within which an application may be brought to review the orders be extended and that the orders be subsequently reviewed pursuant to section 37A(9) of the Act. That alternative was abandoned in submissions.
The wife sought consequential orders following the setting aside of the orders of 30 April 1996 for a property settlement that was “just and equitable”. She also sought periodic spousal maintenance of $1,500.00 per week and that the husband pay certain medical, dental and other costs of the wife.
In written submissions for the wife, it was said that the basis of the application was:

that there had been a miscarriage of justice by reason of duress
and/or that there had been a miscarriage of justice by reason of any other circumstance, namely the failure of the husband to make any or any adequate disclosure of his financial circumstances
and/or that the parties had impliedly agreed that the consent orders be set aside, (that implication to be drawn from the resumption of co-habitation, the agreements underlying that assumption and the intermingling of the parties’ financial affairs, particularly to the detriment of the wife.)

Also, in the written submissions for the wife, a number of findings were sought, including a finding that the combination of the emotional abuse perpetrated by the husband with the pre-existing personality disorder and the post traumatic stress disorder created a lack of capacity in the wife to give an independent and informed consent to the Deed of Arrangement which formed the basis of the property orders.
Counsel for the wife referred to the comments of Watson SJ in the marriage of S.5 FAM LR at 839:
“… a sense of mental oppression can be generated by causes other than fear or terror. If there are circumstances which taken together lead to the conclusion that because of oppression a particular person has not exercised a voluntary consent to a marriage that consent is vitiated by duress and is not a real consent. This is so however the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression”
Alternatively, it was submitted that the history of violence, the wife’s mental state and the husband’s continued emotional abuse produced such an inequality of bargaining power that it would be unconscionable to permit the husband to obtain the benefit of the Deed of Agreement and the consent order.
Counsel for the husband submitted that the wife had “confined the burden upon her to proof of the following bases for a determination that there was a miscarriage of justice, namely:
(a) Duress
(b)The failure of the husband to make any or any adequate disclosure of his financial circumstances.”
In my view, the case of the wife was, as seen in the summary of submissions above, put more broadly than is described in the submissions on the part of the husband.

e) Was there a miscarriage of justice

I do not think it useful, if indeed it is possible on the balance of probabilities, to dissect the clear evidence of relatively frequent altercations between the parties into findings that the wife assaulted the husband or the husband assaulted the wife or the like. On the evidence of both parties, however, I have no doubt that the relationship of the parties involved elements of physical violence, both from the husband toward the wife and she toward him.
I do not accept the conclusions of Mr Y as to causes of the wife’s conditions. These conclusions are founded on claims by her.
The conclusion of Mr Y, that the wife suffers a chronic post traumatic stress disorder, is not challenged by the husband. It also seems from these submissions in paragraph 3.1.13, that there is also no challenge to the diagnosis of major depressive disorder and dependant personality order as well as alcohol dependency.
I accept Mr Y’s assessment of the wife as having a depressed and anxious mood and that these are traits characteristic of a dependent personality disorder. I accept his diagnosis that she has a major depressive disorder, with moderate to severe symptomatology, a dependent personality disorder, and an alcohol dependency. I accept his opinion that the dependent traits which were a feature of the wife's personality disorder would have been operating at a subclinical level prior to her marriage to the husband.
Notwithstanding Mr Y’s concession, that he could not confidentially speak of the wife’s state in 1995 and 1996, on the basis of those of his opinions that I do accept, I consider that, more probably than not, in 1995 and 1996 in relation to dealings with the husband about such matters as resolution of their financial affairs, the wife was affected adversely by psychological and personality deficits.
She was also in a dependant relationship with the features of cyclical violence and reconciliation. Her position in bargaining in respect of the agreement was adversely affected by wishes in relation to resumption of the relationship. She had only a superficial picture of the financial position of the husband.
While she clearly took legal advice, she did not ultimately follow that advice or seek it at critical times, in relation to such matters as the terms of the Deed of Agreement signed in mid-1995.
I infer that, though she subsequently had some legal advice in relation to the terms of the consent order, by that time she had substantially compromised her position, or at least, regarded herself as having done so. She remained adversely affected by the matters mentioned above.
I accept the wife’s evidence earlier set out in these reasons being that contained in paragraphs 41 through to 50 of her primary affidavit. Her evidence is consistent with the proven pattern of interaction with her solicitor. It is consistent with what I accept was the nature of the relationship with the husband and with her mental/psychological state.
I am satisfied as to the grossly unequal bargaining positions of the parties. The wife's consent to the orders of 30 April 1996 was not a free and unfettered one.

In Holland and Holland (1982) FLC 91-243 at 77,339 the Full Court of the Family Court said:
"……………a party may also be able to establish a miscarriage of justice if that party's consent was for any reason not a true consent……"
In Suiker and Suiker (1993) FLC 92-436 another Full Court of this Court said, after discussing passages in Holland and Holland (above) and also referring to Gebert and Gebert (1990) FLC 92-137:
"As regards the view expressed in Clifton and Stewart that the expression 'miscarriage of justice' relates to the integrity of the 'judicial process' we are of the opinion that this passage was not intended to refer only to the hearing in the Family Court, but that the expression 'judicial process' can refer to a variety of matters and circumstances which had an influence on the outcome for litigation. It is neither necessary nor desirable to attempt to define the matters which may amount to a miscarriage of justice by reason of any other circumstance in the relevant sense."
I conclude that the circumstances affecting the nature of the wife's consent to the orders of 30 April 1996 constituted a miscarriage of justice.
As to whether there was a failure by the husband to make any or any adequate disclosure of his financial circumstances, it is accepted by the husband that he provided no particulars to the wife's solicitors. However, the wife had the statement of assets and liabilities which she supplied to her solicitors, and it is clear that she was advised on the basis of that. There may be cases where a person acting free of any other constraints will elect on the sort of information provided to the wife for reasons of economy and perhaps other motivations, to accept a property settlement and the circumstances will not constitute a miscarriage of justice. It seems to me that since I have found that the wife in this case was not acting free of other constraints, that there is no point in considering in isolation the question of disclosure by the husband of his financial circumstances.

f) Was there implied consent to set the orders aside?

I accept the wife’s evidence about the matters that were discussed leading to the resumption of co-habitation. The husband agreed with a number of the wife’s assertions as to the discussions between them.
In my view, irrespective of whether agreement was actually reached on terms, (as to which I do not consider I can make findings), this was a negotiated resumption of co‑habitation, and those negotiations included financial issues.
Following the resumption of co-habitation there was some intermingling and interdependence particularly on the part of the wife, of financial affairs with those of the husband. I accept that in reliance upon the discussions, the wife sold her own motor vehicle and made arrangements to have the Ashmore property renovated.
I accept that "the husband constantly assured me that we were now working as a partnership building up assets for our mutual benefit".
In my view, if an objective observer of the circumstances of resumption of cohabitation was asked "What did the parties intend in relation to the orders of 30 April 1996?" that observer would answer "That they no longer govern the parties".
In McCabe and McCabe (1995) FLC 92-634 the Full Court of the Family Court dealt with an application under Section 79A(1A). At page 82,369 the Full Court said:
"The recent decision of the Full Court in Bourke v. Bourke (No.2) (1994) FLC 92-479 establishes that the 'consent' referred to in that provision is not confined to a consent given at the time of the hearing of the application in question; the consent may be established by evidence of a prior consent of the parties which remains binding upon them……….
In cases of this nature conclusions about intention which should be attributed to the parties will depend upon the particular circumstances of each case. That material would not necessarily be confined to the initial decision to reconcile or, as in this case, to write to the Court. Their intention may crystallize into a more precise form as time progresses and as the parties' reconciliation continues and they conduct their lives together, including their financial affairs, so that it becomes inconsistent with any other conclusion………..
There is no reason to doubt that parties can expressly or by their conduct consent to the discharge of prior orders so as to enable the Court to make a fresh property order. Indeed, this would be a more likely conclusion in most cases of this type. The conclusion contended for by Mr Sofronoff would produce a situation where the previous orders were unenforceable but neither party could seek new orders (other than orders under s.78) and would be inhibited from taking proceedings in another court because such proceedings would inevitably constitute a 'matrimonial cause'."
I conclude that the parties impliedly consented to a rescission of the orders of 30 April 1996 and ought not be now permitted to assert otherwise.

Should the orders of 30 April 1996, be set aside and/or varied, and if so, what orders should be made?

The current financial position of the parties.

There is no evidence upon which a finding, on the balance of probabilities, as to the husband’s net worth could be made.
The wife relied upon a valuation by Mr CC, Chartered Accountant. His evidence was that the husband had assets in his possession or control valued at $9,190,346. He freely acknowledged, however, that this assessment, in critical parts, was based upon book values.
While if there were no other evidence at all a finding based on Mr CC’s evidence would obviously be open, in this case, there is a body of other evidence, albeit, itself subject to considerable qualification. However, in my view, the effect of that other evidence is that, while one might say, Mr CC’s valuation may well be right, there is no reason to say it is more probably right than not.
The submission on behalf of the husband was that his net asset worth was $3,201,664. The husband produced no independent expert evidence of the value of his assets, except for valuations of some real estate.
The principal difference between the claim of the husband as to his net worth and the evidence of Mr CC about that, is the value attributed to shares held by DD Pty Ltd, a company under the control of the husband, in EE Pty Ltd.
In view of the preclusion of a finding on the balance of probabilities as to the husband’s net worth, there seems no point in dissecting the evidence.
Exhibit 20 contains a series of statements of assets and liabilities owned or controlled by the husband. That marked “A” purports to represent the position in February 1990 and shows net assets of $4,441,000. A major asset is a commercial property valued at $2,250,000. That marked “B” relates to January 1994. It shows the same commercial property as $2,150,000 and evidences net assets of $5,545,000. These two statements, of course, relate to a period now many years ago.
A statement as at November 1998, shows net assets of $10,042,283 and puts the commercial property at $1,950,000. A statement as at 16 November 1999, places the commercial property at $1,980,000 and indicates net assets of $17,256,512. EE Pty Ltd is ascribed a value of $10,000,000 being “fixed assets at valuation + current net assets”. In a statement bearing date 3 November, 2000, the commercial property is shown as $950,000. EE Pty Ltd, described as “purchase price [early] 1999 + capital improvement” is shown as $4,900,000 and net assets are said to be $1,441,214. In a statement as at 30 April 2001 (part of Exhibit 29) net assets are said to be $2,799,930. The commercial property is shown as $520,000. EE Pty Ltd described as “purchase price [early] 1999 + capital improvement” is shown as $9,000,000.
In his assessment of his worth the husband asserted a liability to D Company in the sum of $2,144,748. Submissions by counsel for the husband referred to this as a potential liability. Proceedings have been instituted against the husband claiming that sum. The husband is a cross-claimant in those proceedings. He was unable to give any details of this cross-claim.
The wife has negative net worth. Exhibit 1 is a bundle of documents relating to her liabilities.

Assessment of contributions

In my view, and indeed, consistent with the submissions of both counsel, the wife’s contributions are relatively minor in nature. The wife made some contribution as home maker. She made minor direct and indirect financial contributions. On any view of the confused evidence as to her position at commencement of cohabitation, she had little beyond the equity in her home. I do not regard such time as she spent assisting the husband, for example, in relation to the commercial property at Town B, or such actions as introducing him to a person, which introduction ultimately led to an investment, as of much significance.
When there is such lack of clarity as to the husband’s worth, but, on any view, it is significant, there seems little point in trying to be precise about a percentage to be attributed to contributions.
Moreover, such is the effect in this matter of Section 75(2) factors that, on standing back at the end of a process of assigning percentages, firstly to contributions and then to Section 75(2) factors, there might well be some effective adjustment of any figure independently struck for either of those areas. It is the end result which is most important

Section 75(2) factors.

As to Section 75(2) factors, the wife is 47 years of age. She has, I accept, no current capacity for gainful employment. The evidence as to when she might achieve such a capacity is imprecise. She cannot support herself.
I take it to be conceded in paragraph 8.2 of the submissions on behalf of the husband, that the wife presently has an inability to support herself adequately. This is certainly the tenor the content of that paragraph, although an apparent typographical error, occurs in the second sentence.
On the other hand, the husband is 49 years of age. He has an established history of capacity to acquire wealth and produce significant income.
Mr CC put forward a consolidated statement of earnings of the husband over the period commencing with the financial year 1997 through to 30 April 2001 (Exhibit 30). This statement asserted net income of the husband as follows:
1997$84,402
1998$127,137
1999$1,527,418
2000$1,657,722
30 April 2001 $462,585
In his calculations, Mr CC added back in depreciation. It is submitted on behalf of the husband that this should not have occurred. No calculations were provided of reworked figures adding depreciation back in, but doing the best I can from the schedules to Mr CC's affidavit filed 28 November 2000, the adding back in of depreciation would not have a drastic effect on the calculations otherwise performed by Mr CC.
In his affidavit filed 15 June 2001, the husband said that his salary was $50,000.00 per annum and that was the only income available to him. I do not accept his evidence. I note that he records his personal expenses as including payments on a luxury motor vehicle in the sum of $30,312.00 per annum, a remarkable outgoing for a person limited to $50,000.00 gross income per year.
The extent of his wealth has already been discussed.

What the wife has already received

As to what the wife has already received, I would not bring into account the forgiveness of loans or indemnities in respect of loans to entities under the control of the husband. These are not assets distributed to the wife on property settlement, but are simply entries to remove liabilities which might otherwise fall on the wife and which related to the way in which the parties arranged their affairs during the marriage
Effectively, the wife has received around $260,000 pursuant to the consent orders. She may be taken to have received up to a further $15,000 or so in the form of $10,000 cash and another asset, although her own recollection was of not receiving more than $5,000 cash.
It is submitted for the husband that she has also received a further $164,600 made up of:
Interim Costs  $75,000
Maintenance  $74,600
Additional Expenses – Medical, Dental and Rehabilitation              $15,000
By order of 12 November 1999, it was provided:
"2. That within 21 days of todays date, the husband pay or cause to be paid to the solicitors for the wife the sum of $25,000, such sum to be utilised on account of the costs of the wife in prosecuting her claim in these proceedings."
By order of 28 March 2000, it was provided:
"1(i)That within 21 days from today or such other time as may be agreed between the parties the husband pay to the wife the sum of $50,000, such sum to be applied towards the payment of the wife's costs.
(ii)That the question of which of the parties and/or in what proportions the payment to the wife's solicitors on account of the wife's costs should be borne be reserved to the trial judge."
There is nothing in the above orders which in my view obliges the taking into account now as if a partial distribution of the property the moneys the wife has received on account of costs. It is, however, relevant that she has received these moneys just as it is relevant that she has incurred legal costs.
The wife has made questionable use of moneys subsequent to the final separation of the parties, in particular, moneys lent to her brother. However, such use has not necessarily produced her present inability to support herself, though no doubt it has played some part. Moreover, that usage does not disqualify her in some way from receiving an appropriate property settlement.
The assessment of any further entitlement of the wife in the way of property settlement has about it a number of unsatisfactory elements clear from the discussion of the state of the evidence. None the less, both parties were represented by experienced counsel. The parties clearly want the matter resolved. In my view, the wife, had the figures upon which she was advised in 1995 been correct, should have received something of the order of that of which she was advised. Although, in one letter, the husband indicated that he wanted to raise a matter about values, ultimately he seemed willing to allow the wife to receive advice based on those figures at the time. He still seems willing enough to permit the question of the wife’s property entitlements to be decided on loose evidence about his worth. I consider that the wife ought receive a further $300,000 as and by way of property settlement.

Spousal Maintenance

It was conceded by the husband in a series of concessions and submissions that sit rather oddly together that the wife had reasonable needs in the vicinity of $835 a week, that she did not have the ability to support herself adequately at this time, that the husband did not have a capacity to make payments on a periodic basis, that it was not a case where it could be concluded that he could manage his assets in a way to make periodic provision for the wife, should that be ordered, but that, if the court found that the husband did have a capacity to make a payment, provision should be made by way of lump sum.
I am satisfied that the husband has the capacity to pay maintenance and to arrange his affairs so that he can meet a lump sum, or, in a way that would enable him to meet periodic payment.
Having regard to Mr Y’s opinion that some financial settlement would assist the wife in recovering some capacity for employment and the history in relation to the meeting of period payments of interim spousal maintenance, it is, in my view, desirable to make a lump sum allowance if maintenance is ordered.
The claim by the wife is simply for periodic maintenance and contribution to medical and other expenses. However, in circumstances in which an opportunity for reply to the submissions of the husband was taken, and no submission against the prospect of a lump sum order was made, in my view, that course is open.
The concessions of the husband as to the wife's needs were based on the dismissal of the wife's claim for further property settlement. I do not, therefore, rely on those concessions in circumstances where the wife is to receive some further settlement which will obviously impact on her financial circumstances. That impact is difficult to judge. However, her claim for average weekly expenses in the statement of financial circumstances filed 27 November 2000 indicated expenses of $680 per week. If some allowance is made for fixed expenditure with regard for accommodation whether rental or in her own premises, I think it reasonable to assess her needs at $800 a week. Counsel for the husband submitted that maintenance should be limited to a period not exceeding two years. He said that that submission was consistent with the submissions made on behalf of the wife.
In 10.13 of his submissions, counsel for the wife said:
“She will, for at least two years and possibly more, have difficulty in securing and maintaining employment sufficient to support herself adequately.”
The wife indicated keenness to return to work. She should she might secure that in coaching or sales.
In the circumstances, I consider that lump sum maintenance of $80,000 should be awarded, representing two years at $800 per week, rounded off.
I do not consider in those circumstances that it is necessary to make any separate provision for medical and other costs. Such a provision in my view would be likely to lead to further litigation in any event.
Counsel for the husband submitted that any spousal maintenance orders should be made retrospective to 12 November 1999. The order for spousal maintenance takes account of the order for property settlement which, of course, has not yet been paid. As well, I am not satisfied that I have evidence from the husband showing that the interim order was in any way for an inappropriate amount. In those circumstances, I do not intend to make the order retrospective with the consequent effect that would have on arrears owing under the interim order.

Terms of the orders

I consider that some reasonable period of time ought be given to the husband to arrange payment to the wife and it may be appropriate to make orders in the event of default of payment. No submissions, however, were made about these matters and I consider that I should give the parties the opportunity of doing so before finalising orders.

[2002] FamCA 237

7 February 2002

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