SH & DH (No.1) - [2003] FMCAfam 330

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SH & DH (No.1)

[2003] FMCAfam 330

FAMILY LAW – Property settlement – Consent order – Application to set aside order under s.79A(1) – Duress – Duress is a question of degree – Equitable concept of duress is applicable test – Relevant considerations in determining duress – Miscarriage of justice – Applicant carries the onus – Application dismissed.

Family Law Act 1975, ss.63H(1), 79, 79A, 79A(1)(a), 81, 87, 90K(1)(b)

Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 296
Crescendo Management v Westpac (1988) 19 NSWLR 40
Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653
Barton & Armstrong (1973) 2 NSWLR 598

Harris v Caladine (1991) FLC 92-217
Suiker and Suiker (1993) FLC 92-436

Molier and Van Wyk (1980) FLC 90-763
Holland and Holland (1982) FLC 91-243
Gilbert and the Estate of Gilbert (deceased) (1990) FLC 92-125
Kowalski (1993) FLC 92-342
Simpson and Hamlin (1984) FLC 91-576
Fickling and Fickling (1996) FLC 92-664
Official Trustee in Bankruptcy v Donovan (1996) FLC 92-676
Prowse and Prowse (1995) FLC 92-557
In the Marriage of Oastler (1989) 16 Fam LR 673
Clifton and Stuart (1990) FLC 92-194
Morrison (1995) FLC 92-573 at 87,673
Russell v Russell (1999) FLC 92-877
Kokl and Kokl (1981) FLC 91-078
In re S (1980) FLC 92-124
Pelerman and Pelerman (2000) FLC 93-037
Prior and Prior [2002] FamCA 327
Riley & Pateman (2000) Fam CA 1296
Malfa [2000] Fam CA 937
Kostomiris [2003] Fam CA 274
Benson & Benson [2002] Fam CA 569
Wildeboer (FC) 23 October 1997 (unreported)

Applicant:

Respondent:

File No:

SYM163 of 2002

Delivered on:

19 September 2003

Delivered at:

Wollongong

Hearing date:

29 July 2003

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr W. Moss

Solicitors for the Applicant:

Verekers

Solicitor Advocate for the Respondent:

Mr G Morrison

Solicitors for the Respondent:

Leo & Morrison

ORDERS

That the wife’s application to set aside section 79 orders made
18 September 2001 is dismissed.
That within 21 days the wife files and serves written submissions in relation to her application to apply to review the decision of the Deputy Registrar to approve the section 79 orders.
That within 21 days the husband files and serves written submissions in reply.
Any application for costs is to be made within 28 days by arrangement with my Associate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

SYM163 of 2002

Applicant

And

Respondent

REASONS FOR JUDGMENT

The Application

This is an application by SH (“the wife”) to set aside a consent property order made on 18 September 2001. She moves on her amended application filed 24 July 2003. Her application, which is made under s.79A of the Family Law Act 1975 (the Act) is based upon a claim that there has been a miscarriage of justice by reason of duress.
In the event that her s.79A application is unsuccessful, the wife seeks leave to file a review of the Deputy Registrar's decision whereby the s.79A order was made.
The relevant order was made on the wife’s Form 12A application for consent orders filed in the Family Court of Australia at Sydney on

10 September 2001. A Deputy Registrar made the order in chambers exercising power delegated by judges of the Family Court pursuant to s.37A of the Act and enshrined in Order 36A(2)(1A)(m) of the Family Law Rules. At the outset I raised with the wife's counsel my preliminary opinion that the alternate application had to be determined in the Family Court of Australia because the power delegated was that given by the judges of that Court. Order 36 contains the review procedures and provides that a Judge of that Court will determine the review. Counsel requested that submissions on this issue be deferred until I ruled on the s.79A application. In the event that the wife failed on her primary application it was agreed that I would receive written submissions addressing this issue.
The wife relied on the following:
·       Her amended application filed 24 July 2003.
·       Her affidavit sworn 30 June 2003 and her oral testimony.
·Affidavit of J sworn 21 July 2003. This witness was not cross-examined and I accept his evidence.
·Affidavit of Dr K sworn 24 July 2003. This witness was not cross-examined and I accept his evidence.
·       Her financial statement sworn 17 June 2003.
The husband relied on his response filed 9 September 2002. He did not appear personally nor present any evidence. The husband appeared by his solicitor who submitted that the application should be dismissed.
The husband did not dispute the wife’s evidence. Her evidence was the only account that the court received. The hearing proceeded on the basis that the husband asserted that the wife's evidence did not entitle her to the relief sought.

Short history

The husband was born on 21 November 1951.
The wife was born on 11 November 1953.
The parties married on 24 November 1970.
There are three children of the marriage. L born 30 April 1973, P born 2 February 1975 and O born 28 July 1977.
The parties separated on 9 April 2001 when the wife left the matrimonial home.
On 10 September 2001 the wife applied to the Family Court of Australia for s.79 orders. Orders were made in accordance with her application on 18 October 2001.
The wife applied to set the orders aside on 3 July 2002.

Background facts

When the parties married neither had any assets of value. The husband was an apprentice boilermaker and the wife worked as a shop assistant. Prior to their eldest child's birth, the parties purchased a block of land in Sydney. They paid $1,500 for it. Not long afterwards they borrowed $10,600 from a building society for the construction of their home.
When their first child was about five months old, the wife returned to full time work as a shop assistant as well as working part time packing shelves at a supermarket. In addition to his full time work as a boilermaker, the husband also worked at a service station in the evening. Both parties contributed their entire wages to joint matrimonial purposes.
The wife stopped work shortly before their second child was born. She later took night time work at a local RSL club. She was available to care for the children during the day and the husband cared for them at night. Once again she stopped work prior to the birth of the parties' third child, resuming casual work some time later.
In 1980 the husband left his employment as a boiler maker and took work as a miner. In 1982 his job was transferred to Queensland. The family moved to a mining house nearby to the mine. They rented out the matrimonial home and I infer applied the rent received to the mortgage. The wife obtained employment in Queensland and the pattern continued that when the husband was at work, she cared for the children while he cared for the children when she was at work.
The family returned to the Illawarra in 1985. Upon their return the wife obtained daytime employment and the husband worked at a mine. The husband's father gave them $30,000 in 1986 which enabled the discharge of the mortgage, acquisition of a motor vehicle and improvements to the home with some left over for living expenses. This was a contribution made by the husband.
In 1989 the parties formed a business partnership with another couple and purchased a service station. The wife worked 8 am to 5 pm Monday to Friday and 7 am to 4 pm Sunday. In addition to his full time work as a miner, the husband worked at the garage before starting work at the mine and casual shifts on weekends. The parties mortgaged their home in order to acquire the business. In 1992 their partners were made bankrupt and the parties were left with significant debts. The parties re-financed their home loan so that they could pay out the partnership debts and purchase a mechanical workshop. The mortgage was re-financed at about $120,000 - $130,000 through a Credit Union.
The parties operated the mechanical workshop as a two-person partnership. The wife worked in it 5-6 days each week from 8 am until 5 pm, sometimes later. The husband worked in it from 7 am until 12 noon. He still worked full time at the mine. The parties sold the workshop in 1997 for about $20,000. There were no debts owing on the business.
In 1994 the wife received $12,000, partly from her mother and from her mother's late partner’s estate. The wife's mother made a gift to the respondent of $10,000 at the same time. In total the parties received $22,000 by these gifts. This was a contribution made on behalf of the wife. The parties unsuccessfully defended a claim arising from the service station venture. In addition to their own legal costs, they were ordered to pay approximately $13,000 towards the Plaintiff’s legal fees. It is likely that the 1994 inheritance was partly used in paying the cost order. In any event all the monies were used for joint matrimonial purposes.
At about the same time as the service station litigation was under way the husband received $10,000 damages for a back injury. Those monies were used for joint matrimonial purposes.
The parties separated on 9 April 2001 when the wife left the matrimonial home. She took a suitcase of clothing and belongings and went to live at her mother's home. The youngest child, an adult, went with her.
A few weeks after separation, the husband told the wife that she should see a solicitor, in effect so that they could organise a property settlement. On 30 April 2001 the wife instructed her current solicitors. On 2 May 2001 the wife's solicitors wrote to the respondent (the first letter). The letter identifies the wife's opinion of the identity of the matrimonial assets and the value of some of them. Liabilities are identified, as is the husband's superannuation. The wife’s solicitor indicated that they wished to arrange for a market appraisal and asked the husband to provide his recent superannuation statements and the surrender value of a life insurance policy.
On 6 May 2001 the husband wrote a long letter in reply, sent directly to the wife and copied to her solicitor. He expressed his heartache at her decision to end the marriage and questioned the value of a Holden utility and a Holden Calais motor vehicle. He advised that the life insurance policy was cashed in many years earlier and that the superannuation had been drawn upon during a year that the husband was ill. He indicated that he was keen to retain the home but doubtful about his capacity to repay any monies he would necessarily borrow in order to pay out the wife. He wanted O to have the utility.
The husband then started telephoning the wife, she says “Nearly every second day and sometimes ... a number of calls on the one day.” The tenor of his calls was to the effect that the wife was destroying him and the family and that the house had always been intended for the children.
During May-June 2001, the husband telephoned the wife at her mother's home, her place of employment and on her mobile telephone. She says “On many days I received a number of calls.” The wife found the husband’s calls upsetting and she cried regularly. So that she could have a break from the calls on the June Queen's Birthday weekend 2001, the wife and a girlfriend went to Melbourne.
On 22 June 2001 the wife’s solicitors sent the husband a letter offering to settle the property matter. The wife identified the assets with a total value of $145,000 comprising:
·Matrimonial home valued at approximately $200,000, subject to a mortgage of $98,000. Net value $102,000.
·Calais motor vehicle valued at approximately $35,000.
·Hyundai motor vehicle valued at $16,000 and subject to a loan of $13,000.
·NRMA shares valued at $5,000.
The wife indicated that she would take responsibility for a $4,000 credit card debt. The wife claimed that she was entitled “to a 50 per cent share of $72,500.” I infer she intended to indicate that she would be entitled to a 50 per cent share or $72,500.
The terms of the settlement offer were essentially as follows:
·That the husband direct and authorise the trustee of his super retirement fund to pay her one half of the value of his interest as at the date of separation together with any accrued interest when his superannuation vests.
·That the husband pays her $40,000 within four weeks.
·And make an additional payment of $10,000 by annual instalments of $2000.
·That the husband forthwith transfers the NRMA shares to her.
·That she has a small quantity of jewellery and personal belongings.
The letter concluded:
“We request that you also refrain from harassing and intimidating our client or inciting your son to intimidate his mother. We request that the derogatory comments cease immediately or we will have no alternative but to seek the protection of the police or Court orders on behalf of our client.”
On 25 June 2001 the husband wrote to the wife and sent a copy to her solicitor advising that he accepted all the provisions of the agreement, excluding payment of interest on superannuation. After the wife received the second letter, she received further phone calls from the respondent. He said, “I can't afford this. I will have to sell the house. The kids will be out on the street. And if you take the Calais it will reduce my debt by $35,000.” The husband rang a number of times asking the wife to take the Calais as part of her s.79 entitlement.
On 25 July 2001 the wife consulted Dr K. He concluded that she showed depressed mood and insomnia. He prescribed Prozac and diagnosed that she was depressed. His prognosis was that the wife would make a full recovery. In his report Dr K indicates that it was impossible to ascertain the cause of her depression.
On 30 July 2001 the husband wrote to the wife complaining that he had not received a reply to his letter sent 25 June 2001. He asked that the wife arrange to transfer the Holden Calais into his name. At that stage the Holden Calais was still registered in the wife’s employer's business name. He discusses their son’s mental health, which apparently was deteriorating and the emotional and financial turmoil that caring for their son is causing. The husband wrote, “At times I feel like ending it all.”
On 3 August 2001 the wife collapsed at a bowling club and was taken to hospital. She was discharged the same day.
On 9 August 2001 the husband wrote to the wife and sent a copy of his letter to her solicitor. It is a grim letter that recounts his distress, concern for the wife’s health and in some detail their son's rapidly deteriorating mental health. The husband blames the wife for their son's deteriorating mental health. He enquires about title to the Holden Calais and questions why the wife does not have superannuation.
Some time between the wife's visit to her daughter in August 2001 and her departure for a short trip to Queensland in late August 2001, the wife took possession of the Holden Calais. During the interregnum it appears that the parties had agreed that the wife would take the Holden Calais as part of her entitlement. Because nearly two years had passed since it had been purchased and title was not yet transferred, both parties were worried that there may be difficulty with title to the Holden Calais. The husband continued to telephone her, complaining that she should not take the Holden Calais until it was transferred into her name. The Holden Calais was purchased from the wife's employers. They had paid $36,900 for it in September 1999. The manager embezzled the monies and transfer of registration was not effected. Unbeknownst to the parties, the car was subject to a loan to Esanda. Unfortunately, although both were concerned neither party undertook a search of the relevant Dept of Motor Transport register,
On 28 August 2001, the wife signed an application for consent orders attested before her solicitor. In her application she swears that she has had independent legal advice about her rights under the Family Law Act 1975 and the effect and consequences of the proposed orders. Her solicitor completed a statement of independent legal advice the same day. The following day the husband affixed his signature to the application before a Justice of the Peace. On 30 August 2001 a solicitor completed a statement of independent legal advice indicating that he had had advice as to the meaning and effect of the proposed orders.
The orders are dated 30 August 2001, and carry both parties' signatures, which are witnessed by their solicitors. The orders provide that the husband will immediately pay the wife $15,000 and arrange delivery to her of the Holden Calais. The wife is to have the personal items referred to in the letter of 22 June 2001 and retain the NRMA shares in her name. The wife indemnifies the husband in relation to her credit card debt. The order includes a suite of provisions whereby the husband directs the trustees of his Super Retirement Income Fund to pay the wife $40,000 when his interest vests. The provisions include a series of injunctions in furtherance of the superannuation order. In the event that the Calais is repossessed or title is not transferred, the respondent is ordered to pay the applicant an additional $15,000. Simultaneously with payment of the monies by the respondent to her, the wife transferred her interest in the former matrimonial home to the husband who was required to contemporaneously provide her with a release from the mortgagee.
On 7 September 2001 the wife moved to Queensland permanently.
The orders were made on 10 September 2001 in chambers.
In December 2001 or early January 2002 Esanda Finance Ltd repossessed the Holden Calais. In spite of an earlier request, the husband did not pay the default $15,000 for the Holden Calais until after these proceedings commenced.

Section 79A

Section 79A is a remedial section designed to overcome miscarriages of justice. It applies to orders made after a defended hearing as well as to orders made by consent: Harris v Caladine (1991) FLC 92-217.
The 1979 amendment broadened the section’s application to allow the setting aside of a s.79 order where “there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance”. The Court now has power to set aside an order for settlement of property which arises not only as a result of a miscarriage of justice by reason of the specific grounds in the section, but also by reason of any “other circumstance”. The phrase, “or any other circumstance” in s.79A(1)(a) is not to be read ejusdem generis with fraud, duress, suppression of evidence or the giving of false evidence: Clifton and Stuart (1990) FLC 92-194; Suiker and Suiker (1993) FLC 92-436.
Importantly, s.79A(1)(a) only applies to circumstances in existence before or at the time the original order was made, it does not apply to circumstances occurring afterwards: Molier and Van Wyk (1980) FLC 90-763; Holland and Holland (1982) FLC 91-243.
Case law suggests that s.79A should be construed liberally so as to achieve its intended purpose: see for example Gilbert and the Estate of Gilbert (deceased) (1990) FLC 92-125. However, while this is so, the section should not be used to override the basic principle that “there can only be one property settlement between the parties to a marriage”: Kowalski (1993) FLC 92-342. The importance of bringing an end to litigation is an important and significant consideration: Simpson and Hamlin (1984) FLC 91-576.
When determining an application under s.79(1)A the court must engage in a four stage process. The four stages are:
(i)Whether a ground, such as duress, under the section is established;
(ii)Whether the existence of that ground amounted to a miscarriage of justice;
(iii)Whether the court in its discretion should vary or set aside the order; and
(iv)Whether the court should make another order under s.79.

Accordingly, even if a ground such as duress is established under the section, the court can refuse to exercise its discretion to set the orders aside: Fickling and Fickling (1996) FLC 92-664. The court must be satisfied that there has been a miscarriage of justice to justify setting aside or varying the consent orders. It is not sufficient to simply establish, for example, that the orders resulted from duress. Accordingly, if a ground exists for setting aside an order the court is not required to immediately set it aside. Rather, the applicant must establish a ground for relief and satisfy the court that it should exercise its discretion in their favour: Official Trustee in Bankruptcy v Donovan (1996) FLC 92-676; Prowse and Prowse (1995) FLC 92-557.
If the court sets aside the order and proceeds to make a fresh order under s.79, it is required to consider all factors which must be considered under s.79(4), s.79(2) and, so far as they are relevant s.75(2). Generally the s.79A application and any consequent s.79 application should be heard at the same time: In the Marriage of Oastler (1989) 16 Fam LR 673. If the court considers it appropriate to set aside an order under s.79A, the claim should be determined as at the date of hearing the s.79A claim and not at the date the original orders were made: Fickling and Fickling (supra)

Miscarriage of justice

In order to set aside an order under the s.79(1)(A) the court must be satisfied that there has been a miscarriage of justice and that the original orders should be varied or set aside as a consequence: Fickling and Fickling (supra). It is not sufficient to merely establish the existence of duress or some other ground under the section, a miscarriage of justice must have resulted.
A miscarriage of justice results when there has been a failure to attain justice. It covers any situation “which sufficiently indicates that the decree or order was attained contrary to the justice of the case”: Holland and Holland (supra).Accordingly, the term is not restricted to vitiating elements in procedure followed in the court.
The fact that a party received less than would have been ordered by the court does not by itself amount to a miscarriage of justice. However, it was stated in Holland and Holland (supra) that if the outcome of consent orders was so far removed from being seen as just and equitable the court may infer, if that is the claim, that a party has acted under duress, in ignorance or as a result of incompetent advice. It was stated that:
“agreement to a consent order which may not adequately reflect a party’s entitlement under s.79 does not, of itself show that there has been a miscarriage of justice. There may be cases where the order consented to is so far outside the ambit of what is just and equitable that the court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice”.
This principle was further reiterated in the unreported case of Riley & Pateman (2000) Fam CA 1296 where Jordan J stated:
“…the capacity of the court to revisit property claims is dependent upon a miscarriage of justice having been occasioned by one of the matters specified in the section. If the end result is a just and equitable distribution of property, then no financial harm has been occasioned by the conduct of the respondent. Remedies under Part VIII of the Family Law Act, which includes section 79A, are pecuniary by nature and not punitive. They are designed to ensure that each of the parties meet their financial obligations and receive their proper entitlement. If that end result has been achieved, notwithstanding defects in the process, and if the grievance complained of has not produced an unfair result, then, in my view, the role of the Court has expired and the final order should not be interfered with.”
It is apparent that a party may be able to establish a miscarriage of justice in respect of consent orders if their consent was not a true consent: Holland and Holland (supra).
Likewise, the Full Court in Clifton and Stuart (supra) stated that incompetent legal representation would not amount to a miscarriage of justice unless it amounted to no representation at all. The Full Court noted that the remedy for this was to be found in the law of negligence.

Duress

Duress is specific category under which an order can be varied or set aside under s.79A(1)(a) provided the duress resulted in a miscarriage of justice. The question that is important is the degree of duress required under the section to enable orders to be set aside.
Duress and undue influence are concepts well established in the criminal law, common law and equity. Duress also features in a number of provisions in the Family Law Act 1975. For example revocation of a s.87 deed of agreement, as a basis for nullity of marriage, pursuant to s.63H(1) to set aside a parenting plan and its registration and setting aside s.79 orders. Although s.90K(1)(b) does not refer to duress, it is a contractual ground for setting aside a financial or termination agreement. The Act does not define duress and one must examine the case law in order to discover its meaning.
The criminal standard of duress is regarded as too onerous for application to civil areas of law. In “Halsbury’s Law of England” 4^th Edition, Volume 11(1), paragraph 24, the authors state that at common law, duress constitutes the existence of threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance to the doing of acts. Basically there must be actual violence or threats of violence to the person or a close associate to the point that their will was overborne: Barton v Armstrong (1973) 2 NSWLR 598 per Mason JA at 617. In the same case Jacobs JA at 611 described the test at law thus:
“What must be shown is that the threats operated upon the mind of the threatened party to the extent that he was brought into a state of fear sufficient to subject him to intimidation”. See however, Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 296.
Equity provides relief to set aside a transaction induced by pressure falling short of common law duress. Accordingly, the test of duress is less stringent. In Crescendo Management v Westpac (1988) 19 NSWLR 40 per McHugh JA at pp 45-46 rejected that the pressure must have the practical effect of compulsion or the absence of choice, usually referred to as “the overbearing of will” test. McHugh JA agreed with Lord Simon of Glaisdale in Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 where he held:
“that duress is not inconsistent with act and will, the will being deflected not destroyed”.
McHugh JA’s formulation of duress is: “A person who is the subject of duress usually knows only to well what he is doing. But he chooses to submit to the demand or pressure rather than take an alternative course of action. The proper approach in my opinion is to ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed.”
This description of “duress” has received widespread appellate support in Australia. See also Meagher, Gummow and Lehane, Equitable Doctrines and Remedies 4^th Edition at par 12-060. At par 15-055 the learned authors write:“..the enquiry by a court of equity was a more delicate one into the inducement of the apparent consent of the disponor and as such involved detailed consideration of evidence often relating to a lengthy course of dealing.” An approach consistent with that historically undertaken by the Family Court in duress cases.
It is clear that the test of duress is not purely subjective but includes objective elements: Riley and Pateman (supra).
Duress as a ground to render a marriage a nullity is described in the case law to mean “the compulsion of a person by physical or mental harm”: See for example Kokl and Kokl (1981) FLC 91-078; In re S (1980) FLC 92-124. In re S Watson SJ moved away from common law notions concluding that fear and terror are not prerequisites required to establish duress. He said: “the emphasis on terror or fear in some of the judgments seems unnecessarily limiting. 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 marriage that consent is vitiated by duress and is not real consent. This is so howsoever the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression.” Accordingly, the court would need to satisfy itself that the consent was not a voluntary consent. He stated: “it is the effect of the oppression on his mind that should be the operative factor, not the form of such oppression.” In effect this decision established that in family law proceedings, at least in relation to nullity, the court applied equitable notions of duress. The language used by Watson J is consistent with the tenor of equitable duress at that time.
The amount of pressure required before duress will be established has to be more than the inherent and initial pressure that is characteristic of most negotiation processes. This recognises that in some circumstances pressure can be reasonable and legitimate. Thus the Full Court of the Family Court in Pelerman and Pelerman (2000) FLC 93-037 at paragraph 87 (page 87,589) stated:
“In the circumstances of parties who are separated and carrying out negotiations against a background of proceedings having been instituted by one of them, negotiating positions are established which, of their very nature, produce some pressure. However, elevating that pressure to the level required to attract the requisite principles is another matter. In any event, it is not consistent with pressure of the type amounting to the equitable concept (my emphasis) of ‘duress’. The wife nonetheless, felt sufficiently free of such pressure to institute property settlement proceedings against the husband.”
Similar sentiments are expressed by the Full Court in Prior and Prior [2002] FamCA 327 (unreported). The Full Court said:
“No doubt counsel and solicitors have to exercise care when negotiating with an unrepresented party but this does not mean that they are not entitled to forcefully advance reasons why that party should settle”.
In my view the Full Court’s reference to “the equitable concept of duress” in Pelerman reveals that duress in a s.79A context is to be measured by reference to equity’s formulation of the principle. Equitable notions as far as they had then developed are consistent with the test formulated by Watson SJ to vitiate a marriage on the basis of duress. This means that the applicable test is that formulated by McHugh JA in Crescendo Management v Westpac (supra).
There is nothing in the Act, which suggests that duress should have a different meaning in, financial as compared to nullity proceedings. Jordan J appeared to take a slightly different approach in Riley and Pateman (supra) saying that the proper approach to s.79A duress:
“probably fall somewhere between the criminal tests and the tests relating to consent to marriage. In my view, inquiries whether the consent to marriage was “real” involves, what may be described as a somewhat negative enquiry, whereas the need to establish “duress” in the context of these proceedings requires something more positive”.
Although he did not say so, it seems to me that Jordan J considered that s.81 influenced the nature of the duress that needed to be established. Including s.81 considerations in the determination of whether there was duress has the effect of elevating the degree of pressure needed. Reading his judgment in its entirety Jordan J appears to have applied duress as defined in equity and overlain it with s.81 considerations. There is probably no real difference with this approach by the time the four-stage s.79A process is completed. In my opinion s.81 influences whether the court should exercise its discretion to vary or set the orders aside.
In Riley and Pateman (supra) Jordan J stated proximity to be a relevant consideration in the application. He referred to the case of Barton v Armstrong (supra) and stated that the threats in question must be a reason for entering into the contract. In Barton v Armstrong (supra) the “predominate cause” test was rejected. The threat does not need to be the sole or major reason for entering into the impugned agreement. Thus, it is apparent that there has to be some connection between the threats and the resolution of the proceedings. By way of illustration he stated:
“At the very least…issues of proximity and materiality or causation are matters relevant to a consideration of the exercise of my discretion. By way of illustration, at one end of the scale, if a person is being stood over by somebody in possession of a gun, forcing them to execute a consent order, there simply could be no doubt about the issue of duress being established. At the other end of the scale, if on the day of separation, some two years before trial, a party was heard to say, “if I don’t get what I want, I will destroy you”, or “You will never see the children”. Then it is unlikely that those statements alone would be sufficient to support a conclusion of duress”.
The fact that a party signed orders after due consideration and advice from solicitors is a relevant consideration in determining whether to set aside an order pursuant to s.79A by virtue of duress. A finding that consent orders were signed after due consideration and legal advice presents difficulties in establishing duress: See Malfa [2000] Fam CA 937 per Steele J.
It is apparent that in determining an application to set aside orders pursuant to s.79A on the grounds of duress the court is required to examine the circumstances of each case, the circumstances surrounding the alleged duress and the resolution of the proceedings.

Recent decisions concerning s.79A(1)(a) duress

The following cases all concern applications to set aside consent property orders. In each case the court has been concerned that it delivers individual justice and has applied modern formulations of the equitable concept of duress.
In Kostomiris [2003] Fam CA 274 (unreported) following upon consent orders a different agreement was reached between the parties which the husband sought to formalise. In response the wife sought to set aside the original consent orders pursuant to s.79A, alleging a miscarriage of justice because of duress inter alia. She alleged that at the time the agreement was reached she had suspicions that the husband had overstated the mortgage, but that she could not argue with him for fear he would react violently. She alleged that threats were made to kill her if she sought certain property and that she feared for her life and the children’s. There was a domestic restraining order on the husband and the wife had received a threatening letter after the orders were signed. Burr J dismissed the wife’s application. He found that the period leading up to the consent orders was characterised by “robust” negotiations during which the wife imposed terms. His Honour confirmed that only the circumstances leading up to the making of the consent orders was relevant. Burr J had difficulty accepting that the wife was so scared and overborne that she was forced to sign the orders, as the husband’s behaviour has remained largely unchanged since they were made and that in that period she did the very things she said she had been previously afraid to do. That she was not overborne within these few months indicated that she had not been overborne when she signed the orders. Basically nothing had changed. In addition, the wife was legally represented, advised throughout and engaged in “extensive and thorough negotiations leading up to the consent orders”.He found her to be clearly capable of applying clear and informed thinking to matters in issue. His Honour failed to find the requisite proximity between any threats and the making of the consent orders.
Benson & Benson [2002] Fam CA 569 (unreported). In this case the husband sought to set aside consent orders pursuant to s.79A. One of the grounds alleged was duress. The circumstances surrounding the consent orders were that his wife had made threats to commit suicide and that he had taken these threats seriously as his new partners husband had committed suicide when they failed to end their affair. He also received threats that the children would be killed and was told his wife was suffering from cancer. He alleged he was left vulnerable in negotiations. An important factor in Cohen J’s decision to dismiss the application was that none of the wife’s threats were related to financial negotiations and that there was in fact no dispute in relation to financial settlement. Moreover, he found that the fact that the husband did leave the wife despite such threats indicated that he was not as fearful of the consequences as he claimed. Importantly, His Honour found that he did not decide his offer in isolation, but was assisted by his brother an accountant and one of his partners. The husband had also made a threat to the wife if she refused to accept the offer a circumstance inconsistent with someone who feared the other was suicidal. His Honour was not satisfied that the husband acted under compulsion.
In the case of Riley & Pateman (supra) the wife sought to set aside consent orders under s.79A based on duress. The husband had burnt down the matrimonial home at separation, harassed the wife until three months prior to signing the orders in circumstances where the wife was suffering from fluctuating degrees of clinical depression and emotional instability. The wife was seeing a therapist for ten months because of this. She also obtained a domestic violence order that the husband was convicted on breaching. Jordan J concluded that duress could not be established as she was legally represented, partook in negotiations and instructed her solicitors to put offers to the husband so that “whatever the wife’s emotional state was, from time to time, she exhibited a capacity to deliver clear instructions and apply clear thinking to the complex matters being canvassed”.In addition, his Honour found that none of the threats and intimidation were directly related to litigation before the court, only one matter (a most intimidating note written in charcoal and left on her bed) was related to financial matters, but not the proceedings themselves. His Honour was not satisfied that the wife was subjected to relevant duress in entering the consent orders, or that she was not capable of providing informed consent, or that she did not make an informed consent.
Wilderboer & Wilderboer – 23 October 1997 (unreported). In this case the wife sought to set aside consent property orders. She complained that the husband suffered from post traumatic stress disorder and a mental illness as a consequence of his war time experiences. Throughout their marriage she said he was overbearing and dominating, though not physically violent. His hostile and overbearing behaviour enabled him to coerce her into a variety of acts against her will. The husband denied the wife’s claims. The trial judge preferred the wife’s evidence and accepted medical evidence corroborating her allegations about the husband’s mental health and its effect upon his behaviour. After the wife left the family home the husband harassed her, telephoning her and her new partner endlessly, at home and at work. This harassment did not end until the wife obtained a domestic violence order. The husband made threats to the wife and her partner, threatening to expose conduct that she was very concerned to keep private. He also involved their eldest son in the negotiation process. The wife had one 20 minutes conference with a lawyer before she signed the consent orders. The trial judge concluded :“these threats were made in an effort to effect a reconciliation but they, in any event, had a very distressing effect on the wife.”

On appeal the wife’s counsel conceded that the conduct complained of was insufficient to establish duress. Although not specifically commented upon, the Full Court’s decision inferentially agrees with this analysis. Instead counsel relied upon “any other circumstance” in the provision. He said that her case fell within the wider basis of “undue persuasion”: See Morrison (1995) FLC 92-573 at 87,673. The Full Court held that it was not reasonably open to the trial judge to find that the wife’s will was overborne and that her consent was not true consent. A significant factor in this case was that the wife had received legal advice, was living in a defacto relationship and had various means of support. The Full Court stated that whilst the husband’s behaviour:
“would have had an impact upon her and may have led her to a view that it was important to bring those pressures to an end by agreeing to property orders. But that, we think, is a different matter from concluding in this case that her consent was not true consent or that she did not play an active part in terms finally agreed upon.”
Finally the Full Court concluded that even if there was “undue pressure” the readjustment made by the trial judge was insufficient to justify a conclusion that there was a miscarriage of justice. Her claim for s.79A relief failed.

Applying the law to the facts

The first question to be answered is whether the wife establishes duress. There is no suggestion that during the marriage the husband was overbearing or violent. When the wife left the home she took only a small collection of personal items. Shortly after separation the wife says the husband spoke to her in an aggressive manner when he said “All the rest of your things are out in the trailer and I am taking them to the dump”. It seems he did not do as he threatened as some time later their daughter P collected the wife’s clothes and took them to the wife’s home. A few weeks after this conversation the husband telephoned the wife and said “Go to a solicitor. I want you out of my life. I want this settled”. The wife did so and the process of advice, negotiation and discussion started.
Having taken initial advice the wife asked that the husband give access to the home for a real estate appraisal. He refused saying a number of times in the one conversation when this issue was raised “It’s my house. No one is going through my house.” The wife then instructed her solicitors that the property had a current value of approximately $200,000. I do not know the basis upon which she formed this opinion.
Although the wife instructed that the house was worth $200,000 in their first letter to him her solicitors sought access to it for an appraisal. While the husband responded to other aspects of this correspondence he did not address this issue. From that point on the issue of valuation of the home seems to have been dropped and all parties proceeded on the basis of the figure attributed to it by the wife. At no time did the wife apply for an order that she has access to the home, nor is there evidence that at that time the figure agreed was unreasonable. The relevance of this issue is that this is the first indication that the husband may be uncooperative during negotiations.
Counsel’s submissions focussed on letters and telephone calls the husband made to the wife. As to the former he emphasised content and to the later, content and frequency. The letters address a variety of subjects. Firstly, the husband explains his heartache that the wife has left their marriage. He speaks of his life long love for her, addresses her as “princess” and throughout expresses a desire “I have but one dream in life and that is to have my family back as it has been for the last 30 years.” He explains that he is at a loss to understand why they have separated and as the letters proceed the strain that separation is putting him under.
Although O initially left with the wife, not long after separation he returned to live with the husband. After separation their son Peter (not his real name) appears to have psychologically unwell. In the first letter from her solicitor the wife complained that the husband provoked Peter to intimidate his mother. I do not know what Peter is alleged to have done, however the husband’s response: “I will instruct my son to be a good boy, but at 23 he would probably be able to make up his own mind. When people are suffering from broken hearts they sometimes do things they are not responsible for. It would be appreciated if you could assist him financially as he is still very sick and cannot work.”
At the same time the husband writes to the wife’s solicitor informing her that Peter is very sick and that the suggestion that his mother might take police action against him has set his health back. In his next letter, dated 30 July 2001, the husband reports that Peter’s mental health is deteriorating and:
“some days I just don’t know what to do to help him. He still won’t work or go on the dole the financial burden on me makes my life even more miserable than it already is, at times I feel like ending it all, maybe then the pain and suffering will go away. I sometimes think that maybe I should walk out on my family the way that you did, that way I would be as happy as you are, would you like to swap places?”
The husband reports that Peter cries and believes that his mother has deserted him. This letter concludes with a request that the wife asks her solicitor to move the negotiations along.
Apparently Peter’s mental health continued to deteriorate, which in turn the husband says is putting him under intense strain and that “I don’t sleep there is not a day go by that I don’t spend in bed crying”.The husband reveals that he is now physically afraid of Peter, particularly when “he comes at me in his wild fits of temper.” The husband asks the wife to help him decide whether Peter should be “locked up”, and finishes by blaming her for what is happening to Peter.
These letters deal with the apparently grim reality of the effect of the separation on the husband and Peter. The wife does not suggest that the husband account of Peter’s deteriorating mental health is exaggerated. The husband appears to have recounted what was happening and tried to keep the young man’s mother informed about a very serious issue. Increasingly he desperately asks for her advice and assistance, financially, as well as in making decisions he did not wish to make alone. The wife does not say that she was fearful that the husband might commit suicide, rather that his threat to do so contributed to her stress, as did the information concerning Peter’s health and the fact that the husband blamed her for it. Irrespective of whether he intended to place her under pressure he did so. Her tears are understandable and that she found the situation stressful and emotionally worrying is almost inevitable. After 30 years of marriage it is hard to imagine how she could have reacted in any other fashion to her son and husband’s plight. These issues it seems to me are not attempts by the husband to influence the concurrent financial negotiations. The issues raised by him are serious family issues. Because the parties were married for 30 years the husband turned to the wife for help, for himself and their adult son. He was in a state of personal crises and felt the wife ought to assist, or at least know what was happening.
Simultaneously the correspondence and telephone calls address the negotiations. The correspondence has a number of threads to it. Firstly, the husband would like matters resolved as quickly as possible. Next he is dismayed that the wife is prepared to abandon their prior plans that the home would ultimately be left for their children and that the NRMA shares were intended for their grandchildren’s education. Aware that they must complete a financial settlement he desperately wants to keep the house and repeatedly points out that his borrowing capacity is limited by his inability to repay substantial periodic mortgage instalments. Essentially that if the wife asks for more than he can repay the house will be sold. Hence he and the children will have lost their dream. Because the wife can live with her mother, he strongly argues that it is unreasonable that she force a sale.
After her solicitors first letter the husband said he wanted Peter to have the 1978 utility. He disagrees with the value of $18,000 that she attributes to it and invites her to sell the car for that amount. On a more serious note he says that he and Peter rebuilt the utility and he wanted Peter to have it. There is no evidence that this request was unreasonable and the wife’s agreement was understandable and apparently freely given. She had legal advice when she agreed that it would not form part of the asset pool. I do not accept that there is a basis for complaint now.
This meant that the revised asset pool had a nett value of about $145,000.[1] It is highly relevant that the compromise then offered by the wife is made on the basis “To avoid any unnecessary legal expenses we confirm that our client would be prepared to settle on the following basis even though she entitled to a larger share.” Thus as at 22 June 2001 the wife knew that her s.79 entitlement was greater than she pursued but decided because she wanted to contain legal expenses to comprise. Given the modest size of the asset pool, economic reality suggests that such a compromise was reasonable and is indicative of sound legal advice. It suggests to me that the wife brought sound judgment into play and that far from being unable to make decisions with a clear mind, she demonstrated logical thought processes. That other litigants in a similar position might have decided otherwise is not the point. The expressed basis for the compromise reveals reasoned consideration that the financial cost of proceeding further made doing so economically unwise.
[1] Annexure C wife’s affidavit
In the 22 June 2001 letter the wife repeats her claim to half of the husband’s superannuation. These negotiations took place before the superannuation splitting laws became operative. Thus if the wife wanted a share of the husband’s superannuation she could achieve this only by agreement. Courts did not yet have the power to split his superannuation interest. This issue was raised and pursued by the wife. It indicates that in late June 2001 the wife was bringing clear thought to the negotiations and had an active input into the structure of the proposed settlement. Had he wanted to do so, the husband could have refused the superannuation agreement. The wife would then have had to wait until the superannuation laws became operational on 28 December 2002 in order to obtain a share of his superannuation. Proceeding as she did, she demonstrated a clear capacity to preserve her own interests.
The wife says that her agreement outlined in the 22 June 2001 letter is the result of duress by the husband, through his letters and telephone calls. During June 2001 the husband threatened that he would spit on her if he saw her and that if he saw her in the street he would run her down. The wife says she felt intimidated by him and did not go to places where she may have seen him. Her solicitors give a different reason for their clients offer to settle at less than fifty percent of the available assets.
Their letter makes it clear that her compromise is based upon a desire to minimise legal expenses. I am satisfied that it was also influenced by a desire to take a share of the husband’s superannuation. Of the realisable assets the wife says she will take $45,000 assets and cash within four weeks and $10,000 over 5 years. Because she will repay the $4,000 credit card debt this means she agreed to accept about 36% of the assets. She wanted 50% of the husband’s superannuation. At that time both were aware that they might not take title to the Calais.
It seems that the husband was prepared to accept this proposal until he discovered that he could not borrow $40,000. Thus he proposed that the parties give effect to the same agreement structured differently. In his letter dated 5 August 2001 the husband proposed that the wife take the Calais, which she had always maintained was worth $35,000 and he would pay her the cash balance by instalments. In mid August 2001 he rang the wife and said “If you take the Calais then it will reduce my debt by $35,000. This is what I can afford. You get the Calais and that will lessen the debt a bit. I’ll just pay you $15,000.” Because he had not had a quick response from the wife’s solicitor, the husband telephoned her asking what her solicitor was doing. The frequency seemed to have abated to a small degree, from 2-5 times daily until mid August 2001 until they picked up again to about 3 times a day while the wife was in Queensland during late August 2001. During the calls, which were about the status of the negotiations the husband said he was going to kill himself. The wife does not suggest that she believed he would act as he threatened but says that his threats placed her under pressure.
The calls made while the wife was in Queensland post date the wife giving instructions to her solicitor that she agreed to the husband’s alternate proposal. Those later calls have no obvious nexus to the settlement and consent order. She also signed the application for consent orders and the orders before she left for Queensland. When she went to Queensland the wife took the Calais, something the husband strongly objected to. That she acted contrary to his express desire suggests that in late August 2001 she was able to disagree with him on financial and property issues and act against his wishes. It undermines her claim that she was under such pressure that she just gave into his demands.
It is during late July - mid August 2001 that the wife consulted Dr K and collapsed at the bowling club. Dr K said the wife was “feeling very sad and down”. The doctor does not suggest that the wife was not thinking clearly. There is no evidence from the doctor that the wife lacked the capacity to adequately understand the legal advice she received or to analyse it by reference to her own interests and other relevant considerations. His prognosis is optimistic. The absence of evidence that the wife was not able to properly instruct her solicitors at that time is important. The wife consulted her doctor when the frequency of the husband’s calls was at their peak and the content included threats to commit suicide. Her doctor indicates that the wife had a form of depression that could be managed conservatively. It was not serious enough to warrant the wife taking time off work, did not stop her socialising and did not interfere with her capacity to make informed decisions.
The circumstances surrounding her collapse at the bowling club are outlined in the emergency department’s notes. The wife and her mother went to the club for an evening meal and to play the poker machines. The wife had not eaten breakfast or lunch and had two drinks with her meal. When she left the poker machines she felt light headed and collapsed. She stood up, collapsed again and vomited. She told the hospital that she had been recently stressed. After two hours at the hospital and a battery of tests, they concluded that the incident might have been stress related and discharged her. No follow up action was undertaken. The wife says that this incident corroborates her claim that at the time she instructed her solicitor to settle the negotiations she was stressed and under extreme pressure. So much pressure it amounted to duress. However this incident took place within eight days of seeing her doctor and after she started Prozac. While she had taken a number of phone calls from the husband during the interregnum I am not satisfied the intensity of the pressure had escalated or her anxiety increased. The fact that she was at the club undermines the wife’s claim that she stopped going to clubs.
When the wife instructed her solicitors that she would settle she had the benefit of their advice as to the nature and effect of the agreement. Clearly they were appraised of her concerns about the husband’s telephone calls and Peter’s behaviour. From early in the negotiations that she was prepared to compromise her s.79 entitlements rather than incur significant legal costs. From the start of the negotiations until the orders were made she had legal advice. Any compromises she made were made after she had conferred with her solicitors and I infer received advice as to her planned course of action. That is clear from the passage of correspondence. It is only after she has signed the application for orders that the wife finally tells the husband of her agreement to his final proposal. Thus I am satisfied that throughout the entire negotiation the wife knew she was entitled to a larger share of the matrimonial assets and that she decided for commercial reasons to compromise her entitlement. The wife has a background in small business management, a factor that enhances her capacity to understand the advice she received and to evaluate compromise by reference to economic considerations. The wife was not a passive bystander in the negotiations. She gave instructions in relation to the value of assets and secured a superannuation benefit that could only have been achieved by agreement.
Just as the husband did, I have no doubt that the wife found Peter’s mental health issues distressing and stressful. The husband bore the brunt of it and it is understandable that he informed the wife about what was happening to their son. Peter was in real difficulty. He wanted her support and guidance with the difficult issues they faced as parents with their troubled son. Blaming her for Peter’s distress was unreasonable. In blaming the wife the husband appears to have been motivated to try and persuade her to return to the family, not at trying to gain a greater share of the parties finances. Essentially if she returned Peter would feel loved by her and his health may improve.
At no time does the wife indicate that she believed that the husband might take his own life or that he would actually physically harm her. The fact that he was saying these things was stressful but not so stressful that she took the obvious step of obtaining a domestic violence order.
While these events may have made her psychological state more vulnerable, Dr K’s evidence undermines any claim that she was in such a vulnerable psychological state that she had no reasonable alternative other than to give in to the pressure that the negotiations induced. Negotiating the adjustment of property after a long marriage where the asset pool is modest is commonly difficult particularly when one party only ends the marriage. Emotions can run high and it is difficult to financially acknowledge contributions when there is little money available. Pressure is almost certain to follow. Parties traditionally use a combination of financial and legal logic as well as their own notions of fairness to broker an agreement. This is precisely what occurred here. The husband was prepared to agree with the wife provided he could keep the house. Negotiations within the context of capacity to repay any loan and hence avoid the prospect of later default are common. While under stress the wife knew what she was doing at all times and at no stage was she rendered incapable of clear thought or informed decision-making.
There is a temporal nexus between the pressure the husband was putting her under by virtue of the frequency and content of his telephone calls, the letters and the financial issues that were being negotiated. This pressure continued until the agreement was reached. The husband made the bargaining process hard and the position he took about the importance of keeping the home was at the forefront of the negotiations from the outset. The husband’s notion of fairness and personal desperation to retain the home meant he engaged in robust and personal negotiations in order to achieve his aim. Aspects of his conduct were unreasonable. However the degree of pressure that this situation engendered was within the range of reasonable and legitimate pressure. In making this finding I do not say that I condone his approach or that the wife could not have successfully sought a domestic violence order in order to stop his calls. Throughout the wife had legal advice and representation, she maintained her full time job, she was able to take a short break with a friend and had her mother’s daily support. Her doctor did not suggest that her reasoning was impaired in the sense that her capacity to preserve her own financial interests was deflected. While the husband’s threats were upsetting the force of his threats was not such that the wife thought it necessary to apply for some form of protection order. When she settled the case the wife obtained an advantage, superannuation that she could not have obtained at a hearing, a factor that demonstrates she contributed elements of the agreement that were favourable to her. Taking into account the entire circumstances of the case I am not satisfied that the wife has established the requisite degree of pressure.

Do the orders per se demonstrate that there has been a miscarriage of justice? I accept the wife’s counsel submission that the wife was entitled to between fifty and fifty five percent of the property. Initially the wife wanted the husband to have the Calais. No doubt for the same reasons he eventually wanted her to have it – the risk that they did not have good title. The wife’s application for consent orders identifies that the gross assets were worth $247,000 and the joint liabilities total $116,000. The nett asset pool was thus $131,000. This includes the Calais at $30,000. Including the Calais the effect of the orders is that the wife received $46,700 and carried $2,000 credit card liability (qn38). The husband took assets worth $215,400 and liabilities of $115,200. Thus the wife received 34% of the nett assets and the husband took 66%.
Because of the risk that the car may be repossessed the husband agreed to the wife’s demand that the orders provide a default clause whereby in this event he would pay her an extra $15,000. Putting the Calais to one side the asset pool was $101,000 nett. In this scenario the wife received $31,700 ($29,700 nett) and the husband had the balance. In percentage terms she received 30% and he received 70%.
It cannot be overlooked that the wife took $40,000 or about 50% of the husband’s superannuation interest. When this factor is taken into account the wife’s s.79 entitlement falls by about 5% to 50%. Thus the wife appears to have received about 16-20% less than she would have done had a court determined the matter. In dollar terms that translates to about $20,800.
Section 79(2) requires that court must consider the actual orders in determining whether an outcome is just and equitable not the percentage distribution: Russell v Russell (1999) FLC 92-877. The wife’s counsels’ submission focussed on the percentage distribution. The wife’s difficulty in this case is that the actual orders provided relief that she could not have achieved through litigation. There is no fund identified that either party could draw on to pay a fifty- percent share of the nett assets to the other. The outcome that the wife’s counsel submits that she was entitled, in my opinion, is likely to have made the wife’s desire to move to Queensland more difficult to implement immediately because she would not have had any lump sum payment, from the husband or the proceeds of sale of the home. The consent orders gave her a car and a lump sum immediately. This means that rather than wait a considerable period of time for a defended hearing and almost certain sale of the home she was able to immediately depart for Queensland. Litigation involved additional legal expenses, the amount of which may have taken up a significant percentage of the differential. These are all weighty considerations. By taking a share of the husband’s superannuation interest the wife obtained a prospective entitlement that she felt it was important to have.
The fact that the car was later repossessed was a risk that the parties were aware of. The orders provided a fall back provision that gave the wife additional funds by way of compensation. The car was repossessed on 25 February 2002. The wife’s solicitors wrote to the husband on 27 February 2002 advising him of this and requested that he pay the wife $15,000 within seven days. When the monies were not paid, they wrote again on 21 March 2002 advising that unless the monies were paid within seven days this application would be filed. When he responded on 29 March 2002 the husband indicated that he did not have the money available and that he regarded the wife as being in default because she had not signed the transfer of registration papers for Peter’s car. There was no nexus between the two issues and the husband was required to pay the moneys to the wife. He only did so after these proceedings started. This circumstance could have been addressed by less costly enforcement action and does not enhance the wife’s s.79A claim.
The fact that a party received less than they would have done at trial does not amount to a miscarriage of justice per se. In the circumstances of this case the orders demonstrate that when the wife compromised her s.79 entitlement she achieved early access to a modest lump sum, a car and provision for her retirement. Each of which provides an advantage that litigating further was either unable to deliver or deliver as quickly as she appears to have wanted. These are all cogent reasons to compromise rather than to have proceeded any further. For these reasons I am satisfied that the actual orders are within the range of a just and equitable outcome. Having regard to s.81 these considerations are also weighty reasons why I would not exercise of my discretion in her favour even had the wife established duress. In Prowse and Prowse the Full Court held that the court should not take a rigid approach to the exercise of its discretion. The preferred approach takes into account all of the circumstances of the case “in the light of what the justice of the case requires.” In this respect I also place significant weight on the wife’s access to legal advice. This case does not really involve issues of delay. The wife was aware that she entered into orders which finalised the parties financial relationship in the sense that the orders were final orders. In all of the circumstances of the case I am not satisfied that the wife has shown that the court should exercise its discretion favourably to her.
I am not satisfied that I should infer that the orders reveal that the wife was acting under duress or that there has been a miscarriage of justice by reason of any other circumstance.
Both parties agreed that the court would concern itself only with the s.79A application and that at this stage I would not consider the alternate application or indeed formally decide the wife’s entitlement in the event. The wife’s counsel will have 21 days to give written submissions, the husband’s solicitor the same time to reply and the any further response from the wife’s counsel must be received within a further 14 days.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding one hundred and six (107) paragraphs are a true copy of the reasons for judgment of FM Ryan FM

Associate:

Date: 19 September 2003