FAMILY COURT OF AUSTRALIA
| ULLRICH & KRAFT | [2014] FamCA 266 |
| FAMILY LAW – PROPERTY – Final – Where the parties entered into final property orders by consent in December 2006 – Where the orders provided for the sale of the parties’ only substantial property and for the Wife to receive a fixed cash payment from the proceeds of sale and the Husband to retain the balance of the sale proceeds – Where the property subsequently sold for almost 50 per cent more than the amount at which it was valued – Where the Wife has incurred significant capital gains taxation and other taxation liabilities – Where the Wife brought proceedings in 2010 to enforce the terms of the consent orders regarding taxation liabilities – Nature of the hearing and the judicial process when final property orders are made by consent – Function of submissions made on the hearing for consent orders to be made – Where the Wife filed an application to have the consent orders set aside pursuant to s 79A(1)(a) of the Family Law Act 1975 some five (5) years after the orders were made – Whether a miscarriage of justice has occurred – Whether the discretion ought be exercised – Whether the orders ought be varied or set aside and another order under s 79 made | |
| Family Law Act 1975 (Cth) | |
Family Law Rules 2004 (Cth)
| Barker v Barker (2007) 36 Fam LR 650 |
| APPLICANT: | Ms Ullrich |
| RESPONDENT: | Mr Kraft |
| FILE NUMBER: | TVC | 461 | of | 2007 | |
| DATE DELIVERED: | 23 April 2014 | ||||
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Townsville and Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 24, 25 and 26 July 2012; 11, 12 and 13 February 2013 and by written submissions filed 25 February 2013 and 21 March 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Peter Baston |
| SOLICITOR FOR THE APPLICANT: | Feeney Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Fellows (on 24, 25 and 26 July 2012) |
| SOLICITOR FOR THE RESPONDENT: | Boulton Cleary & Kern (on 24, 25 and 26 July 2012) |
| FOR THE RESPONDENT: | In person on 11, 12 and 13 February 2013 |
Orders
It is ordered that
The Husband pay the Wife’s costs of and incidental to her Application in a Case filed on 7 October 2010 such costs to be agreed or, failing agreement, to be assessed on an indemnity basis.
The Wife’s Application pursuant to s 79A of the Family Law Act 1975 (Cth) be dismissed.
There be no order as to costs of the s 79A Application.
Any and all other pending applications be removed from the pending cases list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ullrich & Kraft has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law…
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- AGLC
- Ullrich & Kraft [2014] FamCA 266
- Case
- [2014] FamCA 266
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the Wife had established a miscarriage of justice, within the meaning of section 79A(1)(a) of the *Family Law Act*, by reason of fraud, duress, suppression of evidence, the giving of false evidence, or any other circumstance. This required the court to consider the nature of a "miscarriage of justice" in the context of property settlement proceedings and the influence of external factors on the judicial process.
Kent J noted that section 79A is a remedial provision to be construed liberally to overcome miscarriages of justice. The court considered the circumstances surrounding a valuation obtained in December 2006, which was not formally tendered in earlier proceedings. The valuation contained significant qualifications, including a statement that it was current only as at the date of valuation and that reliance upon it after three months from that date was not assumed to be accurate. The court referenced established principles that a miscarriage of justice can encompass a variety of matters and circumstances that influence the outcome of litigation, not solely issues relating to the integrity of the court hearing itself.
The Wife's application pursuant to section 79A of the *Family Law Act* was dismissed. The Husband was ordered to pay the Wife's costs of and incidental to her application filed on 7 October 2010, to be agreed or assessed on an indemnity basis. There were no orders as to the costs of the section 79A application, and all other pending applications were removed from the list.
Orders
Orders of the court
It is ordered that
1.
The Husband pay the Wife’s costs of and incidental to her Application in a Case filed on 7 October 2010 such costs to be agreed or, failing agreement, to be assessed on an indemnity basis.
2.
The Wife’s Application pursuant to s 79A of the Family Law Act 1975 (Cth) be dismissed.
3.
There be no order as to costs of the s 79A Application.
4.
Any and all other pending applications be removed from the pending cases list.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In this context it is to be noted that as the transcript of the hearing on 7 December 2006 reveals, Monteith J was told certain things about the then recently received December 2006 valuation but the valuation itself was not filed or tendered. In circumstances where the proposed orders provided for a time frame for sale, first by private treaty by a set date more than six (6) months post-dating the date of the orders, and then proceeding to auction thereafter, it is relevant to note that the valuation contained a number of qualifications expressed in paragraph 1.5. Those qualifications included, at sub-paragraph 11: 11. This valuation is current as at the date of valuation only. The value assessed herein may change significantly and unexpectedly over a relatively short period (including as a result of general market movements or factors specific to the property). We do not accept liability for losses arising from such subsequent changes in value. Without limiting the generality of the above comment, we do not assume any responsibility or accept any liability where this valuation is relied upon after the expiration of three months from the date of the valuation, or such earlier date if you become aware of any factors that have any effect on the valuation. (Emphasis added) Section 79A(1) of the Act provides, relevantly to these proceedings:(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or…the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside. It is well settled that s 79A is a remedial section intended to overcome miscarriages of justice and the section should be construed liberally to affect its intended purpose.[5][5] Re Gilbert and the Estate of Gilbert (dec’d) (1990) FLC 92-125; Suiker & Suiker (1993) FLC 92-436; Barker v Barker (2007) 36 Fam LR 650; M & M [2003] FamCA 1304 (Kay, Holden & Monteith JJ). In Suiker & Suiker[6] (“Suiker’s case”) the Full Court said, when commenting upon a passage in an earlier judgment of Clifton and Stuart:[7] As regards the view expressed in Clifton and Stuart 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 of the 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.[8] [6] (1993) FLC 92-436.[7] (1991) FLC 92-194.[8] Suiker & Suiker (1993) FLC 92-436 at 80,472 (Nicholson CJ, Baker & Strauss JJ).