Waldon and Kipley-Waldon (No. 2)

[2014] FamCA 329

FAMILY COURT OF AUSTRALIA

WALDON & KIPLEY-WALDON (NO. 2) [2014] FamCA 329

FAMILY LAW – PRACTICE  AND PROCEDURE – Summary dismissal – application by respondent wife for summary dismissal of orders sought by applicant husband

Family Law Act 1975 (Cth) s 79A(1)(a)
Family Law Rules 2004 (Cth) rule10.12

Waldon & Kipley-Waldon [2013] FamCAFC 108
Kipley-Waldon & Waldon [2012] FMCAfam 1013
Linden v The Commonwealth (No 2) (1996) 70 ALJR 541
Korksy and Bright (2007) FLC 93-181
Crescendo Management Pty Ltd v Westpac Banking Corporation (1998) NSW LR 40
Official Trustee in Bankruptcy v Bryan, AJ and the Estate of Christine Ann Gatenby (Deceased) (2006) FLC 93-258

APPLICANT: Mr Waldon

RESPONDENT: Ms Kipley-Waldon

FILE NUMBER: HBC 246 of 2012

DATE DELIVERED: 19 May 2014

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 4 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Tony Fitzgerald

SOLICITOR FOR THE RESPONDENT: FitzGerald & Browne

Orders

1. The proceedings constituted by the application of the husband filed 25 March 2013, as amended by his application filed 25 July 2013 be and are dismissed.

2. In respect of any existing interim and/or interlocutory orders made in the proceedings, as are not rendered nugatory or implicitly discharged by Order 1 above, the Court orders and directs:-

   a.Any application to discharge, vacate or vary interim and/or interlocutory order/s shall be filed and served within twenty eight (28) days from today’s date;

   b.the party seeking such orders shall, within that twenty eight (28) day period, file an application in a case setting out the detail and nature of the orders that he or she seeks to vary, discharge or vacate together with any affidavit material upon which that party relies;

   c.the respondent to such application shall file and serve any response to that application in case together with affidavits in reply, within a further period of twenty eight (28) days; and

   d.such application in a case shall be listed before Benjamin J at the next convenient date.

3. All other extant applications in these proceedings (except costs applications) be otherwise dismissed and removed from the list of cases requiring determination.

4. Any costs application may be dealt with in accordance with the Family Law Rules 2004 (Cth).

5. Following the expiration of the appeal period, all subpoenaed documents (except for the parties’ case summaries) shall be returned to the persons or institutions from where they emanated and all exhibits (except Exhibit ‘KW1’ which is to be retained on the court file) are to be returned to the person or persons who tendered the same.

6. Pursuant to Rule 19.50 of the Family Law Rules 1975 (Cth) it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Waldon & Kipley-Waldon (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 246 of 2012

Mr Waldon

Applicant

And

Ms Kipley-Waldon

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by Ms Kipley-Waldon (“the wife”), pursuant to Rule 10.12 of the Family Law Rules 2004 (Cth), in which she seeks summary dismissal of substantive proceedings commenced by Mr Waldon (“the husband”) in March 2013. The husband’s substantive proceedings are for orders to be made to set aside consent property orders made by a Registrar of the Family Court on 5 January 2012. If that relief is granted the husband then seeks property orders under s 79 of the Family Law Act 1975 (“the Act”).  

2. In her application for summary dismissal, the wife contends that there is no reasonable likelihood of success by the husband in his application and/or that the husband’s application is a frivolous or vexatious proceeding and as such should be dismissed.

The husband’s proceedings

1. On 25 March 2013 the husband filed a substantive application in the Family Court seeking orders under Part VIII of the Act. The initial application was prepared and filed by the husband who was acting on his own behalf. It was difficult, if not impossible, to discern from the words contained in that application, precisely what orders and/or relief the husband sought.

2. Fortunately, the husband sought legal advice and on 25 July 2013 he filed an amended application seeking orders that:-

   (a)the consent property orders made 5 January 2012 be set aside;

   (b)the net assets of the parties be divided on a 50/50 basis; and

   (c)the net superannuation interest of the parties be split as between them on an equal basis.

3. The amended application made clear the relief sought by the husband and he has pursued those orders since that time. The property orders which the husband seeks to set aside were made by a registrar of the Family Court, at the request of both the husband and the wife, on the 5 January 2012. They were property adjustment orders under Part VIII of the Act.

4. The wife filed a response and later an amended response[1] to the husband’s initial application.  The wife opposes the orders sought by the husband and asserts the integrity of the January 2012 consent orders.

   [1] 4 November 2013.

The issues

1. The husband’s claim is that the orders made 5 January 2012 ought to be set aside pursuant to sub-section 79A(1)(a) of the Act, which provides:-

   Section 79A(1)

   Where, on application be a person affected by an order made by a court under s 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

   (b)The Court may in its discretion vary the order or set the order aside and, if it considers it appropriate, make another order under s 79 in substitution for the order so set aside.

2. The husband’s case is set out in pages 4 and 5 of his application in a case filed 14 February 2014.  His concerns fall into a number of areas, and are not particularly well articulated.

3. The husband says that in April 2011 the Deed of Release or Agreement of Settlement of a civil action, in which the husband and wife were involved, was signed by him as a result of duress on him by the wife.  The particulars of that asserted duress arose from an alleged verbal agreement or assurance he had with the wife that; in consideration of the civil litigation settlement, the wife would pay the amount of about $77,000 from her own funds and that she would return to the marriage.

4. The husband claims that this assurance, the settlement and subsequent payment by the wife of about $77,000 to implement that civil settlement amounted to duress upon him to join in the joint application made by him and the wife for consent orders in the Family Court in late December 2011.

5. The husband’s primary contention was that the duress arose by way of the wife’s promise that she would return to the marriage in twelve months’ time.

6. On page 4 of his February 2014 application in a case the husband makes comment about the original separation in 2009.  He asserted that he had not realised the parties had been separated for three years in March 2012, which was inconsistent with the finding in the divorce proceedings. He complained about the nature of the relationship he asserted existed between the wife and her friend and then asserted that the wife owes him some $755,000 pursuant to some figures he had put together in his financial statement.

7. The husband further asserted that he was placed under ‘duress’ when he signed a deed in June 2011 to repay about $77,000 to the wife.

8. Finally, the husband asserted that the wife suppressed details of her substantial superannuation entitlements from him at or before the time the consent orders were made.

9. The complaints upon which the husband bases his s 79A application seem to therefore fall into three areas, namely that:-

   (a)On or about 28 April 2012 the husband was induced to settle civil proceedings with C Pty Ltd and others on the basis of a promise by the wife that she would return to the marriage when the home at Suburb A was sold (about twelve months later) and that such promise amounted to duress in terms of his joint application for consent orders made 22 December 2011;

   (b)the wife placed him under ‘considerable duress’ when he signed the consent orders made 5 January 2012 and the deed of June 2011, and that such duress at that time amounted to duress in terms of his joint applications for consent orders made 22 December 2011;

   (c)at the time the consent orders were made, the wife suppressed evidence, in that she failed to disclose to the husband relevant information as to the value and detail of her superannuation fund; and

   (d)these issues either individually or cumulatively would satisfy this Court that there had been a miscarriage of justice by reason of duress and/or suppression of evidence and that the Court is likely to exercise its discretion to set aside the 5 January 2012 consent orders and, make other orders under s 79 of the Act in substitution for the orders set aside.

Background and Evidence

1. Each of the parties was born in 1948.  They married in 1971 and separated in 2009.[2]  In the proceedings before Federal Magistrate Baker (as she then was) she found:-[3]

   27. The wife left the matrimonial home on or about 22 January 2009 and the parties have not resumed cohabitation as man and wife. On two occasions, once in 2009 or 2010 and the other time in 2011, they stayed overnight together with no physical contact. This was not a resumption of cohabitation in the terms of s.50 of the Act.

   [2] Findings of Strickland J in Waldon & Kipley-Waldon [2013] FamCAFC 108.

   [3] Kipley-Waldon & Waldon [2012] FMCAfam 1013.

2. There are no children of the marriage aged less than eighteen years. 

3. On 4 April 2012 the wife filed an application for divorce.  The husband opposed that application and filed a response.[4]  The divorce application was heard in late April 2012 and on the following day Federal Magistrate Baker (as she then was) delivered her reasons for judgment and made the divorce order.

   [4] 27 April 2012.

4. The husband sought to appeal that order but was late in doing so. As a consequence the appeal was dismissed as being out of time however Strickland J, on the appeal said:-[5]

   44.… in any event, having read Her Honour’s judgment and deciphered the purported grounds of appeal that the husband seeks to rely upon, I can state that the appeal had no chance of success if the husband had been unable to pursue it.

   [5] Waldon & Kipley-Waldon [2013] FamCAFC 108.

5. In March 2013 these proceedings were commenced and were followed by a number of events in the Family Court.  On 22 October 2013 these proceedings were transferred by a registrar of the Family Court to the Federal Circuit Court.  In the later part of 2013 and early 2014 there was a flurry of litigious activities between the husband and wife.  In these proceedings the husband filed a number of applications in a case on 16 September 2013, 21 November 2013, 4 December 2013 and 24 January 2014 seeking various orders.

6. The wife had filed responses to each of these applications in a case and on 3 February 2014 a judge of the Federal Circuit Court transferred the proceedings back to the Family Court, as being a complex matter.

7. The proceedings were listed before this Court for directions on 7 February 2014.  At that directions hearing the Court dealt with a number of issues:-

   (a)Consent orders were made with regard to the release and use of funds from the sale of the property at R Street, Suburb A (‘Suburb A’).

   (b)A contravention application was withdrawn and dismissed.

   (c)The husband’s case applications of September, November, December 2013 and January 2014 were dismissed.

   (d)The Court noted that the husband’s application seeking orders to restrain the wife from leaving Australia was withdrawn and dismissed, and that it had not been heard on its merits.

   (e)The wife’s interlocutory applications were dismissed except for her application with regard to summary dismissal of the husband’s proceedings, which application the wife wished to pursue.  The wife’s summary application was tentatively listed for hearing in April 2014.

   (f)The legal costs of all parties were reserved in those orders.

8. To enable understanding of the issues between the parties, the Court directed that, on or before 28 February 2014, the husband file and serve:-

   (a)a document setting out the legal basis upon which he seeks to set aside the consent property orders made 5 January 2012; and

   (b)all affidavit material he relied upon in relation to his substantive application to set the consent orders aside.

9. At that time the Court offered the husband further time to enable him to collect, collate and file his affidavit material.  The husband, who had by this time ceased to be represented, asked that the matter be expedited and assured the Court that he could easily comply with the directions within the time allocated.

10. The wife was directed to file and serve any material in reply before 20 March 2014 and the summary dismissal application was fixed for hearing 4 April 2014.

11. In those directions the Court noted:-[6]

    9.… there may be an application by the wife for summary dismissal if the legal and/or factual materials are insufficient to base an application to set the consent order aside. (Original emphasis)

    [6] Orders dated 7 February 2014.

12. On 14 February 2014 the husband filed an application in a case seeking orders.  That application was dealt with and the husband’s application was dismissed on 6 March 2014.  It was unclear precisely what orders were sought, although, it appeared that the husband requested discovery and wished to pursue his application to restrain the wife from travelling overseas.  Costs were reserved. 

13. During that event on 6 March 2014 the husband asserted, and the Court accepted, that for the purpose of the summary dismissal application hearing the husband relied on the material contained on page 4 and 5 in his application in a case, his affidavit and amended statement of financial circumstances all filed on 14 February 2014.

14. The wife’s summary dismissal application was heard by this Court on 4 April 2014.

15. The evidence before the Court in relation to that summary dismissal application was as follows:-

    (a)The material contained on page 4 and 5 in the husband’s  application in a case, his affidavit and amended statement of financial circumstances; all filed on 14 February 2014

    (b)The reasons of Strickland J in Waldon & Kipley-Waldon [2013] FamCAFC 108;

    (c)The reasons of Federal Magistrate Baker (as she then was) in relation to the divorce application heard by her on 29 August 2012 (Kipley-Waldon & Waldon [2012] FMCAfam 1013);

    (d)Exhibit ‘KW1’; and

    (e)A concession by the wife that she does not pursue monies allegedly owed by her to the husband pursuant to a Deed dated 2 June 2011.[7] (“the June 2011 Deed”).

    [7] Exhibit KW1-page 28 to 30.

16. Counsel for the wife specifically requested that I give no account to the wife’s evidence, for the purpose of the summary dismissal, and I adopted that course.  The only documents which he referred me to were the annexures to the wife’s affidavits which were admitted in evidence by consent which the husband had notice of and consented to their use as evidence.

17. The wife conceded that the money due to her pursuant to the June 2011 Deed was extinguished by the property orders made 5 January 2012.  Further, she conceded that with those orders remaining in place, she had no entitlement under the June 2011 Deed.  Her counsel said that if the husband succeeded on his application to set aside the 5 January 2012 orders, that the wife would contend that she was able to pursue the sum due to her under that Deed.

18. The money payable under the June 2011 Deed arose out of the C settlement.  It seems not in issue that the parties and their alter ego, M Business, had been involved in civil proceedings in the Tasmanian State Magistrates Court and the Tasmanian Supreme Court.  The other parties to those proceedings were C Pty Ltd, Ms C and Mr C[8] (“C”).  By 2011 those civil proceedings had proved to have been unsuccessful.  Civil orders were made in favour of C and a liability was created against the husband, wife and their company.  In early 2011 a warrant had been issued by the Magistrates Court to sell real estate owned by the husband and wife at Suburb A.[9]  A Bailiff had given notice that he had taken possession of that property.

    [8] Exhibit KW1 – page 19 to 26.

    [9] Exhibit KW1 – page 15.

19. On or about 21 April 2011 the husband, the wife and their alter ego entered into the Deed of Release with C to end the litigation in consideration of payment by the husband and wife to C of $77,707.07 plus $111 for fees on the withdrawal of a caveat.

20. Relevantly, the husband asserted that he was made to sign that document on or about 28 April 2011 ‘under duress from the wife’.  As to that alleged duress the husband said the wife insisted that he sign the deed in circumstances where he did not wish to compromise the proceedings.  He said that the wife had promised him that she would return to the marriage when the Suburb A property was eventually sold (in about twelve months’ time) if he signed the Deed.  The wife disputed that fact, but for the purpose of this summary application I have treated the husband’s case at its best.

21. On 2 June 2011[10] the husband and wife entered into a further deed (the June 2011 Deed), but this time it was between them.  In that Deed the husband and wife acknowledged that the wife had paid the sum of about $77,000.00 to C and that on the sale of Suburb A the wife would be repaid that sum before any division of the property between the parties.

    [10] Exhibit WK1 – page 28.

22. On 22 December 2011 (approximately eight months after the first Deed of Release was signed with C and about six months after the June 2011 Deed was entered into between the parties) the husband and wife made a joint application to the Family Court for the making of consent property orders.[11]

    [11] Exhibit WK1 – pages 32 to 57.

23. Neither party disclosed that they were represented in that application.  The application drew a requisition from the Court.[12]  The Registrar sought further information from the parties, including the weekly details of the parties’ respective incomes and confirmation that the husband had no superannuation interests.

    [12] Exhibit WK1 – page 59

24. On 3 January 2012 the parties filed a further or amended document (signed by both of them and the husband has not resiled from that document) in which they provide the following agreed facts:-

    (a)At the time of marriage the parties had minimal assets.

    (b)The wife worked full time and made greater financial contributions during the course of the marriage.

    (c)The wife received an inheritance from her mother of a unit at D Street and money of about $40,000.  She also received an inheritance from her step-father of about $21,000.

    (d)In the documents filed by the parties the D Street property was valued at $280,000 and no evidence was adduced as to a different value of that property at that time.  The statement of agreed facts also noted that the husband is likely to receive a substantial inheritance from his mother.

    (e)The parties contended, as an agreed fact, that ‘the termination of the marriage occurred on 20 January 2009 when [the wife] and [the husband] changed from having a common residence to having separate residences.’

    (f)The husband has no superannuation nor did he make any financial contributions to the wife’s superannuation.

    (g)The value of the wife’s superannuation as at 31 December 2008 was $176,293.14.

1. The parties also filed an amended application for consent orders.[13] 

   [13] Exhibit KW1 – pages 64 to 89.

2. The parties tendered a letter from the Retirement Benefits Fund (Tasmania) dated 9 December 2011[14] which showed that the wife’s current gross superannuation at that time was $444,015.10. This was consistent with the figure that she disclosed on page 17 of the first consent application lodged[15] and on page 17 of the amended consent application.[16]  It is clear from this material that the husband knew the full detail of the wife’s superannuation entitlements before the consent orders were made.

   [14] Exhibit KW1 – pages 91 to 97.

   [15]Exhibit KW1 – page 48.

   [16] Exhibit KW1 – page 80.

Principles relevant to an application for summary dismissal

1. There was no issue that the principals which govern applications for summary relief are, as stated by Kirby J in Linden v The Commonwealth (No. 2) (1996) 70 ALJR 541:-[17]

   1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests.  This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;

   2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or in advancing a claim that is clearly frivolous or vexatious;

   3.An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination.  Even a weak case is entitled to the time of a court.  Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;

   4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of a demurrer.  If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;

   5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading.  A question has arisen as to whether O 26, r 18 applies to part of a pleading.  … ; and

   6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.  (Footnotes omitted)

   [17] At 544 to 545.

2. This was also discussed by the Full Court in Bigg v Suzi (1998) FLC 92-799 paragraphs 5.1 to 5.10; Ferrall and McTaggart v Blyton (2000) FLC 93-054 paragraphs 95 to 98; Pelerman v Pelerman (2000) FLC 93-037; and Beck v Beck (2004) FLC 93-181 paragraphs 17 to 18.

3. The Full Court in Korsky & Bright & Anor (No. 2) (2007) FLC 93-352 observed at paragraphs 17 and 18 the notion of miscarriage of justice where they noted the following principals:-

   17.Returning to the basic point that Mr North SC at least initially sought to make before us, namely Brown J’s alleged view that a challenge to the justice and equity of an order only lay by way of appeal, in the paragraph of his written submissions preceding the one in which he made that point, Mr North SC said:

   2.The error is to be found at paragraphs [44] – [46] of her Honour’s reasons for judgment

   18. We set those paragraphs out below, with some other paragraphs to provide context:

   36.It is well established that the notion of miscarriage of justice concerns the integral judicial process; the miscarriage must arise out of the process; see Clifton & Stewart [1991] FLC 92-194, Bigg v Suzi, Sziker & Sziker [1993] FLC 92-436 at 80, 472 the Full Court observed that the expression ‘judicial process’ can refer to a variety of matters and circumstances which had an influence on the outcome of the litigation and that it is neither necessary not desirable to attempt to define the matters which may amount to a miscarriage of justice by reason of any other circumstance in a relevant sense.

   37.It is also well established that miscarriage of justice can only occur by reason of a fact or event which occurred before or at the time of the making of the order which is sought to be set aside; see Bigg v Suzi, Barker v Barker [2007] Fam CA 13.

   38.To succeed in the s79A application the applicant in the husband’s position must show something which occurred prior to the time the orders were made result of the exercise of judicial power miscarrying. The degree of inappropriateness of the order may be relevant in assessing the degree of miscarriage in the exercise of s79A discretion: see McIntyre [1994] FLC 92-468. But events which occur after the order is made cannot provide the foundation for an order to be set aside pursuant to s79A(1)(a).

4. I have endeavoured to apply these principles in this determination.

Duress

1. Counsel for the wife took me to SH & DH [2003] FLC 93-164, a decision of Ryan FM (as she then was) where Her Honour found that the applicable test for duress in s 79A context accords with the equitable concepts, formulated by McHugh JA in Crescendo Management Pty Ltd v Westpac Banking Corporation (1998) NSW LR 40 in which McHugh JA said:-

   The proper approach in my opinion is to ask whether that pressure went beyond what the law is prepared to count as legitimate.  Pressure will illegitimate if it consists of unlawful threats or amounts to unconscionable conduct.  But the categories are not closed.

Discussion and conclusions

1. The husband’s first contention was that on or about 28 April 2012 he was induced to settle civil proceedings with C Pty Ltd and others on the basis of a promise by the wife that she would return to the marriage when the home at Suburb A was sold (about twelve months’ later).  He asserted that such a promise amounted to duress in terms of his joint applications for consent orders in late 2011 and early 2012.

2. There is little or no evidence of what the husband means by ‘the duress’.  The parties were being pressed for payments of monies which were ordered by a court.  The husband clearly did not want to pay this money and the wife (and her adviser) was pressing the husband to enter into an agreement with C.

3. The husband’s assertion that the wife, promised at that time, that she would return to the marriage is inconsistent with the husband’s later assertion that the marriage was still on foot.  It is also inconsistent with that which is contained in the application for consent orders made by the parties, some eight months later.  In December 2011, and again in signing the letter of agreed facts to the Court and support of the amended application in January 2012, the husband made it clear that this was to end property issues between these parties.

4. Putting that aside, I see no duress amounting to a miscarriage of justice in the circumstances asserted by the husband.  He does not on his evidence establish that there was an illegitimate pressure by way of unlawful threats amounting to unconscionable conduct in place in April 2011, let alone in December 2011 or January 2012.

5. In the context of the parties Suburb A property being at risk of a forced sale to satisfy a civil liability, and that the wife falsely asserted to the husband that she would reconcile or resume cohabitation in a year if he agreed to settle the civil litigation, that would struggle to be a duress in the context of the civil settlement but cannot be a duress giving rise to a miscarriage of justice in terms of the property orders. In that consent application both parties were jointly contending to the Court that their marriage was at an end and that they were seeking to finalise property issues.   

6. If the husband believed there was a promise of reconciliation then why did he consent to the orders.

7. I am not satisfied that the evidence adduced by the husband in his financial statement, affidavit and application in a case of 14 February 2014 or his affidavit filed 2 April 2014 provide any viable evidence of the duress which he asserted which would, seen in their best light, constitute miscarriage of justice by reason of duress as provided under s 79A(1)(a) of the Act. As such that ground to set aside the January 2012 orders must fail.

Duress alleged to arise from the husband signing the June 2011 Deed

1. The husband contends that the wife placed him under ‘considerable duress’ when he signed the consent orders made 5 January 2012 and the June 2011 Deed, and that such duress (at that time) amounted to duress in terms of his joint applications for consent orders in late 2011 and early 2012.

2. The husband’s evidence is set out in his application in a case:-[18]

   [the wife] placed me under considerable duress when she insisted that I sign the deed of 2 June 2011 and consent orders of 5 January 2012. 

   [18] Application in a case filed 14 February 2014, page 5.

3. The husband provides no detail of this event except to say that the wife insisted he sign the Deed about six months prior to the signing of the application for consent orders.

4. The wife paid the civil debt and sought re-imbursement on sale of the Suburb A property.  It was no more than a negotiation which was concluded and in circumstances that her claim to the money pursuant to the Deed was either extinguished or not pursued by reason of the January 2012 property orders.

5. The husband reiterates his contention that the first document was signed on the basis of the wife returning to the marriage but did not address the obvious matters contained in those documents, that is, the assertion that their marriage was at an end.

6. The husband did not deny that he signed the consent orders.  He did not deny that he signed the statement of agreed facts of January 2012 nor did he deny that he was a party to the amended application for consent orders.

7. Given the evidence of the husband, taken at its best, in regard to the alleged miscarriage of justice by reason of the alleged duress in June and December 2011, that claim is doomed to fail.

Suppression of evidence

1. The husband contended that at the time the consent orders were made, the wife suppressed evidence, in that she failed to disclose to the husband relevant information as to the value and detail of her superannuation fund

2. The question of suppression of evidence was discussed by Young J in Official Trustee in Bankruptcy v Bryan, A J and the Estate of Christine Ann Gatenby (Deceased) (2006) FLC 93-258 where His Honour said at paragraph 106:-

   Suppression of evidence is the wilful concealment of matter where there is the duty of one or both parties to disclose the information to the Court.  This duty of accurate and proper disclosure applies both in contested proceedings and in consent orders.  A party must not knowingly create a false impression or allow the Court, even on the making of consent property orders, to draw a false inference: In the Marriage of Kokl (1981) FLC 91-087. A party must not deliberately conceal evidence which should be before the Court although there is no obligation to put evidence to advance the interest of the other party. (Original emphasis)

3. In that case Young J observed in relation to suppression of evidence the process to adopt ought to be:-

   100(i)was there suppression of evidence?;

   100(ii)if so, did such suppression of evidence bring about a miscarriage of justice within the meaning of s.79A of the Act;

   100(iii)Are there other s.79A(1) grounds, such as wilful concealment amounting to fraud, that would create a miscarriage of justice?;

   100(iv)…

4. The threshold step must, of course be to establish whether there was a suppression of evidence.

5. On the evidence before the Court it is clear that the wife disclosed her superannuation in both of the applications for consent orders and by way of the letter from her superannuation trustee providing full details of the wife’s then entitlements under that fund.  The husband signed the application and the amended application.  He did not resile from that fact.

6. The husband endeavoured to criticise the wife for not discovering documents from the court file to him.  When the husband was provided with copies of the documents contained in Exhibit KW1, he sought and was permitted to rely upon an affidavit filed 2 April 2014.  In that affidavit the husband complained that he had not been provided with a copy of those documents until 24 March 2014.  He now recalls signing that document and the minute of consent orders and says that they were signed in haste prior to the 2012 New Year.

7. It was always open for the husband to look at the court file, and in that context it was clear that for part of the time these proceedings were on foot the husband was legally represented.

8. There was no evidence of suppression of that material as asserted by the husband; the contrary seems the case that is he was informed.  Accordingly, that basis upon which the husband seeks to have the orders set aside is doomed to fail.

A cumulative approach

1. The husband contended that either individually or cumulatively the facts asserted by him would satisfy this Court that there had been a miscarriage of justice by reason of duress and/or suppression of evidence. Further he asserted that the Court is likely to exercise its discretion to set the 5 January 2012 consent orders aside and, make other orders under s 79 of the Act in substitution for the order set aside.

2. I have reflected upon the basis set out above in terms of the individual concerns.

3. I had no evidence before me as to the values of the property and superannuation different to that which was contained in the respective applications.

4. The orders that were made were made in the context of the agreed value of the pool of assets of about $1,316,000.  The wife was to receive about 59 to 60 per cent of that pool of property which included superannuation (which she could not access until she retired) of about $440,000 and some she had received by way of inheritance of some $341,000. 

5. This division of property, at that time, would not have been a surprise to the husband given the percentages provided in the applications which showed that the husband was receiving a greater percentage of the property (excluding the inheritance) than the wife.

6. The wife was not seeking to recover the funds under the June 2011 Deed.  It was not disclosed as an asset or liability of either party in the applications for consent orders and it was the clear position of the wife, which continues to this day, that it was not recoverable by her although except in the circumstances if the consent orders were set aside.

7. In his final submissions, the husband asserted that the payment of the $77,000 by the wife (evidenced by the June 2011 Deed) could only lead to the conclusion that it was on the basis of reconciliation.  I do not necessarily accept that this is the only conclusion that can be drawn.  However, if that was the conclusion it does not follow that it amounts to duress later in the year in the context of property orders ending their joint financial circumstances.

8. The thrust of the husband’s submission was that the consent orders were in the circumstances unjustly obtained.  I do not accept, in the circumstances of the evidence asserted by the husband, that the orders were unjustly obtained.

9. It is a serious matter to deprive the husband of access to law and applications such as these, need to be seen as rare and are sparingly used. 

10. The husband has not provided cogent evidence to support his case. His case does not provide the evidence to base his claim to set aside the orders under s 79(1)(A)(a) of the Act.

11. I have not wholly set out the submissions made by Mr FitzGerald on behalf of the wife, suffice to say that I have accepted them.

12. On the husband’s evidence he could not satisfy this Court that there had been a miscarriage of justice by reason of duress or suppression of evidence.  On that evidence it was not open for the Court to set aside the 5 January 2012 orders.

13. I find that the husband has no reasonable prospects of success in his application to have the consent property orders made 5 January 2012 set aside and consequently, the proceedings commenced by the husband by his application filed 25 March 2013 and as amended by him on 25 July 2013 are to be wholly dismissed.

Costs applications and interim or interlocutory orders

1. At the conclusion of the hearing I raised with the parties what I should do in the event of either dismissing the application or not dismissing the application.  In terms of dismissal it was agreed between the parties and the bench that time should be allowed so that the mechanical nature of any interim orders could be dealt with.

2. In addition there were issues of costs which had not as yet been determined.

3. As such I will be making the orders dismissing the application but giving leave for the parties to make applications, as they consider appropriate, in respect of the interim or interlocutory orders and costs.

4. I have made directions for the filing of affidavits and applications and will list the matter some time ahead to enable that process to be determined, if necessary.

I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on      19 May 2014.

Associate:     

Date:  19 May 2014