Walters and Walters

[2008] FamCA 479

FAMILY COURT OF AUSTRALIA

WALTERS & WALTERS [2008] FamCA 479

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the wife under section 79A(1)(a) of the Family Law Act 1975 (Cth) to set aside orders for alteration of property interests – Wife argued that the orders should be set aside on the basis that there has been a miscarriage of justice by the reason of the giving of false evidence by the husband in relation to the amount of money he spent on kennelling – Held that although the husband gave false evidence and there was a miscarriage of justice, the wife has not established that the interests of justice require that the discretion to set aside or vary the orders should be exercised and accordingly no orders are made that would involve re-exercise of the discretion to make orders under s 79

Family Law Act 1975 (Cth) s 79A(1)(a)

Bigg v Suzi (1998) FLC 92-799
Clifton and Stuart (1991) FLC 92-194
Gerbert and Gerbert (1990) FLC 92-137
Holland and Holland (1982) FLC91-243
In the Marriage of Patching (1995) 18 FamLR 675
Morrison and Morrison (1995) FLC 92-573
Prowse and Prowse (1995) FLC 92-557
Public Trustee (as executor of the estate of Gilbert) v Gilbert (1991) FLC 92-211
Simpson and Simpson (1983) FLC91-349

APPLICANT: Mrs Walters

RESPONDENT: Mr Walters

FILE NUMBER: NCF 793 of 2002

DATE DELIVERED: 26 June 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: JUSTICE MULLANE

HEARING DATE: 17 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr C Boyd

COUNSEL FOR THE RESPONDENT: Mr I Duane

SOLICITOR FOR THE RESPONDENT: Rod Powe Lawyers

Orders

1. The wife’s application filed 7 April 2006 seeking orders under Section 79A of the Family Law Act 1975 (Cth) is refused and dismissed.

2. The application of each party for costs is adjourned for a 1 hour hearing on Tuesday, 8 July, 2008 at 11am .

IT IS NOTED that publication of this judgment under the pseudonym Walters & Walters is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  NCF793 of 2002.

MRS WALTERS

Applicant

And

MR WALTERS

Respondent

REASONS FOR JUDGMENT

introduction

1. This is a hearing of the wife’s application under subsection 79A(1)(a) of the Family Law Act 1975 (Cth) to set aside orders for alteration of property interests made by Justice Rowlands on 19 November 2004.

2. On 3 August 2007 Judgment was delivered on the issue of whether the husband gave false evidence in the proceedings before Rowlands J.  It was found that the husband falsely testified that he had spent amounts totalling about $40,000 on kennelling of dogs he was required by interim orders to remove from kennels at the former matrimonial home so as to permit the wife sole occupation of the home.  Pursuant to the interim orders he was “reimbursed” the amounts in question from funds of the parties when he (falsely) purported to the wife’s solicitor from time to time that amounts had been paid for kennelling.

3. The parties prepared written submissions on the issue of whether there has been a miscarriage of justice and whether the orders should be varied or set aside.  The husband’s submissions are dated 10 March and the wife’s are dated 2 April, 2008.

PROCEDURE

1. Pursuant to dicta of the Full Court of the Family Court of Australia, the procedure under paragraph 79A(1)(a) involves 4 steps:

   1)Whether it is established there has been false evidence;

   2)Whether that amounted to a miscarriage of justice;

   3)If there was a miscarriage of justice, whether the Court should exercise its discretion and vary or set aside the orders:  and

   4)If there was a miscarriage of justice, whether the Court should make another order under Section 79 of the Act

   (See In the Marriage of Patching (1995) 18 FamLR 675 at 677 line 44.)

STEP 1: FALSE EVIDENCE

1. On 3 August 2007 judgement was delivered on the issue of whether the husband gave false evidence in relation to kennelling expenses he apparently incurred totalling $40,000 and it was found that he did falsely testify.

STEP 2:  MISCARRIAGE OF JUSTICE

1. “Miscarriage of Justice” has been interpreted to mean unjustly obtained.  It is about the procedure rather than the result, see for example, Full Court of Family Court in Holland and Holland (1982) FLC91-243 where their Honours endorsed this and held that what is now s 79A(1)(a) is not limited to a vitiating element in the procedure followed by the Court but includes “which sufficiently indicates that the decree or order was obtained contrary to the justice of the case” (at 77,339).

2. In Simpson and Simpson (1983) FLC91-349 at 78,351 O’Leary J of the Northern Territory Supreme Court held:

   The term itself, of course, means no more than that, in a particular case, justice has miscarried, that there has been a failure by a Court to attain justice. But “justice” means “justice according to law” ... And so there are imported into the expression “miscarriage of justice” all those concepts and principles of law and equity, of natural justice and of proper judicial procedures which our law regards as essential for the doing of justice between parties.

1. The Full Court has accepted that the expression should not be interpreted narrowly:

   The important matter that must be established for an application under this part of the section to succeed is that there has been a miscarriage of justice. It is, we think, clear as counsel for the appellant argued that the words “miscarriage of justice” should not be given a restrictive meaning, particularly when coupled with the words “any other circumstance” and that justice means justice according to law.

   (Gerbert and Gerbert (1990) FLC 92-137, at 77,935-6)

2. Nor should it be interpreted too widely to include circumstances beyond “the integrity of the judicial process”:

   The passage is important in that (a) it is stressed that the words “any other circumstance” is not of unlimited scope but governed by the words “miscarriage of justice”. It also elucidates the proposition that “justice means justice according to        law”, ie it relates to the integrity of the judicial process. This is supported by the remarks in Robins v National Trust Company Limited [1927] AC 515 where it was suggested that the expression means 'such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper use of the word judicial procedure at all.

   (Clifton and Stuart (1991) FLC 92-194 at 78,337. See also Public Trustee (as executor of the estate of Gilbert) v Gilbert(1991) FLC 92-211 at p 78,427 and also in Bigg v Suzi(1998) FLC 92-799.)

3. The Full Court held in Clifton and Stuart (1991) FLC92-194 (at 78,335 to 78,337) that “miscarriage of justice” is not about an unjust result so much as a departure from the integrity of the judicial process.  Their Honours held (at 78,337):

   “…'justice means justice according to law', ie it relates to the integrity of the judicial process. This is supported by the remarks in Robins v National Trust Company Limited [1927] AC 515 where it was suggested that the expression means 'such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper use of the word judicial procedure at all."

   And (at 78,338):

   “The principle here expressed appears to be the same though the latitude extended to an accused in determining which evidence was by reasonable diligence available to him or her may be greater. Our conclusion therefore is that a miscarriage of justice must arise out of the judicial process and that the incompetence of legal representatives unless of the kind instanced by counsel for the husband does not by itself affect the judicial process or the fairness of the trial even though the result may be unjust to the party concerned.”

4. Ordinarily a breach of the duty of a litigant to make full and frank disclosure of his financial circumstances in section 79 proceedings would be a miscarriage of justice.  The Full Court in Morrison and Morrison (1995) FLC92-573 has said, at 81,672 :

   “We take this opportunity once again to reinforce the view that the duty of disclosure is a basic duty. Ordinarily, a failure to comply with that duty will amount to a miscarriage of justice.

5. The false evidence the husband gave was that he had actually spent the amounts totally nearly $40,000 on dog kennelling, when the truth was that he had not and had fraudulently obtain “reimbursement”.  There is an issue as to whether Rowlands J would have treated the $40,000 differently than he did if the false evidence had not been given.  But quite apart from that, if the husband had given truthful evidence the trial judge would have been aware of the husband’s fraudulent conduct and that could have been of considerable weight in assessing the husband’s credit.

6. The relevant findings as to credit of the parties in the judgment of Rowlands J are:

Footnote 5, page 3:

“The wife says the parties had about $34,000 in a tin at separation. She acknowledges that she had some $17,200 after separation saying the husband had taken about half of the money i.e. $17,000. The husband asserts that the wife had and retained the whole $34,000. I am inclined to accept the husband's story, on the balance of probabilities, as it is more consistent with the way in which the parties dealt. It is unlikely that the husband would have scrupulously restricted himself to half the monies if he had accessed the tin or that the wife would do so. As she acknowledges she accessed the monies probably all remained with her. I find accordingly.”

And:

“25However a real controversy raged between the parties relating to other dogs which the parties had or have which do not form part of the valued category.

26       I accept that each party had or had control of various dogs which were not part of the valuation process and which ideally should be valued and included as part of the parties' property.

27       The difficulty arises in attempting to uncover amongst the evidence credible accurate material which permits the Court to make findings in relation to the value of such animals.

28       In opening, the wife's counsel contended that [dog] monies received after separation should remain with the receiving party. There are, of course, two sources of income, one is the sale of dogs and the other is winnings.

29       The burden of the husband's counsel's submissions are to be found in his final written submissions, which contain the following observations:

Overall it is perhaps not necessary or desirable to find precisely in relation to the dogs.

30       He concluded:

As indicated it is perhaps impossible and arguably undesirable to endeavour to wade through the labyrinth of evidence of arrangements, agreements and changed events since separation in order to determine the differences between the parties in terms of any additional value of other dogs in that party's care or control and any other benefit to the party of any arrangement in relation to any dog.

No endeavour whatsoever was made by the wife to lead any evidence even by merely putting to the husband the valuation figures for any dog said to fall outside [Mr O’s] valuation process. Presumably this was a quite deliberate strategy having regard to the value or lack of value that any such dogs have.

31       In support of these submissions he made various points including the following:

(a)neither party has been able to operate the [dog] business as profitably as before separation;

(b)the wife has won since separation $63,115 (Exhibit H4 accepted by her);

(c)      the wife has sold dogs worth $86,000 (Exhibits H2 and H7);

(d)the husband has won since separation $117,995 (Exhibit W14 and Exhibit 31); and

(e)      the husband has sold pups.

32       He also said:

Both of the parties have dogs of value to them albeit not specifically valued in these proceedings.

The husband's counsel also drew attention to unusual features of [dog] valuations eg a brood bitch is not given a value even if her pups had sold for thousands of dollars.

33       If one generally accepts 31(a), (b), (c), (d), (e) and 32 then, in broad terms, a certain equality emerges if the husband sold a significant quantity of pups. This cannot be said with certainty but I accept that he had bitches which produced pups which were sold and he earned more than the wife in winnings.

34       Of course it is not clear how any such income outcome points to an equality in the value of remaining dogs but perhaps it is indicative.

35       Counsel for the wife in final written submissions of 20 June 2004 paragraphs 11 and 12 lays the foundation for paragraph 13 and 14 which are in these terms:

13.In oral submissions it was submitted for the Wife that the value of the dogs in the possession and/or control of the Husband must necessarily be significantly more than the $40,000 the parties agreed as to the dogs listed in Mr [O’s] report. In annexure C (to his affidavit sworn 5 November 2003) the Husband states what he considers his dogs and the Wife's dogs to be worth.  The Husband says the dogs listed in Nos. 6, 7, 11, 19, 21, 23, 24, 32 and 33, none of which have been disclosed by him, are worth $195,000. It is conceded on behalf of the Wife that the "value" attributed by the Husband to these dogs, on balance, is somewhat inflated. However, the Husband, on his evidence, is experienced in the [dog] breeding industry and even if one discounts the "value" attributed to these dogs by the Husband in annexure C by 50%, a figure of $97,500 is arrived at. It is submitted that on the evidence, and on balance, it is open to your Honour to make a finding that the Husband has additional dogs, other than those listed in the valuation report of Mr [O], and in the Husband's own evidence and the evidence contained in Exhibit W-15, of at least another $50,000.

14.In those circumstances, it is submitted that the value of the [dogs] in the Husband's possession and/or control is at least $90,000.

36       Whatever attraction the submitted course may have at a superficial level as the answer to the problem it does not in my mind survive a series of problems namely:

(a)      Annexure C gives a value of the parties' dogs which is far and away above apparent reality (at least insofar as Mr [O] and presently the parties themselves appear to be suggesting) with a total valuation of [dogs] of $1,055,500 (with dogs and pups owned by the husband at $315,000 and those by the wife at $740,000).

(b)      Counsel for the wife seeks to rely on the husband's [dog] expertise to assist in boosting the value of the husband's animals while ignoring that expertise in relation to the more substantial value he attributes to those with the wife in Annexure C.

(c)      Counsel acknowledging the value attributed in Annexure C is inflated suggests a discount but chooses a percentage for the discount without any indication of how that approximation could be embraced (rather than any other), even as a very rough approximation.

37       Insofar as the husband's credibility is attacked in relation to the disclosure of animals for valuation, if that can now be regarded as a relevant consideration, it may be met by the generally successful attack on the wife's credibility in relation to those under her control eg the "[TC]" affair. (This successful [bitch] has now ceased to [compete] [and is of no value] but has produced litters of pups from which the wife has benefited. [See paragraph 32].)

38       The foregoing suggests to me that, beyond the valuations of Mr [O], there is no sound basis for further valuation as such.

39       Doing the best I can I can conclude that each party has further dogs (beyond those covered by the [O] valuation) and of value to them. These dogs, when added to the value of the valued dogs (worth $40,000 to each), provide something like an equality of outcome. This is not altogether surprising given that the [dog] knowledgeable parties divided the animals, however roughly, between themselves. There has also been a haphazard, unrecorded taking, using and possessing of chattels by the parties for [dogs] and general use which they wisely did not really seek to disentangle at the conclusion of the case.”

1. His Honour also made the following findings in relation to kennelling expenses reimbursed to the husband:

   “Partial Property Settlement (Item 18)

57       As a condition of her obtaining exclusive occupation of the parties' property at [U] (Property Item 2) in March 2003 the wife was required by Court Order (Judicial Registrar Loughnan) to pay the husband the sum of $800 per week for kennelling expenses of his relocated dogs. To this end $45,000 was placed in a solicitor's trust account and payments were duly made to the husband.

58       The wife argues that this should be regarded as a partial property payment to him.

59The sum of $45,000, it appears, provided for payment of $800 per week until about May 2004.

60       I proceed on the basis that payments have not been paid beyond the $45,000 whatever the terms of the order. In fact the wife has remained in occupation of Item 2 to the present time. Assuming that an orderly sale process is likely to occur in respect to the property, given the requirements and the season, she is likely to remain in possession until, say, March 2005, i.e. approximately a further 45 weeks beyond May 2004. This is an unfinanced period which would amount to some $36,000 (45 x $800).

61       Although the wife seeks a recognition by the Court that the advance of $45,000 be treated as a partial property settlement in the husband's favour, she has had and will continue to have for a period of about two years (from March 2003 to March 2005) possession of the parties' property worth $600,000. Rent at $800 per week would amount to $83,200 for this period. If one were to put the rent at the lower, perhaps more reasonable, figure of 5%, that would amount to $576.92 per week, or appropriately rounded as rent so often is, to $600 per week, it would be $62,400. However the wife may be regarded as owning 50% of the property so this may reduce to $31,200. The higher figure ($800) would have produced $41,600.

62       To the extent that the husband had an obvious need and the wife has had the use of the property, its convenient facilities for her dogs etc, a set off as to part of the advanced sum broadly analogous to rent (despite various outgoings) seems to me appropriate. In the circumstances outlined, considering the issue overall without the benefit of any detailed material or analysis during the case concerning matters involved, it appears to me appropriate to adopt a rounded figure of $10,000 as the partial property figure, being an advancement to the husband beyond the wife's advantage mentioned.”

1. From the above material, it is likely that if Rowlands J had known the truth about the husband’s alleged payments of kennelling expenses, he would have had a very poor view of the husband’s credit and this would have been taken into account when considering the conflicting evidence of the parties about the $34,000 in the tin, and about the husband’s dogs not included in the valuation.  There may also have been other areas where he would not be prepared to believe the husband’s evidence.

2. In my view there was a miscarriage of justice because the false evidence denied Rowlands J knowledge that the husband had obtained about $40,000 of the parties’ funds by fabricating invoices, having some of them signed by others, and purporting to have paid the invoices.  It went to the integrity of and the judicial process.

STEP 3:SET ASIDE OR VARY THE ORDERS

1. The power of the Court to vary or set aside the Orders under Section 79 is discretionary.  The words of the section, “The Court may in its discretion…” make that clear.  (See Full Court in Prowse and Prowse (1995) FLC 92-557 at 81,563.)

1. If a miscarriage of justice is established there is not even a prima facie entitlement to set aside or vary the orders (see Prowse and Prowse (1995) at 81,566.)  The applicant has the onus to satisfying the Court that the original orders should be set aside or varied. 

2. The Full Court in Morrison and Morrison (1995) FLC 92-573 held that a breach of the duty of disclosure in financial proceedings would usually constitute a miscarriage of justice and said (at 81,672):

   In saying that, however, we adopt (with slight modification) the words of Lord Brandon in Livesey and Jenkins at 119 where His Lordship said:

   ``I would end with an emphatic word of warning. It is not every failure of frank and full disclosure which would justify a court in setting aside an order of the kind concerned in this appeal. On the contrary, it will only be in cases when the absence of full and frank disclosure has led to the court making, either in contested proceedings or by consent, an order which is substantially different from the order which it would have made if such disclosure had taken place that a case for setting aside can possibly be made good. Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed, with costs against them...''

   Rather than use His Lordship's test of ``the order which it would have made'', we would suggest that the test is more properly expressed as ``the order which it might have made''.

   (see Livesey and Jenkins (1986) 1 All ER 106 at 119)

3. Taking into account the preceding findings and the following 5 matters, the finding is that the wife has not established that the interests of justice require that the discretion  to set aside or vary the orders should be exercised:

   1)Since the Judgment and orders the wife has had the use and occupation of the former matrimonial home, kennels and grounds.  It was valued at $600,000 at the hearing and Rowlands J arrived at a rental value of $800 per week.  He allowed in his Judgment for the wife to have the property till March 2005.  But she has enjoyed rent free occupation for another 3 years and 3 months.

   2)Justice Rowlands treated the $40,000 paid to the husband the same as if the husband had retained it or had used it for his personal purposes.  At Footnote (6) to paragraph 11 of the Judgment he referred to the amounts as “alleged kennelling costs” (my underlining).  He included the whole $40,000 in calculating an “add back” adjustment to the pool of property and liabilities for purposes of calculating the parties’ entitlements.  He did not treat it as being used for any joint purpose of the parties. 

   His treatment of the alleged kennelling expenses was in accordance with the submissions on the wife’s behalf at the hearing.  “The wife argues that this should be regarded as a partial property settlement to him” (judgment paragraph 58).

   So the only demonstrated relevance of the false evidence to the outcome was in terms of its effect on the assessment of Rowlands J of the husband’s credit and the possible consequences in relation to the findings about the cash in the tin and the husband’s dogs not included in the valuation.

   3)In these proceedings cross-examination of the wife revealed very serious problems about her credit,  some of which Rowlands J was unaware.

   In cross-examination the wife was asked about a bitch called “[TC]” which was the most successful dog the parties had ever had.  Amongst its prize winnings was one first prize of $100,000.  It was put to her that she conspired with Mrs K to pretend she transferred the dog to her in November 2001.  But later she conceded a purported transfer of the dog to her sister in the wife’s handwriting and dated 10 November 2001, shortly before the time the parties separated, and at a time when, she conceded, there had been “a lot of problems” in the marriage and he was looking to move to Victoria.

   She wanted TC.  She claimed he transferred TC to her in June 2001.  But when asked how that was done, she avoided the question until I directed her to answer it.  She said, “[the husband] transferred it in June 2001”, which was still an avoidance of the question.  She volunteered, “I had 2 people present at the time”.  On the balance of probabilities her evidence that he transferred the dog to her was untrue and she knew it was untrue.

   Exhibit H3 is in the following terms:

   “Invoice/Statement 38

   Date:10-11-2001

   TO:[Mrs K]

   FROM:[The wife]

   Order No.

   This is to transfer ownership of [TC] and 5 male and 1 female

   This is to cover the debt owing to [Mrs K] for loans she has made to me.  I am unable to pay her back and we have agreed for ownership to be transferred.

   (signed)[the wife]

   I.O. [Mrs K] $100,000.00”

   But her evidence, despite considerable evasiveness, established that the document was a sham and there was no transfer.  Despite further evasiveness she conceded that she never owed her sister $100,000.  She had made a similar admission at the hearing.

   She conceded in cross-examination that the arrangement with her sister “came unstuck” because they had a falling out.

   She conceded that in November 2002 she gave her brother-in-law $45,000.  She denied she did that to “hide” the money in the property proceedings.  She said, “I needed it to be put away so I couldn’t get it”.

   In cross-examination she, after enormous evasion, conceded that she had conceded in cross-examination before Rowlands J that she had not disclosed a ride-on mower that she acquired in the name of her brother-in-law in case the husband “decided to take it off me”.  But her evidence was that that proposition was untrue.

   It was put to her that at separation she retained $20,000 in a Commonwealth Bank account.  She answered, “I didn’t think there was that much”.  It was put to her that she disclosed no savings in her first Financial Statement in the proceedings and she replied, “I honestly can’t remember that”.

   She conceded that at the property hearing she purported she owed her brother $70,000.  In an affidavit sworn 5 November 2003 she swore the debt was $75,000.  She conceded that her brother wrote to her on 28 October 2003, before she swore that affidavit, and said she owed him nothing.  She conceded that until she was cross-examined at the property hearing she did not disclose that letter. Her explanation in these proceedings was “My brother was – knew I was worried about paying him back, and he wrote that out – out to make me feel better”.

   Rowlands J did not find that she owed any amount to her brother.

   Exhibit H4 shows the wife’s share of dog prizes was $10,796 and in the 6 months 1/1/2006 to 1/7/2006 it was $9,649 (an average of $371 per week).

   The wife in these proceedings swore in her Financial Statement she is self-employed.  When it was put to her that she runs “a business breeding [dogs]”, she replied, “I run a hobby”.  But she conceded she told Rowlands J she needed the former matrimonial home to “continue” her business as a trainer and breeder of dogs.  It was put to her that at no stage before Rowlands J did she use the word “hobby” and she replied, “I was never asked”.  She was asked whether the figure of $425 shown as “salary and wages” in her Financial Statement in these proceedings is correct, and her response was, “I have got no idea what my solicitors put on there.  I work casual for […].  It varied.”

   Her attention was drawn to the sworn statement she made as part of the document about her obligation to make full and frank disclosure of her financial circumstances and the statements that she had made such disclosure in the document or an affidavit and that she had no other income, property or financial resources than those she disclosed.

   When it was put to her that she knew she was swearing the contents that were not true she avoided the question.  She said, “I trust my solicitor.  I tell him the figures and he fills them out”.  She said in answer to further questions that $425 was her average income from her casual employment.

   She conceded she stated “nil” as her income from “business, partnership, company or trust”.  She denied that was untrue.  The document is dated 3 April 2006.

   The following exchanges later occurred:

   “MR DUANE:          Did you tell the Judge you expected to earn at least $30,000 per annum in the future?

   [THE WIFE]:  Yes, yes. Yes.

   MR DUANE: And ma’am, you full well know that since the Judgment you continued to earn significant moneys from these dogs, haven’t you?

   [THE WIFE]:  No, I never earned any money up until probably six months ago, hardly any.  I had none [competing].

   MR DUANE: Now ma’am, when you say “hardly any money”?

   [THE WIFE]:  Yes.

   MR DUANE: How much money is “hardly any money”?

   [THE WIFE]:  I used to – I get half of the prize money that are for dogs.  You’d have to check the […] records and it would tell you exactly what I’ve earned in the last 12 months.

   MR DUANE: Ma’am, we’re going to check the […] records, but you can see that nowhere in your material do you find any calculations or any amount for [dog] earnings since the Judgment?

   [THE WIFE]:  Well, I – I did tell my solicitor how much I’d earned.  I gave him the […] records.”

   Later when it was put to her that she did not mention any dog income in her Financial Statement, her reply was, “I did mention it to my solicitor”.  In cross-examination she conceded that she did not disclose in her Financial Statement, as required, that her partner and her son live in her household, their ages, relationship to her, and gross incomes.

   Although she did not disclose any income in the Financial Statement for dogs, she said in cross-examination that probably $320 of an amount of $450 per week for expenses, would be for dog expenses.  She also testified that she gives her son about $50 to $100 per week for “getting meat” for her dogs, or taking her dogs “to the vet or checks”.

   She conceded in cross-examination that her Financial Statement of 3 April 2006 did not disclose all the dogs she owned.  She disclosed only 2 brood bitches.  She said, “That’s definitely not true.  I owned a lot more dogs than that.”  This admission was in the context of the evidence of the husband that he had seen about 19 dogs on the property.

   In an affidavit of 3 April 2006 in support of her application to stay the Orders of Rowlands J, the wife swore:  “Apart from my interest in the former matrimonial home …. I have no assets sufficient to allow the satisfaction of the outstanding orders which are the subject of appeal…”.  She said that enforcement orders “would have the effect of forcing the sale of the one significant asset I expect to retain …”.

   She denied she deliberately understated her asset position when making the application.  She conceded that on 6 May 2006 there “possibly could’ve been” 16 dogs on the property.  She claimed they were not all hers.  She conceded that at the time she had 6 competing dogs.  She also admitted she had a bitch that had whelped a litter of 10 pups in April 2006.  She had sold some for $6,000 each. 

   She knew when she swore her affidavit and Financial Statement that her bitch was about to have a litter.  She made no disclosure in the affidavit.

   She also had another bitch which had 8 pups which were born in early June 2006.  They were sold for a total of $48,000.

   Later in cross-examination she conceded ownership of 8 competing dogs and other young dogs yet to start competing.

   She conceded that in 2005 she earned about $10,000 in prize money from 7 competing dogs. 

   She obviously made no real attempt to ensure that what she swore in April 2006 in the financial statement and affidavit was correct.   On the balance of probabilities she intended by false evidence to mislead the Court.

   The husband went to properties neighbouring the former matrimonial home and observed the dogs on the property.  He swore an affidavit on 11 May 2006.  He said in that affidavit he had observed approximately 19 dogs on the property.  Although the wife was not aware of his attendance on the neighbouring properties at the time, when she read the affidavit she went to the Local Court and swore a complaint to commence apprehended violence proceedings.  She falsely alleged the husband was harassing her. 

   The wife in cross-examination presented as extremely evasive.  At times she responded to questions by asking a question.  She often volunteered unresponsive material.  She sometimes repeatedly avoided the same question.

   In the earlier reasons for finding the husband gave false evidence there are extensive adverse findings about his credit.  In these proceedings both parties presented as unreliable and dishonest witnesses who are each prepared to lie and fabricate evidence to advance his or her prospects in proceedings between them.  There is almost a certainty that in any re-exercise of the discretion under section 79, each would lie and not make full and frank disclosure of his or her financial circumstances.

   4)Delays

   The Orders of Rowlands J were made on 20 December 2004. The application by the wife under section 79A was not filed until 7 April 2006. It seems that the evidence of her son was critical to her deciding she could prove false evidence had been given. His affidavit was sworn on 10 March 2006. So it appears she did not become aware of the evidence he could give until February or early March 2006. There does not appear to have been unreasonable delay in filing the application.

   At the start of the hearing on 25 July 2006 the wife had still not particularised the alleged false evidence.  It was not until late in the day that the wife’s counsel provided those particulars.

   On 19 January 2007 the parties were ordered to file and serve written submissions on the issue of whether there had been false evidence.  The wife was given until 2 February and the husband was given until 9 February.  The wife’s submissions were filed on about 5 February.  The husband’s submissions were filed on about 14 March, nearly 6 weeks late and supplemented on 19 March.

   The wife filed submissions in reply on 30 April and the husband’s Counsel responded on 29 June.

   On 15 October 2007 the proceedings were adjourned for a 1 day hearing of submissions as to whether there was a miscarriage of justice and as to whether the wife’s application should be dismissed without further evidence.

   That hearing was fixed for 17 January 2008 but on that day the wife was not ready to proceed.  On her application and without consent of the husband the proceedings were adjourned.  She was ordered to pay his costs of the adjournment.  The husband was ordered to file and serve written submissions within 7 days and within 21 days after service the wife was to file and serve her written submissions.  The husband’s submissions were filed about 8 weeks late.  The wife filed her submissions 23 days later.

   The wife’s failure to be ready to proceed on 15 October caused a delay of 4 weeks.  The failure of the husband to file written submissions as ordered caused a delay of 8 weeks.

   Overall both parties have been responsible for significant unjustified delays in the proceedings.

4. The husband is opposed to the Orders being set aside or varied or other orders being made.

STEP 4:  MAKE OTHER ORDERS        

1. For the same 5 reasons there should be no orders that would involve re-exercise of the discretion to make orders under s 79.

STAY

1. The stay granted by Rowlands J on 2 June 2005 was ordered before commencement of the section 79A application and in the context of the Appeal the wife proposed and has since filed. There is no application before me to discharge the stay. It is a matter for the Full Court to decide if such an application is made. It is a matter for one or both of the parties to relist the Appeal.

______________________
The Hon Justice Mullane

Date:   26 June 2008