Woodruff and Woodruff
[2014] FamCA 1151
•4 December 2014
FAMILY COURT OF AUSTRALIA
| WOODRUFF & WOODRUFF | [2014] FamCA 1151 |
| FAMILY LAW – PROPERTY – Application by husband to set aside property orders pursuant to s 79A(1)(a) made in November 2013 – Application unsuccessful |
| Family Law Act 1975 (Cth) s 79A (1)(a) Evidence Act 1995 (Cth) s 140 |
| Suiker & Suiker (1993) FLC 92-436 |
| APPLICANT: | Mr Woodruff |
| RESPONDENT: | Ms Woodruff |
| INTERVENOR: |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | LNC | 214 | of | 2012 |
| DATE DELIVERED: | 4 December 2014 |
| PLACE DELIVERED: | Launceston |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 4 December 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Welch |
| SOLICITOR FOR THE APPLICANT: | Philip Welch |
| COUNSEL FOR THE RESPONDENT: | Ms Brown |
| SOLICITOR FOR THE RESPONDENT: | Legal Solutions |
Orders
The application made by Mr Woodruff to set aside the final property orders made on 21 November 2013 is dismissed.
In respect of the parties’ outstanding applications for costs, each of the parties who seeks to pursue costs orders shall:
(a)on or before 19 December 2014, file and serve written submissions in relation to such cost applications (including reference to any filed or published material) together with any further affidavit evidence upon which that party wishes to rely;
(b)on or before 28 January 2015, the costs respondent may file and serve written submissions in relation to such cost applications (including reference to any filed or published material) together with any further affidavit evidence upon which that party wishes to rely; and
(c)on or before 6 February 2015 the costs applicant/s shall file and serve any reply to the cost respondent/s costs application.
All outstanding applications are stood over for mention before me at the Launceston Registry at 10.00am on 11 February 2015. The husband is given leave to attend by telephone.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Woodruff & Woodruff 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 LAUNCESTON |
FILE NUMBER: LNC 214 of 2012
| Mr Woodruff |
Applicant
And
| Ms Woodruff |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Woodruff (‘the husband’) and Ms Woodruff (‘the wife’) entered into consent property orders (‘the orders’) on 21 November 2013 after a defended hearing had commenced the previous day. In those orders the parties asked the Court, and the Court noted, and I quote:-
That the parties intend these orders to be full and final settlement of their respective rights and claims against the other for property settlement and spousal maintenance pursuant to part VIII of the Family Law Act and superannuation orders pursuant to part VIIIB of the Family Law Act.
Unfortunately, this has not been the case. There are now three substantive applications before the Court. The first is the application by the husband filed 23 May 2014, or thereabouts, to set aside the orders. This was amended by his amended application filed 26 November 2014, and it is that latter application upon which the husband moves in this proceeding. The second is the application of the wife, filed 6 June 2014, asking that the husband be dealt with for contravening the orders. The third application would be that which will arise if the husband is successful, that is, a re-hearing of the substantive property proceedings.
Each of the parties was represented by a legal practitioner in the first hearing and today. The approach, and might I say the sensible approach, adopted by the parties was that the application to set aside the orders should be separated from the substantive property matter, and, given the material before me; I accept and adopt that course.
At the commencement of the hearing, counsel for both parties conceded that:-
a)the application to set aside the orders would need to be heard before the determination of the contravention application;
b)the application to set aside orders ought to be heard separately, as I said earlier, from the property proceedings in the event that the application to set aside was successful; and
c)the contravention application would become mute in the event the husband was successful and the property orders were set aside.
These reasons deal with the husband’s application under section 79A(1)(a) of the Family Law Act 1975 (Cth) which provides:-
(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; …
The husband’s case is essentially that the wife has not made full and frank disclosure of a number of things, those being the items set out in his summary of argument filed 28 November 2014 at pages 6 and 7 and I will quote that:-
By virtue of section 79A(1)(a) the Court ought to be satisfied there has been a miscarriage of justice by the wife’s failure to disclose relevant information at the date of the orders, namely:-
(a)that her true state of health was known to her at the date of the orders, was that she had a life expectancy of less than 12 months;
(b)and (c), which can be read concurrently, was that she was entitled to make a claim for permanent illness benefits in relation to the OnePath and CommInsure Life policies at the date of the orders;
(d)that at the date of the orders the wife was intending to claim on the OnePath insurance policy without disclosing that to the Court;
(e)that at the date of orders the wife was intending to claim on the CommInsure policy without disclosing that to the Court;
(f)that at the date of orders the wife intended to retain the benefit of the CommInsure insurance policy for herself;
(g)that at the date of orders the wife intended to retain the benefit of the OnePath insurance policy for herself;
(h)that at the date of the orders the parties had additional property being the benefits of the OnePath and CommInsure policies in the respective sum of approximately $260,439 and $251,528 totalling approximately $511,967.
The husband went on to say:-
that it is appropriate in the circumstances, including the quantum of the two insurance policy benefits that the orders made on the 21st November 2013 in the Family Court be set aside.
The first part of that is the assertion of the alleged failure to disclose. The second part raises the question as to whether the Court ought to exercise the discretion which it clearly has under the section.
Background
The wife was born in 1967 and is now aged 47. The husband is now aged 48. The parties commenced cohabitation in 1993 and married in 1994. According to the wife, they separated in May 2011. According to the husband, they separated in July 2011. Little rests on this in terms of this determination as to the accuracy or otherwise of those dates but it is clear that in either May or July 2011 the relationship between the parties came to an end.
There are three children of the marriage: B, aged 17, who has some health difficulties; C, aged 14; and D, aged 11. The children live with the wife in Tasmania. The husband lives in Western Australia, and has lived there since early 2013.
In April 2001, the wife was diagnosed with Stage II breast cancer and was required to have a right mastectomy and auxiliary followed by chemotherapy and other treatment. This is set out in paragraphs 72 and 73 of the wife’s trial affidavit[1] which was before me.
[1] Sworn the 28 October 2013.
In May 2011, the wife received the sum of $245,000 being the proceeds of a trauma claim made by her in respect of a Colonial Life Insurance policy, (at paragraph 78 of the wife’s trial affidavit. That was part of the CommInsure policy.
Her first round of chemotherapy was completed in August 2011. In April or May 2012, the wife was diagnosed with Stage IV cancer. The wife has been the primary carer of the three children since separation and in 2013 it was anticipated that this was to continue subject to the state of the mother’s health and given that the husband was at that stage living in Western Australia. I believe that is set out in paragraph 122 of the wife’s affidavit. The wife disclosed in her trial affidavit at paragraph 123 that her cancer was terminal.
The husband worked in Country E from about May 2011 until August or September 2012 when he returned to Tasmania, but in February 2013, as I said, he relocated to Western Australia.
In the determinations of fact that I make in respect of these proceedings, I have considered the civil standard of proof applicable to the court pursuant to s 140 of the Commonwealth Evidence Act 1995 (Cth), that is, facts must be proven on the balance of probabilities.
Evidence
The wife relied upon the following documents:-
(a)her contravention application filed 6 June 2014;
(b)her affidavit filed 28 October 2013;
(c)her affidavit of 6 June 2014 in relation to the contravention application, although that really had no bearing on the material that came before me;
(d)her affidavit of 28 November 2014;
(e)her financial statement of 24 October 2014, although that likewise had little bearing on the determination;
(f)the affidavits of her oncologist, Dr F, filed October 2013 and October 2014;
(g)parts of the husband’s original trial summary document to which he was subjected to cross-examination; and
(h)her response filed 24 October 2014 where she asked that the husband’s application to set aside the orders be dismissed.
The husband relied on the following documents:-
(a)his application filed 26 November 2014, or amended application seeking the setting aside of the orders, although I have also had regard to the fact that he filed an initial application in May 2014;
(b)his financial statement of 23 May 2014, although little or nothing was made of this in terms of the evidence or in terms of the submissions, and that falls into the same category as the wife’s financial statement;
(c)his affidavit of 24 November 2014; and
(d)his affidavit of 26 November 2014, albeit that that was not the subject of cross-examination and was not the subject of any meaningful discussion as it arose out of the contravention proceedings.
He also sought to rely on the affidavits of Dr F. However, I have treated Dr F’s evidence as being evidence for the wife, and that enabled the husband to cross-examine Dr F, as he did yesterday.
The husband tendered in evidence an email from the wife to her financial adviser, Ms G, of 26 November 2013, some four days after the orders were made and were marked Exhibit H2, and a letter from Mr H of I Pty Ltd dated 3 December 2013, which was apparently sent following a meeting with the wife on 2 December 2013, that document being Exhibit H1.
The wife
The wife gave evidence in accordance with the affidavits and the material which I have already referred to above and was cross-examined. The wife’s evidence was that at the time the orders were made the insurance policies were available to both her and the husband. That is, the OnePath and CommInsure policies. The wife said that on reflection of the settlement, she thought about it that night and then arranged to see a financial adviser. It is not in issue that she was recommended to this course by the husband, he gave evidence of that in cross-examination yesterday, and that she was also recommended in that course by her solicitor or legal practitioner at the time the orders were made.
Her clear and unambiguous evidence was that at the time the orders were made she was not contemplating making a claim for terminal illness under either the Comminsure or the OnePath policy. She thought, mistakenly as it was, that the trauma claim extinguished the other claim. After taking advice from Ms G and later, on 2 December 2013, Mr H, the wife became aware, or either in that advice or by the letter, that it may be possible to make a claim. She was provided with documentation by Mr H.
The evidence of the wife was also that her oncologist was careful in giving estimations of life expectancy to her. That evidence is wholly supported by the oncologist, who would give averages, but, in his words, he was not into the business of “prognostication.” After the orders were made in the context of the winding up in the days and weeks that followed, the wife was concerned that the husband would benefit from her death, and she wished that their children would benefit from her death.
In the days and weeks that followed the orders, each of the parties had different views as to whether the wife could make a successful claim. After receiving the letter from Mr H of 3 December 2013 the wife delivered documents to her specialist, who completed the documents and indicated in those documents to the insurers in the scope of that claim that he believed the wife’s life expectancy was less than 12 months in one and between six and 12 months in the other.
Some criticism was made of the wife in relation to what was said to be a difference between the evidence of the wife and that of her oncologist. The wife said that she did not speak to the oncologist. The oncologist said that he must have spoken to her. I do not see this in any way impeaching the wife’s evidence. People’s memories of events are not always perfect. The wife’s approach to the financial experts after the property orders were made, as I said, was pursuant to advice given to her by her legal practitioner and the husband.
The wife lodged an Advance Life claim with CommInsure on 12 December 2013 and that claim was later accepted and the proceeds were divided equally between the husband and the wife. Subsequent to that successful application, the wife made an application in relation to the other policy, the OnePath policy, which was likewise accepted. That application was made in April 2014 and, on 30 April, the wife received notification that she would be paid about $260,000.
The wife was cross-examined in relation to her knowledge of her limited life span at the date the orders were made. Her evidence, as contained in paragraph 124 of her trial affidavit of 2013 was as follows, and I quote:-
I have been advised by my doctor and believe (hope) that my life expectancy can extend to 10 years or more after my initial diagnosis. That would take me to 2021.
The wife gave that evidence in circumstances where, in April 2011 she was provided with some statistical information by her oncologist that 70 per cent of patients with Stage II cancer, such as hers, survived for 10 years. In the light that the following year the doctor informed her that, statistically, patients with that sort of cancer had a life expectancy of far less. I think his evidence was of about a year. I treat that evidence in the light of a person facing her own mortality and having hope for the future. It is certainly not expert evidence, and the fact that the wife may have been a radiographer makes little difference. Humans have hope. Humans are entitled to hope, and it is obtuse of the husband to say that he relied on this evidence in the circumstances of the medical evidence to which I will allude to later in these reasons.
The wife was cross-examined in relation to some emails that were annexed to the husband’s affidavit of 24 November, being annexure C. Those emails related to various matters, one of the thrusts of the husband’s case relates to the email sent by the wife to the husband on 3 December 2013, where she said, and I quote:-
I have been to see a financial adviser and you are right, there is no basis for a claim.
The husband says that this was not true, and I accept that it was not true, and I think the wife accepts that it was not true. What the husband says, and I will refer to later, is that I should infer that this was part of a conspiracy of some description by the wife. Perhaps “conspiracy” is the wrong word, but a course of action to hide from him her intention to make that claim. I have heard that evidence and I am not persuaded that it impeaches generally the evidence of the wife.
It is clear that the joint CommInsure policies were to remain joint policies. The parties had discussions the following day, and there is no issue as to that, as to a 50-50 division, and the parties provided in the orders that the premiums would be paid by the husband and wife in different amounts reflecting the amounts relating to each of their lives. It is clear in her email of 26 November 2013 to the husband, which his part of annexure C, that, if a claim was made in relation to the CommInsure policy it will be divided equally.
There is a contest between the parties as to what was said in a conversation between the husband and the wife contained in paragraph 9 of the husband’s affidavit of 24 November 2014. The husband says this:-
On the morning of 22 November 2013, being one day after the orders were made, the wife has initiated a conversation with me at the matrimonial home which she stated emphatically that she was “very well.” She claimed that her oncologist, [Dr F], said that he did not want to see her for 12 months.
The wife’s evidence was that that was not true. I will deal with that later on, although I can make it clear at this stage my preference is that evidence of the wife rather than the evidence of the husband, and the reasons will be clear later.
It is clear that I can infer that others regarded the wife as in need of financial advice, including the husband, and she took that advice. The wife’s plain and unambiguous evidence is that she did not intend to make claims at the time the orders were made and that this arose in the context of obtaining financial advice. I generally accept that the evidence of the wife was reliable and was not impeached during cross-examination.
The husband
The husband gave evidence in accordance with his affidavits of 24 and 26 November 2013 and his financial statement of 23 May 2014. The material contained in his affidavit, as with that of the wife, was notionally read into evidence, and, of course, I have read all of that material. The husband agreed that he had dealt with large contracts in the context of his previous senior managerial employment and those included large, complex documents. He had access to the policies in detail well before the hearing, but denied that he had seen it himself. There is evidence that it had been made available to his legal practitioner. In either event, he had constructive knowledge of what was contained in those policies and he had the skills and knowledge in terms of what they meant. I can’t say, and don’t find, that it was superior to the wife because that evidence is not available to me.
He collected a policy from the wife’s legal practitioner’s office on 22 November 2013. However, on reflection, this makes little difference, as, in his affidavit of 24 November 2014, at paragraph 14, the husband says this, and I quote:-
Had this more accurate/explicit medical advice been provided to the Court prior to the date of the Orders stating un-categorically that [the wife’s] life expectancy was less than 12 months, I would have been aware that our asset pool would have been approximately $511,000 more (27% more) than [the wife] claimed it was contrary to her knowledge during the Court proceedings of the 20th and 21st November 2013.
Thus, the husband’s evidence was that he would have known there as an entitlement of $511,000 at that time. When he gave that evidence, I was concerned that I had misinterpreted what he had said. I interrupted the cross-examination and asked him if he knew what the wife’s entitlements were in relation to the benefits at that time. He initially prevaricated, then conceded, yes, he did. So, on his evidence in cross-examination, he was aware of those entitlements at that time.
The significant question arises from his evidence then as to whether the wife had deceived him in terms of the level of her illness. The husband asserted in paragraph 13 of his affidavit of 24 November 2014 that, and I quote:
Had this more accurate medical advice stating that the wife’s life expectancy was less than 12 months been provided to the court provided to or on the date of orders, I would not have agreed to the orders with respect to the percentages of assets split between [the wife] and I.
This assertion of fact by the husband has to be seen in the light of the material that was present with him at that time. In his trial affidavit of 23 October 2013, at paragraph 57 and 58 of which he was cross-examined, the husband said:-
57.He [Dr F] said that it was not possible to determine with certainty a time period for her, presumably the wife’s, remaining life, but the likelihood of death was sooner rather than later. I explained that I was based in [Country E] but worked mostly in Central and South America and that I was required to give 12 months’ notice to terminate my employment contract. As I was joint custodian of our children, I would need to return to Australia and he, presumably [Dr F], advised me that, in his opinion, I should do this sooner rather than later. I asked him if he could write a letter confirming his opinion to me to provide a legitimate reason to resign and increase my chance of negotiating a shorter notice period. He did this. Annexed hereto and marked with the letter B is a true copy of [Dr F’s] letter addressed, “To whom it may concern,” 22 April 2012.
58.I provided [Dr F’s] letter as an enclosure with my letter of resignation dated 3 May 2012 addressed to my employer.
The paragraph goes on to say:-
I returned to Australia in July/June 2012 ... and began investigating my options. I maintained a regular presence in Launceston until December 2013 when I moved my base to Western Australia. …
I think there’s an issue as to whether that was December 2012 or January 2013. Little hangs on that. I will go on with the quote:-
… when I moved my base to Western Australia. The wife’s recovery from the surgery in April 2012 went well and she was able to resume driving and child care responsibilities.
The letter to which the husband referred to in paragraph 57 of his affidavit[2] was from Dr F, and it simply said:-
I write to support [the husband’s] wish to return to Tasmania in order to support his wife during her current illness. [The wife] originally presented in April 2011 with a Stage II breast cancer. This, unfortunately, has progressed with the patient presenting recently with a cerebral metastases. This required ongoing treatment with further surgery, radiation therapy and chemotherapy…
and then went on from there:-
It is generally considered not curable.
[2] See annexure B of the husband’s trial affidavit filed 23 October 2013.
The husband relied on this evidence in his 2013 affidavit and annexed the letter from Dr F to that affidavit. In addition, the husband requested the wife to submit to a medical examination by his surgeon, Dr J. The wife agreed to that course. The husband deposed that Dr J, a consultant general physician, had prepared a report for him for the purpose of the property trial. In his report, the husband conceded that he was aware that Dr J was aware of the wife and quoted parts from annexure B1 of Dr J’s report that:-
I believe that overall she, the wife, will have a likely life span of no more than three years from now. During the first one year she will require only routine consultations with her general practitioner, say every two months for one year. With metastatic disease she will require more frequent consultations,
He went on to say that:-
From my reading of scientific literature, the median survival for breast cancer of her type is between 15.1 and 25.3 months.
The husband’s further evidence was that in the light of that evidence the affidavit of the wife’s oncologist of that time, his legal practitioner, on his instructions, had set out in their summary of argument the following:-
5.In April of 2012, [the wife] developed progressive ataxia and subsequent MRI scans confirmed a 9 millimetre enhancing lesion in the posteromedial aspect of the left cerebellum …
and went on to set out his assessment of the wife’s health conditions, and, at the end of it, said:-
The presentation in April 2012 with a solitary cerebral metastasis upgrades the disease to Stage IV which, in the majority of cases, should be considered as incurable (report of [Dr F] dated the 24 September 2012 annexed to his affidavit) [Dr F] is of the view that the presence of a solitary cranial metastasis treated with surgical resection and post-operative radiation therapy means the wife’s estimate of survival is “of the order of 12 months”.
It is clear that the husband at that time was aware of the wife’s limited life expectancy. What the husband would have me accept is that in the light of him requiring or requesting the wife to have a medical examination, in light of the evidence provided by Dr F in 2012 and the evidence provided by him in 2013, in the light of the evidence of his own consultant physician and in light of his views of the case, that he accepted the wife’s evidence that she had up to 10 years to live. It has a significant sense of reconstruction and I reject that evidence of the husband.
I referred earlier to the husband saying in paragraph 9 of his affidavit that the wife had told him that she was very well and did not need her oncologist for 12 months. The husband asserted in paragraph 15 of his affidavit that he was deprived of the opportunity to argue an adjustment. In relation to the statement of the wife asserted by the husband I note the evidence of Dr F, that is, that he had made no appointment to see the wife into the future.
I have heard the evidence of each of the parties and my preference is to accept the evidence of the wife in relation to that conversation for the reasons contained here and elsewhere in these oral reasons.
Part of the evidence given by the husband was that when asked about when he found out that the wife’s life expectancy was 12 months the husband gave evidence that when he discovered that the wife’s life expectancy was 12 months it came as some surprise to him. Given the medical evidence which was available at that time, it would hardly be a surprise.
The husband’s evidence was that the payment of premiums for the Colonial Mutual Life Assurance policies was two-thirds by him, one-third by the wife. This arose, according to him, out of the split of the premiums in respect of each of the policies. At the time the orders were made, it is clear that the husband was:-
(a)aware at the time the orders were made that the wife was suffering from a terminal injury;
(b)that the husband was aware of the wife’s medical condition as much as she was. There is no evidence that the wife had any other material other than was disclosed in the material at the trial; and
(c)the husband had all of the available evidence as to the wife’s current circumstances, including that from her treating doctor, and the physician employed by him.
The wife apparently gave evidence she hoped to live for 10 years, and I have referred to that, and the husband conceded that he was aware of the property that may come into existence under those policies to the extent of some $511,000, or about that sum.
It is disingenuous for the husband to suggest now that he was not aware of those circumstances. There was no more information that the wife could have provided the husband or had available to herself than the husband had at that time. I treat the evidence of the husband with some caution, given that there is evidence that at times he reconstructs and at times he obfuscates in giving evidence.
Dr F
Dr F gave evidence in accordance with his affidavits of 25 October 2013 and 29 October 2014. Those affidavits and the reports that they contain were read into evidence. There was no challenge to his qualifications. Like the husband, he gave evidence by telephone, and this was done with the consent of the practitioner of both parties. In terms of December 2013, he said he had completed both of the documents, Exhibit D and Exhibit F attached to the affidavit of the husband by hand. He said he must have had a conversation with the wife at the time the forms were filed, although he had no recollection of it, and I referred to that earlier.
He was cross-examined as to whether he had conversations with the wife between his report of 24 September 2013, which based his 2013 affidavit, and 10 December 2013. He says he has no recollection of saying, and, if there had been such a conversation, his evidence was that there would have been some recollection or note. I find that there were no discussions between Dr F and the wife between 24 September 2013 and 10 December 2013.
As I said earlier, Dr F made it clear that he did not ‘prognosticate’ in relation to life expectancy of patients. He said that it was difficult to do so. He provided the information of the 10 year survival rate for 70 per cent of patients in April 2011 and he provided the statistical evidence in 2012 with the Stage IV cancer. He provided evidence for the husband in relation to the wife’s life expectancy in 2012, and I have referred to that earlier. He gave evidence that, other than seeing the wife on 10 December 2013 to fill out the forms, he next saw her in May 2014. He had made no further appointments after September 2013 as there was no active treatment going on and there was no need for the appointment. There was no evidence to suggest that he recommended to the wife or suggested to the wife that he see her in 12 months.
I have regarded this in part of the determination I made in relation to the evidence in dispute between the parties.
As to the law, there is no issue that parties have an obligation to make full and frank disclosure of material which would affect the outcome of the hearing. The quote in Suiker & Suiker (1993) FLC 92-436 often quoted is that on page 80,471 commencing:-
Under the Family Law Act 1975 the need for a resolution of disputes by negotiation and the consequent making of consent orders or the approval of maintenance agreements is an essential part of the legislation and the rules. Relevant provisions in force at the time included section 79(9) and section 87 of the Family Law Act 1975 and Orders 24 and Order 31 Rule 8 of the Family Law Rules. In our opinion, the necessity for full and frank disclosure of financial matters to the Court and to the other party are basic to the process of the Court and the fundamental aims of the financial legislation contained in section 79 of the Family Law Act 1975. As Dawson J said in Harris v. Caladine (1991) FLC ¶ 92-217 at 78,485-78,486 :
In considering what order, if any, should be made under s. 79, a court is required under sub-s. (4) of that section to take a number of matters into account, including the various financial contributions made by the parties to the marriage. And sub-s. (2) provides that a court shall not make an order under the section unless it is satisfied that, in all the circumstances, it is just and equitable to do so. The fact that an order is sought by consent does not relieve a court, or a Registrar, from compliance with the requirements of the section, but it may render compliance much less demanding. Provided that a court, or a Registrar, is adequately informed, where the parties are at arm's length and are properly represented little more than consent may be needed to establish that the requirements of the section have been met: see Jenkins v. Livesey [1985] A.C. 424 at pp. 437, 444 .
Even if the consent pursuant to which an order is made under s. 79 amounts to a contract between the parties, it is the order itself which is of legal significance. As Lord Diplock observed in De Lasala v. De Lasala [1980] A.C. 546, at p. 560 , in related circumstances:
'Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order.'
And in the case of an application under s. 79, even if there is consent amounting to a contract, that is not enough of itself to entitle the parties to an order. The requirements of the section must be satisfied.’
It is implicit in these passages that the consent to an order must be informed consent. The consent to the order is itself part of the judicial process on which the Court places reliance. If that consent is based on misleading or inadequate information, then there may be, in our opinion, a miscarriage of justice either by reason of the ''suppression of evidence'' or by reason of ''any other circumstance'' .
It is clear that there is an ongoing obligation until the orders are made.
Mr Welch took me to the first instance decision of Mushin J in Nyles & Nyles [2011] FamCA 565, which set out the law in paragraphs 124 and 127 which simply confirms that which I have set out earlier in Suiker (supra).
He also took me to the recent decision of Riethmuller J of the Federal Circuit Court in Spring & Spring [2014] FCCA 970, where his Honour set out a very clear and esoteric position regarding the obligations of parties to make full and frank disclosure.
I accept the obligation is on the wife to establish that, contrary to what was set out in paragraphs (a) to (h) in the summary of argument to which I alluded to earlier. It is clear that a failure to disclose is a miscarriage of justice and, if there has been a failure to disclose, the court has a discretion, given the nature of the failure to disclose, to vary or amend. In this case, the husband seeks that the orders be set aside.
The first issue is that as to the merging of the facts and the law, the first issue as to whether the wife in any way failed to disclose her health at the time that the orders were made. Given the comments I have made earlier, given the evidence that I have heard, the wife has satisfied me that full and frank disclosure was made by her to the best of her ability at that time. She consented to an examination in a forensic sense and made available material from her own doctor. The husband had access to that doctor at least in April of 2012.
The husband asserted what he said at that time her health was, which I have discussed earlier. The husband cannot succeed in relation to the assertion contained in paragraph 1(a) that the wife did not provide full and frank disclosure of her health. As to (b) and (c), it is common ground that the wife was entitled to make a claim for terminal illness in relation to each of the policies. That was there and that was available to both parties. It was disclosed, perhaps in the form of the husband by way of some form of constructive disclosure, but he was clearly aware, as paragraph 14 would say. That, in itself, I am not satisfied that the wife did not disclose any entitlements she had under those policies. They were clear; they were available to the husband, as they were to the wife.
The real crux of this matter is whether the wife was intending to make a claim. The husband asserts this, he says, arising out of a number of factors: firstly, that the wife did make a claim; that she made a claim sequentially, not consecutively; that he says she was not frank in the email of 3 May; and that, when you put the whole lot together, it fits like a glove, is his case. And yet, the evidence of the wife is quite clear. She didn’t know; that she sought advice and went to see, after the orders were made, financial advisers, and it was only then – and even in those circumstances, only then, after her doctor did what he said he wouldn’t generally do, and make a ‘prognostication’, and he made a ‘prognostication’ to the insurers which enabled those claims to be made.
I am satisfied on the evidence that the wife was not intending to claim on those policies at the time the orders were made. She made it clear to the husband that, if moneys came through in the CommInsure policy which was jointly owned, the following day, that she would agree to 50-50, and then went about her inquiries. The husband also asserts that part of the material I should have regard to was that the applications were made without his knowledge or consent. I have considered that in the light of all of the evidence and I am not satisfied it leads to the conclusion to which the husband says I shouldn’t arrive at. In some ways, the wife’s perhaps naïve discussion with the husband the following day about 50-50 is indicative more of someone not hiding than someone hiding, although that could work to the contrary in relation to the email of 3 December 2013.
I have considered the events in the light of the proximity to the orders, but, in this case there is a sensible, reasonable and rational explanation. The wife has satisfied me in terms of her evidence, seen in the light of the other evidence, that, as at the date the orders were made, she was not intending to claim on either of the insurance policies. In terms of her intention to retain the benefit of the OnePath policy for herself, it is clear that the wife had an expectation that any benefits from the policy would be split 50-50. The follows from the email of 26 November, I think, and the conversation which was conceded the day after the orders were made.
The husband was a businessman of some standing and had available to him at all material times those policies. It was clear that each of the parties were constructively aware that the wife could make those claims. At the date of the orders, as I said, there was no effort made by the wife to hide those views from the husband in relation to the OnePath policy.
In relation to the OnePath policy, as I understand it, the clear evidence was the following day there was a discussion which made it clear that that was to be divided equally. Therefore, item (g) cannot stand, in my view, and, as I said earlier, the CommInsure policy was left as a joint policy to fall where it may in the construct that the parties had discussions about it at that time.
I am not satisfied, given the evidence before me, that there was a failure of disclosure on the part of the wife, and I am satisfied that, as such, the husband’s application ought to be dismissed. There was nothing there that the husband could not have found out in terms of the policies by his own inquiries. There was nothing there in terms of the wife’s health that was not fully disclosed to him. In his affidavit, the husband annexes the annual life insurance statement of OnePath as annexure B. He was aware that that policy was a policy over the life of the wife and was owned by he and the wife as trustees of the superannuation fund. It is clear that the orders contemplated the impact of that policy on the fund given orders 15 notation (a) and order 18.
I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 4 December 2014.
Associate:
Date: 4 December 2014
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