· 2022-01-18T06:58:03+0000 · 750 posts

Applicant Contests Consent Orders

Oxley & Oxley [2021] FedCFamC1A 98 (22 December 2021)

Consent orders were made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) on 1 May 2014 by the registrar. The parties complied with the consent orders and later reconciled three years later for a period of two years. The applicant then sought to set aside the consent orders but such application was dismissed. The Court, in determining whether or not to dismiss the appeal, assessed whether the primary judge had erred by failing to find suppression of evidence or non-disclosure.

Facts:

The parties commenced cohabitation in 2008, married in August 2011 and separated in August 2013. On 1 May 2014, consent orders were made by the registrar for the appellant to transfer to the respondent all of her interest in a property at Suburb B (“the Suburb B Property”), for the respondent to thereafter be responsible for the loan secured over the property, for him to pay to the appellant the sum of $97,500 and to transfer to her his interest in a motor vehicle, for the respondent to be removed from the directorship of Company C Pty Ltd (“Company C”) and for the parties to otherwise retain all assets and items in their name and possession at the time of the orders. The parties reconciled their relationship and commenced to live together in January 2017. The respondent won the “Set for Life” lottery on 7 February 2018. He receives $20,000 each month for 20 years.

A property was acquired by the parties in joint names at Suburb D (“the Suburb D Property”) for $960,000 by way of a mortgage advance of $1,100,000 in August 2018. The parties separated on 11 February 2019 when the appellant vacated the Suburb D Property. An order for divorce was made on 5 September 2020. By Amended Notice of Appeal filed on 29 July 2021, the appellant appeals from orders made on 28 May 2021 by a judge of the Federal Circuit Court dismissing her Initiating Application filed 29 July 2020 and reserving costs.

That application sought to set aside consent orders made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) on 1 May 2014 and if that relief was achieved, for alternate orders under Part VIII of the Act. The respondent resists the appeal.

Issue:

Whether or not the appeal should be dismissed.

Applicable law:

Family Law Act 1975 (Cth) ss 79, 79A, 117 - pursuant tow hcih the applicant sought to set aside consent orders.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17 - enables the Court to order costs in a specific amount, is to avoid the expense, delay and aggravation involved in protracted litigation arising out of an assessment of costs.

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 - provides that the weight or importance given to evidence is a matter quintessentially for the primary judge unless an appellant can show that the primary judge was “plainly wrong”.

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 - held that if the ground were established, whether it be as to actual bias or apprehended bias, the proceedings should be referred to another judge for retrial.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 - provided that a finding of apprehended bias requires the identification of what it is said might lead a judge... to decide a case other than on its legal and factual merits and there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 - where the findings made were clearly open on the evidence.

House v The King (1936) 55 CLR 499; [1936] HCA 40 - held that it is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 - provides that the matters relied on by the appellant do not demonstrate that the primary judge’s findings are contrary to incontrovertible evidence or compelling inferences and are not glaringly improbable.

Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 - where the matters relied on by the appellant do not demonstrate that the primary judge’s findings are contrary to incontrovertible evidence or compelling inferences and are not glaringly improbable.

Waterman & Waterman [2017] FamCAFC 23 - provides that reconciliation is not, of itself, sufficient for a finding that the parties had impliedly consented to the setting aside of a s 79 consent order.

Analysis:

The appellant argued that the refusal by the primary judge to permit the appellant at trial to put to the respondent in cross-examination a screen-shot on a mobile device of a document that had not been disclosed and had not formed part of the appellant’s case; there was silence in the reasons for judgment as to any finding as to the credibility of the respondent; that it was the respondent who put the appellant’s name on the title of the property purchased; and that the appellant's case was misinterpreted.

The appellant did not attempt to demonstrate any logical connection between the identified matters in the ground and the possibility of the primary judge’s deviation from judicial impartiality.

The primary judge identified that the case of the appellant as to E Pty Ltd changed during the trial from the respondent holding the issued shares in the entity to the respondent exercising control over it.

The primary judge accepted the uncontradicted evidence of the respondent that he was a director of the entity, and only drew wages from E Pty Ltd.

The primary findings of fact made supporting the implied setting aside of the orders identified by the appellant were the fact of the reconciliation of the relationship between the parties for some two years, the acquisition of the Suburb D Property in the joint names of the parties, the opening of a joint bank account in February 2018, and the fact of their joint retirement and subsequent travels together. The primary judge’s findings of fact were based on a wide range of circumstances as set out in the reasons for judgment.

Conclusion:

The Court dismissed the Amended Notice of Appeal. The appellant is required to pay the respondent’s costs of the appeal fixed in the sum of $19,260.78 within 28 days.

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