By Robert Glade-Wright -
Key decisions
- Pearce [2016] FamCAFC 14
- Telfer [2016] FCWA 2
- Fontana [2016] FamCAFC 11
Property – setting aside of consent order upheld, due to husband’s non-disclosure of the inconsistent valuation he gave to his bank
In Pearce [2016] FamCAFC 14 (11 February 2016) the Full Court (Murphy, Aldridge & Forrest JJ) dismissed the husband’s appeal against an order made by Dawe J under s 79A, setting aside a final order (made by consent) for the husband’s failure to disclose to the wife ‘significant information’ (at [2]). The Full Court said (at [19]-[21]):
‘Her Honour found that there was a lack of disclosure causative of miscarriage of justice by reason of the husband’s failure to disclose a representation made by [him] to a bank … that D Street had a value of $700,000 [not $550,000 which he claimed before the consent order].
Her Honour was plainly of the view that if that representation had been disclosed … the wife would have been put on notice of the discrepancy between that representation as to value and the significantly different representation as to value made relatively contemporaneously in the consent orders.
She was denied that knowledge, and the consequent opportunity to make such further or other enquiries as she might choose, as a consequence. She was also denied the opportunity to negotiate a settlement whose terms may have reflected that difference.
The impugning of ‘the integrity of the judicial process’ which, as her Honour recognised, lies at the heart of s 79A’s requisite miscarriage of justice occurred here not because the property may or may not have had a particular value, but because the wife’s consent was not a fully informed consent.’
