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Key decisions

  • Waterman [2017] FamCAFC 23
  • Bangi & Belov [2017] FamCAFC 5
  • Millhouse & Mullens [2017] FamCA 37
  • Newland & Rankin [2017] FCCA 210

Property – reconciliation after final order – wife appeals dismissal of her s 79A application – husband’s failure to disclose

In Waterman [2017] FamCAFC 23 (8 February 2017) the Full Court (Bryant CJ, Murphy J and Kent JJ) allowed the wife’s appeal against Judge Newbrun’s dismissal of her s 79A application for the setting aside of a final property order made before the parties – who had two children – reconciled. The order required the sale of their home and an equal division of proceeds. The wife argued miscarriage of justice due to the husband’s failure to disclose his financial circumstances and that the parties had impliedly consented to the order being set aside.

Murphy J (with whom Bryant CJ and Kent J agreed) (at [34]) cited Morrison [1994] FamCA 153 in which the Full Court said that ‘[o]rdinarily, a failure to comply with th[e] duty [of disclosure] will amount to a miscarriage of justice’, continuing (at [61]):

‘Taken together … the wife’s lack of literacy; the husband’s failure to disclose; … the wife’s self-representation … [when] the husband’s solicitor “told” the wife of the proposed orders; … [that] that occurred at the husband’s solicitor’s office; the fact that the orders were read to her only once … ; and … that she was not advised as to entitlements, all, in my view, amount to a miscarriage of justice … ‘

Murphy J said (at [66]) that ‘[r]econciliation is not, of itself, sufficient for a finding that the parties had impliedly consented to the setting aside of a s 79 consent order … Rather, any such finding is made by reference to the … circumstances … [of] the parties’ relationship by which the … intention is to be inferred’; and that (at [77]) ‘[n]otably absent … from the ultimate findings made by his Honour … is any mention of … the parties’ respective contributio ns’; and concluded (at [88]):

‘I am unable to see … how it was reasonably open to his Honour to conclude in 2016 that the parties did intend to bring an end to their financial relationships by the 1998 orders.’

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