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[2002] FamCA 327
respondent. Appeal dismissed. The Full Court directed a timetable for written costs submissions: the husband could file within 14 days, the wife had a further 14 days to respond, and the husband a further 7...
The Full Court upheld the permanent stay of the wife's application to set aside property consent orders. It held that being unrepresented, not understanding financial reports, or feeling pressured did not, on the evidence presented, establish a miscarriage of justice. Lack of representation can be relevant alongside other circumstances, and pressure can matter if it undermines genuine consent, but the Court found that the wife's case could not possibly succeed.
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2,446 words · generated 30/09/2026
Prior & Prior was an appeal in the Full Court of the Family Court of Australia, constituted by Nicholson CJ, Buckley and Kay JJ. The judgment was delivered on 20 May 2002. The appellant wife, Sandra Ann Prior, challenged a permanent stay of her application to set aside property consent orders. The appeal was dismissed.
The parties had commenced cohabitation in 1980, married in 1988, and separated on 4 May 1998. They had three children. The Full Court noted that they had also been involved in proceedings concerning children, but this appeal related only to property matters ([2]-[4]).
On 20 September 1999, they agreed to detailed consent orders made by Tolcon J. Under the orders, the husband was to pay the wife a total of $290,000 through payments at different times over five years. His interest in the family home at 94 Webster Street was to be transferred to her within 13 years. The arrangements also included spousal maintenance and other provisions. The agreement contemplated that $200,000 of the property settlement would be used within three years to demolish the existing house and build a new home for the wife and children ([5]).
The wife was unrepresented at the consent hearing; the husband had counsel. Earlier that day, Tolcon J had raised concerns about valuation material, including the way one valuer had reached his figures. The judge described the legal process and the possible length and cost of a contested hearing. He encouraged the parties to try to reach agreement, while telling the wife that she did not have to negotiate and could have the property dispute determined by the Court ([7]-[12]).
The parties returned to court at about 5.30 pm and reported that they had settled. The husband's counsel said the wife had been assisted by two friends during negotiations. Tolcon J asked questions about the terms and the husband's financial position. The wife confirmed that she had read and signed the Minute and wanted the judge to make the orders. The orders were then made ([13]-[17]).
The wife later applied under s 79A(1)(a) of the Family Law Act 1975, relying on what she described as a miscarriage of justice by reason of “any other circumstances”. Her grounds were that she had been unrepresented, could not understand the financial evidence without professional help, and had been pressured by the husband's legal representatives to settle. The judgment records that she specifically conceded that the alleged pressure did not amount to duress ([31]-[32], [44]-[47]).
Holden J permanently stayed the application. The Full Court treated the matter as akin to an application for summary dismissal, rather than a full hearing of the substantive s 79A case ([29]). This procedural distinction matters: the appellate question was whether the claim could possibly succeed on the case put forward, not whether the Full Court was deciding the merits afresh after a full evidentiary hearing.
The Full Court's starting point was the threshold for summary dismissal. It referred to Bigg v Suzi, Pelerman v Pelerman, and Ferrall and McTaggart v Blyton for the proposition that the Court should summarily dismiss an application only where the substantive application cannot possibly succeed ([43]). The Court then considered each of the wife's three grounds.
First, the Court rejected the argument that being unrepresented, by itself, established a miscarriage of justice. It recognised that unrepresented litigants commonly face disadvantage, and referred to Re F: Litigants in person guidelines and Johnson and Johnson in connection with the Court's role where a party appears without a lawyer ([48]-[49]). But the Court said that this did not mean that unrepresented status itself amounted to a miscarriage of justice. It was also concerned that a rule setting aside agreements solely because one party lacked representation would undermine certainty and expose settled property disputes to later relitigation ([50]).
The Court distinguished the wife's circumstances from the principle in Clifton and Stuart. That case, as described by the Full Court, concerned representation so incompetent that it was equivalent to no representation. The Court reasoned that a litigant relying on advice believed to be professionally competent is in a different position from someone who appears in person ([51]). It also observed that people may choose to appear without a lawyer for different reasons, and that a person's decision not to obtain representation should not automatically produce a more advantageous position than that of a represented litigant ([52]).
The Court did not treat lack of representation as irrelevant. It said that it may be considered with other factors. An agreement patently against an unrepresented person's interests could, in appropriate circumstances, support a miscarriage-of-justice finding. But it would not do so automatically: the Court referred to Gebert and Gebert, where an unrepresented person entered a disadvantageous agreement knowing it was disadvantageous, and no miscarriage of justice was found ([53]). On the facts before it, the Court did not regard the agreement as falling into the category of an obviously disadvantageous agreement. It noted that if the husband's claim of a negative asset position had succeeded, the wife might have received nothing, whereas the agreement provided her with substantial assets over time ([54]).
Second, the Court considered the wife's difficulty understanding the financial reports. The reports included competing indications of the husband's net asset position, including a figure of $252,000 and a deficit of $68,000 ([55]). The Court accepted that the reports involved financial matters, but emphasised that the wife made no contemporaneous complaint and did not request an adjournment to examine the material, despite Tolcon J's stated concerns. The Full Court also said there was no material before it suggesting that the reports were wrong ([56]). It therefore saw no basis to depart from Holden J's treatment of this ground.
Third, the Court considered the alleged pressure. It noted that the wife had not complained to Tolcon J about the alleged pressure when the parties returned to court with the settlement. She did not contend that her consent was given under duress ([57]). The general rule stated by the Court was that pressure alone does not establish a miscarriage of justice, particularly when duress is not asserted. Pressure can be relevant if its nature is such that it vitiates a party's consent. Lawyers negotiating with an unrepresented person must take care, but they may forcefully advance reasons for settlement ([58]).
The Court acknowledged that it might have been desirable for Tolcon J to ask whether the wife wanted more time, given the late hour and her unrepresented status. However, it considered that she had an opportunity to raise that issue and that there was no reason to think the judge would have refused a request to consider the matter overnight ([59]). The Court concluded that the evidence fell far short of showing that her consent was not true consent, and that her application could not possibly succeed ([60]).
The judgment applied the version of s 79A(1) set out in the reasons. Under s 79A(1)(a), a court could vary or set aside a property order if satisfied there had been a miscarriage of justice by reason of fraud, duress, suppression of evidence, giving false evidence, or “any other circumstances” ([30]). The Full Court's task was not to decide a fresh property settlement, but to assess whether the wife's pleaded and supported basis for reopening the consent orders could succeed.
Before this decision, the judgment identifies several relevant propositions from earlier authorities. Prowse and Prowse is cited for the applicant's onus to satisfy the Court both that a miscarriage of justice occurred and that the discretion to set aside or vary should be exercised. Bigg v Suzi is cited for the Court's inherent power, exercised discretionarily, to dismiss or permanently stay an application that cannot succeed ([33]). In relation to summary dismissal, the Full Court cited Bigg, Pelerman, and Ferrall and McTaggart for the “cannot possibly succeed” threshold ([43]).
The judgment also describes the earlier distinction in Clifton and Stuart between incompetent representation amounting to no representation and appearing without a lawyer. Prior & Prior explains that the distinction turns on the party's reliance on advice believed to be professionally competent, as opposed to proceeding in person ([51]). Gebert and Gebert is discussed to show that even an unrepresented party's disadvantageous agreement does not necessarily establish a miscarriage of justice if the party knew of the disadvantage ([53]).
The contribution of Prior & Prior is a clarification of how those propositions apply to consent property orders. It rejects any automatic inference of miscarriage of justice from self-representation, difficulty with financial evidence, or settlement pressure. It leaves open the possibility that lack of representation, when combined with an agreement patently against the party's interests or other significant circumstances, could contribute to such a finding ([53]). It also frames the relevance of settlement pressure in terms of its effect on consent, rather than the mere existence of forceful negotiation ([58]).
The judgment does not set out subsequent cases or later statutory changes, and the supplied text cannot establish how later courts treated the decision. It should therefore be read here as a statement of the Full Court's reasoning in 2002, applying the statutory wording reproduced in that judgment, rather than as a complete account of current law.
At [48], the Court said: “We do not accept that it is the law that lack of legal representation of itself can be sufficient to establish that a miscarriage of justice has occurred.” In plain English, a party cannot succeed under this ground simply by pointing out that they did not have a lawyer. The Court may consider that fact alongside other circumstances, but it is not enough by itself.
At [53], the Court said that being unrepresented “might be a relevant factor, coupled with other factors”. It used the example of an agreement that is patently against the unrepresented person's interests. The plain-English point is that the context matters: the Court did not rule out a miscarriage-of-justice finding in every case involving an unrepresented party. Instead, it required more than the absence of representation.
At [58], the Court said that “Pressure of itself cannot be said to produce a miscarriage of justice”, especially where duress is not alleged. It added that pressure could matter if it had the effect of vitiating consent. Put simply, firm bargaining or attempts to persuade a person to settle are not enough by themselves. The relevant question is whether the pressure undermined the person's agreement.
Also at [58], the Court said that lawyers must exercise care when negotiating with an unrepresented party but may forcefully advance reasons to settle. This passage balances a responsibility to take care with the ability to negotiate robustly. It does not treat all strong negotiation as improper or as invalidating consent.
At [60], the Court concluded that the wife's evidence “fell far short” of establishing that her consent was not true consent and that her substantive application “could not possibly succeed”. In plain English, the Court considered the material she relied on insufficient even to justify allowing the s 79A application to proceed to a substantive hearing.
The decision is most directly relevant where a party seeks to reopen property consent orders under s 79A(1)(a), relying on their own lack of representation, difficulty understanding financial information, or pressure during negotiations. It provides a framework for examining whether those circumstances, alone or together, show a miscarriage of justice.
The judgment indicates that a lack of representation alone is not enough. A lawyer or researcher applying the reasoning would also examine why the party was unrepresented, whether the party sought advice or an adjournment, what opportunities existed to raise concerns, and whether the agreement was patently against the party's interests. Those considerations arise from the facts and reasoning at [34], [37], and [51]-[54]; they are not a closed checklist.
For financial-information arguments, the judgment makes the response at the time significant. The wife had not complained about the reports or requested an adjournment, despite the judge's concerns about the valuation evidence. The Full Court also had no material showing that the reports were wrong ([56]). A materially different evidentiary record could therefore raise different questions, but this decision does not determine how every such case would be resolved.
For pressure arguments, the decision points to the nature and effect of the conduct, whether duress is alleged, and whether consent was undermined. The wife described pressure and a desire to leave because her children were ill, but she did not raise that complaint before Tolcon J and did not allege duress in the s 79A case as presented ([22]-[23], [32], [57]). The Court held that pressure is relevant only if it has the effect of vitiating consent ([58]).
The supplied judgment contains no decisions issued after Prior & Prior and therefore does not show how later courts treated it. It cites and discusses earlier authorities, including Clifton and Stuart, Gebert and Gebert, Re F, and cases concerning summary dismissal. Those authorities are part of the reasoning in this judgment, not evidence of later treatment of Prior & Prior.
A proper account of subsequent treatment would require later judgments or a legal database search. Without those sources, it would be unsafe to claim that later courts followed, distinguished, confined, or overruled Prior & Prior. The text provided supports analysis of the Full Court's 2002 holding only.
The judgment leaves open how much additional evidence, in combination with lack of representation, would be sufficient to establish a miscarriage of justice. It gives examples of potentially significant circumstances, especially an agreement patently against the unrepresented party's interests, but does not define a precise threshold ([53]).
It also does not decide how the result might differ if an applicant had made a contemporaneous complaint, requested an adjournment, obtained evidence that financial reports were materially wrong, or shown that pressure actually undermined consent. The Court's reasoning identifies these as relevant features of the case before it, but does not establish the outcome for different facts.
Finally, the judgment notes that asking the wife whether she wanted more time might have been desirable, while concluding that this did not alter the result on the evidence ([59]). It does not formulate a general requirement that judges must ask every unrepresented party whether they want additional time before recording consent orders.
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File No. PT 70 of 1998
The appellant wife whose address for service is 59 Vincent Street Nedlands WA 6009 appeared in person.
Mr P Dowding of Counsel instructed by Anderson Josland Solicitors, 26 St George's Terrace Perth, WA 6000 appeared on behalf of the respondent husband.
PRACTICE AND PROCEDURE - inherent power of the Court to dismiss or permanently stay an application which cannot succeed - application to stay s 79A(1)(a) application
PROPERTY SETTLEMENT - Consent order - application to set aside orders under section 79A(1) - unrepresented litigant - whether consenting to the making of orders when unrepresented and without expert advice regarding financial information amounts to a miscarriage of justice - whether an unrepresented party consenting to the making of orders when under pressure from the other party's legal representatives in the context of negotiations amounts to a miscarriage of justice.
The parties separated in 1998 having cohabited for 18 years.
In September 1999 the parties agreed to detailed consent orders relating to property, which were made by Tolcon J. These involved the payment of a total of $290,000 by way of property settlement by the husband to the wife in various amounts at various times over a five-year period and the transfer to her of the title to the family home within 13 years.
The wife was unrepresented on that day although she had previously been represented in the proceedings; the husband had legal representation.
In open court Tolcon J commented on some difficulties he saw with valuation reports from witnesses of the husband. His Honour then advised the wife of some of the difficulties she would face in conducting litigation and recommended that the parties pursue settlement negotiations. His Honour then adjourned proceedings with a view to the parties attempting to negotiate a settlement.
At 5.30pm the parties returned to Court and indicated that agreement had been reached. His Honour, after inquiring into the terms of the agreement, confirmed that the wife wished to go ahead and then made the consent orders signed by the parties.
In July 2000 Chief Judge Holden granted the husband a permanent stay of proceedings which the wife had brought under section 79A to set aside the consent orders.
The wife relied on three points in support of her case that their had been a miscarriage of justice due to "any other circumstance" as set out in section 79A(1)(a). These were:
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That she had been unrepresented;
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That she had been unable to understand financial evidence led by the husband and had not had professional assistance to do so; and
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That the husband's legal representatives had placed pressure on her to settle the matter.
The wife specifically conceded that the pressure in question did not amount to duress.
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Mere lack of legal representation, without more, does not amount to a miscarriage of justice: Clifton v Stuart (1991) FLC 92-194; 14 Fam LR 511 distinguished.
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The wife could not rely on her inability to understand the financial reports in circumstances where she:
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Had previously had legal representation and offered no explanation as to why she no longer did;
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Made no complaint at the time about this;
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Had made no attempt to request an adjournment;
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Was aware of Tolcon J's concerns about the contents of those reports; and
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Put forward no valuation evidence of her own, without explanation.
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Pressure of itself cannot be said to produce a miscarriage of justice, particularly when it is not asserted that it amounted to duress. It can only be relevant if it is of such a nature as to have the effect of vitiating a party's consent to enter into the agreement in question. Lawyers negotiating with an unrepresented party should exercise care but are entitled to forcefully advance reasons why that party should settle
This is an appeal against a decision of Holden J dismissing an application by the wife pursuant to s79A of the Family Law Act seeking to set aside a consent order for property settlement.
The wife was born on 25 September 1958 and the husband born on 29 August 1960. They were married on 15 October 1988, having commenced co-habitation in 1980. There are three children of the marriage who were born between 1987 and 1995.
Since separation, the parties have been involved in a number of proceedings relating to children and property matters, but this appeal relates only to property matters.
On 20 September 1999 the parties agreed to detailed consent orders relating to property, which were made by Tolcon J. These involved the payment of a total of $290,000 by way of property settlement by the husband to the wife in various amounts at various times over a five year period and the transfer to her of the husband's interest in 94 Webster Street Nedlands within 13 years. There were also additional provisions for the payment of spousal maintenance and other machinery provisions. The agreement contemplated that the wife would apply a payment of $200,000 from the property settlement to demolishing the existing house on the Webster Street property and building a new home for herself and the children. That payment was to be made within three years of the date of the consent orders.
The circumstances in which these orders came to be made give rise to these proceedings.
The Proceedings before Tolcon J on 20 September 1999
The wife was unrepresented and the husband was represented by Mr Eaton of Counsel. The matter was called on shortly after 10.00am and some preliminary discussions occurred between his Honour and the parties concerning the proposed parenting orders. His Honour then turned to the property proceedings and pointed out to Mr Eaton that he had read the valuation reports, including a report by a Mr Pickup. His Honour said that he had grave concerns about his report, and the way in which Mr Pickup arrived at his valuations. Nevertheless his Honour said , that it was in the interests of parties that an attempt be made to resolve the property proceedings.
His Honour described to the Appellant the way in which the law operates in relation to property settlements and maintenance and informed her as to the procedure that would be followed. His Honour indicated to her that, with property cases or matters of money, he would not start a case until everyone had had the opportunity of reflecting on the case because, from his own professional experience, people can get involved in protracted cases that result in them spending a lot of money for no end. His Honour said (Transcript of 20 September 1999 at page 15):
"In fact if they had known what the position was at the start of the case, they would have settled."
His Honour explained the various matters that he would take into account in relation to this particular case and then said (Transcript of 20 September 1999 at page 17):
"Now, we can do the legal process, and I would say that this case would take the best part of a week. It may well be necessary to adjourn the property case. There is one other way of doing it and you say 'look I am 41 years of age, I've got 3' your 40 I apologise. I am a bit older than that. 'I'm 40 years of age, I've got 3 kids, I need a home I need a car, I need some furniture and a little bit of money to get started and get on with my life.'
The appellant answered 'That's all I want' ".
His Honour then concluded (Transcript of 20 September 1999 at page 17):
"Now you and Mr Eaton are going to have to sit down. You don't have to do this by the way - - I'm going to adjourn shortly for a mid morning break - - and have a talk. It's without prejudice. You've got to say to him 'I want a home for myself and the kids then you can do whatever you like' and you have to view that reasonably. You have some idea about his capabilities, and if need be you should take some advice on the phone - - you've got some friends that are lawyers - - and see if you can reach a settlement. There will be no reflection upon you or Mr Prior if you don't reach a settlement, because it's your right to have that matter determined by this Court. But experience tells me that you're better off with a settlement than a brawl in this Court."
Shortly prior to the adjournment his Honour said (Transcript of 20 September 1999 at page 20):
"It is my plea to both of them that this is a case that cries out for a resolution; most certainly with respect to the children, and so far as property is concerned, it is not a case that should be determined on the papers as filed because of the matters that have caused me concern. It may well result in the matter being adjourned and that I would entertain an application for security for costs to have it reviewed. That doesn't assist anybody. I think that a commercial approach should be taken with a view to resolving it, so that they can both get on with their lives."
His Honour concluded that he would adjourn, but indicated that he would call the matter on later in the day.
It is quite clear that his Honour remained at the Court for a considerable time after normal court hours in order to give the parties the chance to resolve the matter. The parties came into court at approximately 5.30pm, at which point Mr Eaton announced that they had reached agreement in terms of property settlement and spousal maintenance. Counsel indicated that the minutes would be signed by the Appellant in the presence of her husband, at the time that he signed, and it was agreed that this would be done in the Courtroom.
Counsel for the husband said (Transcript of 20 September 1999 at page 21):
"Mrs Prior has had the benefit of the assistance of a close friend - two friends who have been with her during the course of the negotiations. That Minute, as I say, covers property settlement and spousal maintenance. There is agreement also in relation to the education of the children etc."
Some discussion then ensued between his Honour and Mr Eaton about the terms of the Minute. His Honour asked a number of detailed questions that were clearly designed to clarify the matter and so far as possible, protect the Appellant. His Honour asked questions about percentages and Counsel replied (Transcript of 20 September 1999 at page 25):
"... this Minute is the result of negotiations based on proposals put to us in writing by Mrs Prior and the forging of agreement along the lines that you have now, and we haven't looked at it in terms of percentages because it is in a sense dependent upon the husband's ability to recover his income earning capacity and to generate sufficient funds to be able to meet all those obligations which we're confident in at this stage."
His Honour then referred to a report which suggested that the husband's asset position was a net deficit of $68,000. His Honour finally said (Transcript of 20 September 1999 at page 26):
"His Honour Alright Mrs Prior you've read the Minute.
His Honour And you'd like me to make those orders?
His Honour then proceeded to make the orders in question.
In her affidavit sworn and filed on 20 June 2000, the wife said that she agreed that she had had legal representation until early August 1999. She denied having appointed an accountant, Mr Dawson of Pricewaterhouse Coopers, saying that he was appointed by her then Solicitors and that she did not meet him. She said that she could recall her solicitors telling her about inspecting documents containing information about the husband's financial affairs and being advised that they did not believe all possible information had been provided. She said that she did not recall receiving any detailed advice as to the husband's financial position from her solicitors or Mr Dawson and that she had never personally inspected financial documents.
She agreed that a friend, Beverley McGregor, was at the Court with her on 20 September 1999 and said that she was there to provide her with emotional support. She said that Ms McGregor had not read any of the documents and was not aware of any financial details of the husband and had neither legal nor financial training.
She said a similar situation applied to another friend, Robert Smart, who was there for only a couple of hours, as he had to go to work.
She said that she was at the Family Court from 10.00am until 6.30pm. She said that she was told by Ms Anderson, who was the solicitor for the husband, that the judge had said to his associate that he would stay late until the matter was settled. She said (at paragraph 9):
"The impression that I received from Ms Anderson was that his Honour, Justice Tolcon, wanted it settled that day, no matter how long it took. I subsequently learned that his Honour Justice Tolcon had indicated that he could stay late if the matter could be settled. I felt pressured to stay at court and settle the matter. At the time I believe that the pressure came from his Honour Justice Tolcon, but I now believe that his Honour did not intend that, and that the pressure to settle on that day, came from the husband's legal representatives."
"On 20 September 2000 all three of my children were ill with influenza. I had two or three different people looking after them during the day. I was worried about them and wanted to go home to them. I told the husband's legal representatives and the husband that my children were ill and that I wanted to go home to them. The husband's legal representatives told me in front of Robert Smart and Beverley McGregory that I had to finish this matter on that day. The husband's legal representatives kept asking 'do you care for your kids?'. I felt that I was under duress and that I had no choice but to settle the matter on that day. When the hand written Minute was given to me to look at, I told Ms Anderson that I wanted to go home and look at the proposal and consider it. I was told they were lawyers and that the information that I asked to be put in the orders protecting my position was incorporated into the orders I signed. It was not."
"When I signed the Minute I was not fully aware of the legal implications of not becoming the Registered Proprietor of 94 Webster Street, Nedlands for thirteen years. When I told Mr Phillip Easton that I needed a lawyer to advise me he told me that he was a lawyer and didn't seem to understand that I wanted an opportunity to have some independent legal advice. The trial was listed for more than one day and I asked the husband's legal representatives on numerous occasions to let me go home and come back the next day. Ms Anderson said that it had to be finished today.
At the end of the day I felt as if I had no option but to sign the Minute. I wanted to get home to my children and there seemed to be no other way than to sign the Minute."
She went on to assert that although the husband provided financial information, she did not believe that he gave all relevant information to the Court and made reference to his lifestyle, which she said would not be funded if his finances were as bad as he was trying to make out.
It should be mentioned that the husband's legal advisors filed material disputing the wife's version. As this matter was never the subject of any determination, having regard to the course that the proceedings took, we agree with Holden J that the matter should be approached on the theoretical basis that the wife has accurately described the events that occurred in considering whether she has established a case.
The wife commenced them by Form 7 filed on 14 February 2000, nearly five months after the making of the consent orders. The wife, who was unrepresented at that time that, had in fact been represented in the proceedings until 12 August 1999 and she was also represented at the hearing before Holden J. She was however, unrepresented on the hearing of the appeal.
On 30 March 2000 the husband filed an application seeking that the wife file and serve an affidavit setting out the grounds upon which she relied in support of her s79A application and full particulars relied upon by her in support of each of the grounds.
A Magistrate made an order to this effect on 10 April 2000, requiring the wife's affidavit to be filed and served within 28 days. She in fact filed such an affidavit on 20 June 2000.
The matter that came on for hearing before Holden J was an application by the husband for a permanent stay of the wife's claim as distinct from a substantive hearing of her s79A application. It was therefore akin to an application for summary dismissal of her claim.
It is convenient at this point to set out the terms of s79A(1) upon which the wife relies.
S79A(1) [Miscarriage of Justice] Where, on application by a person affected by an order made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them, 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 circumstances;
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out;
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order,
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
Holden J began by pointing out that the wife's application was made under section 79A(1)(a) on the basis that there had been a miscarriage of justice by reason of "any other circumstance".
His Honour recorded that her counsel made it quite clear that the allegation being made was one of pressure but that it was not alleged that that pressure amounted to duress.
His Honour pointed out, correctly we think, that an applicant for an order under s79A bears the onus of satisfying the Court that the original orders should be set aside or varied and that includes the onus of satisfying the Court, not just that there has been a miscarriage of justice, but also that the appropriate exercise of the discretion is to so order: Prowse and Prowse (1995) FLC 92-557; 18 Fam LR 348. His Honour also pointed out that the husband's case was that the wife had not satisfied that onus and that her application, therefore, should be permanently stayed. His Honour again said, that the Court has inherent power to dismiss or permanently stay an application which cannot succeed, and that this power is discretionary see: Bigg v Suzi (1998) FLC 92-799; 22 Fam LR 700 at FLC 84, 974; Fam LR 711.
His Honour discussed the principles governing the exercise of discretion as stated by Kirby J at Lindon v The Commonwealth (2) [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541 at ALR 255; ALJR 544-5. His Honour noted, in assessing the merits of the wife's case, that she was legally represented until early August 1999, and that she had presented no evidence as to why she had dispensed with the services of her solicitors and did not obtain alternative legal representation. He also thought it relevant that the wife did not seek an adjournment of the proceedings on 20 September 1999.
In relation to the issue of the wife lacking legal representation, his Honour referred to submissions made to him, based upon Clifton and Stuart (1991) FLC 92-194; 14 Fam LR 511. Counsel for the wife argued that this case gave support to the proposition that a lack of legal representation might give rise to a finding that there had been a miscarriage of justice, in that it suggested that if legal representation was so incompetent that it amounted to no representation at all, this would amount to a miscarriage of justice.
Against that, Counsel for the husband submitted that there was no authority for the proposition that lack of legal representation may of itself constitute a miscarriage of justice without more.
His Honour considered that there was a distinction between cases where a party thinks that she or he is being legally represented, but such is the incompetence of that legal representation that it effectively amounts to no representation at all, and cases where a party chooses, for whatever reason, to conduct his or her own case. He noted that the wife did not suggest that she sought and was refused the opportunity to seek legal advice, nor did she assert that there was anything in the way that Tolcon J approached the case that was of disadvantage to her.
Turning to her second complaint, that she could not understand the financial evidence put forward by the husband, he noted that she did not assert the financial information was fraudulent or that any evidence had been suppressed; indeed, the wife's case as presented before him specifically excluded those matters as constituting the miscarriage of justice in question. His Honour commented that the wife put forward no valuation evidence of her own, nor gave any explanation as to why she did not do so. He said at paragraph 25 of his reasons:
"It is asserted that without proper financial advice, she was unable to understand the reports and thus did not have the ability to make an informed consent to the orders. Although the wife may not have understood all of the reports, she would have understood the bottom line, namely that the husband was asserting that he had a deficit of $68,000.The wife did not at any stage, notwithstanding that his Honour had expressed concern at the contents of the report and the fact she was unrepresented, seek an adjournment of the trial."
His Honour then turned to the wife's third complaint, which was that she felt pressured into settling. His Honour noted that the pressure was alleged to have come from the husband's counsel and solicitor and not from Tolcon J. His Honour pointed out that Tolcon J clearly advised the wife that she did not have to enter into negotiations with the husband. His Honour took the view that when the matter came back before Tolcon J, the wife was given every opportunity to complain that she felt under pressure, to advise his Honour that she wanted an opportunity to take further advice or to inform his Honour that she wanted to consider the matter overnight and that she did none of those things. Holden J pointed out that there was nothing in the transcript to suggest that the wife would have reasonably concluded that his Honour would have treated any such request unsympathetically.
Holden J pointed out at paragraph 35 of his reasons for judgment that Tolcon J, in his short reasons for judgment had concluded:
"The orders sought by the parties is a fair and reasonable method of resolving this matter, accordingly, I now make orders in terms of the Minutes signed by the husband and wife and initialled by me."
Holden J took the view that the evidence put forward by the wife fell far short of establishing that her consent was not a true consent, and that it was not sufficient to submit that without legal and financial advice, the wife was not able to test the husband's evidence. He noted that in written submissions, Counsel for the wife had asserted that his Honour ought to take into account that there was unequal bargaining power, but his Honour pointed out that that was not a matter upon which the wife relied in her affidavit.
His Honour referred to an earlier decision of the Full Court in Gebert and Gebert (1990) FLC 92-137; 14 Fam LR 62 and concluded that in the circumstances, the wife could not illustrate that there had been a miscarriage of justice. His Honour noted that since the matter was argued before him, each of the parties had filed further affidavits, one being an affidavit of Phillip Eaton and the other affidavits of the wife and Beverley McGregor. His Honour said that he did not take the contents of those affidavits into account as no application was made by either party to reopen the case or otherwise seek to rely upon them.
We have noted that this matter came before Holden J upon what was in effect an application for summary dismissal. The principles governing summary dismissal have been considered in Bigg v Suzi , Pelerman v Pelerman [2000] FamCA 881; (2000) FLC 93-037; 26 Fam LR 505 and Ferrall and McTaggart (trustees for Sapphire Trust) & Ors v Blyton [2000] FamCA 1442; (2000) FLC 93-054; 27 Fam LR 178. These are that the Court will only exercise its discretion to summarily dismiss an application in circumstances where it can be demonstrated that the substantive application cannot possibly succeed.
Before us, the wife effectively relied upon the submissions made on her behalf by Ms Crisp, who was then acting for her, to Holden J. The bases of the wife's case before Holden J and before us were threefold.
She first asserted that her lack of legal representation at the time of the making of the consent orders itself constituted a miscarriage of justice.
Secondly, she said that she could not understand the financial information supplied to her by the husband prior to the trial and that this factor should be considered in relation to her first argument.
Thirdly, she said that she was pressured into settling by the husband's legal advisors and that this was sufficient to constitute a miscarriage of justice.
We turn first the issue of lack of legal representation. We do not accept that it is the law that lack of legal representation of itself can be sufficient to establish that a miscarriage of justice has occurred. Recent years have seen increasing numbers of litigants appearing unrepresented in this Court. The Full Court pointed out in Re F: Litigants in person guidelines [2001] FamCA 348; (2001) FLC 93-072; 27 Fam LR 517 that lack of legal representation usually places a person in a disadvantaged position and modified certain guidelines that had been laid down in the earlier decision of Johnson and Johnson (1997) FLC 92-764; 22 Fam LR 141 as to the duties of the Court to assist unrepresented persons. This does not, however, mean that the fact that a party is unrepresented amounts to a miscarriage of justice.
While we are sympathetic to the difficulties facing unrepresented persons in family law litigation, it is nevertheless a commonplace occurrence for proceedings involving unrepresented persons to be settled and there are many occasions when it is appropriate that this should occur.
This Court has always encouraged the resolution by parties of disputes, particularly in relation to issues of property, as this one is, and it would be entirely unsatisfactory for it to adopt a principle that would lead to such settlements being set aside, merely because of lack of legal representation. This would remove all certainty from the legal process, and leave the other party to such agreements in a totally unsatisfactory situation. The whole matter would be open to be re-litigated, often long after orders have been made, following the settlement of earlier proceedings. , This may well have the effect of disadvantaging the parties considerably if the proceedings were to be reopened.
We do not think that the principle laid down by the Full Court in Clifton and Stuart, that the incompetence of a legal representative may constitute a miscarriage of justice if the representation was so bad as to be the equivalent of no representation at all, assists the wife in this case. We agree with Holden J, that this situation is to be distinguished from the situation where a litigant in person chooses to appear unrepresented, since in the case of incompetent representation, a miscarriage of justice may well result from the litigant accepting the incompetent advice, in the belief that it was professional advice properly tendered.
It must be remembered that litigants choose to appear unrepresented for many reasons. Those reasons no doubt include impecuniosity, but also include situations where litigants, for whatever reason, are confident that they are able to adequately represent themselves, or are able to spend money on representation but do not wish to do so. It would be unthinkable that decisions thus made would subsequently place such a litigant in a more advantageous position than a represented litigant.
It may be of course, that the fact that a person is unrepresented might be a relevant factor, coupled with other factors in determining that a miscarriage of justice has occurred. For example, if an unrepresented person enters into an agreement which is patently against their interests, that could in some circumstances, amount to a miscarriage of justice within the meaning of the section. However, as the Full Court pointed out in Gebert and Gebert, that is not necessarily the case. Gebert was a case where an unrepresented person had entered into a disadvantageous agreement, but had done so with full knowledge that the agreement was disadvantageous and in those circumstances the Court considered that no miscarriage of justice had occurred. Nevertheless, an obviously disadvantageous agreement coupled with a lack of representation could constitute a miscarriage of justice in appropriate circumstances.
We comment that in the present case the agreement that was entered into does not fall into this category at all. If the husband had been successful in establishing that he was in a negative asset situation it may well have been that the wife would have received nothing by way of property settlement. Pursuant to this agreement, she received quite substantial assets, albeit over a period of time.
The second argument that the appellant advanced, which was also associated with the wife's lack of representation, was that she was faced with financial evidence that she was unable to understand. This evidence consisted of two affidavits. The first was an affidavit from a valuer, Mr Sanderson, sworn on 17 September 1999 and filed on behalf of the husband in relation to a review of a report of JLW Advisory in relation to their valuation of Hall & Prior Aged Care Group, the business of the husband. The second was an affidavit of Harvey Eastwood Pickup, sworn 23 August 1999 on behalf of the husband, which contained two reports. The first indicated a net asset position of $252,000 and the second was to the effect that there was a deficit of $68,000. It was submitted that the financial matters deposed to in these affidavits required proper financial advice, and that the wife was unable, without such advice, to understand the financial circumstances of the husband, thus she did not have an ability to give an informed consent to the orders.
However as Holden J pointed out, the wife made no complaint about this at the time and did not seek an adjournment to endeavour to examine these issues despite the doubts about them expressed by Tolcon J. Indeed there was no material before us to suggest that these reports were in fact wrong. Again we see no reason to differ with the approach taken by Holden J.
The wife's next argument was that relating to pressure. Again, as Holden J pointed out, she made no complaint to Tolcon J of being subjected to pressure of the type described by her, and it was clear that she was not suggesting that she consented to the orders under duress. In the circumstances therefore, we think that this argument cannot succeed.
No doubt pressure is often applied in the course of negotiations to settle a matter. Pressure of itself cannot be said to produce a miscarriage of justice, particularly when it is not asserted that it amounted to duress. It could, in our view, only be relevant if it was of such a nature as to have the effect of vitiating a party's consent to enter into the agreement in question. No doubt counsel and solicitors have to exercise care when negotiating with an unrepresented party but this does not mean that they are not entitled to forcefully advance reasons why that party should settle.
It may be that in this case it would have been desirable for Tolcon J to have asked the wife whether she wanted further time to consider the matter, particularly given the time of day at which the settlement was reached, and the fact that she was unrepresented. However, we again agree with Holden J, that she would have had plenty of opportunity to say something had she desired to do so, and there is no reason to suppose had she done so, his Honour would have not afforded her the opportunity to consider the matter overnight.
We agree therefore with the view expressed by Holden J that the evidence put forward by the wife fell far short of establishing that her consent was not a true consent and we agree that her substantive application could not possibly succeed. The appeal is accordingly dismissed
We will make the following directions as to the costs of the appeal:
(a) The husband be at liberty to make an application by way of written submissions in respect of costs incurred by him in relation to the appeal within 14 days of the date hereof.
(b) The wife have a further 14 days in which to make written submissions in answer thereto.
(c) The husband have a further 7 days in which to make any written submissions in reply thereto.
(d) Each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party."
(1996) 136 ALR 251
Appeal dismissed. The Full Court directed a timetable for written costs submissions: the husband could file within 14 days, the wife had a further 14 days to respond, and the husband a further 7 days to reply ([61]).