FAMILY LAW – APPEAL – PROPERTY – where the wife appeals from a decision of a Federal Magistrate dismissing her application pursuant to s 79A to vary consent orders – where the parties initially agreed to the wife receiving three payments, over a period of five years – where those terms were subsequently altered such that the last payment was to occur eight years after the first payment – where those terms formed the basis of the consent orders – where the husband claimed that change was as a result of an oral agreement between the parties – where the wife claimed that the change was a mistake – where the Federal Magistrate determined the matter on the papers, without either party being cross-examined – where the issue for determination by the Federal Magistrate was whether or not the parties had subsequently agreed to extend the final payment date by three years – where the Federal Magistrate held that she could not make a final determination about whether or not there was a subsequent agreement – whether the Federal Magistrate erred – where the Federal Magistrate erred in failing to determine whether or not the parties had made an oral agreement – whether the matter should be remitted – where neither party seeks to adduce further evidence – consideration of Allesch v Maunz – re-exercise of discretion – where the only evidence that the parties reached an oral agreement is the husband’s affidavit evidence – where all other evidence supports the wife’s version of events – where there was a unilateral mistake on the part of the wife as to the final date of payment – where the husband knew of the wife’s mistake –consent orders varied pursuant to s 79A – husband ordered to pay the wife’s costs of and incidental to the appeal.

Whistler & Whistler [2012] FamCAFC 97 (6 July 2012)

Last Updated: 13 July 2012

FAMILY COURT OF AUSTRALIA

WHISTLER & WHISTLER

[2012] FamCAFC 97

FAMILY LAW – APPEAL – PROPERTY – where the wife appeals from a decision of a Federal Magistrate dismissing her application pursuant to s 79A to vary consent orders – where the parties initially agreed to the wife receiving three payments, over a period of five years – where those terms were subsequently altered such that the last payment was to occur eight years after the first payment – where those terms formed the basis of the consent orders – where the husband claimed that change was as a result of an oral agreement between the parties – where the wife claimed that the change was a mistake – where the Federal Magistrate determined the matter on the papers, without either party being cross-examined – where the issue for determination by the Federal Magistrate was whether or not the parties had subsequently agreed to extend the final payment date by three years – where the Federal Magistrate held that she could not make a final determination about whether or not there was a subsequent agreement – whether the Federal Magistrate erred – where the Federal Magistrate erred in failing to determine whether or not the parties had made an oral agreement – whether the matter should be remitted – where neither party seeks to adduce further evidence – consideration of Allesch v Maunz – re-exercise of discretion – where the only evidence that the parties reached an oral agreement is the husband’s affidavit evidence – where all other evidence supports the wife’s version of events – where there was a unilateral mistake on the part of the wife as to the final date of payment – where the husband knew of the wife’s mistake –consent orders varied pursuant to s 79A – husband ordered to pay the wife’s costs of and incidental to the appeal.

Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Family Law Rules 2004 (Cth)

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers & Managers Appointed) (2011) 244 CLR 1 D & Y (1995) FLC 92-581 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 In the Marriage of Fickling (1996) FLC 92-664 In the Marriage of Morrison [1994] FamCA 153; (1995) FLC 92-573 In the Marriage of Patching (1995) FLC 92-585 Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1 Lowe & Harrington (No 2) (1997) 21 Fam LR 583 McGregor & McGregor [2012] FamCAFC 69 Partington (aka Bande) & Cade (No 2) [2009] FamCAFC 230; (2009) FLC 93-422

APPELLANT:

Ms Whistler

RESPONDENT:

Mr Whistler

FILE NUMBER:

BRC

1097

of

2011

APPEAL NUMBER:

NA

62

of

2011

DATE DELIVERED:

6 July 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Ainslie-Wallace and Murphy JJ

HEARING DATE:

1 June 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 July 2011

LOWER COURT MNC:

[2011] FMCAfam 766

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kirk SC

SOLICITOR FOR THE APPELLANT:

McCullough Robertson Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lynch

SOLICITOR FOR THE RESPONDENT:

Merthyr Law

ORDERS:

(1) The appeal be allowed.

IT IS FURTHER ORDERED:

(2) Pursuant to s 79A of the Family Law Act 1975 (Cth):

• (a) Paragraph 5 of the Orders made by consent on 14 November 2005 be varied by deleting “second” and inserting “first”;
• (b) Paragraph 10 of the Orders made by consent on 14 November 2005 be varied by deleting “2% per month upon the money outstanding” and inserting “the rate prescribed in Rule 17.03, Family Law Rules 2004”.

(3) So as to give effect to paragraph 2 of these Orders:

• (a) The Respondent raise and pay to the Appellant within twenty-eight (28) days of the date of these Orders:
  • (i) The sum of $2 million;
  • (ii) Interest calculated as and from 23 December 2010 to the date of the said payment pursuant to paragraph 10 of the Orders made by consent on 14 November 2005 as varied by these Orders.
• (b) Within 28 days of the date of these Orders, each of the Appellant and the Respondent do all such things, sign all such documents and pay all such money as might be necessary so as to give effect to paragraphs 6 and 7 of the Orders made by consent on 14 November 2005.
• (c) Interest at a rate pursuant to Rule 17.03, Family Law Rules 2004 be paid on all such moneys outstanding after the times for payment specified in paragraphs 3(a) and 3(b) of these Orders.

(4) The Respondent pay the Appellant’s costs of and incidental to the appeal as agreed, or failing agreement, as assessed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Whistler & Whistler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA62 of 2011
File Number: BRC1097 of 2011

Ms Whistler

Appellant

And

Mr Whislter

Respondent

REASONS FOR JUDGMENT

1. In proceedings before Cassidy FM, the wife sought an order pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) for variation of consent orders for settlement of property made on the application of the husband on
   14 November 2005. The Federal Magistrate dismissed the wife’s application to vary the consent orders.
2. In those proceedings the wife contended that the orders providing for the payment to her of the last of three instalments totalling approximately
   $8 million contained a mistake. The orders provided for the final instalment of $2 million to occur eight years after the orders were made. The wife asserted that both parties agreed, and the orders were intended to provide, that the final payment was to occur within five years of the date of the first payment.
3. The wife contended in those proceedings that the erroneous provision in the order occurred as a result of an error on the part of her solicitor and barrister. The husband contended that there was no error and deposed specifically to circumstances which, he alleged, resulted in an oral agreement between the husband and wife to the effect that the final payment was to occur within 8 years of the first payment. That is, he alleged that the orders as made embodied the agreement in fact reached.
4. The manner in which those respective assertions were dealt with by the Federal Magistrate found the central argument on this appeal in which the wife appeals against the order dismissing her application.

THE GROUNDS OF APPEAL

5. The grounds of appeal upon which the wife relies were the subject of argument at the commencement of this appeal. Ultimately, the respondent did not object to an amendment with the result that the grounds relied upon are as follows:
   1. That in determining not to exercise the discretion to make the orders sought:

(a) the Federal Magistrate erred in that she failed to have any or any proper regard to the unchallenged evidence of the Appellant that the Appellant ascertained the error in the order only in December 2010, and the evidence before her of prompt notice by the Appellant to the Respondent and that the application to vary the order was filed on 15 February 2011;

(b) the Federal Magistrate erred in that she took into account arrangements made by the Respondent on his business affairs to meet the payment in an eight (8) year cycle in the absence of any probative and admissible evidence that supported such proposition; and

(c) the Federal Magistrate erred in that considering the exercise of the discretion she failed to take into account the losses occasioned to the Appellant by reason of the mistake;

(d) the Federal Magistrate erred in failing to have any or any proper regard to the circumstances generally of the mistake and whether such constituted a miscarriage of justice pursuant to S 79A.

2. That in determining that the evidence did not permit the Federal Magistrate to conclude that the Respondent knew of the change in the orders, and that the change was a mistake on the part of the Appellant:

(a) the Federal Magistrate erred in that she failed to have any or any proper regard to the fact that following the submission to him of the draft order with amendments noted, the Respondent sought the notation referred to in paragraph 36 of the Reasons for Judgment;

(a) the Federal Magistrate erred in that the Husband admitted that he was aware of the change in the orders;

(b) the Federal Magistrate erred in that she failed to have any or any proper regard to the fact that the Appellant emailed the Respondent stating that the settlement papers were ‘essentially unchanged’; and

(c) the Federal Magistrate erred in that she failed to have any or any proper regard to the statement by the Respondent in paragraph 35 of his affidavit that it was the alleged meeting with the Appellant at the [E shopping complex] that led him to believe the change to the order was intended.

3. That in concluding that the evidence did not allow the Federal Magistrate to find that there was a mutual mistake as to the content of the orders, the Federal Magistrate erred because:

(a) the Federal Magistrate concluded that, on the evidence before her, both the Appellant and the Respondent were was unaware of the change in the order; and

(b) in circumstances where the change in the order operated to the Respondent’s advantage, she concluded that there could not have been a mutual mistake because the Respondent did not consent to vary the order;

(c) the Federal Magistrate failed to have any proper regard to the notation to the consent orders and the circumstances of its inclusion;

(d) there were no proper or adequate reasons.

6. As we have earlier said, argument centred on Grounds 1(d) and 2(a). As will be seen, the other grounds embody issues which are, in effect, subsidiary to those arising in respect of those two specific grounds.

THE HEARING BEFORE THE FEDERAL MAGISTRATE

7. The nature of the hearing before the Federal Magistrate was the subject of some confusion at its outset. The Federal Magistrate indicated her understanding that “when I set it down for the one hour, [the husband’s] application was for summary dismissal of the claim”. However, it was subsequently clarified that, although the respondent’s position was that the wife’s application should be dismissed, there was no application that this should occur summarily (see, transcript, p 3, line 16 – p 4, line 30).
8. In the event, the proceedings continued “on the papers” with neither of the parties being cross-examined on their respective affidavits. It should be observed that both parties agreed both to the hearing being conducted in that manner and, specifically, to the other party not being cross-examined.

THE EVIDENCE AT THE HEARING - RELEVANT EVENTS

9. Before proceeding to examine the Federal Magistrate’s findings, it is important to set out what the evidence before her Honour reveals about the sequence of events leading to the making of the consent orders.
10. The parties separated after about 25 years of marriage in September 2004. With the parties’ agreement, the husband’s business partner, Mr T, became involved in mediating a settlement between the parties. As a result of his intervention, Mr T sent to each of the parties an email on 23 July 2005 setting out what he described as his “summarised settlement proposal”. That email and its date are important.
11. The email proposed a “total settlement” of $8 million “net of any debts or tax to the family trusts or each other”. It goes on to provide that that $8 million should be provided to the wife in the following manner: “...$4m within 60days after signing of the settlement agreement, $2m at the 3rd anniversary of the first disbursement and the last $2m at the 5th anniversary of the first disbursement”.
12. Mr T’s email went on to provide that:
    2. On the last disbursement of the $2m, each of you will set up a trust each for [the parties’ adult children] and inject $500,000 to each trust, resulting that each child will have an inheritance of a total of $1m each. Each parent will manage each of the two trusts for the kids themselves and set the terms as they deem fit.
    3. In the meantime, the shares portfolio that is in [the wife’s] name with estimated value of $200,000 will be liquidated and put into a joint a/c to fund any expenses for [the children] for the 5 years. Any shortfall will be contributed jointly and any balance after the 5 years, will be transferred in equal proportion to the four trusts that would have been set up by then. Financial support for [the children] thereafter will be provided by each parent on their own through the respective trusts. (Emphasis added)
13. It will be immediately appreciated that the settlement proposal put forward by Mr T was, in all respects, centred around five years marking the last of the instalment payments.
14. Subsequent to that email, draft “Terms of Settlement” were provided by the husband’s solicitor to the solicitors for the wife. The husband’s affidavit read before her Honour exhibits those “Terms of Settlement” under cover of a letter from his solicitor to him dated 30 August 2005. Again, the date of that letter is important. So, too, is the fact that the proposed “Terms of Settlement” emanate from the husband’s solicitor.
15. The solicitor’s letter of that date says:

I attach herewith draft terms of settlement.

They are about as rough as you can get, however, I simply sat down with the dictaphone, and got down on paper at least at this stage, what I believe to be the shell of a settlement.

I will let you digest these and we can talk later in the day.

16. Paragraphs four and five of the “Terms of Settlement” sent to the wife’s solicitors reflect a payment of $2 million on, respectively, “the third anniversary” and the “fifth anniversary” of the payment to the wife of the approximate $4million initial payment referred to earlier in the Terms. Those Terms of Settlement also dealt with trusts for the children. That provision (Clause 6 of the Terms) links the provisions to the children to the “payment referred to in order 5” – that is, the payment on the “fifth anniversary” of the initial payment.
17. About three weeks later, on 19 September 2005, the wife emailed the husband personally. Relevantly, she said that she had “an appointment with the lawyer on Wed”. She went on to say “as you probably know [Mr T] has suggested that I get the lawyer to insert a clause regarding penalty interest if the later payments are not paid on time. I am trying to get this sorted as soon as possible as I feel you are keen for this to occur also.”
18. On 27 September 2005, the wife wrote to her solicitor (Exhibit EW-5 to the Affidavit of the wife read before the Federal Magistrate) in these terms:

...

My instructions are that I wish to proceed with the financial agreement as presented by [the husband]. It was decided that we would consult with a barrister. The aim of this was to examine the wording of the financial agreement in an attempt to make the agreement more binding, but without changing the intent of the agreement in any way, or imposing any further conditions.

... (Emphasis added)

19. The wife and her solicitor met with a barrister, Mr A, the same day. Further to the letter just referred to, the wife, in her affidavit sworn
    14 February 2011 read before the Federal Magistrate, deposes to instructing her solicitor, Mr E, to “conclude the settlement in terms of the settlement agreement”. There was no evidence before her Honour to suggest that this was a reference other than to the “Terms of Settlement” quoted above.
20. On 3 October 2005 the husband’s solicitor wrote to him recording a conversation that had taken place with the solicitor for the wife. That letter (Exhibit RJW-2 to the husband’s affidavit read before her Honour) records, relevantly:

...

[Mr E] advised that ... he would be getting back to me in the next two or three days with respect to your proposal.

Basically he said that the proposal was “ok” subject to some slight changes.

...

I’ll keep you informed.

(Emphasis added)

21. Mr A provided a written advice for the wife on 28 September 2005 (Exhibit EJW-5 to the wife’s affidavit filed 12 May 2011 and read before her Honour). That advice included the following:

(9) The intention of the Orders taken as a whole is that the Wife will receive over the course of five years the total of $8,000,000.00 or possibly, in value, $8,100,000.00. She is to have effectively $4,000,000.00 within 60 days, wait three years, have $2,000,000.00, wait a further two years and have her final instalment of $2,000,000.00. ...

(Emphasis added)

22. A number of observations need to be made about that statement. First, it plainly reveals what the wife contends is the case; namely that it was always her intention that the final instalment was to be made five years after the first. Secondly, and just as importantly, there can be no doubt that Mr A is giving advice on 28 September 2005 about the “Terms of Settlement” – that is the document proposed by the husband via his solicitors. As has been seen, that document contained a term indicating the last instalment was to be paid after five years.
23. Additionally, and important to each of those two considerations, there was no evidence before her Honour from anyone – including, it should be noted, the husband’s solicitor, Mr W or the husband’s business partner, Mr T – that any proposal of the husband other than that contained within the Terms of Settlement was before Mr A, or had been sent to the wife’s solicitors (or, indeed, to the wife herself).
24. Finally, and again importantly, there was no evidence to the effect that the conversation with the wife’s solicitor recorded by Mr W, in his letter to the husband which we have just referred to, related to any proposal other than that contained in the Terms of Settlement.
25. Each of these matters is vitally important because, as will be seen, the husband deposed in his affidavit filed on 1 April 2011 to reaching an oral agreement in the same terms as the orders. Plainly enough, the date of that alleged oral agreement (and the meeting at the E shopping complex which is said to have produced it) is crucial. Yet, the husband did not particularise that date beyond asserting (at [27] of his affidavit) that it occurred “[s]ometime after the preparation of the shell” – the latter being how the husband designates the “Terms of Settlement” – and, two paragraphs later in the same affidavit, positing the meeting as having occurred before 3 October 2005. (At [29] of that affidavit, the husband swears that he received an email from his solicitor on 3 October 2005, which was “soon after [the] meeting” with the wife. We will refer in detail to the husband’s affidavit later in these reasons).
26. Mr A had drafted changes to the Terms of Settlement proposed by the husband’s solicitor which he included with his written advice. Relevantly, those changes were:
    4. That on the third anniversary of the payment of the sum referred to in order 1 hereof, that the first payment date (“the second payment date”) the husband cause to be paid to the wife the sum of $2m.
    5. That on the fifth anniversary of the payment to the wife of the sum referred to in order 1, that second payment date (“the third payment date”) the husband pay the wife the further sum of $2m.
27. The error contained in those amendments when compared to the written advice and the wife’s instructions is obvious.
28. The wife specifically deposes that she did not at any time instruct either her solicitor or Mr A to make the changes just referred to. She deposes specifically that “at all times and until recently” she believed that the settlement that was made was in accordance with the “Terms of Settlement” to which we have earlier referred and which referred to the final payment occurring five years after the first.
29. Two days later, on 6 October 2005, the solicitor for the wife forwarded the proposed orders, as amended by Mr A, to the husband’s solicitors. Those Terms of Settlement were sent under cover of a letter of the same date which said, relevantly:

We have taken instruction from our client in relation to the proposed terms of settlement submitted by you on the husband’s behalf.

Our client is in agreement with the spirit of the orders and has instructed us to confirm her agreement to same subject to some minor amendments as underlined in theenclosed rewrite of the orders.

Would you kindly confirm [the husband’s] agreement to the proposed amendments and, if so, you might re-engross the orders and submit same to us as a formal minute for our client’s execution.

... (Bold emphasis in original. Emphasis otherwise added.)

30. The proposed orders as attached included the error by Mr A to which earlier reference has been made.
31. About a week later, on 10 October 2005, the wife emailed the husband directly. Relevantly, the email said:

... [Reference is made to a cheque in respect of shares]

... [Reference is made to an appointment with “Paul”]

As you would know, the lawyers have returned the settlement papers to [Mr W] essentially unchanged. I am seeing the lawyers this afternoon to hopefully finalize the court papers.

(Emphasis added)

32. Once again, in light of the husband’s central position in respect of an oral agreement different to the Terms of Settlement, it might be observed that the wife can be seen to make reference to the terms as provided by the husband on 31 August 2005 rather than to any agreement reached between them which differed from those Terms.
33. On 11 October 2005 the husband sent an email directly to the wife responding to her email just referred to (Exhibit EJW-8 to the wife’s affidavit filed 12 May 2011 and read before her Honour). The husband’s email refers to both the cheque in respect of shares and to the appointment with “Paul”, but makes no mention at all of the “settlement papers”, as the wife refers to them, or to the wife’s reference to those papers being essentially unchanged.
34. On 18 October 2005 the husband’s solicitors wrote to the wife’s solicitors enclosing an application for consent orders and “Terms of Settlement”. That letter refers to the fact that “...we have added a notation regarding the $200,000”. The letter invited the wife’s solicitors to sign the application for consent orders and return them “if all is in order” so that the documents could be signed by the husband and lodged with the Court. No reference is made to the fact that those terms differed from those submitted earlier by those same solicitors. 

THE TERMS OF THE CONSENT ORDER

35. The application for the making of the consent orders was filed on
    11 November 2005 by the husband. The proposed consent orders were signed by each of the parties and witnessed. An Order was made by a Deputy Registrar of this Court on 14 November 2005 in terms of Exhibit 1 attached to the consent orders. Relevantly, the order provides as follows:

It is ordered by consent:

1. That within 60 days of the issue of these orders (“the first payment date”) that the husband cause to be paid to the wife the sum of $4,164,000 in the following fashion ...

...

4. That on the third anniversary of the first payment date (“the second payment date”) that the husband cause to be paid to the wife the sum of $2m.
5. That on the fifth anniversary of the second payment date (“the third payment date”) the husband pay the wife the further sum of $2m.
6. That the husband and wife agree that upon the making of the payment referred to in order 5 hereof, that they join together for the creation of four trusts [for the children] ...
7. That upon the creation of the trusts as contemplated in order number 6 hereof, the wife cause within 7 days of the creation of the trust to settle upon the [N] Trust No. 1, $500,000 and the [B] Trust No. 1, $500,000. That the husband contemporaneously with the settlement by the wife settle on the [N] Trust No. 2, $500,000 and the [B] Trust No. 2, $500,000...

...

10. That should the husband default in making any of the payments described in these orders, then he shall, in addition to the payment, pay to the wife interest calculated at 2% per month upon the money outstanding.

...

Notation: It is noted that the husband and the wife agree that the sum of $200,000 held by the wife in shares and cash shall be held in a joint account in the names of both parties and that from those funds, there shall be met the anticipated expenses of the children during the next five years.

THE EVIDENCE AT THE HEARING – THE HUSBAND’S ASSERTIONS

36. As the husband’s allegation that there was a different agreement to that which the wife alleged is essential to the case (being his reliance upon the consent orders), it is important to set out precisely what the husband deposed in the proceedings before her Honour were the circumstances in which the oral agreement alleged by him arose.
37. The husband filed an affidavit on 1 April 2011 in which he asserted that “there was no mistake in the orders” (save for a matter irrelevant to the current proceedings). In respect of the Terms of Settlement forwarded by his solicitor to the wife’s solicitor, the husband deposes that he had sent Mr T’s proposal to his solicitor “with a view to obtaining advice” and that his solicitor was “instructed to draft terms which could be considered as a shell to work from”.
38. In light of arguments which ensued during the course of this appeal it is, we think, important to set out precisely what the husband deposed in the affidavit just referred to:
    33. I have always considered that the final payment is due in December 2013 under the terms of the order. I have never once considered that is by way of mistake and I have always acted in accordance with the orders. The other payments, namely $4,164,000 in December 2005 and $2,000,000 in December 2008 have been made on the day they have been due.
    34. Mr [T] and I have conducted our business in accordance with the payment schedules in the final terms of settlement and we are both aware that the final payment is due in December 2013. We have been under no misapprehension or have not been acting under any mistake. The final orders reflect the time I needed to make the final payment.
    35. I have always considered the extension came about after I had discussions with [the wife] at the [E shopping complex]. I have never questioned the final terms and have relied upon them and indeed understood they were extended in accordance with myself needing more time to make the final payment.
    36. The subject terms were reviewed and varied by consent after I had found out that shares held by the trustee of the [X] Family Trust in certain companies needed to be transferred to me. That was done by way of an application again. When this was done I had Mr [W] acting for me again and [the wife] had Mr [E] acting for her. The order to vary the order of 14 November 2005 was made on 23 December 2005.
    37. No other amendments were sought by [the wife] or Mr [E] at that time nor did I expect that they would.

...

42. I can say that had I been under the apprehension that the payment was due on 23 December 2010, I would have not only made the payment but would have structured my financial affairs to meet the payment. All other payments have required us to structure our affairs to make the payment. Mr [T] and I have always understood that payment will be due on 23 December 2013 and we have conducted our affairs on that premise.
39. The reference to “the [E shopping complex]” in the husband’s affidavit is a reference to [27] of that affidavit to which we have earlier referred and is important:
    27. Sometime after the preparation of the shell and soon before the final order was made, I met with [the wife] at a cafe at the [E shopping complex]... The purpose of the meeting was to further discuss the settlement and our boys. I recall the meeting very vividly due to some personal things said by [the wife] to the effect that perhaps we may one day get back together. At the time she had lent across the table and held my hand when she had said it. I had at that stage only just started dating my now wife and she had been re-partnered for a longer period. I did not consider she was serious and did not take the conversation seriously but was aghast she had said it.
40. The husband goes on to depose in the same affidavit:
    28. The discussion had been pleasant and not at all heated. I had raised with her again my concern about the time frame for payment. We were both of the view that the sum was higher than she may have received from any Court order but neither of us wanted to litigate the issue. She had again indicated that she did not want to jeopardise any of the investments or prospective investments and partnership I had with Mr [T]. She again told me that she did not want the businesses or partnership to suffer unduly. I told her I needed more time to make the last payment and she was amenable to that occurring. The meeting ended with her telling me she was content for the payments to be made over a longer period of time.
    29. Soon after that meeting, I received advice by e.mail from Mr [W] that he had spoken with [Mr E] who was acting for [the wife] about my proposal. That e.mail was received on 3 October 2005. He had indicated that Mr [E] had orally told him that the proposal was “ok” subject to some slight changes. Annexed hereto and marked RJW-2 is a true copy of the note in the e.mail dated 3 October 2005 from Mr [E].
41. It needs to be appreciated, then, that the husband made a specific sworn assertion before the Federal Magistrate that not only was there no mistake as alleged by the wife but, crucially, that the terms of the agreement reached between the parties were not those contained in the “Terms of Settlement” but, rather, those that became the consent order. The wife not only denied that there was any such conversation, but also denied that any such meeting took place as alleged or at all.
42. Thus, the alleged meeting and conversation at the E shopping complex was vital to the husband’s case before the Federal Magistrate and, axiomatically, it should have been central to her Honour’s decision. 

THE TIMING OF THE WIFE’S APPLICATION

43. In light of findings ultimately made by the Federal Magistrate relating to delay by the wife, it is important to record what occurred after the orders were made and how the wife’s application arose.
44. The initial payment of approximately $4 million pursuant to the order was made within the timeframe contemplated by them on 23 December 2010. On that date, the parties also varied the terms of the order by consent, pursuant to s 79A(1A) of the Act so as to provide that within 60 days of that date shares held by a trustee of a trust be transferred to the husband.
45. Pursuant to the terms of the original consent order, the second instalment was due on 23 December 2008. It is common ground that this payment was made on time.
46. Pursuant to the terms of the agreement as asserted by the wife, the third and final instalment was due on 23 December 2010. It is common ground that this amount was not paid.
47. On 24 December 2010 (new) solicitors for the wife wrote to the husband asserting that “[t]he Terms of Settlement required you to remit to our client $2 million on or before 23 December 2010” and making demand for payment. The letter also recorded that a solicitor had telephoned the husband to “seek an explanation for your failure to make the payment”. The letter records that “[n]o explanation was offered”. No evidence before the Federal Magistrate indicated that any response, written or oral, was received to that communication from the husband.
48. On 10 January 2011 the wife’s solicitors wrote again to the husband noting an email had been received from the husband to the effect that he intended to “appoint a lawyer, who will return from leave on 17 January 2011”.
49. A further letter was sent on behalf of the wife to the husband’s solicitor on
    11 February 2011. That document asserts that “[i]t is clear that our client would be successful if she applied to the Court pursuant to section 79A(1) ... to have the consent orders varied to reflect the agreement reached between our clients. That agreement was recorded unequivocally in correspondence.” The letter went on to demand payment. Payment was not forthcoming.
50. The wife filed her s 79A application on 15 February 2011.
51. Against that background, we turn to the reasons of the Federal Magistrate.

THE FEDERAL MAGISTRATE’S REASONS

The Nature of the Proceedings and Evidence

52. We commence our consideration of her Honour’s judgment by reference to the manner in which the proceedings were conducted before her Honour. There can be no doubt that, the parties having each agreed to conduct the hearing “on the papers” without cross-examination, that her Honour was entitled to conduct the proceedings in that manner. (See s 97(3) of the Act and, for example,
    D & Y (1995) FLC 92-581).
53. Having determined to hear the proceedings in that manner her Honour said this about the nature of the evidence before her and the findings which could be made:
    31. The matter in this case was to be determined on the papers by the agreement of both counsel. I cannot make a finding with respect to contested evidence. However, I can make a finding on the uncontested evidence. This approach is consistent with the approach taken in Lowe & Harrington (1997) 21 Fam LR 583.
54. With the greatest respect to her Honour, we do not consider this to be a correct statement of the law.
55. Although the parties have chosen to present their cases in a particular way, the essential task of the Court does not change; the task remains to resolve all such issues as are before it and make orders accordingly. Of course, if a court is of the view that justice cannot be done without, for example, further evidence or, indeed, cross-examination, then orders should be made to allow either or both to occur. But where, as here, the Court determines that justice can be done without the necessity for either, there remains the obligation to decide all such issues of fact, or “contested evidence” as are necessary to resolve the issues before the Court.
56. The obligation to resolve “contested evidence” does not disappear, but the task is confined by the process chosen by the parties, the evidence which the parties have chosen to put before the Court and the inferences available from it.
57. As will emerge below, we see no difficulty with her Honour proceeding to determine the issues before her – including the central issue as to what was in fact the agreement between the parties – on the basis of the evidence which the parties chose to put before the Court and in the absence of cross-examination. Indeed, as we will later explain, we consider that the evidence as presented readily permits of inferences being drawn and, ultimately, conclusions being reached on the balance of probabilities.
58. We should add that one reading of the passage of her Honour’s reasons just quoted is that Lowe & Harrington (1997) 21 Fam LR 583 (“Lowe”) is cited as authority for the proposition as to contested evidence which precedes it. That case is not authority for that proposition. We think it more likely that the reference to that case by her Honour does not pertain to the statement about “contested evidence” which precedes it, but rather, is a reference to what that case has to say about the role of mistake in s 79A, a matter central to her Honour’s reasons and a matter to which we shall return.

The Central Issue and the Federal Magistrate’s Findings

59. The first of the findings made by the Federal Magistrate directly relevant to her Honour’s ultimate conclusion can be seen at [28] of the reasons. Having detailed a chronology of events, and outlined what her Honour perceived to be the issues, her Honour found:

I accept on the evidence provided by the wife that the wife made a unilateral mistake in relation to the period of time that was to elapse before the final payment of the $2 million was to be made.

60. Her Honour’s reasons go on to explain why it is that “[i]t is clear it was a mistake...”, referring to Mr A’s written advice to which reference has earlier been made by us and the proposal outlined by Mr T to both parties in his email to which we have also earlier made reference. Her Honour then goes on (at [34]) to outline other reasons for the finding that “...the wife was mistaken as to the duration of the final payment...”
61. It should be observed that, in the course of doing so her Honour “note[s]” – but, crucially, makes no finding in relation to – the husband’s “...evidence with respect to the conversation at the [E shopping complex].”
62. Having clearly found that there was a mistake on the part of the wife with respect to the time for payment of the third instalment, and having given reasons for that finding, the Federal Magistrate then posed a question for herself: “did the husband know of the mistake?” (at [35]). Her Honour ultimately found that:
    38. Here, the quantum is unchanged. It is the time of payment that has been extended. I do not accept, therefore, that I can infer that the husband knew of that and knew that it was a mistake.
63. What her Honour perceived as her inability to “infer that the husband knew” is central to her Honour’s ultimate conclusion and decision.
64. Her Honour then goes on to find, with respect to what her Honour termed “mutual mistake”:
    39. With respect to a mutual mistake, Mr Page of senior counsel submitted (this was a submission he developed in oral submissions) that I could conclude that the husband was also mistaken about the order in relation to the timing of the last payment. If he had been, he would have been in a position where he could have agreed to the amendment when the “mistake”, was brought to his attention. No such consent to vary the order was forthcoming, so I am not able to find that there was a mutual mistake.
65. That central finding is not specifically referenced by her Honour to any of the necessary pre-conditions for the operation of s 79A (see, for example, In the Marriage of Patching (1995) FLC 92-585; In the Marriage of Fickling (1996) FLC 92-664). It would appear, however, that the findings as to mistake, taken together, amount to a finding that there is no miscarriage of justice within the meaning of s 79A.
66. Having reached that conclusion, her Honour then posed for herself an additional question (at [40]): “Is there a general discretion to vary the order in the absence of knowledge of the wife’s mistake by the husband?” Again, that question is not posed by reference to the requirements of the section or, specifically, to authorities which make it clear that s 79A contains a residual discretion even if the relevant ground is established and is found to involve a miscarriage of justice (see, for example, In the Marriage of Morrison [1994] FamCA 153; (1995) FLC 92-573). However, it seems tolerably clear that it is to this issue that her Honour’s question was directed.
67. Her Honour’s reasons refer to Lowe and then to the submissions of each counsel before concluding:
    44. The wife has had five years to bring the application, including when there was a consent order to vary the original order that was entered into on 23 December 2005. I am not satisfied that I should exercise that discretion because of, firstly, the delay in bringing the application and secondly, the imposition on the husband of the business that he currently has and the difficulties he says that he may face. The wife may have a remedy with respect to that loss elsewhere, but that is not a matter that is relevant to the discretion I am now exercising. I therefore dismiss the application under s.79A brought by the wife.

THE FEDERAL MAGISTRATE’S ERROR

68. As has been seen, the Federal Magistrate found that she could not “infer that the husband knew of” the wife’s mistake. In our view, that finding, crucial to her Honour’s decision, ignores the clear evidence of the husband quoted earlier in these reasons that there was no such mistake. There was no mistake because, he deposed, the orders properly reflected the agreement. His evidence was, in effect, that the wife’s assertion as to mistake was false.
69. Remarkably, it might be thought, that evidence, and the central issue to which it relates, was not at all addressed in either the written or oral submissions to her Honour by counsel for the husband. The case was presented to her Honour as one of “mistake” and neither counsel sought a finding as to the issue upon which the case, in truth, depended. Regrettably, that approach in our view led to her Honour making a fundamental error.
70. The central issue just described was not resolved by her Honour and, indeed, not at all addressed save to “note” the husband’s assertion and the wife’s denial. That failure reveals a fundamental error in her Honour’s reasons reflected specifically in Grounds 1(d) and 2 (a).
71. Each of the trial counsel for the wife and husband relied upon the decision of this Court in Lowe and what was there said about the role of mistake as a ground sustaining relief pursuant to s 79A. But, fundamental to the decision in that case was the rejection by the trial judge of the husband’s assertion that the agreement was different to that alleged by the wife. The Full Court in Lowe found no error in that central finding. Once it had been determined that the agreement was as the wife alleged, the question then became whether there was a miscarriage of justice by reason of the husband’s knowledge of the mistake. The Full Court held (at 592):

... [The wife’s] mistake was that she thought [the consent orders] put into effect the agreement reached at the Order 24 conference. It is clear, in our view, that the trial judge found that at no stage had the wife intended to make a fresh offer as distinct from intending to put the Order 24 agreement into effect.

...

... The trial judge posed the question whether the fact that the respondent was well aware that the applicant was entering into the settlement on a mistaken basis, but that he nevertheless stood by and allowed the orders to be made, fully appreciating that their effect would virtually reverse the agreed proportions of the net value of the relevant real estate, amounted to a miscarriage of justice within the meaning of s 79A(1) and thus gave rise to the court’s discretion to grant relief. No criticism was made of this passage, and in our opinion it accurately states the main issue.

(Emphases added).

72. It will be recalled that her Honour found unequivocally that the wife had made a mistake. If the agreement is as the wife alleges, her mistake is similar (but not identical) to the mistake in Lowe; it consists of signing the terms of an agreement which (contrary to her instructions) embodied a final payment eight years after the first and not five years after the first, which such (erroneous) agreement was formalised in consent orders. If the agreement is as the husband alleges, the wife cannot have made any such mistake. More fundamentally, if the agreement is as the husband alleges, the wife cannot have made any mistake.
73. The wife alleged before her Honour that the agreement between the parties was as set out in the Mr T email and the Terms of Settlement sent by the husband’s solicitor to the wife’s solicitor. She alleged an error, perpetrated by her lawyers, in the formalisation of that agreement and that she was unaware of the error until the third payment became due (on her assertion as to the agreement), on 23 December 2010. The husband’s evidence had nothing to do with an allegation of mistake on his part. He alleged that the agreement as reflected in the consent orders was formulated:
    • At a different time (“Sometime after the preparation of the shell [i.e. his solicitors Terms]” and before the husband’s solicitors sent the husband a letter on 3 October 2010); and
    • At a different place (“the [E shopping complex]”); and
    • In a different manner (orally, in a conversation between he and the wife)

(Husband’s affidavit, filed 1 April 2011, [27] and [29]).

The wife denied not only any such agreement, but any such meeting at that place or to that effect at any time.

74. On the husband’s evidence (and, thus, case) the agreement as embodied in what was signed and made as consent orders is exactly what was agreed. There was, on his sworn evidence, no mistake (either as alleged by the wife or at all) and, axiomatically, the wife could have no case pursuant to s 79A because the wife received precisely what she bargained for. If the husband’s version of the agreement was preferred, not only was there no mistake, but the wife must be seen as having given false evidence as to there not being a meeting and conversation leading to the making of an oral agreement in terms ultimately embodied as consent orders.
75. As earlier mentioned, the central matter just referred to formed no part of the written or oral submissions of the husband at trial. The written submissions on behalf of the wife before her Honour referred to a “variation” of “the agreement of the parties which the Wife denies” and submits, in general terms, that “[t]he husband was fully aware of the five year cycle in which these payments were to be made relative not only to the payments but also to the maintenance of the children...” and, further, that “[i]n any negotiations that took place, no amendment to the time for the third payment to the wife had been contemplated.” The issue of mistake subsumed the hearing. The written and oral submissions of trial counsel for each of the parties do not reveal any appreciation of the importance of the central issue just described. Nor was there agitation of it before the Federal Magistrate.
76. Notwithstanding the fact that counsel’s approach and the manner in which the proceedings were approached can be seen to have led the Federal Magistrate into error, no sustainable finding can have been made by the Federal Magistrate as to mistake on the part of the wife unless and until the central issue identified by us was determined, and it was not.
77. In the manner in which the Federal Magistrate expressed herself in the reasons (resulting from the approach of counsel before her) the error lies, as Grounds 1(d) and 2(a) assert, in the finding that no inference can be drawn about the husband’s state of knowledge.
78. The appeal must succeed on these grounds.

OTHER GROUNDS OF APPEAL

79. We are, of course, aware of what has been said by the High Court in cases such as Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1 at 6 (“Kuru”) and more recently in Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers & Managers Appointed)(2011) 244 CLR 1 at [56] (“Lanepoint”) as to the necessity for an intermediate court of appeal to deal with all grounds of appeal and not just those which are decisive.
80. However, specific considerations can be seen to apply to this Court (see, for example, ss 94(2A); 96AA and 97(3) of the Act). That more general issue aside, in this case reference to the other grounds in this appeal reveal what are essentially challenges to the exercise of discretion and to the weight attached to various specific parts of the evidence. The principles relating to the difficulties confronting appellants relying upon such grounds have frequently been referred to and do not bear repetition. In terms of the principles discussed in decisions such as Kuru and Lanepoint, those same considerations can be seen to apply a fortiori to an application for special leave to appeal to the High Court from a decision of this Court where grounds of that type are relied upon.
81. For the sake of completeness, we make it clear that we are of the view that there is no merit in the remaining grounds, although it might be said that, some of the submissions at least, can be seen as sub-sets of, or related to, the essential error we have identified (see, for example, Ground 2(c)).
82. We should also add that, although it relates to discretion and is not, of itself, a ground of appeal, we do not, with respect, consider that the Federal Magistrate’s finding as to delay (reasons at [44]) was correct. The Federal Magistrate having found that the wife was mistaken, no action (at all) on the part of the wife could have been expected until the time for payment of the third instalment (as the wife alleged it). Immediately after the payment was not made, formal demand was made and proceedings issued expeditiously. We cannot see how those actions (or any inaction) on the part of the wife could amount to delay or would excite the exercise of the discretion against her.

RE-EXERCISE OR REMITTER?

83. The appeal having been allowed, it remains to consider whether we should remit the questions which arise as a result to be heard by a Federal Magistrate or whether we should “... substitute [our] own decision based on the facts and the law as they [now] stand” (Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 181 (“Allesch”)).
84. The question raised as a result of allowing the appeal is whether the orders should be varied so as to effect the final payment being made within five years of the original payment rather than eight. (Senior Counsel for the appellant submits that consequential orders should also be made with respect to interest).
85. The exercise of that power by us is an exercise of the s 79A power and involves the exercise of the discretion inherent in that section.
86. The decision of the High Court in Allesch makes clear that, in re-exercising the relevant discretion for ourselves, attention must turn to evidence of the circumstances as they now exist (as distinct from when the order appealed from was made) and, because of that, “...where circumstances have or are likely to have changed between the original hearing and the disposition of the appeal, it is not uncommon for an appellate court to remit the matter for rehearing...” (Allesch at 183). In very many cases before this Court, the prospect of changed circumstances and the nature of the discretion inherent in any re-exercise by this Court, means that remitter is, unfortunately for the parties, required. (See, for example, McGregor & McGregor [2012] FamCAFC 69; Partington (aka Bande) & Cade (No 2) (2009) FLC 93-422, especially at [110].
87. Yet, there are other cases where the nature of the issue which needs to be determined permits of this Court reaching its own decision. The arguments for doing so if injustice can be avoided are manifest: there is a very significant saving in time and money for the parties. So much is, in effect, recognised in the Act. Section 93A(2) provides:

Subject to section 96, in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given ...

88. Here, neither party contends that there is evidence, or should be evidence, in respect of any changes which have occurred between the hearing and the disposition of this appeal relevant to any re-exercise by this Court.
89. Further, the issue live as a result of the allowing of the appeal is very narrow; it involves the variation of orders which, in large measure, have already been performed. There is no cross-appeal; neither party seeks that the orders be set aside and that new s 79 orders should be made. The variation relates to the making of a payment which, as one party contends, should have been made about 18 months ago and, as the other party contends, should be made in about 18 months time.
90. By reason of the matter identified in these reasons as central, a determination will need to be made by this Court as to whether the agreement is as the wife contends or as the husband contends. But, that central question is to be decided by reference to the evidence, including inferences available from the evidence, together with any other evidence admitted as relevant to that issue by this Court.
91. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, the High Court (Gleeson CJ; Kirby and Gummow JJ) held in respect of a section giving power to the New South Wales Court of Appeal similar to that contained in s 93A(2) of the Act:
    25. Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make allowance in this respect”.

(Citations omitted)

92. Here, of course, this Court is in precisely the same position as the Federal Magistrate because there was no cross-examination before her Honour and, as earlier explained, her Honour was, just as is this Court, obliged to scrutinise such evidence as is presented before it and to draw for ourselves “own inferences and conclusions”. This Court is, somewhat unusually, in as good a position to do so because of the manner in which the proceedings were conducted before the Federal Magistrate (noting that such a course was consensual and neither party challenges that course on this appeal).
93. Accordingly, we consider that this is an appropriate case where this Court can consider the application of the wife.

VARIATION OF THE ORDERS?

94. We turn now to consider whether the orders should be varied pursuant to s 79A and start with the question we have identified as central to the determination of the case: was the agreement as the wife alleges it to be or as the husband alleges it to be?
95. As we have said, we disagree with the learned Federal Magistrate that a finding as to “contested evidence” cannot be made; indeed, it is imperative that it be made.
96. It will of course not be possible to draw conclusions about credibility or veracity of the parties’ respective accounts from observations of them in the witness box. Yet, as the High Court has pointed out, while the observations of witnesses can play an important, and sometimes decisive, role in assessing credibility or veracity, nevertheless, the asserted advantage emanating from same should be kept in perspective:

An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong. When such a finding is wholly or partly based on the trial judge's assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence. The "value and importance" of that advantage "will vary according to the class of case ...” If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant. If the finding is unaffected by such error or mistake, it will be necessary for the appellate court to assess the extent to which it was based on the trial judge's conclusions about the credibility of witnesses and the extent to which those conclusions were themselves based on observation of the witnesses as they gave their evidence as distinct from a consideration of the content of their evidence. Judges are increasingly aware of their own limitations and of the fact that, in a courtroom, the habitual liar may be confident and plausible, and the conscientious truthful witness may be hesitant and uncertain. In that context, it is relevant to note that the cases in which findings of fact and assessments of credibility are, to a significant extent, based on observation of demeanour have possibly become, if they have not always been, the exception rather than the rule. Indeed, as Kirby ACJ pointed out in Galea v. Galea (1990) 19 NSWLR 263, at p 266), in many cases today, judges at first instance expressly “disclaim the resolution of factual disputes by reference to witness demeanour”. ...

(Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479-480 per Deane and Dawson JJ). (Emphases added)

97. The task here is to draw such inferences as are properly open on the evidence before the Federal Magistrate so as to reach our own conclusion based upon that evidence. That evidence and those inferences before us leaves us in little doubt that we should conclude that the agreement between the parties was as the wife alleges and that the wife was mistaken as to the terms of the consent orders. It follows that we reject the assertion by the husband as to the agreement for which he contends and his allegations as to the circumstances in which it is said to emerge. As will be obvious, that central finding must necessarily have a significant, indeed telling, impact upon a finding as to whether, to use the words of the Full Court in Lowe, the husband “stood by and allowed the orders to be made, fully appreciating that their effect” was different to those which had been agreed between the parties. We consider that such a finding can readily be made.
98. We reach those conclusions by reference to the following matters:
    • All of the evidence independent of the parties (Mr T’s email; the Mr A advice; the letter from the husband’s solicitors; the Terms of Settlement; the letters from the wife’s solicitors) point to an agreement as to five years and not eight years;
    • There is no evidence that points to an agreement as to eight years, save for the husband’s assertion and the terms of the orders;
    • The husband’s assertion as to the alleged conversation is not particularised as to date save that the husband swears that he met with the wife at the E shopping complex café “sometime after the preparation of the shell and soon before the final order was made”, and appears to be more specific later in that same affidavit that he received a letter from his solicitors dated 3 October 2005 “soon after” the alleged meeting. In light of the correspondence passing between the parties’ solicitors, including the fact that the original “Terms of Settlement” were drawn and promulgated by the husband’ssolicitors, the specification of the timing of that alleged meeting is crucial;
    • There is no evidence to suggest that the wife received, either from the husband or his solicitors, proposals or terms in relation to the third instalment other than those set out in the Terms of Settlement;
    • There can be little doubt, then, that when the husband’s solicitor spoke of “your proposal” and “the proposal” in the letter sent to the husband on 3 October 2005, that the solicitor was referring to anything other than the (original) “Terms of Settlement”. Yet, on the husband’s evidence, that letter was sent “soon after” a new agreement had been entered into orally by the parties regarding the last payment. In our view, it staggers belief that there would be no reference to that (oral) agreement by the solicitor given that no evidence at all suggests the wife or her lawyers ever had the terms of any such agreement before them;
    • Counsel for the appellant argues that it is implausible, given what the husband says about the tenor of the meeting between he and the wife at E shopping complex and the wife’s reaction to the husband’s request to delay the last payment of a very substantial sum, that there would be no reference whatsoever to the wife’s indulgence in any of the subsequent emails between the husband and wife. We agree;
    • There can be no doubt that, on 28 September 2005, Mr A was providing advice about the original “Terms of Settlement”. There is no evidence of any oral or written communication from the husband to the wife or from the husband’s solicitor to the wife’s solicitor suggesting that any terms different to those contained in the husband’s Terms of Settlement had been communicated. Those terms, of course, referred to five years notwithstanding that, because of the wife’s email, the husband knew the wife was receiving advice on those terms;
    • The letter from the wife’s solicitors of 6 October 2005 referred to the wife’s agreement with “the spirit” of the Terms of Settlement. It cannot in our view be said that the postponement of the payment of a very significant sum ($2m) for an additional three years (which was also the final instalment which effected the parties clean financial break in s 81 terms) could be an agreement to “the spirit” of a proposal for payment in five years;
    • The husband did not respond substantively to an email from the wife directed to him personally on 10 October 2005 in which she refers to the “settlement papers” being sent to the husband’s solicitors “essentially unchanged”. Again, on the whole of the evidence, the reference to “the settlement papers” can only be a reference to the “Terms of Settlement” drafted by and sent by, the husband’s solicitor. Again, we do not accept that this statement can sit with those Terms being knowingly changed by the wife to effect a change from five to eight years;
    • On 18 October 2005, on the husband’s own evidence, his solicitor wrote to the wife enclosing an Application for consent orders and “Terms of Settlement” but this time incorporating the changes and error made by the wife’s barrister. A notation was also added. That notation, for the first time in any of the negotiations, removed references which tied it to a period of five years. That needed to be done if it was to be consistent with the balance of the document. Yet, despite the correspondence that had ensued between solicitors, including a matter of some days prior to that date, the letter (and nothing else from either the husband or his solicitor) did not refer to any change from five years to eight years;
    • Subsequently, when the wife’s solicitors wrote demanding immediate payment, no reference was made to any alleged agreement reached between the parties – something that we consider is remarkable given that any such agreement allegedly embodied in the orders would have been a complete answer to the wife’s claim.
99. In our view, all of the inferences reasonably open on the evidence point to there being no meeting and no agreement as alleged by the husband. He offers no evidence other than his own assertion in support of the claim as to a (new) oral agreement as to the timing of the later third instalment. As an important example, the husband offered before the Federal Magistrate – and offers before this Court – no evidence of instructions given to his solicitor subsequent to preparation of what he calls “the shell” so as to incorporate what he alleges was a new agreement in respect of the third instalment. Such a term, indeed such an agreement, is, in our view, contrary to the inferences to be drawn from all of the other evidence before the Court, including, significantly, the documentary evidence.
100. In addition, all of the inferences reasonably open on the evidence point to a mistake on the part of the wife which the husband realised at some point between 6 October and 18 October 2005 and of which he sought to take advantage thereafter.
101. In our view those findings should be seen to combine with the uncontroversial fact that the wife has not been paid $2m for some 18 months with the consequence that she has been unable to use that sum for that time, so as to lead clearly to the conclusions, within the terms of s 79A of the Act that:
     • (a) The ground of “any other circumstance” has been made out, namely the erroneous recording of the terms of the agreement reached between the parties without that error being appreciated until such time as the mistaken clause was to become operative;
     • (b) There has been a miscarriage of justice to the wife as a result; and
     • (c) Having rejected the findings of the Federal Magistrate in respect of delay, the evidence reveals no other considerations which point to the residual discretion being exercised so as to not permit a variation of the order.

THE TERMS OF THE VARIATION AND ORDERS

102. Orders should be made varying the consent orders so as to give effect to those findings.
103. The orders should be varied so as to make clear that the final payment was due 5 years after the first. So as to give effect to that variation, orders should be made to provide that payment of the outstanding sum be made within a time frame that takes account of both the fact that the wife has not had money she was entitled to but also the fact that a large sum is required and, in reliance upon the Federal Magistrate’s decision, the husband would not have expected to pay until the end of 2013. We consider twenty-eight days is appropriate.
104. Similarly, consequential orders should be made in respect of the creation of the trusts and the payments of the sums provided for in paragraphs 6 and 7 of the consent orders. It should be accepted that formalities will need to be attended to and we consider that the same time frame will allow those to occur.
105. The remaining issue is the provision of interest which is dealt with in paragraph 10 of the original consent orders. That paragraph provides for penalty interest at the rate of 2 per cent per month. Senior Counsel for the appellant wife contends, fairly as it seems to us, that this Court might consider the penalty interest provided for at paragraph 10 to not be just and equitable in light of all of the circumstances of this case, including that the non-payment was due to the mistake of the wife (and/or those advising her). Senior Counsel submitted that interest should be at the rate prescribed by the Family Law Rules 2004, specifically r 17.03. That submission is, we think, soundly based. In light of our findings as to the manner in which the mistake came about and what flows from our findings as to the husband’s actions, we consider it just and equitable that interest be paid as and from 23 December 2010 to the date of payment. 

COSTS

106. By reference to s 117 of the Act and the matters contained in s 117(2A), we would, as a result of the circumstances earlier referred to and the findings earlier made, order the husband pay the wife’s costs of and incidental to this appeal.
107. In those circumstances, counsel for the respondent submits that if the appeal succeeds, it will have done so because of an error of law on the part of the Federal Magistrate and that a costs certificate should, then, issue pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).
108. In the circumstances of this case and in light of the findings made by us, we are not prepared to grant to the respondent a costs certificate in respect of the appeal.
109. The order of the Court will be that the respondent pay the appellant’s costs of and incidental to the appeal as agreed or, failing agreement as assessed.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Murphy JJ) delivered on <insert date judgment delivered>.

Associate:

Date: 6 July 2012