Australian Taxation Office and Wife v Husband
- The wife has two apparent grounds. In respect of the first, she must ultimately point to evidence of duress or coercion such as to vitiate consent. Consent to an order must be free and informed consent and the evidence of her then solicitor would assist.
- In respect of the second ground, that relating to disclosure, failure to disclose matters peculiarly within the knowledge of a party can permit a misunderstanding on the part of the other. The “notation” to the 2008 orders is intriguing. What was suppressed and was it wilful concealment of something the husband had to disclose? Here, I do not know. (see the discussion in Lane & Lane  FamCAFC 53, (2016) FLC 93-699)
- The submission of both the Commissioner of the Australian Taxation Office and the wife ultimately comes down to whether the court accepts the candour of the husband.
- In Thomas A. Edison Ltd v. Bullock  HCA 72; (1912) 15 CLR 679 Isaacs J noted the “duty” of a party asking for an ex parte injunction to tell the Court all material facts relating to the right to the injunction sought. As his Honour observed, “Uberrima fides” is required, failing which, the order would almost “invariably fall”. So too, an application, such as here, well after the event, requires comprehensive evidence to justify the exercise of discretion to alter or discharge the order. Relevant to that exercise is whether the non-disclosure of facts (here by the husband to this hearing) was serious. Had the facts not been disclosed, the order sought by the husband might have been made and had that occurred, (as the husband concedes), the money would not have been returned because it would have been spent on legal fees. Unlike partial property settlement cases, any adjustment may also not be possible here against other assets because of the amounts of the two claimants.
- Thus, the evidence brought by the Commissioner of the Australian Taxation Office about:
- What had happened in relation to the two CC Town properties;
- The payments into the husband’s banking account in 2016 and 2017;
- The transfer of significant funds to lawyers and his lifestyle;
- The husband’s capacity to orchestrate borrowings between D Ltd and C Pty Ltd as late as February 2017 relating to the CC Town purchase,
are all dismissed by the husband but these things were happening when he was saying that he had no funds.
- The wife pointed to the absence of evidence about the documents associated with the liquidation of the relevant corporate entity in Asia. The husband’s family lawyer wrote to the wife’s lawyer that the documents were not within the “possession or power” of the husband but the husband could not explain what that meant or what steps he had taken to get the documents. Whilst his evidentiary position in an affidavit drawn by his lawyers was that he was not expecting there to be anything left after the liquidation concluded, must be questionable where he must have known of all of the money being transferred as claimed by the Commissioner of the Australian Taxation Office. No explanation was forthcoming other than a dismissal of any concern being justified and in the context of the wife’s claim being “rubbish”.
- The husband observed that there was not a level playing field in the litigation in the sense of his being against the might of the Australian Taxation Office and his stridently held view that the wife had people behind her who were funding the s 79A application. All of these assertions are just that. The husband had lawyers acting for him until only days ago and there was no evidence about the potential costs and how the lawyers would propose to assist if at all. His father’s largesse in liquidating assets and providing rent-free accommodation was something that the husband was very proud to report but in respect of his father assisting him with funding to run a case which was bound to succeed, the concept was immediately rejected on the basis that the husband would not ask him.
- In conclusion, based on the concession by the husband that he could not see how any money he used could be clawed back or repaid, together with my concern about the lack of a comprehensive picture required in such an application as this, the husband’s application must fail.
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Queensland/Victoria/New South Wales