Family Court of Australia

HORLECK & HORLECK & Ors	[2010] FamCAFC 2	

FAMILY LAW - APPEAL – FROM A DECISION OF A FAMILY COURT JUDGE – PROPERTY SETTLEMENT – Over thirteen years ago orders were made dividing the property of the husband and wife 62 percent to the wife and 38 percent to the husband – The wife has received very little benefit under those orders – Some real estate was sold by mortgagees, others sold to entities “connected” to the husband at values well below those nominated at trial – Wife filed an application pursuant to s 79A in 2006, substantially amended that application in 2007 seeking transactions be set aside and that the husband ‘account’ for rental received – Husband cross appealed in his response seeking to revisit the question of certain assets and their inclusion in the pool – The trial judge erred as to the nature of the proceedings before him, erred in approach to the resolution of the factual dispute, erred in principle in the approach to the application to set aside transactions, failed to consider the wife’s application for enforcement of orders, erred in findings of fact and failed to address the applications before him by way of the husband’s response
FAMILY LAW - NATURE OF THE PROCEEDINGS – The wife’s amended application was primarily for enforcement, did not involve s 79A – Trial judge misunderstood the nature of the proceedings – There was no common understanding between judge and parties as to the issues before the court  
FAMILY LAW - APPLICATION TO SET ASIDE TRANSACTIONS – The trial judge made an error in principle as to the s 106B application – The trial judge’s application of s 106B was tainted by a misapprehension that the section was invoked in an application pursuant to s 79A – The trial judge gave an inappropriate primacy to the wife’s application for orders pursuant to s 106B
FAMILY LAW - FAILURE TO ADDRESS ALL APPLICATIONS – The trial judge’s dealing with the husband’s response was inadequate and amounts to appealable error – The trial judge failed to adequately consider the wife’s application for enforcement of the earlier orders
FAMILY LAW - APPEAL ALLOWED – Given the confusion as to the nature of the proceedings and evidence before the trial judge the matter has to be remitted – Parties at liberty to make submissions as to costs	

Family Law Act 1975 (Cth) s 79A; s 106B	

Re: F Litigant in Person (2001) FLC 93-072	

Appellant/CROSS-RESPONDENT:	Mrs Horleck	

Respondent 1/CROSS-APPELLANT:	Mr Horleck	

RESPONDENT 2:
(in her capacity as Director of X Pty Ltd)	Ms Lyman-Horleck	

Respondent 3:
(as trustee for the H Trust)	X PTY LTD	

RESPONDENT 4:	Ms Lyman-Horleck	

Respondent 5:	Ms Cooper	

File Number:	BRF	8480		of	1994	

Appeal Number:	NA	71		of	2008	

Date Delivered:	20 January 2010	

Place Delivered:	Brisbane	

Place Heard:	Brisbane	

Judgment of:	Warnick, May and Barry JJ	

Hearing date:	24 April 2009	

Lower court jurisdiction:	Family Court of Australia	

lower court judgment date:	7 July 2008	

LOWER COURT MNC:	[2008] FamCA 506	

REPRESENTATION

Appellant:	Appellant appeared in person	

RESPONDENTS:	Respondents appeared in person	

Orders
(1)	That the appeal be allowed.
(2)	That orders 1, 2 and 3 of the orders of Carmody J made 7 July 2008 be set aside.
(3)	That the declaration (paragraph (4)) made by Carmody J on 7 July 2008 be set aside.
(4)	That the wife’s further amended application filed 23 November 2007 and the husband’s response filed 7 January 2008 be remitted for rehearing.
(5)	That each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by filing such submissions at the Brisbane Registry of the Family Court and serving them on all other parties within 21 days of the date hereof.
(6)	That each other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Brisbane Registry of the Family Court and serving them on all other parties.
(7)	That each party making an initial submission as to costs be at liberty to reply to an answer by way of written submissions by filing such reply at the Brisbane Registry of the Family Court and serving it on the other party within a further 7 days.
(8)	That each party endorse on the cover sheet the date on which a copy of that submission was served on the other parties.

IT IS NOTED that publication of this judgment under the pseudonym Horleck & Horleck & Ors  is approved 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: NA 71  of 2008
File Number: BRF 8480  of 1994

Mrs HORLECK
Appellant/Cross-Respondent

And

Mr HORLECK
Respondent 1/Cross-Appellant

And

Ms LYMAN-HORLECK
Respondent 2; in her capacity as Director of X Pty Ltd

And

X PTY LTD
Respondent 3; as trustee for the H Trust

And

Ms LYMAN-HORLECK
Respondent 4

And

Ms COOPER
Respondent 5

REASONS FOR JUDGMENT
1.	Mrs Horleck and Mr Horleck have been litigating in the Family Court of Australia over property settlement issues (and other matters arising from the breakdown of their marriage), since 1994.  Unfortunately, it seems likely that the outcome of this appeal will see the continuation of proceedings.
2.	Over thirteen years ago, on 8 December 1995, Butler J made orders by way of alteration of the property interests of the husband and wife.  The orders divided “the property of the parties” 62 percent to the wife and 38 percent to the husband.  His Honour’s reasons for judgment (which were delivered on 17 July 1995, nearly five months before the orders were made) indicated that he assessed the net property of the parties to be around $331,000.00, and thus the effect of the percentage division was to entitle the wife to about $205,000.00 and the husband $126,000.00.  This division was primarily to be achieved by:
•	the sale of five parcels of real estate in the husband’s name;
•	transfer to the wife of the husband’s interest in the former matrimonial home (E Street); and
•	the indemnity of the wife by the husband in respect of a mortgage secured over one of the five parcels of real estate.
3.	The wife has received very little benefit from the orders.  Some of the real estate was sold by mortgagees exercising power of sale.  Some was sold to entities or persons “connected” to the husband, for values well under those nominated by either party at the hearing before Butler J.
4.	In 2006, the wife filed an application which sought that the “Property Orders” made on 8 December 1995 be varied or set aside pursuant to s 79A(1)(b) of the Family Law Act 1975 (“the Act”).  The original application has not been included in the appeal book but two amended applications have been.  The first, dated in August 2006, states that the application under s 79A of the Act is based on two grounds; that in the circumstances that had arisen since the order, it was impracticable for the order or part of the order to be carried out; and secondly that a gem collection in the possession of the husband had been undervalued at trial (which would seem to invoke the terms of s 79A(1)(a) of the Act).  Orders were also sought against Ms Lyman-Horleck, the husband’s present wife, against X Pty Ltd, of which Ms Lyman-Horleck was a director and which was trustee of a discretionary trust, and against a Ms Cooper.  These persons and X Pty Ltd had some involvement in transfers from the husband of two of the five parcels of real estate dealt with in Butler J’s orders.  The wife sought that those transactions be set aside, declarations be made and consequential retransfers ordered.
5.	In his response, the husband sought some orders about revisiting the issue of gemstones, inclusion or exclusion of items from the asset “pool”, and that the wife be declared a vexatious litigant.
6.	On 23 November 2007, the wife filed a further amended application, upon the face of which each of the 25 orders sought in the August 2006 amended application was crossed out, fresh orders that transactions be set aside were sought, orders were sought in relation to the failure of the husband to indemnify the wife in respect of a mortgage and that he “account”, as required by order of Butler J, for net rental received between Butler J’s orders and disposition of the properties.  No order was identified as being sought pursuant to s 79A of the Act.
7.	At the outset of the hearing in January 2008 Carmody J considered which applications were to be determined by him. We will discuss that consideration shortly. On 7 July 2008 Carmody J ordered:
(1)	That paragraphs 1-24 of the WIFE’s application filed on 2nd August 2006 be dismissed;
(2)	That all other outstanding applications be dismissed;
(3)	That all applications be removed from the list of cases awaiting finalisation; and
IT IS DECLARED THAT:
(4)	That pursuant to r 20.07 of the Family Law Rules 2004, the total amount owing under the obligation in par (11) [one of the orders for “account”] of the final property adjustment orders made by the Honourable Justice Butler on 8th December 1995 is $58,398.75.
8.	Against these orders and the declaration the wife appeals.  The husband cross-appeals against the declaration.  All parties, including the third parties, appear on the appeal unrepresented.  Issues were not initially identified by the parties with clarity.  Nonetheless, we are satisfied that both the appeal and cross-appeal must succeed, because the trial judge:
(i)	erred as to the actual proceedings and the nature of the proceedings before him;
(ii)	erred in his approach to the resolution of factual dispute;
(iii)	erred in principle in his approach to the applications to set aside transactions;
(iv)	failed to consider the application by the wife for enforcement of the indemnity ordered by Butler J;
(v)	erred in his findings of fact founding the declaration in respect of Butler J’s orders;
(vi)	failed to address the applications that were before him by virtue of the husband’s response.
(i)	Error as to the actual proceedings and the nature of the proceedings before the trial judge
9.	As seen, the proceedings which Carmody J determined by the orders made 7 July 2008 were heard by his Honour in January 2008.  The hearing occupied 30 and 31 January.  In our view, the proceedings before his Honour on those days were comprised of the further amended application of the wife filed 23 November 2007 and the husband’s response filed 7 January 2008.
10.	On its face, the wife’s further amended application deleted the entirety of the application filed 6 August 2006.  (However, as seen, Carmody J’s orders dismissed paragraphs 1-24 of the August application).  The orders then sought in the November 2007 application were:
•	for the setting aside of the transfer of one of the five parcels of real estate dealt with by Butler J’s orders (the M Street property) by the husband to Ms Cooper;
•	for the sale of that property;
•	for the setting aside of the transfer from the husband to X Pty Ltd of another of the properties dealt with in Butler J’s orders (the V Street property);
•	for the sale of that property;
•	that, to give effect to the indemnity ordered by Butler J, the husband “account to the wife for all costs associated with the mortgage…”;
•	that that sum be added back to the property pool, and;
•	that “within thirty days of the order the husband account as required by order 11 of the Orders of 8 December 1995”;
•	that upon the sales of the properties and accounting by the husband the “property pool be nominally divided in the Court in accordance with Order 6” of Butler J’s order;
•	and, finally, that a sum of $9,000.00 representing solicitors’ fees, which Butler J had not brought into account in considering the division be “brought into account as a credit to the husband in the division” and interest on the wife’s “share of the property pool calculated from June 1997”.
11.	The application for the inclusion in the “property pool” of $9,000.00 for solicitors’ fees was probably incompetent being a matter, if anything, for appeal.  But as to the balance of the November 2007 application, it was one primarily for enforcement, or had the character of one for enforcement, and did not involve the application of s 79A of the Act.
12.	However, Carmody J commenced his reasons for judgment in respect of the matters which he considered were before him, as follows:
1.	This is the wife’s application under s 79A (1) (b) of the Family Law Act 1975 to set aside and replace a final property order made by Butler J in 1995 so that she receives 62 per cent of the re-valued residual including notional assets, viz $232,730 either in a lump sum or via transfer.  Declarations of trust or s 106B orders rescinding suspect conveyancing transactions are also sought. 
2.	Alternatively, enforcement is sought of cls (8) and (11) of the 1995 order by way of an accounting by the husband for unpaid rents etc plus interest.  
…
4.	Both the husband and wife also want to reopen and re-litigate issues about a gemstone collection which each alleges the other secretly has in their possession.  
…
7.	The third, fourth and fifth respondents, who are chiefly concerned with the s106B complaint raise the protection of the bona fide purchaser proviso in subsection 106B(3).
13.	A couple of months before the hearing in January 2008, on 3 December 2007, Carmody J had made procedural orders in respect of the “matter”.  Order 1 provided as follows:
(1)	Upon the undertaking of the WIFE’s lawyers in relation to the payment of any relevant fees, that the Amended Application in a Case filed by the WIFE on 23rd November 2007 be deemed to be an Application for Final Orders;
…
(8)	The application be listed for hearing for two (2) days commencing at 10.00am on 30th January 2008 before the Honourable Justice Carmody at Brisbane;
14.	When the matter came before Carmody J on 30 January 2008, the wife was represented by Mr Byrnes of counsel.  All other parties were unrepresented.  Mr Byrnes read his material, starting with the application dated 23 November 2007.  He did not read the application filed in August 2006.  Carmody J asked what the application was about.  However, before that question was answered, the topic of objections to material arose, in respect of which Carmody J indicated that he would deal with objections “as and when they arise” and he then said:
…I’m going to read a lot of this stuff, I know, and I’m not expecting the evidence itself to be particularly lengthy because these are essentially questions of law with a bit of mixed contested facts.  So you’re application is a s 106B is it?
MR BYRNES:  Yes your Honour.
15.	Not long after, Mr Byrnes said:
MR BYRNES:  …it really doesn’t appear to be a live issue given the orders sought by the respondent husband that the property pool was never finally determined and finally divided in accordance with the original orders.
16.	We do not readily understand what was there conveyed, but it may have meant only that if transactions were set aside and properties the subject of those transactions were sold at value, the wife would be entitled to receive her share as determined by the property orders of Butler J.
17.	Mr Byrnes’ written submissions to Carmody J did not address s 79A of the Act but only the application under s 106B, the orders for “account” and the husband’s response about the gem collection.  The submissions included the following:
29.	The order that the challenged dispositions were intended to or likely to defeat was that made by His Honour Justice Butler on 8th December 1995. [document 1 in the agreed bundle].
…
31.	The effect of the disposition was to diminish the property pool.  No funds were returned to the property pool by the sales.  This may have been, as was suggested in the cross-examination of the applicant, because the price obtained was sufficient to cover outstanding rates and other debts associated with the property and no more.  The diminution of the pool is sufficient at law to satisfy the requirements of s 106B: In the Marriage of Gould (1993) 17 Fam LR; FLC 92-434.
18.	However, it is clear from the orders that he made and the description in his reasons of the applications before him, that his Honour thought that he was dealing with a s 79A application, when he was not.
19.	We record that before us the wife contended that when “the matter” went before Carmody J in January 2008, her application for orders pursuant to s 79A of the Act remained on foot but that, in effect, the issues raised by that application, in particular the question of setting aside transactions under s 106B were separated, because of limitations which the Legal Aid authority placed on funding.  Thus it was, she contended, that the only issue Mr Byrnes asked Carmody J to deal with were “the s 106B” applications to set aside transactions.
20.	She told us that she did not put forward all the evidence she had relating to orders she sought under s 79A.
21.	While we question whether on the face of the documents the wife did, in January 2008, have a pending s 79A application, (whether before Carmody J or not) we are concerned that there was no common understanding between judge and all parties of the issues before the court.
(ii)	Error in Carmody J’s approach to the resolution of factual dispute
(iii)	Error in principle in the trial judge’s approach to the applications to set aside transactions
22.	We consider these propositions together, as many passages in his Honour’s reasons are pertinent to both.
23.	Before moving to address factual disputes, Carmody J considered “Agreed or uncontested facts”.  Some knowledge of those assists understanding the factual disputes.  The trial judge said:
16.	The wife opted to stay on (sic) possession of [E Street] but was unable to refinance the mortgage into her own name because of lack of means.  She tenanted the property and diverted the rent received to her loan account.  The husband failed to transfer title in [E Street] to the wife as required by Butler J’s order and, at all material times, remained mortgagor of the property.  The house deteriorated during the period it was in the wife’s hands.  Neither the mortgage nor the rates were serviced.  It was eventually sold by the mortgagee in possession for $95,000. 
24.	At trial before Butler J, both parties had asserted the value of E Street was $115,000.00.
25.	In relation to other properties, Carmody J continued:
17.	[J Street] was disposed of in 1996 for $63,000 or thereabouts by the mortgagee in possession for non-repayment and [D Street] was the subject of foreclosure in 1995 while [L Street] was sold in February 1996.  Of the proceeds $14,000 was applied to the [E Street] mortgage arrears, $25,500 credited to the husband’s building society account and $5200-odd credited to lawyers’ trust accounts.    
18.	On 10th July 1996 the parties signed consent orders concerning the disposal of the [M Street] and [V Street] properties.  [M Street] was to be auctioned on 31st August 1996 at a reserve of $60,000 with the proviso that “the best lesser offer” made within 7 days of the auction be accepted.  [V Street] was to be sold by private treaty on the basis of the best offer received within 30 days. A later application by the wife to have these orders overturned was dismissed.
…
22.	[V Street] was transferred by the husband to the fifth respondent, that is, the husband’s tax agent, [Ms P], on 21 January 1997.  The conveyancing documents were witnessed by [Mr Cooper].  That property was later transferred by [Ms P] to the third respondent [X Pty Ltd] in July or August 2002 for $8600.
26.	It is common ground Ms P is one and the same as the fifth respondent Ms Cooper also referred to in the evidence by her maiden name, Ms J.
27.	Before Butler J, the husband had contended that V Street was worth $14,000.00, the wife said $15,000.00.  The trial judge continued:
23.	[M Street] was sold by the husband to [X Pty Ltd] for either about $5000 or $10,000 some time around mid-1997.  
28.	Before Butler J, the husband said M Street was worth $67,500.00, the wife $69,000.00.
29.	After the introduction to his reasons and discussion of agreed or uncontested facts, Carmody J turned to a consideration of s 79A (which, as seen, was not invoked before him).
30.	The terms of s 79A(1)(a) to (c) are:
(1)	Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, 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 circumstance; or
(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; or 
(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
31.	Carmody J said:
29.	Under the subsections of s 79A(1) an order for alteration of spousal property interests is liable to be set aside on four separate grounds.  The first one of miscarriage of justice relates to events at or before the final hearing and is not applicable here. …
(As earlier seen, the wife’s August application did include a claim about undervaluation of gemstones, which may have invoked s 79(1)(a)).
32.	Carmody J continued.
29.	…The second deals with the concept of impracticability (as distinct from impossibility or problems of enforcement) due to an unforeseen (or unforeseeable) post order change in circumstances.  The supervening situation, which cannot be self-induced,  must be one which was unlikely to have been contemplated by anyone when the orders were made, have a frustrating effect on the  intended object and be of such significance that it cannot, as a matter of justice, be overlooked or ignored by the court
…
31.	When subparagraph 79A(1)(b) is raised a careful examination is required to ensure that the events relied on could not reasonably have been foreseen or anticipated by the claimant at the time the frustrated or defeated order was made.  Impracticability goes beyond mere difficulty.  It is not a means of enforcement or variation in cases where no genuine miscarriage has occurred.  Thus, failure to comply with an order by a party is not included even if it is a clear or even unconscionable contravention.  
32.	The wife places sole reliance on the frustration of the 1995 order. However, in light of the 1996 consent orders relating to the only two properties in question, namely, [V Street] and [M Street], par (c) of s 79A(1) may be as, or even more, appropriate assuming default on the husband’s part.  
33.	That paragraph is also relevant to the wife’s alternative enforcement of unpaid rents, etc, but it was not raised by the wife and has not been the subject of evidence or argument in these proceedings.  It would be procedurally unfair, therefore, to use it against a respondent for the wife’s benefit without notice.
…
35.	She wants the transfer of [M Street] from the husband to [X Pty Ltd] on 24 May 1997 and the sale and resale of [V Street] to and from the fifth Respondent on 23 December 1996 and 1 July 2002 respectively set aside and the properties returned to the pool at valuation for redistribution via secs. 79 and 79A(1)(b).
36.	Because the disputed real property is no longer in the name or possession of either party to the marriage the wife firstly has to trace her beneficial interest in the matrimonial property into the hands of  third parties via s 106B before subs 79A(1)(b) or (c) can be invoked. (footnotes omitted)
33.	In so far as no s 79A application was before Carmody J, the discussion just quoted, including that about the interplay between s 79A and s 106B, is necessarily misdirected.  But we are also concerned about the terms of his Honour’s references to the application of s 106B.  In paragraph 36 just quoted, his Honour’s expressions indicate primacy to a consideration of the wife’s application to set aside transactions, “before subs 79A(1)(b) and (c) can be invoked”.
34.	Section 106B(1) provides:
(1)	In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order
35.	The subsection does not provide an independent “cause of action” under which a transaction involving a third party may be attacked.  It provides a power available, “In proceedings under this Act”.  Thus, a successful claim under s 106B need not be established before “subs 79A(1)(b) or (c) can be invoked”.
36.	Moreover, we consider that the circumstances set out in s 106B(1), whereupon the court may set aside or restrain the making of an instrument or disposition, are not correctly paraphrased in Carmody J’s paragraph 36, as repeated here:
…the wife firstly has to trace her beneficial interest in the matrimonial property into the hands of third parties via s 106B. …
37.	Immediately following paragraph 36 of his reasons, his Honour then addressed “The s 106B issue”, starting with a discussion of principle, which included:
47.	Thus, the likely effect of the transaction is what really counts.  There is no real suggestion here, by the husband or the third party respondents, that the transfers did not result in depriving the wife of her share of the pre-existing value of the mortgaged properties and other assets in the pool.  However,  there probably needs to be a demonstrated or manifest causal connection between the disposition and the defeated order.  
48.	The central questions to be decided, therefore,  are whether (a) the sales of [M Street] and [V Street] were bona fide commercial transactions or shams entered into with the intention or practical effect of defeating the wife’s entitlement under Butler J’s order; and (b) the third party respondents (i) had notice of the intended purpose of practical effect (ii) provided adequate consideration; and/or (iii) are otherwise entitled to the protection offered by s 106B(3). (footnotes omitted)
38.	Again, we have some difficulty with what is here said.  We are unsure if his Honour has identified the difference between a transaction intended to defeat an existing or anticipated order and one which, irrespective of intention, is likely to defeat any such order.
39.	After his Honour had identified the central questions to be decided in paragraph 48 quoted above, he turned to some discussion of the standard of proof, during which he said:
52.	In other words, as a general forensic rule the usual is more likely to occur than the unusual but the unlikely sometimes happens though not very often. Once the likely is rejected then the unlikely may be more likely to be true. 
53.	The civil standard takes account of the instinctive judicial feeling that even in civil proceedings a court should be surer before finding serious allegations proved than when deciding less serious or trivial matters. Civil proof, therefore, is not a simple matter of grave suspicion or belief but of "reasonable satisfaction" following a search for the truth and properly evaluating the evidence adduced with regard to the matters mentioned in s 140(2) (and by Dixon J in Briginshaw) in the light of the parties' respective power to produce or capacity to contradict it. 
54.	Where, as here, the alleging party relies on circumstantial rather than direct evidence to prove a state of mind such as knowledge notice or belief it is sufficient in a civil case that the circumstances support a more probable inference in favour of the asserted fact.  Where competing inferences are finely balanced or of equal likelihood or the choice between them can only be resolved by conjecture or speculation the allegation is not proved.
55.	However, the law looks for probability not certainty. In many aspects common sense and worldly experience may be as good a guide as any.  A  reasonable starting point is the supposition that husbands do not normally cheat former wives out of their fair share of family property.  That assumption prevails unless and until the contrary is clearly and adequately established. The reinforcing effect of the combined force of all the circumstances considered together at the final stage of the reasoning process is what is important. (footnotes omitted)
40.	We are concerned with the proposition that:
A reasonable starting point is the supposition that husband’s do not normally cheat former wives out of their fair share of family property.
41.	We do not know from where this supposition comes.  We do not know if it might relate to all husbands or just those who are party to Family Court property settlements.  It seems that this assumption played a particular part in his Honour’s reasoning because of the immediately following sentence which reads:
That assumption prevails unless and until the contrary is clearly and adequately established.
42.	However, we acknowledge that though the effect of those two statements seems rather stark, they may be mitigated somewhat by the final sentence of the paragraph, namely:
55.	… The reinforcing effect of the combined force of all the circumstances considered together at the final stage of the reasoning process is what is important.
43.	We will revisit these statements.
44.	Under the next heading “Was there collusion?” his Honour addressed the question of whether the respondents shared a common intention to deceive.  During the course of discussion, he said:
59.	Disputed states of mind such as knowledge and intention are and should be difficult but not impossible facts to prove. In the absence of a satisfactory explanation the facts adduced by the wife need to be cogent enough to justify without compelling a finding in her favour.  
60.	The question is not whether the second and other respondents should but whether they did or must have known what the husband was up to.  If an ordinary person would have been suspicious enough about the husband’s motives and actions to have made relevant enquiries for fear of learning the truth when ignorance is bliss it is better to be wise this is wilful blindness and tantamount to actual knowledge.
61.	Mere suspicion no matter how strong or reasonably based is an insufficient basis for depriving him of the benefit of the sponsorship monies.   A combination of suspicious features associated with a transaction or receipt and failure to make reasonable enquiry may sustain an inference of guilty knowledge or recklessness. However, intention is more than mere inadvertence to the possibility or even probability of a state of affairs.
45.	The first sentence of paragraph 61 does not seem to relate to the facts of this case, in which there was no question of “sponsorship monies”.  In a case which his Honour decided in September 2007, paragraph 69 of his Honour’s reasons is identical to the paragraph quoted in his judgment in this matter.  It is not improper for a judge to repeat passages of general discussion, applicable across cases.  But where as here, some of the comment is as to fact and is not applicable to the case in hand, confidence in the cogency of the fact-finding process may be diminished.
46.	Following that paragraph, his Honour set out the wife’s case as follows:
The wife’s case 
[M Street] 
62.	The wife questions both the timing of the sale and purchase price of this property.
63.	She says the creation of the trustee company and establishment of the trust within days of the auction and the subsequent purchase of the property by [X Pty Ltd] cannot be explained away as a mere coincidence and clearly points to collusion.  Leaving aside the dispute about whether the property fetched $10,000 or less than half that figure, on the wife’ s case,  the consideration was inadequate compared with  the husband’s valuation of $67,500 and hers of $69,000 [Ex. 8] in 1995.  It was more than $30,000 less than the $42,000 offer made in July 1996 [Doc 32 and Ex. 8] much lower even than the rateable value of the land [Ex. 9] and valuation of $75,000 attributed to the property by the trust in its mortgage insurance application in 1999 [Ex. 17].
64.	The mutually reinforcing effect of these and other relevant circumstances pointed out in the applicant’s written submissions at par 12 – 16 are relied on to convince me that the [M Street] sale was not a bona fide commercial one and should be set aside. 
47.	The written submissions for the wife referred to numerous factors, which it was argued arose from the evidence in the wife’s case.  Carmody J continued:
[V Street]
65.	The fifth respondent paid the husband $2000 for this property in December 1996 with the stated intention of building on it.  That price compares unfavourably with the husband’s and wife’s 1995 valuations of $14,000 and $15,000 respectively [Ex. 9].  It is also curiously at odds with the rateable value of the land before and after sale and its estimated insurable value in 1999 of $38,000 [Ex. 17].  Moreover, it is about half of what the husband originally paid for the property in 1987 [Doc 10].
66.	Curiously, says the wife, the fifth respondent used her maiden name of [J] in the contract for the first sale in 1996.
67.	The land was sold back to the trust on 1 July 2008 for $8600.  The price was apparently fixed by reference to what it had cost the fifth respondent to maintain in the intervening years. 
68.	According to the wife the low valuations were contrived and coupled with the fact that the trust claimed to have owned [V Street] in 1999 give rise, she says,  to a reasonable inference that the fifth respondent was holding the legal title on an undisclosed trust for the husband and related interests.
The respondents’ response and reply 
69.	All respondents agree that the two contested properties were sold for less than the court valuations in 1995.  They contend, however,  that the prices, though disappointing, were fair at the time for the reasons set out in paragraph 15 of their submission.    
70.	The husband explains the low return on [V Street] on the basis that the block was originally valued on the basis of the assumption that it was suitable for housing but by the time of sale it was known to be flood prone and suitable only for agisting livestock.
71.	The highest bid of $2000.00 from [Ms Cooper (then Ms P)] was later accepted.   He also points to the fact that the land was sold in line with the 1996 consent order by real estate agents appointed by the wife’s own lawyers.   The offer was made through the agent and not directly to the husband.  The contract was signed by [Ms Cooper] using her maiden name of [J] because she had recently separated from her husband.   There is no indication in any correspondence passing between the wife and the husband or with their solicitors of any objection to the sale of [V Street].  
72.	The sale complied with the consent orders. Par (3) did not provide for a minimum acceptable price, only that the best offer be accepted within seven days of the auction if the reserve was not met.    [Ms P (Cooper)] made an offer through a real estate agent four times higher than any other bidder and the Court, through the registrar, lifted the caveat to enable the transfer.
73.	The wife made no complaint to the Real Estate Institute of Queensland.  Eleven years have passed since then.
74.	[V Street] was sold by [Ms Cooper (by then Ms P)] in 2002 to the second respondent, the husband’s new wife in her capacity as director of the third respondent.
75.	The price, he says, reflected the belief of both parties that it was only suitable for grazing stock.
76.	That [Ms Cooper] sold the property for more than she paid for it originally is explained by her 6½ year period of ownership and the fluctuation in the local property market.  The suggestion of a round robin transaction is disputed because the trust was not even created until six months after [Ms Cooper] purchased the property.  There is no evidence to suggest that [Ms Cooper] was simply holding the property for the [Lyman-Horlecks].
77.	The inclusion of [V Street] in a loan application by the trust in 1999 is put down as clerical error and, in any event, the house at [M Street], which was owned by the trust, was the only security.  
78.	[M Street] too was sold by agents appointed by the wife’s lawyers.  The wife’s caveat was lifted by a family court registrar to allow the transfer to take place.
79.	Apart from a steep decline in the property market …during the two to three years between the original valuations it fetched a lower than expected price, according to the husband, because the property had been rented out by the wife to tenants who vandalised it.  
80.	The auction was delayed, he says, because of the s 79A application by the wife.  That was dismissed in December 1996.  The husband alleges that the wife contributed to that result to such a degree that disentitles her from a favourable exercise of the s 106B discretion.  After filing of the consent orders, her lawyers rejected an offer of $42,000.00 on [M Street], presumably on her instruction?  Her 1996 s 79A application delayed the sales and she refused to remove caveats during the advertising period prior to auction, and did not assist in preparing the properties properly for presentation at sale, including preventing [M Street] from being vandalised.
81.	The property was initially passed in because the reserve of $60,000.00 fixed in cl 3 of the consent order was not met. [M Realty] continued as agent as per par(2) of the order.   The [H Trust] placed the only bid of $10,000.00.  The auctioneer later accepted the highest offer as per the consent order.  
82.	There was some uncertainty as to why a transfer document has been amended to $4800.00.  
83.	The husband was unable to give evidence as to who drew up the settlement cheque and how proceeds were distributed other than the council rates and agency fees.  He says he believed that the remaining proceeds were paid to the wife’s solicitor, although accepted that there was no evidence to that effect.
84.	It is possible that there were no net proceeds from the sales. The wife refused to release the caveats but the necessary documents were signed by the registrar as per par (6) on the husband’s application.
85.	The decision to bid on [M Street] was made by [Mrs W] who is now dead.  [Mrs W] had no apparent way of knowing that the reserve would not be met or that the trust’s offer would be the highest, or, indeed, only offer received in that period.  
86.	There is no evidence of any higher valid offers.  The only other offer made on the house during the three years it was on the market of $42,000.00 in July 1996 was rejected by the wife’s then solicitors.
87.	The husband denies that the creation of the trustee company and the trust was designed to coincide with the [M Street] auction and points out that neither he nor the husband nor the directors of the trustee company could have known or have been shown to have anticipated so little interest being shown at the auction.
48.	Following the recounts of the cases of each party, his Honour proceeded to his “Determination”:
88.	There is substantial inferential support in the totality of the evidence for the conclusion that the third, fourth and fifth respondents were aware of the outcome of the 1995 property settlement case between the husband and the wife and that the effect of the transfers by the husband to them would deprive the wife of her share if he did not account to her for the proceeds.  It is reasonable to conclude that a new wife and a long-standing accountant and tax agent would be familiar with such things.  However, having regard to the available evidence and the factors mentioned in s140(2) of the Evidence Act, I am not reasonably satisfied that the challenged dispositions were intended to, or did actually, defeat Butler J’s order.
89.	The explanation given by the respondents is not so improbable as to be incredible and adequately answer the wife’s prima facie case.
90.	There is no evidence that the husband and the agent was (sic) compliant in holding a dummy auction rejecting or suppressing valid bids.  
91.	Neither party called the real estate agent involved in the sales nor any other expert in the [local] property market to give evidence of the value of the contested properties at the time of sale.
49.	We will set out the balance of his Honour’s “Determination” shortly, but what is there contained is not so much related to resolution of factual issues as to discretionary factors and the protection of third parties.  The few paragraphs just quoted essentially represent Carmody J’s consideration of contested facts.  We think that consideration insufficient.
50.	There were numerous issues of fact surrounding the sales of M Street and V Street.  We think that to substantially dispose of them by saying:
89.	The explanation given by the respondents is not so improbable as to be incredible and adequately answer the wife’s prima facie case.
is insufficient and likely based upon the assumptions in paragraph 55 of his Honour’s reasons earlier set out but repeated here:
55.	… A  reasonable starting point is the supposition that husbands do not normally cheat former wives out of their fair share of family property.  That assumption prevails unless and until the contrary is clearly and adequately established. …
51.	The balance of Carmody J’s determination was:
92.	Moreover, the section requires a property order to be likely or actually to be defeated.  Hence, if the order was, or would in any event have been, defeated by other supervening circumstances, it cannot be said that it was defeated by the challenged disposition in the relevant sense.  Although the pool of property of the parties was diminished by the conveyancing transactions in question, and to that extent, had a negative impact on the 1995 order based on higher expected prices rather than defeating the order the transactions completed (or satisfied) it,  thus properly characterized the transactions fulfilled rather than avoided the 1995 order in accordance with the machinery provisions for carrying it out in the 1996.
93.	The properties in question are now owned by third parties. The discretion to set aside defeating transaction must be made having regard to the interest of bona fide purchasers or other interested persons.   A “purchaser” in the relevant sense includes “a person who in a commercial sense provides a ‘quid pro quo’.
94.	The second respondent is clearly a person interested in the transactions and may be affected by the outcome of the wife’s claim and, therefore, in my opinion her interests have to be taken into account under s 106B(3).
95.	A spouse claiming against assets in the hands of a third party has to identify and prove a proper legal basis for doing so.  The determination of ownership disputes between a spouse and third party differs in a fundamental way from the expansive discretionary process involved in inter-spousal property settlement proceedings in relation to the property of one or either or both of them.  The court should adopt a robust, questioning and (where appropriate) sceptical approach to trust and company structures, but that does not mean that it can ride rough-shod over established principles where legitimate third party interests are asserted.
96.	Significant time has passed since their impugned sales. They have been materially altered and are not the same properties as they were in 1996.  Their current value is unknown but it is to be expected that over the 11 years the properties have greatly increased in worth, especially with improvements.  
97.	The court must make an order proper for the protection of a bona fide purchaser or other person interested in the disputed property. It is one thing for the wife to show a legal right or interest in non-existent disposed of or past property and have its value notionally added back to the pool.  It is quite another to trace that interest into the hands of a third party who claims the same interest in that property as a result of an arms length transaction. 
98.	In Gould and Bassi third parties were ordered to repay money but there appears to be no reported decision where the discretionary power has been exercised to set aside a transaction involving a bona fide purchaser for consideration.
99.	These considerations have overlapping relevance to the wife’s s 106B applications and s 79A(1)(b) and (c) as well.  
100.	Even if I am wrong and the distributions did in fact defeat rather than give practical effect to the original property and later consent orders, I would not have exercised the discretions conferred by s 106B and s 79A(1) to set aside the property order in the wife’s favour because:
(a)	the sales were handled by a real estate agent in the normal course of business under the supervision of the wife’s own lawyers and the wife has failed to establish that the value received for the husband’s assets were not as he asserted them to be at the time of the order or the sale;
(b)	the dramatic drop in value of the properties post the making of the orders which led to them not being capable of being implemented as intended or that the parties receive their fair share, without proof of collusion, does not, in my view, amount to a basis on which to set aside the transactions;  
(c)	although apparently unreasonable, the price has now shown to be market value;
(d)	the sharp downturn in value while dramatic and understandably incited the wife’s suspicions, has not been shown to have been contrived and there is no reason to conclude that the wife could have achieved a better price on either property at the time;
(e)	the distributions were made many months after the 1995 order;
(f)	the wife took no steps for many years to redress the situation;
(g)	[Ms P (Cooper)] held the [M Street] land for seven years without any attempt by the wife to have her beneficial interest impugned.  She was a bona fide purchaser and entitled to full benefit of its subsequent sale;
(h)	Some forensic prejudice can be assumed.  Important (unidentified) documents have been lost or destroyed and recollections forgotten and at least one key witness has died.  The death of [Ms W] has a significant impact on the ability of the trust and the respondents to defend the action;
(i)	the bona fides of the purchasers has not been displaced despite the fact that the transactions may not have been for full value. (footnotes omitted)
52.	While in the last paragraph just quoted, the final paragraph of his Honour’s “Determination”, he lists some facts – additional to any earlier findings – there is no reasoning in support of these further findings.  In particular, there is nothing to show that his Honour relied upon any other approach than that which we have found to be inadequately explained.
53.	There is one further matter of concern bearing upon the fact-finding process employed by Carmody J.  At almost the end of the hearing before him on 31 January 2008, Ms Lyman-Horleck, appearing for herself, said to his Honour:
If I find any further evidence which is not submitted now, which helps you to explain things…
54.	Carmody J responded:
You will have to ask leave…
55.	Ms Lyman-Horleck repeated that advice and his Honour added:
Yes.  Probably for the purposes, you can put it in, identify it as fresh evidence, and then Mr Byrnes will be able to say, “Hey, hey, hey”, I don’t want you to see that, and then I’ll sort it out; but of course, in order not to see something, as a Judge sitting alone, I have to see it, to decide whether I should see it or not.
56.	His Honour then indicated that he intended issuing directions, and we have been shown a copy of directions for written submissions, issued at or about the conclusion of the hearing.  Copies of written submissions are contained within the appeal books.  However, also within the appeal books, is a copy of a letter dated 17 February 2008, by Ms Lyman-Horleck, addressed to Carmody J.  In the two-page letter Ms Lyman-Horleck says:
…I was accused of misrepresentation to the bank and using assets that did not belong to the Trust or myself as security for this loan. …
The land at [V Street] was not a Trust property at the time of the loan application.  At the Hearing I was unsure of how it came to be listed on the document, and suggested that I may have later added it as security when increasing the loan.  On closer examination of the document, this would not be possible and I no longer believe this to be the case.  It is the original application document.
I believe that the inclusion of the land at [V Street] was an error made at the bank.  When I provided the paperwork to the bank, I believe that it is possible that documents regarding [V Street] may have been inadvertently included. …
57.	Paragraph 77 of Carmody J’s reasons for judgment is as follows:
77.	The inclusion of [V Street] in a loan application by the trust in 1999 is put down as clerical error and, in any event, the house at [M Street], which was owned by the trust, was the only security.
58.	In her submissions to us, the wife stated that there was no evidence before Carmody J in support of his conclusion expressed in paragraph 77 and she argued that, therefore, regard must have been had by the trial judge to the letter from Ms Lyman-Horleck forwarded more than a fortnight after the hearing of evidence had concluded.  None of the other parties took us to material which would show that the wife’s assertion to us was incorrect.
59.	The wife saw a need to respond to Ms Lyman-Horleck’s letter to Carmody J and this she did in a long letter dated 6 April 2008.  There was no argument before us indicating what if any use Carmody J could be seen to have made of the contents of that letter.
60.	The forwarding of such material to a judge after the evidence has closed is of course highly irregular and the dangers inherent in such action to the provision of natural justice and fairness to all parties, are obvious.
61.	In summary of this discussion, we consider that, firstly, the fact-finding process employed by his Honour was flawed or at least, inadequately explained.
62.	Secondly, we consider that his Honour’s application of s 106B was at the least tainted by his Honour’s misapprehension that the section was invoked in an application seeking orders pursuant to s 79A, and consequently that his Honour failed to appreciate that the wife’s application was essentially for enforcement of the property settlement orders and that the powers conveyed by s 106B were invoked in support of that application.
63.	A question may arise whether Carmody J’s misapprehension about the primary proceedings before him actually disadvantaged the wife or not.  Put another way, would his Honour’s consideration of whether transactions could or should have been set aside been any different whether he recognised the primary proceeding as a s 79A application or enforcement of Butler J’s orders.
64.	If the primary proceedings were recognised as for enforcement of Butler J’s orders, then, it seems to us, the enquiry about the transactions which the wife sought to set aside might have included not just the question of whether or not Butler J’s orders were defeated or there was an intention to defeat those orders, but also whether any orders for enforcement were intended to be defeated or in fact defeated.
65.	Moreover, in acting on the misapprehension that the wife sought orders reliant on s 79A(1)(b), his Honour has required the wife to establish a case other than that which she placed before him and to establish her claims to set aside transactions in the context of a primary proceeding different from that which she actually placed before him.
66.	Alternatively, it does seem possible, as the wife contended, that she and her legal representatives at least thought that the “s 106B issue” in connection with her s 79A application, was being taken as a threshold question and thus she did not put before Carmody J all that she might have, in support of a s 79A application.
67.	Finally, we think there is a risk that his Honour gave an inappropriate primacy to the wife’s application for orders pursuant to s 106B and required her to meet a “tracing” test not required by the terms of s 106B.
(iv)	The trial judge’s failure to consider the application by the wife for enforcement of the indemnity ordered by Butler J
68.	The final part of Carmody J’s reasons, other than as to costs, relates to “enforcement”.  However, the only order of Butler J to which his Honour made reference was order 11 dealing with the obligation on the husband to “account”.  Order 8 of Butler J’s orders imposed an obligation on the husband to indemnify the wife in respect of the mortgage over the J Street property.  As seen, an application in relation to this was contained in the wife’s application of 23 November 2007.  His Honour’s failure to address this amounts to appellable error.
(v)	Error in the trial judge’s findings of fact founding the declaration in respect of Order 11
69.	The case of the wife in relation to enforcement of order 11 (and order 8) was set out in written submissions on her behalf as follows:
33.	As was set out in the agreed statement of facts the husband has never accounted for those matters as required by orders 8 and 11.
34.	Order 8 required the respondent husband to indemnify the wife in respect of a mortgage taken out over the [J Street] property.  As the husband failed to pay that mortgage and the property was sold that indemnity can be given effect by crediting back the whole of the sale value to the property pool.
35.	Order 11 requires the husband to account for any rents received as well as any mortgage payments, rates insurance or other outgoings which are or maybe due or owing pending the sale of the real property under order 7.  As the husband was not able to transfer his title in [E Street] as required by order 7 this should also include the [E Street] property.  The effect of order 11 was to place a duty upon the respondent husband to maintain the real properties that constituted part of the property pool and to account for the cost if he did not.  As he plainly did not that part of the proceeds of sale which represented the growth of the mortgages and unpaid expenses should also be added back to the property pool.
36.	As the respondent husband has failed to account for the rents received an estimate from his 1994 tax return has been used by the applicant.  An estimated schedule along with the division required excluding the properties is annexed to these submissions.
70.	As acknowledged at the outset, both the husband and wife challenge his Honour’s dealing with this area.
71.	In the calculations of the property pool, as counsel for the wife in the written submissions to Carmody J on her behalf contended it ought be, the wife claimed:
Property	Value	Credit of party	
6.	Unpaid rates		$14,503.51	Husband	
	      (Estimate)		
7.	Unpaid Mortgage Payments, insurance and other outgoings due at time of sale of properties		$57,505.08	Husband	
	      (Estimate)		
8.	Indemnity [J Street]		$65,000.00	Husband	
9.	Rents received by Husband post Judgement		$26,850.00
	      (Estimate)	Husband	
…			
15.	Rentals received by Wife		$5,433.00	Wife	

72.	In relation to these claims his Honour said:
101.	Par (11) of Butler J’s order required the husband to account to the wife for rents and other income from the rental properties and for any mortgage payments, rates, insurance and other outgoings, which might be due or owing pending sale.  
102.	The husband declared $26,850.00 as income received from the properties to the ATO.  He failed to account for the rents received but his 1994 tax return can be used to estimate the amount due.  The arrears of rates for each property were paid from their sale proceeds.  
103.	The husband has not explained or offered any excuse for his failure to abide by the court orders but he contends the awarding of any interest on the proceeds of property etc to the wife would only reward her for undue delay in commencing the proceedings.   
104.	In most states a civil judgment cannot be enforced by court action after 12 years.  However, there is no statutory bar to enforcing s 79 orders after that period of time.  The length of explanation for delay however is relevant to the discretion to grant or limit the payment of interest. (footnote omitted)
105.	The right to interest on unpaid moneys is recognised in s 117B.  The current rate prescribed by r 17.03 of the Family Law Rules 2004 is 11.75 per cent from the date the order is made on so much of the money as is from time to time unpaid.  
106.	In this case I am satisfied that the husband defaulted in carrying out a clear obligation under the 1995 orders and that in the circumstances it is just and equitable to remedy that default as best it can be at this point in time.  Accordingly, I declare that for the purposes of any subsequent enforcement proceedings the outstanding amount is $26,850.00 plus interest for ten years at 11.75 per cent totalling $31,548.75.
107.	An obligation to pay under an order is enforceable via r 20.05 of the Family Law Rules 2004.  This rule provides for four methods.  The procedure for applying for an enforcement order is set out in Chapter 20 of the rules.  The wife has not yet formally applied for such an order.
73.	The husband contends that it was inappropriate for the trial judge to rely upon the 1994 tax return when there was actual evidence of the net rental received before him.  We are satisfied this was so and that, in the circumstances, his Honour was obliged at least to address the evidence and identify that of it which he relied upon and the reasons for it.
74.	Further, we consider that his Honour’s failure to deal with various items claimed by the wife constituted error.
(vi)	That Carmody J failed to address the applications that were before him by virtue of the husband’s response
75.	In his response the husband sought the following orders:
1.	The Application by the Wife be dismissed.
2.	That the Wife be Ordered to return any part of the gem collection in her possession or control to the Husband.
3.	That the Wife be Ordered to disclose when, where, for how much, and to whom she sold or otherwise disposed the gem collection.
4.	That the gem collection be valued at $200,000 and that this amount be credited to the Wife in the calculation of settlement.
5.	That the rents from [M Street] and [E Street] collected by the wife be credited to the Wife in the calculation of settlement.
6.	That the amount of $1000 paid by the Husband for school fees in addition to Child Support be added to the amount credited to the wife in the calculation of settlement.
7.	That the amount of $700 paid by the Husband by Order 22nd November 1994 be credited to the Wife in the calculation of settlement.
8.	That the amount of $600 being the value of a stolen cheque for the insurance write off value of the car be credited to the wife in the calculation of settlement.
9.	That the fees of $9000 mentioned in the Judgement of Justice Butler of 1995 and paid by the Husband out of his wages after separation not be added to the asset pool for settlement.
10.	That the Wife be declared a Vexatious Litigant.
11.	That the Wife pay costs.
12.	Any other Order that the Court may see fit.
76.	The response is unhelpful in that it does not identify the legal basis of the claims.  Those in paragraphs 6-9 above seem to be merely requests for the court to revisit matters already addressed by Butler J and to reverse Butler J’s decision in respect of them.  If that be the correct categorisation, it might be that those parts of the application could have been summarily dismissed.  However, the application in paragraphs 2-4 inclusive, relating to the gem collection, were the subject of evidence and submissions.  In the written submissions for the husband made to Carmody J, the following appeared:
67.	The Respondent Husband sought to re-open the matter of the gem collection as the Applicant Wife was seeking to reopen the property settlement and this asset remains, by both parties own valuations in Court, the most valuable matrimonial asset from the property pool. …
77.	This was followed by detailed submissions, much about evidence of events subsequent to the decision of Butler J.  The submissions on point concluded:
79.	…In the event that the Court is satisfied that property settlement be reopened then it is submitted that the collection be valued at, or above, the Husband’s estimation and that it be found to have been in the Applicant’s possession.
78.	It seems clear enough that the husband was asking Carmody J to consider whether there had been a suppression of evidence given before Butler J in relation to the gem stones and, if so satisfied, to re-open the orders made by way of property settlement.
79.	As to gemstones, Butler J ordered:
7.	TO give effect to Order 6 hereof:
(a)	that the amount of $9,234.00 representing necklace, stones and domestic equipment presently in the wife’s possession be brought into account as a credit to the wife in the division;
	$46,450.13
(b)	that the amount of $39,450.00 representing the motor vehicle, gem collection, opal, stones, tax refund and rents presently in the husband’s possession or found to be in his possession be brought into account as a credit to the husband in the division;
80.	Carmody J said in respect of the issue(s) about gemstones:
4.	Both the husband and wife also want to reopen and re-litigate issues about a gemstone collection which each alleges the other secretly has in their possession.
5.	The wife has always maintained that the husband, who was found to have an extensive knowledge of gemstones and jewellery, concealed $200,000 worth of gemstones.   Butler J rejected the allegation in 1995 and assessed the item at $17,000 (the husband’s estimate) in the matrimonial pool.   The husband’s position is that whatever they are worth the gems are in the wife’s hands not his.
6.	However, in my view, there is insufficient reliable evidence of either the past or current whereabouts or value of the gem collection to resolve this controversy and the matter will therefore not be further investigated now.
81.	We are uncertain how Carmody J “classified” the applications of the parties “to reopen and re-litigate issues about a gemstone collection” and therefore uncertain of what principles his Honour would or should have applied when dealing with them.  In Re: F Litigant in Person (2001) FLC 93-072 one of the things that the court said was, in effect, that the court should assist unrepresented litigants in identifying the particulars of and proper basis for their claims.  There is no indication that Carmody J took that course.  In our view, having regard to the content of the husband’s response the evidence that was before the trial judge and the submissions, his Honour’s dealing with the issue was inadequate and amounts to appellable error.
82.	There is no discussion in the reasons for judgment of Carmody J of the husband’s application that the wife be declared vexatious.
Conclusions
83.	Given our findings of appellable error, the appeal should be allowed.
84.	Given the confusion about issues litigated before Carmody J in January 2008 and the absence of findings both about significant issues of fact and in relation to applications for orders which were before him, the only available course is to remit the applications which were before Carmody J.
85.	As we have identified, the only applications that we are confident were before his Honour, were the wife’s amended application of 23 November 2007, (which in our view already expressed, was for enforcement of Butler J’s orders and within which the wife sought that certain transactions be set aside) and the husband’s response, outlined in paragraphs 75 and 76 above.
86.	We are conscious that these applications may not raise all of the issues which a party wishes to litigate or, on the other hand may raise issues beyond what a party appreciates.  It may be that the wife needs to give consideration to whether she has or wishes to have a live application invoking the terms of s 79A of the Act.  The husband may need to give consideration to whether, if he succeeds in satisfying the court that there has been a miscarriage of justice because of evidence given or not given about the gemstones, that will re-open all matters relevant to the question of property settlement.  All parties, but particularly the primary parties, husband and wife, may be well advised to give close consideration to any continuation of proceedings, particularly on the wife’s part, if third parties are to be joined.
87.	If the “matter” proceeds to retrial, care must be taken by the parties to identify not only the orders sought, but the legal basis for the application for such orders.
Application in an appeal, filed 21 September 2009
88.	After we had completed the oral hearing of the appeal, the wife filed an application on the above date.  In a supporting affidavit she explained that, because of a disability, she felt that she had not been able to properly make submissions to us and she sought permission “…to present my closing arguments in writing as attached…”.
89.	By the time this application was received, our reasons for judgment were substantially completed, finalisation primarily awaiting a receipt of the transcript of the appeal hearing so that the content of particular submissions might be checked.
90.	In view of our conclusions, the lengthy submissions that the wife had made to us and the delay and inconvenience which would be caused in providing to other parties the opportunity to reply to any further submissions received from the wife, we have, on the face of the wife’s application, determined to reject it.
Orders
91.	As well as setting aside the orders and declaration made by Carmody J and remitting the application and response for rehearing, in case there is any issue about costs we will provide for written submissions on that topic.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:  

Date:  18 January 2010