Family Court case: section 79A principles

In the recent Full Court of the Family Court case of Lancer and Lancer, the court rejected an appeal by a wife against a decision by the trial judge to determine,first whether there was any basis to the wife’s claim for setting aside the earlier property orders on the basis of suppression of evidence, before dealing with the property claim, instead of the more common course of undertaking both together.

Justice Warnick stated:

the decision only relates to a method of proceeding. I see nothing in the orders made that indicates that what is expected is other than a fulsome trial of the question of whether a suppression of evidence occurred or not. There is nothing to indicate that in the preparation for that trial each party would not be able to put forward such evidence as they considered relevant, that proposed evidence ultimately to be tested, if at all, in the ordinary way. Nor is there anything to prevent each party using the processes for preparation, such as disclosure, to the full extent necessary for a trial of the question as earlier described, namely whether there had or had not been a suppression of evidence.
Ultimately in this matter, there might be a finding that there was a suppression of evidence. There might be a finding that that constituted in the circumstances a miscarriage of justice and there might ultimately be a hearing of all of the matters related to whether orders should be set aside or varied and, if so, what orders made in substitution or in what way existing orders varied.

And if all of that comes about, it may be that no saving of time or cost has been made and it may even possibly be that, if one could ever do the comparative exercise academically, costs might even be greater. But that, as I indicated some time ago, is not the point of the application before her Honour and not the point of her orders.

All of the positive benefits which she identified in relation to her decision are valid and offer the opportunity of, on her Honour’s findings, very significant saving in costs and time to the parties, as well as the opportunity for settling any claim which might seem to follow from a ruling in relation to the preliminary matter.

And then there was the succinct judgment of the Chief Justice, in which she stated the legal principles in dealing with s.79A cases:

It is pertinent in my view to note that section 79A itself contains two aspects. One is essentially a fact-finding exercise, that is whether the applicant can establish on the relevant evidentiary standard, namely the balance of probabilities, that there has been a miscarriage of justice by reason of one of the matters set out; in this case, suppression of evidence. That is often referred to as the threshold test.

The second part which follows from a positive finding about the first is a discretionary one, namely that the court may in its discretion vary or set aside the original order and, if appropriate, make another order. The decision in each case about whether to hold a single hearing, will, as Warnick J has said, be a matter to be determined by the trial judge in the exercise of discretion having regard to the circumstances of each case.