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Husband and wife marry and have daughter
A husband and wife married in 1988.
They had one child together, a daughter who is now an adult.
Husband and wife buy property together after husband goes to
In early 2007, the husband was sentenced to a term of
imprisonment. He was also ordered to pay the NSW Crime Commission
$100,000, which he paid in full in June 2007.
In 2008 the husband and wife purchased Property C for
Husband and wife separate and husband returns to prison
The husband and wife separated in 2009 and divorced in 2012.
In March 2012, the husband was sentenced to another term of
imprisonment for a period of two years.
Daughter convinces father to sell property to her for $1 to
avoid confiscation of asset
While the man was in prison, his daughter visited him and
convinced him to sign a document agreeing to sell his interest in
Property C to her for $1.
The daughter told him that she had been contacted by the NSW
Crime Commission, which was seeking further funds, having
discovered her father's part ownership of Property C.
She also told him that she would sell the property and buy
another in his name.
Neither of these statements was true.
Wife gets consent order giving effect to property sale from
father to daughter
The wife commenced property settlement proceedings, which were
resolved by consent orders, providing that the wife would retain
her interest in Property C and the husband would transfer his
interest in Property C to the daughter.
These consent orders gave effect to the conclusion sought by the
daughter in having her father sign the document when she visited
him in jail.
Wife and daughter sell property, buy new one and father moves
In 2013, the daughter and wife sold Property C for $540,000 and
purchased Property B for $265,000 and Property A for $330,250.
After being released from prison, the husband moved into
Property B, erroneously believing that it was his.
Daughter evicts father from property and father applies to set
aside consent orders
The daughter evicted her father from Property B.
He then brought proceedings pursuant to section79A of Commonwealth Family Law Act 1975 to
have the consent orders set aside on the basis his daughter had
misled him, and he had only signed the documents transferring
Property C to her because of this deceit.
Court summarily dismisses father's application and father
The wife and daughter applied for summary dismissal of the
husband's application to set aside the consent orders (ie they
asked the court to throw out his application on the basis that it
had no reasonable prospect of success).
The Federal Circuit Court of Australia ruled in favour of the
wife and daughter, granting the summary dismissal.
The husband appealed to the Family Court of Australia.
case a - The case for the husband (father)
case b - The case for the daughter
The primary judge said that my application had no reasonable
prospect of success because I came to the court with "unclean
hands" and therefore by law the court must refuse my
It is true that I agreed to transfer Property C to my daughter
out of concern that it might be confiscated by the NSW Crimes
Commission. However, although the trial judge pointed to
"unclean hands" in her reasons for why she granted
summary judgement, she never raised her concern about this in the
hearing. So, I never had any notice of the judge's concerns,
nor was I given any opportunity to respond to them. I was therefore
denied procedural fairness, which is an appealable error.
Further, since what my daughter told me about the NSW Crime
Commission was untrue, I didn't actually do anything illegal,
and so my hands were "clean". The judge was therefore
wrong to conclude on this basis that I had no reasonable prospect
Even if my hands were "unclean", my daughter's
hands were also "unclean".
In prison I was attacked and stabbed eight times, requiring
hospitalisation and medical care. I told my daughter about this,
and when she visited, I shared how the attack had left me feeling
scared and anxious. She then took advantage of my mental state to
pressure me into selling my property to her.
My daughter also lied to me, telling me that property B was in
my name. When I lived there after prison, she asked me to pay rent
towards the mortgage. I paid a total of $47,000 to her, thinking
that I was paying off the mortgage on a property that I owned. Then
after taking my money to pay off her mortgage, she evicted me.
Why should my daughter and ex-wife benefit from this
duplicitousness, while I am left without a remedy?
Given that the trial judge denied me procedural fairness and
wrongly concluded that my application had no reasonable prospect of
success, the grant of summary judgement should be overturned.
My father's application to set aside the consent orders has
no reasonable prospect of success, because the court must refuse
his application, since he comes "with unclean
My father says that agreeing to transfer Property C to me so
that the NSW Crimes Commission would not confiscate the asset does
not make his hands unclean because there was no crime and because I
lied to him. This is immaterial. What matters is that my
father's motive was unclean. In his mind, he was entering into
the transaction with a view to escaping the legal consequences of
his illegal actions and of defrauding the State of New South Wales.
Therefore, the court is precluded from exercising its discretion in
My father's application also had no reasonable prospect of
success on the evidence. As the trial judge found, my father's
evidence was woefully inadequate to the relevant matters that the
court would need to consider in determining his application. There
was no evidence provided as to how my father acquired Property C
except as to the date of its acquisition, and there was no evidence
as to any contributions to the property made by my father.
Since my father's hands were unclean and his application to
set the consent orders aside would not succeed on the evidence, the
trial court's grant of summary judgement must be upheld.