Adess and Vernon - [2017] FCCA 2501

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADESS & VERNON

[2017] FCCA 2501

Catchwords:
FAMILY LAW – Property – s.79A(1A) – whether the marital relationship continued after final property orders – whether the parties intermingled assets and income – whether by inference parties no longer bound by previous orders – whether husband under duress at time he entered into consent property orders – application dismissed.

Legislation:

Family Law Act 1975, ss.75(2), 79, 79A, 79A(1), 79A(1)(a), 79A(1A), 79(2), 79(4)

Cases cited:

SH v DH (No 1) (2003) 202 ALR 660

Harris v Caladine (1991) 172 CLR 84; 99 ALR 193; FLC 92-271
Clifton v Stuart (1990) 14 Fam LR 674; FLC 92-194
In the Marriage of Suiker (1993) 17 Fam LR 236; FLC 92-436
Molier v Van Wyk (1980) 7 Fam LR 18; FLC 90-911
In the Marriage of Holland (1982) 8 Fam LR 233; FLC 91-243
In the Marriage of Gilbert and the Estate of Gilbert (dec’d) (1989) 13 Fam LR 632; (1990) FLC 92-125
In the Marriage of Kowalski (1992) 16 Fam LR 235; FLC 92-342
Simpson v Hamlin (1984) 9 Fam LR 1040; FLC 91-576
In the Marriage of Fickling (1996) 20 Fam LR 258; FLC 92-664
Official Trustee in Bankruptcy v Donovan & Stevens (No 2) (1996) 20 Fam LR 802; FLC 92-703
In the Marriage of Prowse (1994) 18 Fam LR 348; FLC 92-557
In the Marriage of Oastler (1989) 16 Fam LR 673
Badawi & Badawi [2016] FamCA 804
SH and DH (2003) FLC 93-164
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362
Briginshaw v Briginshaw (1938) 60 CLR 336
Clifton & Stewart (1991) FLC 92-194
In the Marriage of N W and S F McCabe (1995) 19 Fam LR 579
Gitane & Velacruz (No 3) [2007] Fam CA 1277
Gitane & Velacruz [2008] FamCAFC 86
Waterman & Waterman [2017] FamCAFC 23
Chancellor & McCoy [2016] FCCA 53
Stanford & Stanford (2012) 247 CLR 108
Bevan & Bevan [2014] FamCAFC 19
Chancellor & McCoy [2016] FamCAFC 256
Todd & Todd(No 2) (1976) FLC 90-008
Pavey & Pavey (1976) FLC 90-051

Applicant:

MR ADESS

Respondent:

MS VERNON

File Number:

CAC 1505 of 2014

Judgment of:

Judge Tonkin

Hearing date:

18 May 2017

Date of Last Submission:

18 May 2017

Delivered at:

Canberra

Delivered on:

23 October 2017

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondent:

Mr Nicholl

Solicitors for the Respondent:

Canberra Legal Group

ORDERS

The application filed on 11 December 2015 as amended is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Adess & Vernon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1505 of 2014

MR ADESS

Applicant

And

MS VERNON

Respondent

REASONS FOR JUDGMENT

Introduction

This application was brought by the husband pursuant to section 79A(1A)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adess and Vernon

Details

AGLC: Adess and Vernon [2017] FCCA 2501
Case: [2017] FCCA 2501
Decision Date: 23 October 2017

CaseChat Overview and Summary

In *Adess and Vernon*, the Supreme Court of Western Australia was asked to determine a dispute between the parties concerning an application filed on 11 December 2015, as amended. The precise nature of the dispute and the specific claims made by the parties are not detailed in the provided text, beyond the fact that an application was made and subsequently amended.

The central legal issue before the Court was whether the application, as presented and amended, should be granted. This required the Court to consider the merits of the application and whether it satisfied the necessary legal thresholds for success.

Judge Tonkin dismissed the application. The reasoning behind this decision and the specific legal principles applied are not elaborated upon in the provided text. The Court's final order was that the application filed on 11 December 2015, as amended, be dismissed.

Orders

Orders of the court

The application filed on 11 December 2015 as amended is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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