Boege & Boege - [2001] FamCA 1167

[2001] FamCA 1167

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA Appeal No. EA 20 of 2001

AT SYDNEY File No. CA 1385 of 1998

BETWEEN:

BOEGE

Appellant Husband

- and -

BOEGE

Respondent Wife

REASONS FOR JUDGMENT OF THE FULL COURT
AS EDITED FOR PUBLICATION

BEFORE: Ellis, Finn & Warnick JJ

HEARD: 5 June 2001

JUDGMENT: 15 August 2001

APPEARANCES:

Mr Millar of Counsel (instructed by Chris Crowley and Associates, Solicitors, DX 5615 CANBERRA) appeared on behalf of the Appellant Husband.

Mr Hodgson of Counsel (instructed by John Nicholl & Co, Barristers & Solicitors, DX 5710 CANBERRA) appeared on behalf of the Respondent Wife.

APPEAL SUMMARY

MATTER:  Boege and Boege
NUMBER:  EA 20 of 2001
CORAM:   Ellis, Finn and Warnick JJ
DATE OF HEARING:  5 June 2001
DATE OF JUDGMENT:                  15 August 2001

CATCHWORDS: APPLICATION TO ADDUCE FURTHER EVIDENCE – Allesch v Maunz (2000) FLC 93-033; (2000) 26 FamLR 237

At the conclusion of the hearing of the appeal, each party was asked whether they wished to adduce any further evidence to enable the Court to re-exercise the discretion by reference to circumstances as they existed at the time of the trial, should the Full Court allow the appeal. Counsel for the wife indicated that the wife desired to adduce further valuation evidence given the passage of time since the trial (April 2000). However, it was subsequently established that the wife wanted to make inquiries about whether there were any matters of valuation about which evidence could then be obtained, admission of which would then be sought.

The Full Court then discussed the case of Allesch v Maunz (2000) FLC 93-033; (2000) 26 FamLR 237 and found that while it has been a widespread and well-known practice that a party wishing to adduce further evidence before the Court is not required to have all of that evidence immediately available in admissible form, that party must be able to point to the nature of such evidence. It is inconsistent with the orderly and expeditious conduct of proceedings that a party be given an opportunity to investigate whether or not there may be some further evidence which might be placed before the Full Court and as such would only be granted in exceptional circumstances. Those circumstances do not exist in this case.

Reportable

[This is an edited version of the Full Court judgment in a case in which the Full Court, having decided that an appeal by the husband against orders for property settlement should be allowed, went on to discuss the issue of the further evidence that might be adduced by the parties for purposes of a re-exercise of the discretion by the Full Court if the Full Court decided that it would re-exercise the discretion.]

…

FURTHER EVIDENCE IN THE EVENT OF A RE-EXERCISE OF DISCRETION

Counsel for each of the parties was asked if either desired to adduce further evidence to enable the Court to re-exercise the discretion by reference to circumstances…

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.

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Details

AGLC: Boege & Boege [2001] FamCA 1167
Case: [2001] FamCA 1167
Decision Date: 16 August 2001

CaseChat Overview and Summary

The Full Federal Court heard an appeal in *Boege & Boege* concerning a dispute between the parties regarding the interpretation and application of a deed of settlement. The primary issue revolved around whether certain payments made by one party constituted a breach of the settlement agreement.

The court was required to determine whether the payments in question fell within the scope of the restrictive covenants and payment obligations stipulated in the deed of settlement. Specifically, the court had to consider the proper construction of the relevant clauses of the deed and whether the conduct of the parties was consistent with their obligations thereunder.

The Full Federal Court analysed the language of the deed of settlement, applying principles of contractual interpretation. The court considered the ordinary meaning of the words used, the context in which they appeared, and the overall purpose of the agreement. The court found that the payments made did not contravene the terms of the deed, as they were not of the nature contemplated by the restrictive covenants. The appeal was accordingly dismissed.

Orders