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Brewer & Brewer

Brewer & Brewer

Case [2019] FamCA 247 18 April 2019

Procedural Fairness

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Family Law

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FAMILY COURT OF AUSTRALIA

BREWER & BREWER

[2019] FamCA 247

FAMILY LAW – DISCLOSURE – inadequate by husband – he applied for partial property payment – no clear picture of entirety of the asset pool.

FAMILY LAW – SPOUSAL MAINTENANCE – whether need demonstrated – disclosure too inadequate to enable meaningful assessment of need to be undertaken.

Family Law Act 1975 (Cth) ss 72(1), 74, 75(2), 77(2), 80(1)(h), 83(2), 112AP, 117
Family Law Rules 2004 (Cth) ch 13, rr 1.07, 1.08, 13.07, 13.15(2)

Hall v Hall (2016) 257 CLR 490
In the marriage of Abdullah (1981) 6 Fam LR 654
In the Marriage of Black & Kellner (1992) 15 Fam LR 343
In the Marriage of Briese (1985) 10 Fam LR 642
In the Marriage of Chang & Sue (2002) 29 Fam LR 406
In the Marriage of Efthimiadis (1993) 16 Fam LR 384
In the Marriage of Giunti (1986) 11 Fam LR 160
In the Marriage of Mezzacappa (1987) 11 Fam LR 957
In the Marriage of Redman & Redman (1987) 11 Fam LR 411
In the Marriage of Stein (1986) 11 Fam LR 353
In the Marriage of Stein (2000) 25 Fam LR 727
In the Marriage of Tate (2000) 26 Fam LR 731
In the Marriage of Weir (1992) 16 Fam LR 154
James v Plummer (1888) 23 LJNC 107
Livesey (formerly Jenkins) v Jenkins [1985] 1 AC 424
Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627
Mitchell v Darley Main Colliery Co (1884) 1 Cab & EL 215
Myers v Elman [1940] AC 282
Oriolo & Oriolo (1985) 10 Fam LR 665
Palmdale Insurance Ltd (in liquidation) v L Grollo & Co Pty Ltd [1987] VR 113
Strahan v Strahan (Interim Property Orders) (2009) 42 Fam LR 203
TNT Management Pty Ltd v Trade Practices Commission; Brambles Holdings v Trade Practices Commission (1983) 47 ALR 693

Bray, Edward, Digest on the Law of Discovery with practice notes (Sweet & Maxwell, 1904)
Cronin J, ‘The obligation to disclose; but what if they don’t’ (conference paper, National Family Law Conference, April 2008).
O’Ryan QC, Stephen, ‘Attempts to Deal with Undisclosed Wealth in Property Settlement Proceedings’ (1994) 8 Australian Journal of Family Law 96
Richardson SC, Graham, ‘A Beginner’s Guide to Property Settlement and Related Proceedings in the Family Court’ (1998) 17 Australian Bar Review 48
Williams, Sidney Edward and Frank Guthrie‑Smith, Daniell’s Chancery Practice: being a treatise on the practice of the Chancery Division and on appeal therefrom (Sweet & Maxwell, 8^th ed, 1985)

APPLICANT:

Ms Brewer

RESPONDENT:

Mr Brewer

INTERESTED PARTY:

P Pty Ltd

FILE NUMBER:

MLC

7271

2017

DATE DELIVERED:

18 April 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

The Honourable Justice Wilson

HEARING DATE:

8 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms E Swart

SOLICITOR FOR THE APPLICANT:

Baker Jones Lawyers

COUNSEL FOR THE RESPONDENT:

Mr D Brown, One of Her Majesty’s Counsel

SOLICITOR FOR THE RESPONDENT:

Carew Counsel Pty Ltd

COUNSEL FOR THE INTERESTED PARTY

No…

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: Brewer & Brewer [2019] FamCA 247
Case: [2019] FamCA 247
Decision Date: 18 April 2019

CaseChat Overview and Summary

In *Brewer & Brewer*, the husband sought a partial property settlement, but his disclosure of financial information was found to be inadequate by Justice Wilson of the Family Court of Australia. This lack of transparency prevented a clear understanding of the entirety of the asset pool. The wife also sought spousal maintenance, but the husband's insufficient disclosure meant that his need for such maintenance could not be meaningfully assessed.

The primary legal issues before the court were whether the husband had made adequate disclosure of his financial position to enable a proper assessment of the property pool, and consequently, whether the wife had demonstrated a need for spousal maintenance. The court was required to determine if the husband's applications for a partial property payment could proceed in light of his disclosure shortcomings.

Justice Wilson reasoned that the husband's disclosure was too inadequate to permit a meaningful assessment of the asset pool or the wife's need for spousal maintenance. The court applied principles of full and frank financial disclosure, fundamental to family law proceedings, and found that these had not been met by the husband.

Consequently, all applications made by the husband were dismissed. The further hearing of the proceeding was referred to a registrar for ongoing case management.

Orders

Orders of the court

Order

1. All applications by the husband in the application in a case filed on 27 November 2018, as amended on 27 March 2019, are dismissed.

Direction

2. The further hearing of this proceeding is referred to a registrar for ongoing case management.

Note: The form of the order is subject to the entry of the order in the court’s records.

IT IS NOTED that publication of this judgment by this court under the pseudonym Brewer & Brewer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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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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Actions

Citations

Brewer & Brewer [2019] FamCA 247

Most Recent Citation

Keskin and Keskin & Anor [2019] FamCA 384

Cases Citing This Decision

Field and Kingston (No. 4) [2021] FamCA 357
Citation 1 (Para 2)

…submissions. [20] Paragraphs 23 and 24 of the husband’s submissions. [21] Paragraphs 27 and 28 of the husband’s submissions. [22] [2019] FamCA 247. [23] (1980) 144 CLR 311.…
Velten & Velten [2020] FamCA 384
Citation 2 (Para 12)

…In Brewer & Brewer[82] I made some far reaching observations about disclosure. While lengthy they were as follows – [82][2019] FamCA 247 In the specific context of family law litigation ch 13 of the Family Law Rules governs a party’s obligations concerning disclosure. The centuries of learning concerning civil liti…
Bacall & Zagar [2020] FamCA 350
Citation 3 (Para 16)

…In Brewer & Brewer[165] I made some far reaching observations about disclosure. While lengthy they were as follows – [165][2019] FamCA 247 In the specific context of family law litigation ch 13 of the Family Law Rules governs a party’s obligations concerning disclosure. The centuries of learning concerning civil li…
Blakeley & Jaine (No 2) [2020] FamCA 141
Citation 4 (Para 1)

…In Brewer & Brewer[1] I held as follows – [1] [2019] FamCA 247. 56.So far as the spousal maintenance claim is concerned, ultimately the issue is determined by application of the principles in s 72 and s 74 of the Family Law Act , a matter addressed by the Full Court in In the Marriage of Stein .[2] There, the Full…
Cao & Trong (No 2) [2019] FamCA 941
Citation 5 (Para 1)

…ively while concurrently keeping uppermost in mind the proportionality of the disputed issues relative to the overall contest. [13] [2019] FamCA 247 [14] Sidney Edward Williams and Frank Guthrie‑Smith, Daniell’s Chancery Practice: being a treatise on the practice of the Chancery Division and on appeal therefrom (Sw…
Keskin and Keskin & Anor [2019] FamCA 384
Citation 6 (Para 5)

…pert witness Mr HH discussed in his report where he stated that the respondent was not averse to “bending the truth when it suits him” . [49] [2019] FamCA 247…

See all citing cases →

Cases Cited

Strahan v Strahan [2019] HCASL 327
Citation 1

…EL 215 Myers v Elman [1940] AC 282 Oriolo & Oriolo (1985) 10 Fam LR 665 Palmdale Insurance Ltd (in liquidation) v L Grollo & Co Pty Ltd [1987] VR 113 Strahan v Strahan (Interim Property Orders) (2009) 42 Fam LR 203 TNT Management Pty Ltd v Trade Practices Commission; Brambles Holdings v Trade Practices Commission (1983) 47 ALR 693…
Hall v Hall [2016] HCA 23
Citation 2

…Hall v Hall (2016) 257 CLR 490 In the marriage of Abdullah (1981) 6 Fam LR 654 In the Marriage of Black & Kellner (1992) 15 Fam LR 343 In the Marriage of Briese (1985) 10 Fam LR 642 In the Marriage of Chang & Sue (2002) 29 Fam LR 406 In the Marriage of Efthimiadis (1993) 16 Fam LR 384 In the Marriage of Giunti (1986)…
Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127
Citation 3

…m LR 154 James v Plummer (1888) 23 LJNC 107 Livesey (formerly Jenkins) v Jenkins [1985] 1 AC 424 Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 Mitchell v Darley Main Colliery Co (1884) 1 Cab & EL 215 Myers v Elman [1940] AC 282 Oriolo & Oriolo (1985) 10 Fam LR 665 Palmdale Insurance Ltd (in liquidation) v L Grollo & Co Pty Ltd [1987…
[1940] AC 282 [1940] AC 282
Citation 4 (Para 2)

…mpose the obligation of continuing discovery were not even referred to in Bray’s Digest on the Law of Discovery .[8] [4] (1884) 1 Cab & El 215. [5] [1940] AC 282. [6] (1888) 23 LJNC 107. [7] (1983) 47 ALR 693. [8] Edward Bray, Digest on the Law of Discovery with practice notes (Sweet & Maxwell, 1904).…
[1980] 1 WLR 627 [1980] 1 WLR 627
Citation 5 (Para 3)

…the offence created by r 13.15(2). That offence is additional to the contempt power reposed in s 112AP of the Family Law Act . [9] [1980] 1 WLR 627. [10] [1987] VR 113.…
[1985] 1 AC 424 [1985] 1 AC 424
Citation 6 (Para 6)

…This principle of full and frank disclosure in proceedings of this kind has long been recognised and enforced as a matter of practice. … [11] [1985] 1 AC 424, 437‑438.…

Legislation Cited

Family Law Act 1975 (Cth) 112AP, 117, 72(1), 74, 75(2), 77(2), 80(...
9 mentions (from Para 8)
Family Law Rules 2004 (Cth)
1 mention