Brewer & Brewer

Case [2019] FamCA 247

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, 8th ed, 1985)
APPLICANT: Ms Brewer
RESPONDENT: Mr Brewer
INTERESTED PARTY: P Pty Ltd
FILE NUMBER: MLC 7271 of 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…

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AGLC
Brewer & Brewer [2019] FamCA 247
Case
[2019] FamCA 247
Decision Date

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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