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Franklin & Ennis

Franklin & Ennis

Case [2019] FamCAFC 91 5 June 2019

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FAMILY COURT OF AUSTRALIA

FRANKLIN & ENNIS

[2019] FamCAFC 91

FAMILY LAW – APPEAL – PROPERTY – De Facto relationship – Adequacy of reasons – Whether orders inconsistent with findings of fact – Appeal conceded –Where failure to give full and frank disclosure of documents connected to beneficial ownership of a private family company needed to be evaluated by reference to what was known about the company – Myriad of contributions made by the appellant over significant period –Lack of regard to financial positions of parties and future financial prospects – Appeal allowed – Orders varied by consent – Respondent to pay additional $125,000.

FAMILY LAW – APPEAL – COSTS – Where both parties applied for costs certificates – Appellant entitled to a costs certificate – Application for costs certificate by respondent refused.

Family Law Act 1975 (Cth) s 90SF(3)
Federal Proceedings Costs Act 1981 (Cth) s 9

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Williams & Williams [2007] FamCA 313

APPELLANT:

Mr Franklin

RESPONDENT:

Ms Ennis

FILE NUMBER:

SYC

2160

2014

APPEAL NUMBER:

EAA

125

2018

DATE DELIVERED:

5 June 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Aldridge & Watts JJ

HEARING DATE:

24 May 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

31 August 2018

LOWER COURT MNC:

[2018] FCCA 2351

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Coleman SC

SOLICITOR FOR THE APPELLANT:

Burt & Allen Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kearney SC

SOLICITOR FOR THE RESPONDENT:

Willis & Bowring Solicitors

Orders dated 24 May 2019

That appeal EA 125 of 2018 from the orders of Judge Harper made on 25 September 2018 (and amended on 4 April 2019) be allowed.
That Order 2 of the orders of Judge Harper made on 25 September 2018 be varied such that the respondent shall pay to the solicitor for the appellant on behalf of the appellant the further sum of $125,000 within twenty-eight (28) days of the date of these orders.
That each of the appellant and the respondent shall bear their own costs of and incidental to this appeal, save as otherwise provided by any order as to costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

Orders dated 5 June 2019

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The respondent’s application for a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.

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…

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 Franklin & Ennis

Details

AGLC: Franklin & Ennis [2019] FamCAFC 91
Case: [2019] FamCAFC 91
Decision Date: 5 June 2019

CaseChat Overview and Summary

The appeal involved Franklin and Ennis, who had been in a de facto relationship and were now separated. The dispute centred on the adequacy of reasons provided by the lower court regarding the division of property, particularly a private family company. The case was heard in the Family Court of Australia. The appellant contended that the lower court's findings and orders were inconsistent and that there was an inadequate consideration of their financial positions and future prospects. Additionally, the appellant argued that there was a failure to fully and frankly disclose documents related to the beneficial ownership of the private family company.

The court was tasked with evaluating whether the lower court's reasons were sufficient and whether the orders made were inconsistent with the findings of fact. The court also had to assess the adequacy of disclosure regarding the beneficial ownership of the private family company. Furthermore, the court needed to consider the myriad of contributions made by the appellant over a significant period and the lack of regard for the financial positions of the parties and their future financial prospects. The appellant conceded the appeal on the basis that the lower court's orders were inconsistent with its findings of fact.

The court found that the lower court's reasons were inadequate and that the orders made were inconsistent with the findings of fact. The court highlighted the failure to fully and frankly disclose documents related to the beneficial ownership of the private family company and the lack of regard for the financial positions of the parties and their future financial prospects. The court allowed the appeal and varied the orders by consent, requiring the respondent to pay an additional $125,000. The appellant was granted a costs certificate, while the respondent's application for a costs certificate was refused.

Orders