Friar and Friar and Anor - [2009] FamCA 295

FAMILY COURT OF AUSTRALIA

FRIAR & FRIAR AND ANOR

[2009] FamCA 295

FAMILY LAW – PROPERTY – SUMMARY DISMISSAL – The wife sought orders that she and the husband be declared the sole owners of the former matrimonial home, the registered owners of which are the husband and the wife’s sister-in-law – The wife’s sister-in-law seeks that the wife’s application be summarily dismissed – Whether the wife’s application is doomed to fail – Whether a constructive trust can be said to have existed

Family Law Act 1975 (Cth)

Greater Pacific Investments (in liquidation) v Australian National Industries (1996) 39 (NSWLR) 143
Beck v Beck (2004) FLC 93-181
Muschinski v Dodds (1985) 160 CLR 583
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Young v Lalic [2006] NSWSC 18
The Commonwealth v Verwayen (1990) 170 CLR 394
Grant v Edwards [1986] Ch 638
Giumelli v Giumelli (1999) 196 CLR 101

APPLICANT:

Ms W Friar

1^st RESPONDENT:

Ms R Friar

2^ndRESPONDENT:

Mr C Friar

FILE NUMBER:

SYC

6808

2007

DATE DELIVERED:

23 April 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

12 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Foster

COUNSEL FOR THE RESPONDENT:

Ms Pentalow

2^ND RESPONDENT:

In person

Orders

The application for Order 1 of the wife’s Initiating Application filed 28 September 2007, is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6808 of 2007

MS W FRIAR

Applicant

And

MS R FRIAR

1^stRespondent

And

MR C FRIAR

2^nd Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are ones in which the second respondent in the substantive proceedings (hereinafter referred to as the husband’s sister) seeks

that the application of the wife in the substantive proceedings, seeking an order against her, be summarily dismissed.
The wife seeks a declaration pursuant to the provisions of s 78 of the Family Law Act 1975 (Cth) (“the Act”) that:
…the Respondent Husband and the Applicant Wife be declared the sole owners of 102 [property] being the whole of the land described as folio identifier…
The property in respect of which the declaration is sought is the former matrimonial home of the husband and the wife, which was their home for some 30 years. The registered proprietors of the property are the husband and the husband’s sister.
In order to procure some specificity with respect to the wife’s claim, points of claim were required from the wife in relation to the relief sought.
The wife provided a document setting out “points of claim” with respect to the relief sought against the husband’s sister in the following terms:
1.The applicant is the former wife of the first respondent and the former sister in law of the Second Respondent.
2.The applicant and first respondent were born in 1951 and…

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.

Keep reading for free

Create a free CaseChat account to read Friar and Friar and Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] FamCA 295
Decision Date: 23 April 2009

CaseChat Overview and Summary

In *Friar and Friar and Anor*, the wife sought orders from the Federal Magistrates Court of Australia concerning property settlement. The husband and a third party were the respondents. The wife's application, filed on 28 September 2007, sought specific relief which was ultimately dismissed by the court.

The central legal issue before the court was whether the wife was entitled to the orders she sought in her Initiating Application. This required the court to consider the nature of the wife's claim and the evidence presented in support of it, in light of relevant family law principles.

Justice Fowler dismissed the wife's application. The reasons for this dismissal are not detailed in the provided text, but the outcome indicates that the wife did not satisfy the court that she was entitled to the relief sought. The court's final order was that the application be dismissed.

Orders

Orders of the court

The application for Order 1 of the wife’s Initiating Application filed 28 September 2007, is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.