L and L - [2008] FCWA 29

[2008] FCWA 29

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	L and L [2008] FCWA 29
CORAM	:	PENNY J
HEARD	:	30 JANUARY 2008
DELIVERED	:	7 MARCH 2008
FILE NO/S	:	PT 6197 of 2003
BETWEEN	:	L
Applicant/Husband
AND
L Respondent/Wife
Catchwords:

Practice and procedure - s 79A application filed by wife - husband seeks hearing on s 79A application only - wife opposes application - says s 79A application should be dealt with in context of trial on all issues, including s 79(4) - separate trial of s 79A issues only

Legislation:

Family Law Act 1975 - s 79A

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr M McCusker QC
Respondent	:	Mr P Dowding SC

[2008] FCWA 29

Solicitors:

Applicant	:	Butlers
Respondent	:	Carr & Co

Case(s) referred to in judgment(s):

Oastler and Oastler (1993) FLC 92-390
Patching and Patching (1995) FLC 92-585

[2008] FCWA 29

1 These parties purported to settle their competing claims for property settlement
pursuant to s 79 of the Family Law Act 1975, by a consent minute filed in this Court on 5 December 2005. Final orders were made in terms of the Minute on 6 December 2005. One of the assets of the parties, owned by an entity known as the [L] Trust, was a parcel of 86,562 ordinary shares in [PBS] then valued by KPMG in April 2005 in the sum of $8m. As part of the settlement of property it was agreed that the wife would retain 10,592 fully paid ordinary [PBS] valued at $980,993 net.
2 On 7 September 2007 the wife filed a Form 1 application seeking the following
orders:
“Pursuant to s79A(1)(a) the order made by consent on 6 December 2005 be varied by deleting the reference in order 4 to “469,716” and inserting the words “$4,469,716 of which the wife acknowledges receipt of the sum of $469,716.” ”

3 The facts upon which the wife relies to vary the orders made are contained in a
letter from her solicitors to the husband filed 21 June 2007. In that letter the wife alleges, on the part of the husband, a deliberate suppression of evidence because he did not disclose to the wife or KPMG:

• that there was an anticipation that [PBS] would become a publicly listed company; and
• the audited financial statements for 30 June 2005, which showed an improved profit figure by [PBS]for the financial year to 30 June 2005.
4 In the valuation prepared by KPMG the valuer discounted the [L] Trust’s

interest in [PBS] by 15% because it was a minority shareholder and further discounted
the valuation by a further 30% on account of “lack of marketability”.
5 It is the wife’s case that the husband and his fellow directors were aware at the
time of the consent orders that there was a real possibility that [PBS] would float or be sold to a third party.…

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: L and L [2008] FCWA 29
Case: [2008] FCWA 29
Decision Date: 7 MARCH 2008

CaseChat Overview and Summary

In the Family Court of Australia, L and L, the wife and husband, were embroiled in a dispute over property settlement. The wife had filed an application under section 79A of the Family Law Act 1975, seeking an order for property settlement. The husband filed an application to have his s 79A application heard in isolation from any trial on the other issues, including the wife's request for an order under s 79(4). The wife opposed this application, arguing that the s 79A application should be heard in the context of a trial on all issues.

The court considered whether the husband's application should be granted and if the s 79A application should be heard separately from other issues. The court noted that section 79A of the Family Law Act 1975 allows for the court to make an order for property settlement, but it does not provide for a separate trial of those issues. The court found that the wife's request for an order under s 79(4) was inextricably linked to the s 79A application and that a separate trial of the s 79A issues would not be appropriate.

The court held that the husband's application should be refused and that the s 79A application should be heard in the context of a trial on all issues. The court found that a separate trial of the s 79A issues would not be appropriate and that the issues should be heard together. The court ordered that the s 79A application be heard in the context of a trial on all issues, including the wife's request for an order under s 79(4).

Orders