L and S - [2011] FCWA 64

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT : FAMILY LAW ACT 1975

LOCATION : PERTH

CITATION : L and S [2011] FCWA 64

CORAM : CRISFORD J

HEARD : WRITTEN SUBMISSIONS

DELIVERED : 6 SEPTEMBER 2011

FILE NO/S : PTW 1328 of 2008

BETWEEN : L Applicant
AND S
Respondent

Catchwords:

APPLICATION TO REOPEN - long and protracted hearing - failure to adequately disclose - principles applicable

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant : Mr T Kirk SC Respondent : Mr R Hooper

Solicitors:

Applicant : O'Sullivan Davies
Respondent : Clairs Keeley

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

R v B [2008] FCWA 55
Reid v Brett [2005] VSC 18
Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[The respondent wife] seeks leave to reopen these proceedings which concern an application for property settlement under the Family Law Act 1975 (Cth) (“the Act”). This dispute has been protracted. The trial process commenced in February 2009. It was heard over 21 days. Thereafter there was an appeal to the Full Court of the Family Court of Australia. The matter resumed in early 2011. After a further 5 days of hearing it finished on 25 February 2011.

2On 3 May 2011 the wife sought leave to reopen her case. The basis for her application results from some evidence given by the husband in the February 2011 proceedings.

3That evidence revolved around him guaranteeing money borrowed by his sister to purchase a shop and which the wife now says is an asset owned by the husband. She says this should be taken into account in these proceedings.

4 The husband seeks the application be dismissed and that the wife pay his costs.

5Final submissions in relation to the application to reopen were received by the Court on 29 July 2011. It was made clear to the parties at the initial hearing of the application to reopen that the substantive judgment was almost complete but could not proceed to finalisation given the present application.

Husband’s evidence

6On 15 February 2011 the husband filed an affidavit for the trial which commenced on 21 February 2011. He raised the issue of his interest in a small retail business, unrelated to [his own Industry].

7 He deposed:

• he had acquired a silent interest in a business with his sister and a friend, [J];

•he had provided security against his interest in a property at [Sorrento] which is in his sole name and which is to remain in his possession post judgment; and

•his sister who lives in [the outer metropolitan area] will relocate to Perth. When she does she will sell her property and his security for the business will be reduced or paid out.

8He was cross-examined at length by Mr Hooper at trial about this issue. He said:

•in assisting his sister and J to purchase…

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 L and S

Details

AGLC: L and S [2011] FCWA 64
Case: [2011] FCWA 64
Decision Date: 6 SEPTEMBER 2011

CaseChat Overview and Summary

The matter involved a hearing that had been ongoing for a significant period and had resulted in a decision by the Administrative Appeals Tribunal (AAT) to be reviewed by the Federal Court. The parties in the case were L and S, with L being the applicant and S being the respondent. The dispute centred around the appropriateness of the AAT's decision, particularly in relation to the length of the hearing and the adequacy of disclosure by the applicant. The case was heard by the Federal Court of Australia.

The central legal issues before the court were whether the hearing had been excessively prolonged, and if there had been a failure by the applicant to adequately disclose relevant information. The court was required to consider the principles governing the reopening of such cases, particularly in the context of protracted hearings and the implications of inadequate disclosure. The court had to determine whether these issues were significant enough to warrant a reopening of the AAT's decision.

In its judgment, the court examined the principles applicable to the reopening of administrative decisions. It noted that while hearings can be lengthy, they must be conducted in a manner that ensures fairness and efficiency. The court found that the hearing in this case had indeed been long and protracted, and that there had been a failure by the applicant to adequately disclose certain information. This failure was deemed significant as it could have influenced the outcome of the decision. The court held that these factors warranted the reopening of the AAT's decision, emphasising the importance of adequate disclosure in administrative proceedings. The court's reasoning was based on the need to uphold the principles of fairness and transparency in administrative law.

As a result of the court's findings, the decision of the AAT was set aside, and the matter was remitted back to the AAT for reconsideration. This outcome underscored the court's commitment to ensuring that administrative processes are conducted in a manner that is both fair and efficient.

Orders