Lane and Lane - [2013] FamCA 466

FAMILY COURT OF AUSTRALIA

LANE & LANE

[2013] FamCA 466

FAMILY LAW ─ PROPERTY SETTLEMENT ─ Application to set aside consent orders made altering the property interests of the parties ─ Whether the Court should exercise its discretion and set aside the consent orders and make other orders pursuant to s 79 ─ Where the wife submitted that there was a miscarriage of justice due to the husband’s failure to disclose relevant financial information ─ Where it was common ground that the application for consent orders submitted by the parties substantially understated their financial circumstances ─ Where the wife did not say anywhere that she agreed to the consent orders because of the representations made by the husband about his financial circumstances ─ Where the wife knew of the existence of the assets involved ─ Where given the problems with the wife’s credibility, the Court did not accept that the wife entered into the consent orders as a consequence of duress and/or suppression of evidence ─ Where the Court was not satisfied that there was a miscarriage of justice ─ Wife’s application to have consent orders for settlement of property set aside dismissed

Family Law Act 1975 (Cth) ss 79, 79A

Clifton and Stuart (1991) FLC 92-194
Elliot and Willcox (1996) FLC 92-687
Gebert and Gebert (1990) FLC 92-137
Gilbert and the Estate of Gilbert (1989) 13 Fam LR 632
Holland and Holland (1982) FLC 91-243
Hughes & Hughes [2012] FAMCA 198
Jones v Dunkel (1959) 101 CLR 298
Nelson v Nelson (1995) 184 CLR 538
Public Trustee (as executor of the estate of Gilbert) & Gilbert (1991) FLC 92-211; 14 Fam LR 573
In the Marriage of Molier and Van Wyk (1980) 7 Fam LR 18
In the Marriage of Robb (1994) 18 Fam LR 489; (1995) FLC 92–555

APPLICANT:

Ms Lane

RESPONDENT:

Mr Lane

FILE NUMBER:

MLC

8674

2010

DATE DELIVERED:

19 June 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Canberra and Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

12 -14 September 2012,
13 & 14 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D Grieve QC

Ms D Coulton

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr T Tockar

SOLICITOR FOR THE RESPONDENT:

Dobinson Davey Clifford & Simpson (at hearing)

Phelps Reid (at judgment)

Orders

The application of the wife for an order setting aside orders for settlement of property made on 4 March 2003 pursuant to section 79A is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lane & Lane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: MLC 8674 of 2010

Ms Lane

Applicant

And

Mr Lane

Respondent

REASONS FOR JUDGMENT

Ms Lane and Mr Lane were married for 31 years. The parties cannot agree about whether final separation was in 1989 or 2003. Orders for property settlement were made in 2003. The wife seeks…

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 Lane and Lane

Details

AGLC: Lane and Lane [2013] FamCA 466
Case: [2013] FamCA 466
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by the wife to set aside consent orders made on 4 March 2003 concerning the alteration of property interests. The wife sought to have these orders set aside pursuant to s 79A of the *Family Law Act 1975* (Cth) and for new orders to be made regarding the division of the parties' net assets. The husband sought dismissal of the wife's application and an order for costs.

The central legal issue before the Court was whether it should exercise its discretion under s 79A of the *Family Law Act 1975* to set aside the consent orders. This question arose from the wife's submission that a miscarriage of justice had occurred due to the husband's alleged failure to disclose relevant financial information. It was common ground between the parties that the financial circumstances submitted to the court at the time the consent orders were made substantially understated their true financial position.

The Court's reasoning focused on the wife's credibility and the basis upon which she entered into the consent orders. While acknowledging the understatement of financial circumstances, the Court found that the wife did not assert that she agreed to the consent orders based on any specific representations made by the husband regarding his financial position. Furthermore, the wife was aware of the existence of the assets in question. Given these findings, and problems with the wife's credibility, the Court was not satisfied that she entered into the consent orders as a consequence of duress or suppression of evidence, nor that a miscarriage of justice had occurred.

Consequently, the wife's application to set aside the consent orders for property settlement was dismissed.

Orders