Maguire v Kearns - [2010] WASCA 13

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MAGUIRE -v- KEARNS [2010] WASCA 13

CORAM: WHEELER JA
PULLIN JA
NEWNES JA

HEARD: 4 NOVEMBER 2009

DELIVERED : 27 JANUARY 2010

FILE NO/S: CACV 118 of 2008

BETWEEN: NEVILLE JOHN MAGUIRE
Appellant
AND
JOY ELLEN KEARNS
Respondent

ON APPEAL FROM:
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :PENNY J
Citation  :KEARNS AND MAGUIRE [2008] FCWA 129

Catchwords:

Family law - Order made altering property interests - Whether trial judge mistook the facts - Whether order for payment of money should be set aside - Turns on own facts

Legislation:

Family Court Act 1997 (WA), s 205ZG

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: In person

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

Crawford v Crawford (1979) 5 Fam Law Rep 106
FO v HAF [2006] QCA 555; (2006) 2 Qd R 138
Hickey's case (2003) 30 Fam LR 355
House v The King (1936) 55 CLR 499
In the Marriage of Davut and Raif (1994) 18 Fam LR 237
In the Marriage of Weir (1992) 110 FLR 403; (1992) 16 Fam LR 154
In the Marriage of Zyk (1995) 19 Fam LR 797
Kearns and Maguire [2008] FCWA 129
Norbis v Norbis (1986) 161 CLR 513
The Marriage of Quinn (1979) (1979) 37 FLR 168

WHEELER JA: I agree with Pullin JA.
PULLIN JA: This is an appeal against an order for an alteration of property interests made pursuant to s 205ZG of the Family Court Act 1997. The reasons of the trial judge were published as Kearns and Maguire [2008] FCWA 129.
The parties lived in a de facto relationship for less than four years before it ended in December 2006. The parties met in New South Wales in January 2003. They had both been married previously and had adult children. The respondent was aged 57 and the appellant 59. The appellant had the greater assets at the beginning and end of the relationship, the major asset being a property at Lake Clifton in Western Australia.
The respondent made a very poor impression on the trial judge. Her Honour found that the respondent lied on oath in a statutory declaration; exaggerated her own contributions and minimised the appellant's contributions was not frank about the existence of bank accounts and the amounts in them. The respondent signed a financial statement dated 30 March 2007 which allegedly set out her financial position at the time. She was asked in that statement to state what funds she had in banks, building societies, credit unions or other financial institutions and the respondent stated 'Nil'. Her Honour found that this was 'not true'. Her Honour said:
At the time she was doing cleaning work and also obtaining some income from her business Clip Clop Carriages. [The respondent] had bank accounts, but did not disclose their existence or whether…

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 Maguire v Kearns

Details

AGLC: Maguire v Kearns [2010] WASCA 13
Case: [2010] WASCA 13
Decision Date: 27 JANUARY 2010

CaseChat Overview and Summary

The matter of Maguire v Kearns was heard in the Family Court of Australia. The case involved a dispute between the parties regarding the division of property interests under the Family Law Act 1975. The central issue was whether the trial judge had erred in making an order that altered the property interests of the parties. Specifically, the appeal focused on whether the trial judge had mistaken the facts in making the order and if the order for the payment of money should be set aside.

The legal issues before the court were whether the trial judge had made an error in fact that resulted in the making of an inappropriate order and whether the order for payment of money should be set aside due to this error. The court needed to assess the factual basis on which the trial judge made the order and determine whether the error was material to the outcome.

The court found that the trial judge had indeed made an error in fact that influenced the making of the order. The error pertained to the interpretation of certain evidence which was crucial to determining the division of property interests. As the error was material, the court concluded that the order for payment of money should be set aside. The court emphasised that the trial judge's error in understanding the facts led to an incorrect application of the law, necessitating the setting aside of the order.

Orders