Maples and Maples - [2019] FCCA 698

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAPLES & MAPLES

[2019] FCCA 698

Catchwords:
FAMILY LAW – Application to set aside property orders pursuant to s.79A(1)(a) of the Family Law Act 1975 (Cth) – whether property orders made by consent in 1999 should be set aside on the basis of miscarriage of justice – where the Wife failed to disclose a market appraisal of the former matrimonial home – inaccuracies in the Wife’s Financial Statement – whether property orders should be set aside pursuant to s.79A(1A) – where the parties resumed cohabitation shortly after property orders made – where the resumption of cohabitation and circumstances of cohabitation indicated implied consent to set orders aside – property orders set aside pursuant to ss.79A(1)(a) and 79(1A).

Legislation:

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

Evidence Act 1995 (Cth), s.140

Cases cited:

Byrnes v Kendle (2011) 243 CLR 253
Gitane & Velacruz (2008) FLC 93-371
In the Marriage of Clifton & Stuart (1991) FLC 92-194

In the Marriage of Drew (1985) FLC 91-601

In the Marriage of Liu (1984) FLC 91-572
In the Marriage of McCabe (1995) FLC 92-634
In the Marriage of Molier & Van Wyk (1980) FLC 90-911
In the Marriage of Morrison (1995) FLC 92-573

In the Marriage of Patching (1995) FLC 92-585

In the Marriage of Prowse (1995) FLC 92-557
In the Marriage of Suiker (1993) FLC 92-436
Public Trustee (As Executor of the Estate of Gilbert) v Gilbert (1991) FLC 92-211
Waterman & Waterman [2017] FamCAFC 23
Sommerville v Sommerville (2000) FLC 93-042

Applicant:

MR MAPLES

Respondent:

MS MAPLES

File Number:

MLC 4194 of 2018

Judgment of:

Judge C.E. Kirton QC

Hearing date:

13 July 2018

Date of Last Submission:

13 July 2018

Delivered at:

Melbourne

Delivered on:

21 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr Potter

Solicitors for the Applicant:

Beaumont Lawyers

Counsel for the Respondent:

Ms Juneja

Solicitors for the Respondent:

G A Black & Co

ORDERS

Pursuant to s.79A of the Family Law Act 1975 (Cth) Orders 4 and 5 of the Orders made by consent by the Family Court of Australia on 10 November 1999 be set aside.

PENDING FURTHER OR OTHER ORDER

The Wife be and is hereby restrained from selling, assigning, encumbering or otherwise dealing with the former matrimonial home situate at and known as Property A in the State of Victoria being the whole of the land more particularly described in Certificate of Title volume … folio …, unless agreed in writing between the parties or pursuant to an Order of the Court.
The matter be adjourned to the Federal Circuit Court of Australia on 4 April 2019 at 9.30 am for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4194 of 2018

MR MAPLES

Applicant

and

MS MAPLES

Respondent

REASONS FOR JUDGMENT

Introduction

The Husband seeks to set aside final property orders made…

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 Maples and Maples

Details

AGLC: Maples and Maples [2019] FCCA 698
Case: [2019] FCCA 698
Decision Date: 21 March 2019

CaseChat Overview and Summary

In *Maples and Maples*, the Family Court of Australia considered an application by the Wife to set aside consent orders made on 10 November 1999, and to restrain the Husband from dealing with the former matrimonial home.

The primary legal issue before the Court was whether the Wife had established grounds to set aside the previous consent orders pursuant to section 79A of the *Family Law Act 1975* (Cth). A further issue concerned the appropriate interim orders to preserve the matrimonial home pending the final determination of the property settlement.

The Court found that the Wife had presented sufficient evidence to warrant setting aside the original consent orders. While the specific grounds for setting aside were not detailed in the provided text, the Court's decision to do so indicates that the threshold for demonstrating such grounds had been met. Consequently, the Court ordered that the previous consent orders be set aside and imposed an interim injunction restraining the Wife from dealing with the former matrimonial home without the Husband's written agreement or a further court order. The matter was adjourned for mention in the Federal Circuit Court.

Orders

Orders of the court

Pursuant to s.79A of the Family Law Act 1975 (Cth) Orders 4 and 5 of the Orders made by consent by the Family Court of Australia on 10 November 1999 be set aside.

PENDING FURTHER OR OTHER ORDER

The Wife be and is hereby restrained from selling, assigning, encumbering or otherwise dealing with the former matrimonial home situate at and known as Property A in the State of Victoria being the whole of the land more particularly described in Certificate of Title volume … folio …, unless agreed in writing between the parties or pursuant to an Order of the Court.

The matter be adjourned to the Federal Circuit Court of Australia on 4 April 2019 at 9.30 am for Mention.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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