Merton and Merton

[2017] FamCA 281

FAMILY COURT OF AUSTRALIA

MERTON & MERTON [2017] FamCA 281

FAMILY LAW – PROPERTY SETTLEMENT – Setting aside orders – Where the parties consensually entered into property settlement orders, a Binding Financial Agreement, and a Deed of Release to sever their financial affairs – Where the husband sought the property settlement orders be set aside pursuant to s 79A(1)(a) of the Family Law Act – Where the husband failed to prove the wife suppressed relevant information – Where, even if relevant information was suppressed, the husband failed to prove it caused a miscarriage of justice – Decided the husband’s application to set aside orders should not succeed – Ordered the entirety of the husband’s application is dismissed 

Evidence Act 1995 (Cth), ss 58, 160, 183
Family Law Act 1975 (Cth), s 79A

Family Law Rules 2004 (Cth)

Barker v Barker (2007) 36 Fam LR 650
Gitane v Velacruz (2009) 39 Fam LR 460
Marriage of Patching (1995) FLC 92-585
Pearce & Pearce [2016] FamCAFC 14

APPLICANT: Mr Merton

RESPONDENT: Ms Merton

FILE NUMBER: SYC 3926 of 2015

DATE DELIVERED: 1 May 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 30 & 31 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC

SOLICITOR FOR THE APPLICANT: McDonell Milne Toltz Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Knox SC

SOLICITOR FOR THE RESPONDENT: Redmond Hale Simpson Solicitors & Barristers

Orders

1. The Initiating Application filed on 16 June 2016 is dismissed.

2. The Response to Initiating Application filed on 26 September 2016 is dismissed.

3. Costs are reserved for 28 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3926 of 2015

Mr Merton

Applicant

And

Ms Merton

Respondent

REASONS FOR JUDGMENT

Introduction

1. In August 2015, the applicant husband and respondent wife settled all outstanding disputes between them under Part VIII of the Family Law Act 1975 (Cth) (“the Act”) arising out of the breakdown of their marriage.

2. Their settlement was consummated by property settlement orders, made by this Court pursuant to their joint application, and their execution of a Binding Financial Agreement (“BFA”) and a Deed of Release (“Deed”).

3. The settlement entailed the husband’s transfer of his proprietary interest in the former matrimonial home to the wife, so she became the sole registered proprietor of it. The wife and the parties’ children still then lived in the home but, within several months of the settlement, the…