MOORE & MOORE - [2012] FamCA 387

FAMILY COURT OF AUSTRALIA

MOORE & MOORE

[2012] FamCA 387

FAMILY LAW – PROPERTY – REVOCATION OF APPROVAL OF DEED – where the wife seeks that the approval of a Deed executed by the parties in November 2000 be revoked pursuant to s 87(8) of the Family Law Act 1975 (Cth) – where the husband opposes the order sought and seeks dismissal of the wife’s application and costs – where the wife alleges that her approval to the agreement was obtained by fraud and/or misrepresentation and/or material non-disclosure, and/or undue pressure and/or undue influence – where the wife’s evidence was not credible – where the husband was an impressive witness whose evidence was preferred to that of the wife wherever there was a conflict – where the primary allegations or fraud, misrepresentation or material non-disclosure centres around the control of a discretionary Trust – where the evidence fails to demonstrate that the husband and not his mother controlled the Trust such that it could be treated as an asset of the husband at the date of the approval of the Deed and at all relevant times prior thereto – where the evidence fails to demonstrate that the husband failed to disclose to the wife what became of the proceeds of sale of two properties or that he made false representations about that – where the wife was not subjected to undue influence or undue pressure by the husband which necessitated her entering into settlement negotiations or resulted in an unfavourable settlement – where the wife was at all times in receipt of legal advice from experienced, well respected legal practitioners – where there is no basis for the approval of the Deed to be revoked – application dismissed.

Family Law Act 1975 (Cth) ss 87(6), (8)(a) & (c), (11)
Family Law Rules (2004) (Cth)

Australian Steel and Mining Corporation v Corben [1974] 2 NSWLR 202
Borrelli & Ors v Ting & Ors [2010] UKPC 21
Carmel-Fevia & Fevia (2010) 43 FamLR 405
Gipps & Gipps(1978) FLC 90-423
Gould v Vaggelas (1985) 157 CLR 215
Green & Kwiatek (1982) FLC 91-259
Jones v Dunkel (1959) 101 CLR 298
Scribe & Scribe (2006) FLC 93-302
Smith v Chadwick (1884) 9 AC 187
Suter & Suter (1983) FLC 91-365

APPLICANT:

Ms Moore

RESPONDENT:

Mr Moore

FILE NUMBER:

ADF

4732

1998

DATE DELIVERED:

18 April 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATES:

23, 26, 29 & 30 November 2010

1, 2, 10, 13, 14, 15, 16 & 17 December 2010
4, 5 & 6 April 2011

10 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Whitington QC
with Mr Jordan

COUNSEL FOR THE RESPONDENT:

Mrs Shaw QC

with Mr Bleby

SOLICITOR FOR THE APPLICANT:

City East Legal

SOLICITOR FOR THE RESPONDENT:

Barnes Brinsley Shaw Lawyers

Orders

The Application filed by the wife on 18 December 2006 be dismissed.
All Applications and Responses be otherwise dismissed and removed from the active pending cases list.

IT IS NOTED

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 MOORE & MOORE

Details

AGLC: MOORE & MOORE [2012] FamCA 387
Case: [2012] FamCA 387
Decision Date: 18 April 2012

CaseChat Overview and Summary

In the matter of *Moore & Moore*, Strickland J of the Supreme Court of Western Australia considered an application filed by the wife on 18 December 2006. The precise nature of the dispute between the parties, Mr. Moore and Mrs. Moore, is not detailed in the provided text, beyond the fact that it involved applications and responses concerning pending cases.

The central legal issue before the court was whether the wife's application, filed on 18 December 2006, should be granted. Implicitly, the court was also required to determine the fate of all other related applications and responses that were active and pending.

Strickland J dismissed the wife's application. Furthermore, the court ordered that all other applications and responses be dismissed and removed from the active pending cases list, effectively bringing the proceedings to a close.

Orders

Orders of the court

The Application filed by the wife on 18 December 2006 be dismissed.

All Applications and Responses be otherwise dismissed and removed from the active pending cases list.

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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