Moore & Moore - [2014] FamCAFC 113

FAMILY COURT OF AUSTRALIA

MOORE & MOORE

[2014] FamCAFC 113

FAMILY LAW – APPEAL – Where the wife appealed against a dismissal of her application to revoke the approval of a Deed pursuant to s 87(8) of the Family Law Act 1975 (Cth) – Where the wife asserts the husband misrepresented the true ownership of the very valuable asset of a trust – The findings made by the trial Judge were open to him on the evidence – Where the wife asserts the husband provided misleading information concerning disbursement of the proceeds of sale of two properties – The document provided was not misleading and in any event, the wife did not rely on any representation – Where the wife asserts the husband failed to disclose an arrangement between the husband and his mother relating to a mortgage – The trial Judge’s findings were open to him – Where the wife asserts the husband exerted undue pressure on her in circumstances where a mortgage was called up – The trial Judge’s findings were open to him – No merit in any grounds of appeal – Appeal dismissed.

Family Law Act 1975 (Cth) s 87

Family Law Amendment Act 2000 (Cth)

AMP Services Ltd v Manning [2006] FCA 256
Barro and Barro (1983) FLC 91-300
Green & Kwiatek (1982) FLC 91-259
Giannarelli v Wraith (No. 2) (1991) 171 CLR 592
Grefeld & Grefeld (2012) FLC 93-508
Jones v Dunkel (1959) 101 CLR 298

Players Pty Ltd (in liquidation) v Clone Pty Ltd (2013) 115 SASR 547

R v Burdett (1820) 106 ER 873
Wentworth v Lloyd (1864) 10 HLC 589

APPELLANT:

Ms Moore

RESPONDENT:

Mr Moore

FILE NUMBER:

ADF

4732

1998

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

27 June 2014

PLACE DELIVERED:

Perth

PLACE HEARD:

Adelaide

JUDGMENT OF:

Bryant CJ, Finn and Thackray JJ

HEARING DATE:

9 & 10 October 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 April 2012

LOWER COURT MNC:

[2012] FamCA 387

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Whitington QC with Mr Jordan

SOLICITOR FOR THE APPELLANT:

Jordan & Fowler Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC with Mr Bleby SC and
Mr Stenhouse

SOLICITOR FOR THE RESPONDENT:

Karras Partners Lawyers

Orders

The appeal be dismissed.
The wife pay the husband’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 41 of 2012
File Number: ADF 4732 of 1998

Ms Moore

Appellant

And

Mr Moore

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal against an order made by Strickland J on 18 April 2012 dismissing an application for revocation of approval of a deed entered into pursuant to s 87 of…

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 [2014] FamCAFC 113
Case: [2014] FamCAFC 113
Decision Date: 27 June 2014

CaseChat Overview and Summary

In the matter of Moore & Moore, the wife appealed against a decision made by the trial judge which dismissed her application to revoke the approval of a Deed pursuant to section 87(8) of the Family Law Act 1975 (Cth). The wife's primary contention was that the husband misrepresented the true ownership of a valuable asset held in a trust. Additionally, she claimed that he provided misleading information concerning the disbursement of the proceeds from the sale of two properties, failed to disclose an arrangement with his mother regarding a mortgage, and exerted undue pressure on her when a mortgage was called up. The court was required to determine whether the trial judge's findings were correct and whether any of the grounds of appeal had merit.

The court found that the trial judge's findings were open to him on the evidence presented. The wife did not establish that the husband misrepresented the ownership of the trust asset. Regarding the disbursement of the proceeds, the court noted that the document provided was not misleading and that the wife did not rely on any representation made by the husband. As for the mortgage arrangement, the court concluded that the trial judge's findings were open to him and did not reveal any error. Lastly, the court determined that the husband's actions, if any, did not amount to undue pressure.

Consequently, the court dismissed the wife's appeal and ordered that she pay the husband's costs of and incidental to the appeal as agreed, or as assessed if an agreement could not be reached. This decision upheld the original findings of the trial judge, affirming the correctness of his assessment of the evidence and the absence of any grounds for the wife's appeal.

Orders

Orders of the court

The appeal be dismissed.

The wife pay the husband’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

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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