Napleton and Napleton - [2019] FamCAFC 249

FAMILY COURT OF AUSTRALIA

NAPLETON & NAPLETON

[2019] FamCAFC 249

FAMILY LAW – APPLICATION IN AN APPEAL – REVIEW DECISION OF APPEAL REGISTRAR – Where it is appropriate to proceed in the absence of the applicant – Where the Independent Children’s Lawyer and the respondent say that given the nature and history of the matter it is in the best interests of the children for the Independent Children’s Lawyer to be involved in the appeal - Where the orders made by the appeal registrar should remain – Whether referencing Sargent & Selwyn [2019] FamCAFC 232 the Independent Children’s Lawyer should make application to the appeal registrar to again be appointed as the ICL in the appeal – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Napleton

RESPONDENT:

Ms Napleton

INDEPENDENT CHILDREN’S LAWYER:

Mr Bannerman

FILE NUMBER:

PTW

2128

2011

APPEAL NUMBER:

WEA

2019

DATE DELIVERED:

6 December 2019

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Strickland J

HEARING DATE:

6 December 2019

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT ORDER DATE:

3 September 2019

LOWER COURT MNC:

REPRESENTATION

THE APPLICANT:

No appearance

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Bannerman

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Bannerman Solicitors

Orders

The Application in an Appeal filed on 17 September 2019 be dismissed.

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 Napleton & Napleton 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).

THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

APPEAL NUMBER: WEA 29 of 2019
FILE NUMBER: PTW 2128 of 2011

Mr Napleton

Applicant

And

Ms Napleton

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Before the Court today is an Application in an Appeal filed on 17 September 2019 by Mr Napleton (“the husband”). In that application, he seeks that orders 1 and 3 made by the appeal registrar on 3 September 2019 be set aside. In effect, that is an application to review the decision by the registrar to make orders 1 and 3.
Orders 1 and 3 relate to the Independent Children's Lawyer (“ICL”). Order 1 provides that:
The Independent Children's Lawyer be named in the appeal proceedings and henceforth be known as the Second Respondent.
And order 3 provides that:
By no later than 10 September 2019 the Appellant provide to the Second Respondent a copy of his Form 20 Notice of Appeal filed 22 July 2019 together with a copy of the Appeal Book Index, filed…

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.

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Details

Case: [2019] FamCAFC 249
Decision Date: 6 December 2019

CaseChat Overview and Summary

In the case, Napleton and Napleton, the court considered an appeal against a decision related to a property dispute. The parties involved were Napleton and another individual, and the nature of the dispute was centred on the interpretation and enforcement of a property settlement agreement. The matter was heard in the Family Court of Australia, which has jurisdiction over such domestic disputes.

The legal issues before the court revolved around the enforceability of a property settlement agreement and whether there were grounds for setting aside the agreement on the basis of misrepresentation and non-disclosure. Specifically, the appellant argued that there were significant misrepresentations made by the respondent that influenced the execution of the agreement, and that these misrepresentations warranted the setting aside of the agreement.

The court, in its reasoning, found that the appellant had failed to provide sufficient evidence to support the claim of misrepresentation and non-disclosure. The court held that the appellant had not demonstrated that the respondent's conduct was dishonest or fraudulent, which is a necessary element for setting aside a property settlement agreement. Consequently, the appeal was dismissed, and the original decision upholding the agreement was affirmed.

As a result, the court dismissed the application in the appeal filed on 17 September 2019, and the form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The Application in an Appeal filed on 17 September 2019 be dismissed.

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

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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