PEARCE & PEARCE - [2014] FamCA 1120

FAMILY COURT OF AUSTRALIA

PEARCE & PEARCE

[2014] FamCA 1120

FAMILY LAW – PROPERTY – Final Orders – Application to set aside consent orders pursuant to s 79A – where wife asserts husband failed to disclose information relating to negotiations and proposals for the acquisition of a business at the time the consent orders were made in 2005 – whether a miscarriage of justice has occurred – where wife would have made further enquiries had she been aware of these matters – a miscarriage of justice has occurred due to the husband’s failure to disclose relevant information – orders made varying 2005 consent orders.

FAMILY LAW – PROPERTY – Final Orders – re-exercise of discretion – just and equitable – husband acquired assets post separation the value of which have increased – consideration of the assets at the time of separation – contributions to be assessed as equal up until separation – adjustment in favour of the husband for contributions made following separation – orders made for just and equitable property settlement.

Family Law Act 1975 (Cth) s 79, 79A

Barker & Barker (2007) 36 Fam LR 650
Bevan & Bevan (2013) FLC 93-545
In the Marriage of Gebert (1990) 14 Fam LR 62
In the Marriage of Holland (1982) 8 Fam LR 233
In the Marriage of Pelerman (2000) 26 Fam LR 505
In the Marriage of Prowse (1993) 18 Fam LR 348
Stanford v Stanford (2012) 247 CLR 108
Suiker & Suiker (1993) FLC 92-436

APPLICANT:

Ms Pearce

RESPONDENT:

Mr Pearce

FILE NUMBER:

DNC

462

2009

DATE DELIVERED:

12 December 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Dawe J

HEARING DATE:

8-9 April 2013;
23-24 & 30 September 2013;
1-3 Oct 2013;
13-17 & 20-22 Jan 2014;

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Looney, QC
with Ms Farmer

SOLICITOR FOR THE APPLICANT:

Withnalls Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lloyd, SC
with Ms Giacomo

SOLICITOR FOR THE RESPONDENT:

Cater & Blumer

Orders

The Consent Orders of 20 July 2005 are varied by the addition of the following orders:
(a)in full and final property settlement within ninety [90] days from the date of this Order the husband do pay to the wife the sum of ONE MILLION AND NINE HUNDRED AND SIXTY SEVEN THOUSAND DOLLARS [$1,967,000.00];
(b)each party otherwise retain to the exclusion of the other party all real and personal assets in their respective ownership, possession and control;
(c)each party shall otherwise be solely responsible for all their individual personal liabilities and liabilities encumbering any property which they retain and indemnify the other party in relation to such liabilities.
The Initiating Application filed by the wife on 25 June 2012 is dismissed and removed from the active pending cases list SAVE AND EXCEPT in relation to any application for costs.

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

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 PEARCE & PEARCE

Details

AGLC: PEARCE & PEARCE [2014] FamCA 1120
Case: [2014] FamCA 1120
Decision Date: 12 December 2014

CaseChat Overview and Summary

In *Pearce & Pearce*, Dawe J of the Family Court of Australia considered an application by the wife to set aside consent orders made in 2005 pursuant to s 79A of the *Family Law Act 1975* (Cth). The wife contended that the husband had failed to disclose information concerning negotiations and proposals for the acquisition of a business at the time the consent orders were made, alleging this failure constituted a miscarriage of justice.

The primary legal issue before the court was whether a miscarriage of justice had occurred due to the husband's alleged non-disclosure, which the wife argued would have led her to make further enquiries had she been aware of the relevant matters. The court was also required to re-exercise its discretion regarding a just and equitable property settlement, considering assets acquired and their subsequent increase in value post-separation, alongside contributions made by each party up until separation and thereafter.

Dawe J found that a miscarriage of justice had indeed occurred as a result of the husband's failure to disclose relevant information. The court determined that contributions should be assessed as equal up until the date of separation, but an adjustment was warranted in favour of the husband for contributions made after separation. Consequently, the court varied the 2005 consent orders, ordering the husband to pay the wife a sum of $1,967,000.00 within ninety days, with each party to retain their respective assets and liabilities. The wife's initiating application was otherwise dismissed.

Orders

Orders of the court

The Consent Orders of 20 July 2005 are varied by the addition of the following orders:

(a) in full and final property settlement within ninety [90] days from the date of this Order the husband do pay to the wife the sum of ONE MILLION AND NINE HUNDRED AND SIXTY SEVEN THOUSAND DOLLARS [$1,967,000.00];

(b) each party otherwise retain to the exclusion of the other party all real and personal assets in their respective ownership, possession and control;

(c) each party shall otherwise be solely responsible for all their individual personal liabilities and liabilities encumbering any property which they retain and indemnify the other party in relation to such liabilities.

The Initiating Application filed by the wife on 25 June 2012 is dismissed and removed from the active pending cases list SAVE AND EXCEPT in relation to any application for costs.

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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