FAMILY COURT OF AUSTRALIA
| PEARCE & PEARCE | [2016] FamCAFC 14 |
| FAMILY LAW – APPEAL – SECTION 79A – Consent Orders – Where the trial judge found that the husband failed in his duty to make a full and frank disclosure – Where the trial judge found that had the wife been aware of the matters not disclosed, she would have made further enquiries before consenting to the orders – No error established – Appeal dismissed – Costs ordered. |
| Family Law Act 1975 (Cth) ss 79, 79A and 117 Family Law Rules 2004 (Cth) r 13.01 and r 13.04 |
| Babett & Falconer (2015) FLC 98-067 Benjamin & Bardot [2010] FamCAFC 252 Bigg v Suzi (1998) FLC 92-799 Black and Kellner (1992) FLC 92-287 Briese and Briese (1986) FLC 91-713 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Ors (2000) 203 CLR 194 Dickons & Dickons [2012] FamCAFC 154 Fields & Smith (2015) FLC 93-638 Gebert and Gebert (1990) FLC 92-137 Gronow v Gronow (1979) 144 CLR 513 Holland and Holland (1982) FLC 91-243 Limousin & Limousin (Costs) (2007) 38 FamLR 478 Lowe v Harrington (1997) FLC 92-747 Mallett v Mallett (1984) 156 CLR 605 Morrison and Morrison (1995) FLC 92-573 Oriolo and Oriolo (1985) FLC 91-653 Pelerman and Pelerman (2000) FLC 93-037 Prowse and Prowse (1995) FLC 92-557 Singerson & Joans [2014] FamCAFC 238 Stanford v Stanford (2012) 247 CLR 108 Suiker and Suiker (1993) FLC 92-436 Trask & Westlake (Costs) [2015] FamCAFC 214 |
| APPELLANT: | Mr Pearce |
| RESPONDENT: | Ms Pearce |
| FILE NUMBER: | DNC | 462 | of | 2009 |
| APPEAL NUMBER: | NA | 1 | of | 2015 |
| DATE DELIVERED: | 11 February 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy, Aldridge & Forrest JJ |
| HEARING DATE: | 6 & 7 August 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 December 2014 |
| LOWER COURT MNC: | [2014] FamCA 1120 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Richardson SC with Mr Williams of Counsel |
| SOLICITOR FOR THE APPELLANT: | Barkus Doolan |
| COUNSEL FOR THE RESPONDENT: | Mr Looney QC with Ms Harding of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Withnalls Lawyers |
Orders
The appeal be dismissed.
The appellant husband pay the wife’s costs of and incidental to this appeal in an amount to be agreed in writing between the parties or, failing agreement, as assessed.
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 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 1 of 2015
File Number: DNC 462 of 2009
| Mr Pearce |
Appellant
And
| Ms Pearce |
Respondent
REASONS FOR JUDGMENT
The parties to this appeal consented to orders on 20 July 2005 which effected an alteration of their interests in property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). On 12 December 2014, Dawe J varied those orders pursuant to s 79A of the Act.…
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Details
- AGLC
- Pearce & Pearce [2016] FamCAFC 14
- Case
- [2016] FamCAFC 14
- Decision Date
CaseChat Overview and Summary
In Pearce & Pearce, the court considered an appeal against consent orders made by the parties in a family law matter. The wife appealed against the consent orders, arguing that the husband had failed to make a full and frank disclosure of relevant information, which would have influenced her decision to consent to the orders. The husband maintained that the consent orders were fair and reasonable, and that the wife had been fully informed of all relevant information.
The primary legal issue before the court was whether the husband had breached his duty of full and frank disclosure, and if so, whether this breach amounted to a miscarriage of justice. The court was required to determine whether the husband's failure to disclose certain information led to a significant outcome in the consent orders, and if the wife would have made further enquiries or taken different action had she been aware of the undisclosed information.
The court found that the husband had indeed failed to make a full and frank disclosure to the wife. The husband did not disclose significant information concerning the negotiations and proposals regarding his acquisition of substantial interests in a business and property, as well as his shares in other investments. Additionally, the husband failed to disclose his representation to a bank about the value of a property. The court held that had the wife been aware of this undisclosed information, she may have made further enquiries before consenting to the orders. However, the court found no error in the trial judge's approach and dismissed the appeal. The husband was ordered to pay the wife's costs of and incidental to the appeal.
The primary legal issue before the court was whether the husband had breached his duty of full and frank disclosure, and if so, whether this breach amounted to a miscarriage of justice. The court was required to determine whether the husband's failure to disclose certain information led to a significant outcome in the consent orders, and if the wife would have made further enquiries or taken different action had she been aware of the undisclosed information.
The court found that the husband had indeed failed to make a full and frank disclosure to the wife. The husband did not disclose significant information concerning the negotiations and proposals regarding his acquisition of substantial interests in a business and property, as well as his shares in other investments. Additionally, the husband failed to disclose his representation to a bank about the value of a property. The court held that had the wife been aware of this undisclosed information, she may have made further enquiries before consenting to the orders. However, the court found no error in the trial judge's approach and dismissed the appeal. The husband was ordered to pay the wife's costs of and incidental to the appeal.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
The appellant husband pay the wife’s costs of and incidental to this appeal in an amount to be agreed in writing between the parties or, failing 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
Having made a number of findings in respect of specific issues, her Honour summarised her ultimate findings at [236] of the reasons as follows:ConclusionThe husband failed to disclose to the wife significant information concerning the negotiations and proposals concerning the husband’s acquisition of the substantial interest in the [E Pty Ltd] business and [W Street, Suburb L] property. He also failed to disclose his shares in his other investments. He failed to disclose the representation that he had made to the bank that the [D] Street property was valued at $700,000. He did not disclose the expectation of greater income. When considered together these factors establish that there was significant information available to the husband which was not disclosed to the wife prior to the Consent Order being made. [Bold heading in original] The findings informing what her Honour found ultimately at that paragraph make specific reference to various values. In respect of the Town T and V Street properties, her Honour found (at [218] – [220]) that the differences in value, based on an acceptance of expert evidence as to retrospective values given about nine years later, “… would not individually be significant” and “if this were the only factor to be considered, such a variation (by a small percentage) would not necessarily establish a miscarriage of justice”. By way of contrast, in respect of D Street, her Honour said (at [222]), “[t]he significant variation in the value of [D] Street and the husband’s previous assertion of a much greater value ($700,000 not $550,000) does need to be considered as a factor.” Earlier in the reasons (at [217]), her Honour said:At the time of the wife’s consent to the orders prepared, the wife had not been informed, and the husband had failed to inform her or her advisers, that he had previously represented to a bank that the [D] Street property was worth $700,000. This was known to the husband. The husband maintained that the property was worth $550,000 where as its value was $660,000. The concluding value there referred to emanates from retrospective expert opinion evidence which is the subject of the challenges embraced by ground 1. The seven sub-grounds of that ground inform the central error asserted by that ground which is that “… her Honour erred in principle in her approach to the determination of the value of [[D] Street] in June 2005”. Each of those sub-grounds and the central error to which they relate, challenge, in one way or another, the finding that D Street had a value of $660,000 at the time of the consent orders. The finding as to that value does not, however, ground any finding of either a lack of disclosure or of a miscarriage of justice arising therefrom. No finding of that value could ground any such finding for the simple reason that there was no evidence whatsoever before her Honour that prior to or at the time of their agreement, either party had received, or was aware of, a valuation of D Street at $660,000. Nor was there evidence that either party had even estimated or suggested any such value. Her Honour’s apparent finding as to D Street having a value of $660,000 seen at [217] of the reasons (and in parenthesis at [222]) cannot have informed any finding of any lack of disclosure by the husband because there was no evidence that the husband had any documents or information that could have illuminated any such value.
Ratio Decidendi
Legal Principle Established
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