Pearce & Pearce

Case [2016] FamCAFC 14


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

  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.

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

  1. 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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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.

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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