Pearce & Pearce (No 2) - [2022] FedCFamC1F 193

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pearce & Pearce (No 2) [2022] FedCFamC1F 193

File number(s): SYC 2654 of 2017

Judgment of: CAMPTON J

Date of judgment: 7 March 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by an intervener to amend final relief sought – Where no notice of such application was given to the parties prior to the commencement of the trial – Where it would not be fair to the wife to allow the intervener to amend her relief at such a late stage of the proceedings and absent notice – Leave to amend refused.

Legislation: Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) rr 2.18, 10.10

Cases cited: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39

Division: Division 1 First Instance

Number of paragraphs: 17

Date of hearing: 7 – 9 March 2022

Place: Sydney

Counsel for the Applicant: Mr Scarlett

Solicitor for the Applicant: Hudson Law Pty Ltd

Counsel for the Respondent: Mr Roberts

Solicitor for the Respondent: Barkus Doolan

Counsel for the Intervener: Mr Stapleton

Solicitor for the Intervener: Watts McCray
ORDERS

SYC 2654 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PEARCE

Applicant

AND:
MS PEARCE

Respondent

MS V PEARCE

Intervener

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

7 MARCH 2022

THE COURT ORDERS THAT:
1.I grant the intervener leave to make an oral application to amend her final relief sought.
2.I refuse the intervener’s oral application to amend her final relief sought.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pearce & Pearce has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:

These are proceedings relating to the division of property between Mr Pearce (“the husband”) and Ms Pearce (“the wife”). The proceedings have been listed for hearing of a discrete issue concerning whether Ms V Pearce (“the intervener”) is owed monies in relation to funds purportedly advanced to the parties.
On the first day of the discrete issue hearing, the intervener sought leave to amend her relief sought as identified in her Response to an Initiating Application filed on 3 March 2019 (“the Response”) in accordance with a document entitled “MFI-A Intervener’s Alternate Equitable Relief” (“MFI-A”). The…

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 (No 2)

Details

AGLC: Pearce & Pearce (No 2) [2022] FedCFamC1F 193
Case: [2022] FedCFamC1F 193
Decision Date

CaseChat Overview and Summary

In this case, the Federal Circuit and Family Court of Australia was tasked with considering an application by an intervener to amend the final relief sought in proceedings relating to the division of property between Mr Pearce and Ms Pearce. The intervener, Ms V Pearce, sought to amend her relief, which had been grounded on the basis of a loan arrangement, to include a claim for a resulting trust or an equitable charge in relation to a property. The wife opposed the application, arguing that she had not been given adequate notice and would be prejudiced if the amendment were allowed.

The court was required to determine whether it was appropriate to grant leave to the intervener to amend her relief, and if so, whether the amendment should be allowed. The legal issues included whether the principles of procedural fairness had been observed and whether the wife had had adequate notice of the proposed amendment. The court also considered the delay in the intervener seeking to amend her relief and whether it was just and equitable to allow the amendment at that stage in the proceedings.

The court found that it would not be fair to the wife to allow the intervener to amend her relief at such a late stage of the proceedings and absent notice. The intervener had been aware of the potential for the amendment since late 2019, and there was no explanation for the delay in seeking to make the amendment. The court concluded that to allow the amendment would see the court riding roughshod over a party's entitlement to procedural fairness, which is a fundamental right of all litigants. The court granted the intervener leave to make an oral application to amend her relief sought, but refused the application itself.

The final order of the court was that the intervener be granted leave to make an oral application to amend her relief sought, but the application itself was refused.

Orders