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PEARSON & PEARSON

PEARSON & PEARSON

Case [2021] FamCAFC 34 12 March 2021

Appeal

Family Law Act 1975 (Cth)

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FAMILY COURT OF AUSTRALIA

PEARSON & PEARSON

[2021] FamCAFC 34

FAMILY LAW – APPEAL – PROPERTY – Appeal against an order dismissing the appellant husband’s application to have consent orders set aside pursuant to s 79A(1)(a) and s 79A(1A) of the Family Law Act 1975 (Cth) – Where the appellant had alleged that the respondent had given false evidence in the application for consent orders; that the appellant had received incompetent legal advice which was not independent and that the consent orders were so unjust so as to amount to a miscarriage of justice – Where the primary judge found errors in the application for consent orders did not constitute a basis for setting the orders aside; the appellant had received competent legal advice; and the outcome produced by the consent orders were not so far beyond the range as to constitute a miscarriage of justice – Where the appellant asserted that the parties had subsequently recommenced cohabitation and there was implied consent to set the orders aside – Where the primary judge found the parties had not recommenced cohabitation – Conclusions open on the evidence – Where the primary judge did not err by not drawing an adverse inference arising from the respondent’s failure to call two witnesses – No merit to any challenge on appeal – Appeal dismissed – Costs ordered in favour of the respondent wife.

FAMILY LAW – APPEAL – COSTS – Appeal against a costs order – Where it was conceded that if the substantive appeal was dismissed the appeal against the cost order should be dismissed – Appeal dismissed.

Evidence Act 1995 (Cth) ss 38, 144
Family Law Act 1975 (Cth) ss 79, 79A

Clifton and Stuart (1991) FLC 92-194; [1990] FamCA 154
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
JPQS Pty Ltd v Cosmarnan Constructions Pty Ltd [2003] NSWCA 66
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Manly Council v Byrne and Anor [2004] NSWCA 123
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Public Trustee (as executor of the estate of the late Gilbert) v Gilbert (1991) FLC 92-211; [1991] FamCA 10
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

APPELLANT:

Mr Pearson

RESPONDENT:

Ms Pearson

FILE NUMBER:

SYC

8557

2015

FIRST APPEAL NUMBER:

EAA

141

2019

SECOND APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

12 March 2021

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Ainslie-Wallace, Watts & Austin JJ

HEARING DATE:

23 October 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATES:

6…

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 PEARSON & PEARSON

Details

AGLC: PEARSON & PEARSON [2021] FamCAFC 34
Case: [2021] FamCAFC 34
Decision Date

CaseChat Overview and Summary

This appeal concerns the validity of consent orders made by a Registrar of the Local Court of New South Wales on 26 November 2007 (“the consent orders”) which, amongst other things, required the appellant, Mr Pearson (“the appellant”) to transfer his interest in three jointly owned properties to the respondent, Ms Pearson (“the respondent”). The parties were divorced in April 2015. The appellant challenged the validity of the consent orders on various grounds and sought to have them set aside. The primary judge rejected the application and the appellant now appeals that decision. The primary judge also ordered the appellant to pay the respondent’s costs and the appellant appeals that order also. The appeal against the substantive order should be dismissed as there is no merit in any of the grounds of appeal. The appeal against the costs order should also be dismissed. Costs in the sum of $23,580 should be paid by the appellant to the respondent.The appeal numbered EAA 141 of 2019 be dismissed.The appeal numbered EAA 71 of 2020 be dismissed.The appellant pay the respondent’s costs fixed in the sum of $23,580 within a period of twenty-eight (28) days of the date of these orders.The primary judge concluded that the parties separated on 10 May 2007 and did not resume living together as a couple. The primary judge found that the consent orders were made on 26 November 2007 and required the appellant to transfer to the respondent his interest in three jointly owned properties (two of which had no equity). The transfers were signed either on 7 November 2007 or soon thereafter and dated 21 November 2007.The appellant’s case before the primary judge was that the consent orders were a collaboration between the parties so that the appellant could receive Centrelink benefits between May 2007 and December 2014; and that although the parties separated in 2007, their relationship as a couple restored in 2008 until they finally separated on 16 December 2014 and the orders should be set aside on the basis of the implied consent of the parties following their reconciliation.The primary judge rejected both of those contentions. The primary judge found that there was no evidence of the parties resuming their relationship as a couple, and that the consent orders were not made for the purpose of the appellant obtaining Centrelink benefits. The primary judge also found that the appellant had received competent legal advice and that the outcome produced by the consent orders was not so far beyond the range as to constitute a miscarriage of justice.The appeal against the substantive order should be dismissed. The primary judge found that the appellant was not living with the respondent at the time the consent orders were made and that there was no resumption of the parties’ relationship as a couple. There was no merit in any of the grounds of appeal and the appeal should be dismissed.The appeal against the costs order should also be dismissed. The parties had conceded that if the appeal against the substantive order was dismissed, then so too should the appeal against the primary judge’s costs order. The appeal against the costs order should be dismissed and the appellant ordered to pay the respondent’s costs in the sum of $23,580 within 28 days of the date of these orders.

Orders