Appearances:	Mr Kirk of Senior Counsel instructed by Hopgood Ganim, Lawyers, Level 3, T&G Building, 141 Queen Street, Brisbane Qld 4000, appeared on behalf of the appellant wife.
Mr Couper of Queen’s Counsel with Ms Hogan of Counsel instructed by McLaughlins, Solicitors, Level 11, Seabank, 12 Marine Parade, Southport Qld 4215, appeared on behalf of the respondent husband.

PROPERTY SETTLEMENT – Consent Orders – Application to set aside orders – Summary dismissal not available when circumstances particularised may be held to constitute a miscarriage of justice by reason of “suppression of evidence” or “any other circumstance.” “Suppression of evidence” – whether failure to disclose financial circumstances may amount to - when duty of disclosure arises.

Bigg v Suzi (1998) FLC 92-799; Morrison and Morrison (1995) FLC 92-573; Suiker and Suiker (1993) FLC 92-436 followed. Harris v Caladine (1991) FLC 92-217, considered.

Family Law Act 1975 – s79A(1)(a)

This was an application, by the wife, for leave to Appeal, and if leave was granted, an Appeal against the declaration made by Jerrard J on 30 April, 1999, that particulars provided by the wife of her application to vary consent orders did not, as a matter of law, constitute either “duress,” “suppression of evidence” or “any other circumstance,” within the meaning of s.79A(1)(a). The wife also appealed against orders subsequently made by Jerrard J which both dismissed her application for leave to amend the particulars, and struck out the initial application for variation of the consent orders.

The parties commenced cohabitation in November, 1980 and were subsequently married on 28 February, 1982. The husband, aged 85, was born on 12 July 1914, whilst the wife, who is 21 years his junior and aged 64, was born on 7 June, 1936. Whilst the actual date of separation is not forthcoming, the wife alleged that the relationship lasted in excess of 16 years.

The wife maintained that the relationship was somewhat difficult in that the husband refused to put any property into her name or discuss (presumedly financial) matters with her. The wife complained that whilst he suffered from depression at various times, he was “dominating, controlling and manipulative” of her.

The parties entered into consent orders on 17 February, 1997. These orders provided that the husband was to pay the wife $1 000 per week from 21 January, 1997, for the rest of his life, in conjunction with the sum of $2 000 000 on or before 5 March, 1997. The consent orders also provided for the husband to transfer two properties at Donnegal Crescent, Sorrento into both parties’ names as joint tenants but to remain solely…

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 Pelerman v Pelerman

Details

AGLC: Pelerman v Pelerman [2000] FamCA 881
Case: [2000] FamCA 881
Decision Date: 28 July 2000

CaseChat Overview and Summary

The case of *Pelerman v Pelerman* involved an appeal to the Full Court of the Family Court of Australia concerning an application to set aside consent orders made in property settlement proceedings. The wife sought to vary consent orders previously made, alleging a miscarriage of justice due to duress, suppression of evidence, or other circumstances, as permitted by section 79A(1)(a) of the *Family Law Act 1975*. The primary judge had declared that the particulars provided by the wife did not, as a matter of law, constitute these grounds and subsequently dismissed her application to amend the particulars and struck out her original application.

The legal issues before the Full Court were whether the primary judge erred in law and in the exercise of discretion by summarily dismissing the wife's application. Specifically, the court had to determine if the particulars provided by the wife, which alleged her lack of knowledge of the husband's financial affairs due to his behaviour, could establish a miscarriage of justice under section 79A(1)(a). The wife contended that her ignorance of the husband's financial position, coupled with his controlling conduct, meant she did not provide informed consent to the consent orders, leading to an unjust outcome.

The Full Court found that the primary judge had erred in summarily dismissing the wife's application. The court reasoned that the husband's failure to disclose his financial circumstances when the consent orders were made could constitute "any other circumstance" leading to a miscarriage of justice, making the application not "doomed to fail." Furthermore, the court held that the failure to disclose financial circumstances meant there was an absence of informed consent, which could amount to "suppression of evidence," again meaning the summary dismissal was an error. The court affirmed the primary judge's finding that the particulars did not disclose a case of "duress."

Consequently, the Full Court granted leave to appeal, allowed the appeal, and set aside the primary judge's declaration. The court also set aside the orders dismissing the wife's application to amend particulars and striking out her original application, allowing the matter to proceed.

Orders