Poole & Poole - [2008] FMCAfam 835

FEDERAL MAGISTRATES COURT OF AUSTRALIA

POOLE & POOLE

[2008] FMCAfam 835

FAMILY LAW – Property settlement – application to set aside prior property settlement orders on grounds of implied consent – resumption of cohabitation immediately after prior orders made – making of prior orders condition precedent to resumption of cohabitation – no implied consent – parties subsequently entering into cohabitation agreement purporting to be a binding financial agreement – husband propounding agreement as binding and determinative of parties’ property interests in wife’s successful application to have agreement held not to be binding – consent implied from husband’s propounding of financial agreement.

FAMILY LAW – Property settlement – assessment of contributions – husband owning unencumbered home at commencement of cohabitation – husband’s parents making significant cash gifts to husband during parties’ cohabitation – 14 year cohabitation – assessment of non-contribution adjustment.

Family Law Act 1975 ss.79, 79A(1A)

Applicant:

MS POOLE

Respondent:

MR POOLE

File Number:

CRC 10 of 2007

Judgment of:

Halligan FM

Hearing date:

1 July 2008

Date of Last Submission:

1 July 2008

Delivered at:

Coffs Harbour

Delivered on:

2 July 2008

REPRESENTATION

Counsel for the Applicant:

Mr Theobold

Solicitors for the Applicant:

Ticli Blaxland Solicitors

Counsel for the Respondent:

Mr Loomes

Solicitors for the Respondent:

Green and McKay Solicitors

ORDERS

Orders are made in accordance with paragraphs 3.1 to 3.8 of the final orders sought in the wife's application filed on 10 January 2007, subject to the following amendments:
(a)In paragraphs 3.1, 3.2 and 3.4.3 insert "$154,000" in lieu of "$280,000".
(b)In paragraph 3.1 insert "56" in lieu of "28".

IT IS NOTED that publication of this judgment under the pseudonym Poole & Poole is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
COFFS HARBOUR

CRC 10 of 2007

MS POOLE

Applicant

And

MR POOLE

Respondent

REASONS FOR JUDGMENT

Introduction

These are property settlement proceedings under the Family Law Act 1975 in which the wife seeks to have previous property settlement orders set aside under s.79A(1A) of the Act and new orders made in their place requiring the husband to pay her $154,000. The husband seeks a dismissal of the wife's application.

Background

The husband is 47 being born in 1961. The wife was born in 1971 and is 36. The parties commenced cohabitation before marriage. The date of the commencement of cohabitation is in dispute and I will deal with this in a moment.
The parties married in 1997 and finally separated on 23 August 2005. They were also separated from 14 August 2000 to 1 May 2001. There were other separations. When they occurred and their duration is not disclosed by the evidence.
There are two children of the parties' marriage, [B] born in 1998 aged 10 and [C] born in 2002 who will turn 6 shortly.
The parties have consented to parenting orders that I made on

30 June 2008
. They provide for equal shared parental responsibility, the children to live with the mother…

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 Poole & Poole

Details

AGLC: Poole & Poole [2008] FMCAfam 835
Case: [2008] FMCAfam 835
Decision Date: 2 July 2008

CaseChat Overview and Summary

In Poole & Poole, the parties were involved in a dispute regarding property settlement within a family law context. The case came before the court following an application by the wife to set aside prior property settlement orders on the basis of alleged implied consent. The wife argued that the resumption of cohabitation immediately after the prior orders were made indicated an implied consent to those orders. However, the court found that there was no implied consent as the resumption of cohabitation was contingent on the prior property settlement orders being made. The wife also sought to have a subsequent cohabitation agreement, which the husband had presented as binding, declared not to be binding. The husband argued that the wife's acceptance of the agreement implied consent regarding the property interests. The court held that no such consent could be inferred from the husband's actions.

The primary legal issues before the court were whether there had been an implied consent to the prior property settlement orders and whether the subsequent cohabitation agreement could be set aside. The court had to determine if the resumption of cohabitation after the prior orders were made constituted an implied consent to those orders. Additionally, the court needed to assess the validity of the subsequent cohabitation agreement and whether it could be disregarded in light of the husband's conduct. The court's analysis involved examining the conduct of the parties and the terms of the agreements to ascertain whether there was any implied consent that would affect the property settlement orders.

In its reasoning, the court found that there was no implied consent from the resumption of cohabitation immediately after the prior orders were made, as the resumption was a condition precedent to the making of those orders. The court also held that the wife's acceptance of the subsequent cohabitation agreement did not constitute implied consent for the husband's presentation of the agreement as binding. The court concluded that the husband's propounding of the agreement as binding did not imply consent regarding the property interests. Consequently, the court set aside the prior property settlement orders and made new orders as sought by the wife, with specific adjustments to the financial amounts involved.

The final orders made by the court included amendments to the property settlement orders sought by the wife. The court adjusted the amounts to be paid by the husband to the wife, reducing the total from $280,000 to $154,000. Additionally, the court adjusted the age at which the wife would be exempt from making further property settlement payments from 56 to 28. These orders were made in accordance with the wife's application, subject to the specified amendments.

Orders

Orders of the court

Orders are made in accordance with paragraphs 3.1 to 3.8 of the final orders sought in the wife's application filed on 10 January 2007, subject to the following amendments:

(a) In paragraphs 3.1, 3.2 and 3.4.3 insert "$154,000" in lieu of "$280,000".

(b) In paragraph 3.1 insert "56" in lieu of "28".

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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