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R(formerly B) and B

R(formerly B) and B

Case [2008] FCWA 55 20 May 2008

Summary Judgment

Appeal

Unconscionable Conduct

Family Law

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[2008] FCWA 55

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	R(formerly B) and B [2008] FCWA 55
CORAM	:	CRISFORD J
HEARD	:	7 APRIL 2008
DELIVERED	:	20 MAY 2008
FILE NO/S	:	PT 4732 of 2001
BETWEEN	:	R (formerly B) Applicant/Wife
AND
B Respondent/Husband
Catchwords:

Property settlement - application to set aside orders pursuant to s 79A - failure to disclose between trial and judgment - whether miscarriage of justice - application for summary dismissal

Legislation:

Family Law Act 1975, s79A

Category: Not Reportable

[2008] FCWA 55

Representation:

Counsel:

Applicant:	Mr M Rynne
Respondent:	Mr J Hanly

Solicitors:

Applicant:	Klimek & Co
Respondent:	Hotchkin Hanly

Case(s) referred to in judgment(s):

Bain Pacific Associations & Ors and Kelly & Ors (2006) FLC 93-270
Barker v Barker (2007) Fam LR 650
Beck and Beck (2004) FLC 93-181
Bigg v Suzi (1998) FLC 92-799
Black and Kellner (1992) FLC 92-287
Boege & Boege [2002] FamCA 276
Briese and Briese (1986) FLC 91-713
Browne & Green [2002] FamCA 94
Browne v Green (2002) FLC 93-115
Clifton and Stuart (1991) FLC 92-194
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
Custodio and Pinto & Ors (2006) FLC 93-279
Geremin & Morton [2002] FamCA 788
Giunti and Giunti (1986) FLC 91-759
Kannis and Kannis (2003) FLC 93-135
Lindon v The Commonwealth [No. 2] (1996) 70 ALJR 541
Livesey v Jenkins [1985] 1 All ER 106
Morrison and Morrison (1995) FLC 92-573
Mulley v Manifold (1959) 103 CLR 341
Norman & Howath [2003] FamCA 1284
Oriolo and Oriolo (1985) FLC 91-653
Pelerman v Pelerman (2000) FLC 93-037
Rauh (formerly Bajada) and Bajada [2007] FCWA 12
Suiker and Suiker (1993) FLC 92-436
Tate v Tate (2000) FLC 93-047
Vernon v Bosley (No 2) [1997] 1 All ER 614
Weir and Weir (1993) FLC 92-338

[2008] FCWA 55

1 The Court is asked to determine [Mr B]’s application for summary dismissal of

[Ms R]’s application that orders made 30 January 2007 in relation to property
settlement be varied or set aside pursuant to s 79A of the Family Law Act 1975.
2 The orders of 30 January 2007 disposed of financial matters between the parties
on a final basis save for the issue of child support. The proceedings had been commenced by [Ms R], initially, on 14 August 2001. The trial proceeded between 27 and 30 March 2006.
3 [Mr B] says the present application of [Ms R] is completely without merit, is an abuse of process of the Court and should be summarily dismissed.

Brief chronology

4 It is helpful to understand the progress of this matter generally and through the
Court to date.
5 The husband was born [in] December 1950 and is 57 years of age. The wife was born [in] November 1955 and is 52 years of age.
6 It appears that the parties commenced cohabitation sometime in 1978. They
were married [in] December 1979.…

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 R(formerly B) and B

Details

AGLC: R(formerly B) and B [2008] FCWA 55
Case: [2008] FCWA 55
Decision Date: 20 MAY 2008

CaseChat Overview and Summary

The applicants sought to set aside orders made pursuant to a property settlement agreement. The parties had been before the court on several occasions and had undergone a lengthy trial. After the trial, but prior to judgment, the husband failed to disclose the existence of a further trust account. The wife was not made aware of the existence of this trust until after the final orders had been made. The wife subsequently sought to set aside the orders, claiming that the husband's failure to disclose the trust constituted a miscarriage of justice.

The court was required to determine whether the husband's failure to disclose the existence of the trust was a miscarriage of justice and, if so, whether the wife's application to set aside the orders should be summarily dismissed. The court noted that the husband had not made full and frank disclosure of his assets, and that this was a serious breach of his obligation under the Family Law Act. The court further noted that the husband's failure to disclose the trust had resulted in a significant injustice to the wife, who was unaware of the existence of the trust until after the final orders had been made.

The court held that the husband's failure to disclose the trust was a miscarriage of justice and that the wife's application to set aside the orders should not be summarily dismissed. The court found that the husband's failure to disclose the trust was a serious breach of his obligations under the Family Law Act, and that this breach had resulted in a significant injustice to the wife. The court noted that the husband had not provided any explanation for his failure to disclose the trust, and that this failure had resulted in the wife being deprived of a significant asset. The court further noted that the husband's failure to disclose the trust had resulted in the wife being required to make significant financial sacrifices in order to provide for the parties' children.

The court ordered that the application to set aside the orders be listed for a directions hearing. The court noted that it would be appropriate for the parties to attempt to reach an agreement as to the appropriate orders to be made, and that if the parties were unable to reach an agreement, the court would make orders pursuant to its discretion under the Family Law Act.

Orders