BADER & SPINNER - [2019] FCCA 575

FEDERAL CIRCUIT COURT OF AUSTRALIA

BADER & SPINNER

[2019] FCCA 575

Catchwords:
FAMILY LAW – Wife refusing to comply with order for her to vacate former matrimonial home – wife asserting at trial that one of the two major matrimonial assets (the business) was deliberately rendered valueless by the husband – application under s 79A to set aside final consent orders settling dispute – application granted – proceeding regularised – trial refixed.

Legislation:

Family Law Act 1958, s.79A

Applicant:

MR BADER

Respondent:

MS SPINNER

File Number:

MLC 6810 of 2015

Judgment of:

His Honour Judge J D Wilson QC

Hearing date:

4 and 5 March 2019

Date of Last Submission:

5 March 2019

Delivered at:

Melbourne

Delivered on:

5 March 2019

REPRESENTATION

Counsel for the Applicant:

Ms E Swart

Solicitors for the Applicant:

Davis Zucco Lawyers

Counsel for the Respondent:

Mr A Sandbach

Solicitors for the Respondent:

Lennon Lawyers

ORDER

By 4pm Thursday 7 March 2019 the parties submit a minute of proposed orders that give effect to these reasons.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 6810 of 2015

MR BADER

Applicant

And

MS SPINNER

Respondent

REASONS FOR JUDGMENT

(ex tempore)

On 26 August 2016 consent orders were made by me on a final basis in this proceeding. Of importance, the parties agreed that within seven days the property in Property A they owned would be sold under a relatively straightforward regime and upon the settlement of the sale, the net proceeds were to be applied as to half to the applicant and as to the other half to the respondent.
That was August 2016.
The Property A property has not been sold and events have moved to March 2019. The division of property has not yet been ordered to finality.
This case has been before me since those consent orders very many times. On 8 February 2017 this case was first before me following the consent orders. On that day the husband sought orders on the return of an application in a case dated 31 January 2017 for the sole use and occupation of the former matrimonial home and until settlement of its sale and that a reserve price of $3 000 000 be set. The husband also asked for the “redetermination” of paragraph 12 of the final orders made on 26 August 2016. That order required the parties to do all acts and sign all documents so that the business known as Company B conducted by Company C could be sold.
The former matrimonial home had not been sold in accordance with the consent orders made on 26 August 2016.
On 8 February 2017 both parties were represented. A debate ensued about why the property had not been sold. It was apparent that whatever agreement had been reached on 26 August 2016 had been largely ignored. It was apparent…

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 BADER & SPINNER

Details

AGLC: Bader and Spinner [2019] FCCA 575
Case: [2019] FCCA 575
Decision Date: 5 March 2019

CaseChat Overview and Summary

The parties, Bader and Spinner, were involved in a dispute concerning the division of matrimonial assets. The wife had refused to comply with an order to vacate the former matrimonial home. Crucially, the wife also asserted at trial that the husband had deliberately rendered one of the two major matrimonial assets, a business, valueless. This assertion formed the basis of an application brought by the wife under section 79A of the *Family Law Act 1975* (Cth) to set aside final consent orders that had previously settled the dispute. The matter came before His Honour Judge J D Wilson QC.

The primary legal issue before the court was whether the final consent orders should be set aside pursuant to section 79A of the *Family Law Act 1975* (Cth). This required the court to determine if there had been any fraud, duress, or other circumstances that rendered the consent orders unjust. Specifically, the court had to consider the wife's claim that the husband had deliberately devalued the business asset, and whether this conduct, if proven, constituted grounds to invalidate the prior settlement.

His Honour Judge J D Wilson QC found that the circumstances warranted setting aside the final consent orders. The court reasoned that the wife's assertion regarding the husband's deliberate devaluation of the business, if true, would render the consent orders unjust. The court viewed the proceeding as having been regularised by this determination, and accordingly, the trial was refixed to address the substantive issues of asset division in light of this finding.

The court ordered that by 4pm on Thursday, 7 March 2019, the parties were to submit a minute of proposed orders that gave effect to these reasons.

Orders

Orders of the court

By 4pm Thursday 7 March 2019 the parties submit a minute of proposed orders that give effect to these reasons.

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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