Cadman & Cadman - [2023] FedCFamC2F 630

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cadman & Cadman [2023] FedCFamC2F 630

File number(s): NCC 1794 of 2021

Judgment of: JUDGE BETTS

Date of judgment: 10 May 2023

Catchwords: FAMILY LAW – Property proceedings – where the Court made final consent orders in accordance with the parties joint application – where a dispute arose concerning the proper interpretation of the consent orders – where the wife filed an enforcement application – where the wife contends that the husband had underpaid her in terms of her entitlements – where the husband contends that he has paid the wife her full entitlement – where the husband accuses the wife’s legal representatives of subtly re-drafting the consent order in a way which was different from earlier “Heads of Agreement” entered into by the parties following a mediation – where the Court considers that the terms of the consent order reflected a clear, communicated change to the “Heads of Agreement” and where the wife’s legal representatives were in no way misleading – where the Court considers that the wife’s legal representatives did not engage in any improper conduct in relation to the drafting or interpretation of the consent order – order enforced – just and equitable.

Legislation:
Commonwealth Evidence Act 1995

Family Law Act 1975 (Cth)

Real Property Act 1900 (NSW)

Cases cited: Taylor v Johnson (1983) 151 CLR 422

Division: Division 2 Family Law

Number of paragraphs: 76

Date of last submissions: 1 May 2023

Date of hearing: 9 February 2023

Place: Newcastle

Solicitors for the Applicant: Doolan Wagner Family Lawyers

Solicitors for the Respondent: Turnbull Hill Lawyers

ORDERS

NCC1794 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CADMAN

Applicant

AND:
MR CADMAN

Respondent

order made by:

JUDGE BETTS

DATE OF ORDER:

10 MAY 2023

THE COURT ORDERS THAT:
1.A declaration that $140,885.88 remains payable by the Husband to the Wife in accordance with Order 5 of the Orders of 29 August 2022.
2.A declaration that Order 5 of the Orders of 29 August 2022 required the Husband and his Brother to discharge the CBA mortgage by repaying it from their own funds.
3.The proceeding is adjourned to consider any extant applications including costs applications to 9.30am on 14 June 2023.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cadman & Cadman

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.

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Details

AGLC: Cadman & Cadman [2023] FedCFamC2F 630
Case: [2023] FedCFamC2F 630
Decision Date

CaseChat Overview and Summary

This case involved a dispute between the parties, Mr Cadman and Ms Cadman, over the interpretation of a consent order made by the Court in relation to their matrimonial property settlement. The Wife contended that the Husband had underpaid her in terms of her entitlements under the order, while the Husband argued that he had paid the Wife her full entitlement. The Husband accused the Wife's legal representatives of subtly re-drafting the consent order in a way which was different from earlier "Heads of Agreement" entered into by the parties following a mediation. The Court considered that the terms of the consent order reflected a clear, communicated change to the "Heads of Agreement" and that the Wife's legal representatives were not misleading. The Court found that the Wife's legal representatives did not engage in any improper conduct in relation to the drafting or interpretation of the consent order.

The Court ordered that $140,885.88 remained payable by the Husband to the Wife in accordance with Order 5 of the Orders of 29 August 2022. The Court also declared that Order 5 of the Orders of 29 August 2022 required the Husband and his brother to discharge the CBA mortgage by repaying it from their own funds. The proceeding was adjourned to consider any extant applications including costs applications.

Orders