Golding and Wilmer (No.2) - [2017] FCCA 2008

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOLDING & WILMER (No.2)

[2017] FCCA 2008

Catchwords:
FAMILY LAW – Application for a stay of proceedings pending the resolution of an appeal from an interlocutory order – finding of fact – exercise of discretion.

Aldrige & Keaton [2009] FamCAFC 106
Dalton & Dalton [2017] FamCAFC 78
Gronow & Gronow (1979) 144 CLR 513
House v R (1936) 55 CLR 499
Medlow & Medlow [2016] FamCAFC 34
Rugolino & Howard [2010] VSC 590

Applicant:

MR GOLDING

Respondent:

MS WILMER

File Number:

MLC 11080 of 2015

Judgment of:

Judge McNab

Hearing date:

16 August 2017

Date of Last Submission:

16 August 2017

Delivered at:

Melbourne

Delivered on:

16 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Tatarka

Solicitors for the Applicant:

Berry Family Law

Counsel for the Respondent:

Mr Matta

Solicitors for the Respondent:

Mitchell Family Law

ORDERS

The application to stay the proceeding pending hearing and finalisation of the appeal be dismissed.
By 23 August 2017 the Wife provide the Husband with:
(a)Current valuation of her superannuation entitlements;
(b)Financial Statements for [Business A] for the latest financial year available;
(c)Financial Statements for [Business B] for the latest financial year available.
Not later than 14 Days after the provision of the material referred to in paragraph 2 of this Order, the Husband file and serve any responding affidavit material from his accountant.
The Husband and the Wife do all acts and things necessary to ensure that their accountants attend a conference within 21 days after the Husband files his responding affidavit material as required by paragraph 3 of this Order.
At the conference the parties’ accountants must:
(a)Identify the issues on which they agree or disagree;
(b)If practicable reach agreement on any outstanding issue;
(c)Identify the reason for disagreement on any issue;
(d)Identify what action (if any) may be taken to resolve any outstanding issues;
(e)Prepare a joint statement specifying the matters mentioned in sub-paragraphs (a)-(d) and deliver a copy to each party.
The joint statement referred to in sub-paragraph 5(e) may be tendered as evidence of matters agreed on and to identify the issues on which evidence will be called.
Should the parties fail to agree as to the value of the property at [Property A] by 45 days prior to Trial they appoint Mr H to prepare an updated valuation and the cost of such valuation be shared equally between the parties.
Otherwise orders 6, 7 and 8 of the Orders made on 14 November 2016 be discharged.
The Court notes that the estimate of the trial fixed for 23 October 2017 has been amended to 3-5 days.
The Wife pay the Husband’s costs of:
(a)Her response to his application dated 21 July 2017.
(b)The Wife’s application for a stay pending appeal:
fixed at $2756.

IT IS NOTED that publication of this judgment under the pseudonym Golding & Wilmer (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11080 of 2015

MR…

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

Case: [2017] FCCA 2008
Decision Date: 16 August 2017

CaseChat Overview and Summary

In *Golding and Wilmer (No.2)*, Judge McNab considered an application by the Wife to stay proceedings pending the finalisation of an appeal, alongside various procedural and disclosure matters in a family law dispute between the Husband and Wife.

The court was required to determine whether to grant the Wife's application for a stay of proceedings. Additionally, the court needed to make orders regarding the disclosure of financial information by the Wife, the filing of responding material by the Husband, and the process for accountants to confer and identify areas of agreement and disagreement concerning the valuation of assets. The court also addressed the valuation of a specific property and the potential discharge of prior orders.

Judge McNab dismissed the Wife's application for a stay, finding it appropriate to proceed with the proceedings. The court then made detailed orders for the Wife to provide current valuations of her superannuation and financial statements for two businesses. Directions were given for the Husband to file responding affidavits from his accountant, followed by a mandatory conference between the parties' accountants to identify and attempt to resolve valuation issues. The court also stipulated a process for obtaining an updated valuation of a particular property if the parties could not agree on its value prior to trial, and noted an amendment to the estimated trial length. The Wife was ordered to pay the Husband's costs for her response to his application and her own application for a stay.

Orders

Orders of the court

The application to stay the proceeding pending hearing and finalisation of the appeal be dismissed.

By 23 August 2017 the Wife provide the Husband with:

(a) Current valuation of her superannuation entitlements;

(b) Financial Statements for [Business A] for the latest financial year available;

Not later than 14 Days after the provision of the material referred to in paragraph 2 of this Order, the Husband file and serve any responding affidavit material from his accountant.

The Husband and the Wife do all acts and things necessary to ensure that their accountants attend a conference within 21 days after the Husband files his responding affidavit material as required by paragraph 3 of this Order.

At the conference the parties’ accountants must:

(a) Identify the issues on which they agree or disagree;

(b) If practicable reach agreement on any outstanding issue;

(d) Identify what action (if any) may be taken to resolve any outstanding issues;

(e) Prepare a joint statement specifying the matters mentioned in sub-paragraphs (a)-(d) and deliver a copy to each party.

The joint statement referred to in sub-paragraph 5(e) may be tendered as evidence of matters agreed on and to identify the issues on which evidence will be called.

Should the parties fail to agree as to the value of the property at [Property A] by 45 days prior to Trial they appoint Mr H to prepare an updated valuation and the cost of such valuation be shared equally between the parties.

Otherwise orders 6, 7 and 8 of the Orders made on 14 November 2016 be discharged.

The Court notes that the estimate of the trial fixed for 23 October 2017 has been amended to 3-5 days.

10.

The Wife pay the Husband’s costs of:

(a) Her response to his application dated 21 July 2017.

(b) The Wife’s application for a stay pending appeal:

fixed at $2756.

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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