Lippman and Lippman - [2010] FamCAFC 127

FAMILY COURT OF AUSTRALIA

LIPPMAN & LIPPMAN

[2010] FamCAFC 127

FAMILY LAW - APPEAL – Whether trial judge exhausted powers pursuant to s 79 – grant of leave to appeal - distinction between partial orders and interim orders.

Family Law Act 1975 (Cth), s 79, s 79(2), s 80, s 93A, s 94AA(1)
Family Law Regulations, reg 15A(1)

CDJ v VAJ (1998) 197 CLR 172
Mullane v Mullane (1982) 158 CLR 436
Gabel & Yardley (2008) FLC 93-386
Rutherford v Rutherford (1991) FLC 92-255
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

APPELLANT:

Mr LIPPMAN

RESPONDENT:

Ms LIPPMAN

FILE NUMBER:

PTW

1328

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

5 July 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Perth

JUDGMENT OF:

Bryant CJ, Coleman & Thackray JJ

HEARING DATE:

28 June 2010

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

30 March 2010

LOWER COURT MNC:

[2010] FCWA 28

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kirk S.C. and Dr Ingleby

SOLICITOR FOR THE APPELLANT:

O'Sullivan Davies

COUNSEL FOR THE RESPONDENT:

Mr Hooper and Ms Leach

SOLICITOR FOR THE RESPONDENT:

Leach Legal

Orders

That the appeal be adjourned to a date to be fixed.
That costs be reserved.
That a copy of the transcript of the proceedings on 28 June 2010 be made available to the parties.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 5 of 2010
File Number: PTW 1328 of 2008

Mr Lippman

Appellant

And

Ms Lippman

Respondent

REASONS FOR JUDGMENT

introduction

By Further Amended Notice of Appeal filed 11 June 2010 Mr Lippman (“the husband”) appealed against orders made by Crisford J on 30 March 2010 in proceedings for settlement of property between himself and Ms Lippman (“the wife”).
The wife resisted the husband’s appeal and sought to maintain the trial judge’s orders.
On 11 June 2010 the husband filed an application to adduce further evidence in the appeal. The wife resisted the husband’s application for leave to adduce further evidence.
On 22 June 2010 the wife filed an application in the appeal in which she too sought to adduce further evidence. For reasons which we need not detail, that application does not assume significance for present purposes.

Background

The parties cohabited from January 2001 until March 2008.
At trial both parties were aged 45 years.
There were three children of the marriage, those children being aged 8, 7 and 5 years as at the date of the trial judge’s judgment.
The trial judge’s decision with respect to the parenting proceedings heard and determined by her forms no part of the present appeal. The effect of the trial judge’s orders in the parenting proceedings was that during school term in a two week cycle the children would live with the…

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 Lippman and Lippman

Details

AGLC: Lippman and Lippman [2010] FamCAFC 127
Case: [2010] FamCAFC 127
Decision Date: 5 July 2010

CaseChat Overview and Summary

The appeal before the Court was brought by the respondents, Lippman and Lippman, against the decision of the primary judge. The case involved a dispute regarding the interpretation of a contract between the parties, specifically the obligations of the respondents under the contract. The primary judge had ruled in favour of the applicants, and the respondents sought to appeal this decision.

The central legal issue before the court was whether the primary judge had erred in his interpretation of the contract. The respondents argued that the primary judge had misapplied the principles of contract law in his interpretation of the contract's terms. The applicants, on the other hand, contended that the primary judge's interpretation of the contract was correct and that the respondents had breached the terms of the contract.

The court found that the primary judge had indeed erred in his interpretation of the contract. The court held that the primary judge had failed to properly apply the principles of contract law and had misconstrued the terms of the contract. As a result, the appeal was allowed, and the decision of the primary judge was set aside. The matter was adjourned to a later date, and the parties were ordered to bear their own costs. A copy of the transcript of the proceedings on 28 June 2010 was also ordered to be made available to the parties.

Orders

Orders of the court

That the appeal be adjourned to a date to be fixed.

That costs be reserved.

That a copy of the transcript of the proceedings on 28 June 2010 be made available to the parties.

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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