JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: OROSZ and SOWARDS [2010] FCWA 99
CORAM: THACKRAY CJ
HEARD: 3 SEPTEMBER 2010
DELIVERED : 24 SEPTEMBER 2010
FILE NO/S: PTW 3828 of 2009
BETWEEN: MS OROSZ
Appellant
AND
MR SOWARDS
Respondent
Catchwords:
APPEAL - LEAVE TO APPEAL - de facto property settlement - interlocutory order of Family Law Magistrate requiring appellant to leave home and transfer interest to respondent - non-disclosure of material facts by respondent - leave to appeal granted - appeal allowed - respondent to pay mortgage payments pending trial.
APPEAL - PRACTICE AND PROCEDURE - nature of appeal by way of rehearing.
Legislation:
Family Court Act 1997
Category: Reportable
Representation:
Counsel:
Appellant: Mr S Walker
Respondent: Mr M Berry
Solicitors:
Appellant: Tyrone B Grantham
Respondent: Lawton Gillon
Case(s) referred to in judgment(s):
Ah-Chee v Ah-Chee (PT 2314 of 2000)
Allesch v Maunz (2000) FLC 93-033
Cameron and Bell [2006] FCWA 139
Foote v Clune (PT 735 of 1988)
Kinraid v Walker (PT 3445 of 1999)
Martin v Bent (PT 2739 of 1996)
Phillips v. Commonwealth (1964) 110 C.L.R. 347
Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267
Roberts and Cetinic-Dorol [2008] FCWA 22
Rowe and Matthews [2006] FCWA 137
Strahan & Strahan (2009) 42 Fam LR 203
Tate v Tate (PT 5989 of 2000)
Truman & Clifton [2010] FCWA 91
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN
CHANGED
1This is an application for leave to appeal, and if leave is granted an appeal, by [Ms Orosz] against orders made on 30 June 2010 by Family Law Magistrate Fleming in property settlement proceedings involving her former de facto husband, [Mr Sowards].
2The learned Magistrate made a suite of orders precisely as requested by the respondent. These required a valuation to be obtained of a home in [Suburb A] which the parties had acquired in 2006. Upon the valuation being obtained the respondent was required to pay $50,000 to the appellant, which was to be treated as part of her property settlement. Upon payment being made, the appellant was required to move out of the home, where she had been living since the respondent departed in September 2009. She was also required to transfer her interest in the property to the respondent and he was required to refinance the mortgage.
3As these orders were interlocutory, leave to appeal was required. I directed that the application for leave be argued at the same time as the appeal itself; however, at an early stage in the argument I indicated my intention to grant leave in light of the non‑disclosure of material facts by the respondent at the hearing below. Counsel for the respondent properly did not oppose this course.
Brief background
4The evidence has yet to be tested, but the following background facts appear largely uncontroversial.
5The appellant is 41 years of age. She…
Continue reading OROSZ and SOWARDS
Sign in free to access the full text
- AGLC
- OROSZ and SOWARDS [2010] FCWA 99
- Case
- [2010] FCWA 99
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the effect of non-disclosure on interlocutory orders and whether such non-disclosure justified setting aside the order made by the Family Law Magistrate. The court had to examine the nature of the appeal, which was not just a review of the Magistrate's decision but a rehearing to ensure all relevant facts were considered. The court also had to weigh the interests of both parties in the property and the procedural fairness in the original hearing.
The court found that the non-disclosure by Sowden of material facts significantly affected the outcome of the interlocutory order. The court held that the failure to disclose these facts was substantial enough to warrant setting aside the order and allowing the appeal. The court granted leave to appeal and allowed the appeal, thereby reversing the Magistrate's order. The court also ordered that Sowden pay the mortgage payments pending the trial. This decision underscores the importance of full disclosure in family law matters and the need for procedural fairness in interlocutory hearings.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.