Panshin and Farmer

[2012] FamCAFC 197

FAMILY COURT OF AUSTRALIA

PANSHIN & FARMER [2012] FamCAFC 197

FAMILY LAW ─ APPEAL ─ PROPERTY ─ Application for leave to appeal interlocutory orders made by Federal Magistrate in proceedings for property settlement ─ Whether it was reasonably open to the Federal Magistrate to conclude that the appellant did not demonstrate that she had the capacity to avoid a sale of the property and that, in those circumstances, declining to make an order for its sale would only be likely to diminish the parties’ equity in the property, or that, even if a sale was not inevitable, that only by selling the property would the parties’ dwindling equity in it be preserved ─ Where the Court was not persuaded that the Federal Magistrate erred in the exercise of his discretion by approaching the application for the sale of the parties’ property in reliance upon the Court’s powers to make orders for settlement of property rather than the Court’s injunctive powers ─ Nothing to which this Court was referred established that the Federal Magistrate misunderstood or in any way erred in fact in concluding that the evidence did not establish that anything which the appellant had done, or was doing, or could do, would, on the balance of probabilities, impede the ability of the bank to exercise its rights under its security over the property of the parties ─ Where the orders made by the Federal Magistrate were clearly open to his Honour, and represented the best, if not only, avenue for preserving and realising the parties’ modest equity in the property of the parties ─ Not established that the inferences drawn by the Federal Magistrate were other than reasonably open to his Honour and that the facts upon which those inferences were based were other than reasonably open to him ─ No appealable error demonstrated ─ Appellate intervention not enlivened ─ Application for leave to appeal dismissed.

FAMILY LAW ─ APPEAL ─ EVIDENCE ─ Applications to adduce fresh evidence ─ Where the further evidence which was contained in two affidavits did not advance the challenges of the appellant that the Federal Magistrate erred in concluding that there appeared no reasonable alternative to a sale of the property of the parties if the ongoing diminution of the parties’ equity in it was to be avoided ─ Where the further evidence failed to demonstrate that the decisions under challenge were erroneous.

Family Law Act 1975 (Cth) Part VIIIAB, ss 90SM, 93A, 94, 114(3)
Real Property Act 1900 (NSW) s 57(2)(b)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Allesch v Maunz (2000) 203 CLR 172
CDJ v VAJ (1998) 197 CLR 172
Edwards v Noble (1971) 125 CLR 296
Gabel and Yardley (2008) FLC 93-386
House v The King (1936) 55 CLR 499
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Rutherford and Rutherford (1991) FLC 92-255
Strahan and Strahan (Interim Property Orders) (2011) FLC 93-466
Waugh and Waugh (2000) FLC…