Riemann & Riemann and Ors (No. 3) - [2017] FamCA 911

FAMILY COURT OF AUSTRALIA

RIEMANN & RIEMANN AND ORS (NO. 3)

[2017] FamCA 911

FAMILY LAW – PRACTICE AND PROCEDURE – INTERIM PROCEEDINGS – Where the wife sought to join additional parties to the proceedings and to set aside a transaction pursuant to section 106B of the Family Law Act 1975 (Cth) – Where the husband and the intervenors opposed the application – Where the husband sought orders to be relieved of his obligation to respond to the Notice to Admit Facts and Authenticity of Documents served upon him – Consideration of the requirements of section 106B of the Act – Court finds that the wife has not established an arguable case for the relevant disposition to be set aside pursuant to section 106B(1) of the Act – Court finds that the husband should be relieved of his obligation to respond to Schedule A of the Notice to Admit Facts and Authenticity of Documents – Orders made for the husband, within 14 days of being provided with the relevant documents referred to in Schedule B of the wife’s Notice to Admit Facts and Authenticity of Documents, file and serve a Response to that Notice - Court finds that the third parties should not be joined to the proceedings – application for joinder dismissed – application to set aside the transaction dismissed.

Family Law Act 1975 (Cth) ss 106B, 118
Family Law Rules 2004 (Cth) rr 6.02, 6.03, 6.04

B Pty Ltd and Ors & K and Anor (2008) FLC 93-380
Beaumaris Football Club v Hart & Ors and Bayside City Council v Hart & Ors [2017] VSCA 226
Bourke & Bourke and Anor (Final Hearing Costs) [2010] FamCA 199
Chifley and Ha [2017] FamCA 683
D and D (1984) 10 Fam LR 73
Gould and Gould and Swire Investments Ltd (1993) FLC 92-434
Grech v Deak-Fabrikant (No 3) [2015] VSC 581
Hajduk and Hajduk (1993) FLC 92-383
Halabi v Artillaga (Halabi) (1993) 17 Fam LR 675
Hancock Family Memorial Foundation Ltd v Fieldhouse [No 3] [2010] WASC 223
Haseloff & Korman and Ors [2013] FamCA 1019

In the Marriage of D (1984) 10 Fam LR 73 at 82

In the Marriage of Heath (1983) 9 Fam LR 97

In the Marriage of Gelley and Gelley (No 2) 15 Fam LR 483

In theMarriage of Whitaker (1980) 5 Fam LR 769

Ivanfy and Ivanfy (1978) 4 Fam LR 54
Pflugradt and Pflugradt (1981) 7 Fam LR 188
Riemann & Riemann and Ors (No. 2) [2017] FamCA 788
State of Victoria v Sutton [1998] HCA 56; [1998] 195 CLR 291

Transport Commission (Tas) v Neale Edwards Pty Ltd [1954] HCA 21

Whitaker and Whitaker (1980) FLC 90-813

APPLICANT:

Ms Riemann

RESPONDENT:

Mr Riemann

SECOND RESPONDENT:

THIRD RESPONDENT:

Ms Lindrum

Ms Gildas

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

INTERVENORS:

Mr Aaron and Y Pty Ltd

FILE NUMBER:

SYC

5764

2014

DATE DELIVERED:

17 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING…

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] FamCA 911
Decision Date: 17 November 2017

CaseChat Overview and Summary

In *Riemann & Riemann and Ors (No. 3)*, McClelland J of the Family Court of Australia considered an application by the wife to join additional parties to the proceedings and to set aside a transaction under section 106B of the *Family Law Act 1975* (Cth). The husband and intervenors opposed these applications. The husband also sought to be relieved of his obligation to respond to a Notice to Admit Facts and Authenticity of Documents.

The court was required to determine whether the wife had established an arguable case for setting aside the transaction pursuant to section 106B(1) of the Act, whether the third parties should be joined to the proceedings, and whether the husband should be relieved of his obligation to respond to certain parts of the Notice to Admit Facts and Authenticity of Documents.

McClelland J found that the wife had not established an arguable case for the disposition to be set aside under section 106B(1). Consequently, the application to set aside the transaction was dismissed. The court also dismissed the wife's application for the joinder of third parties. Regarding the Notice to Admit Facts and Authenticity of Documents, the husband was relieved of his obligation to respond to Schedule A, but was ordered to file and serve a response to Schedule B within 14 days of being provided with the relevant documents.

Orders

Orders of the court

THE COURT ORDERS THAT:

The husband is relieved of his obligation to respond to schedule A of the wife’s Notice to Admit Facts and Authenticity of Documents filed on 17 October 2017.

Within 14 days of the husband being provided with the documents referred to in schedule B of the wife’s Notice to Admit Facts and Authenticity of Documents filed on 17 October 2017, the husband file and serve a Response to that Notice.

Orders 2, 3, 4, 5 and 6 of the wife’s Amended Application in a Case filed on 6 September 2017 are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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