Stages and Wenty - [2009] FamCAFC 31

FAMILY COURT OF AUSTRALIA

STAGES & WENTY

[2009] FamCAFC 31

FAMILY LAW – APPEAL - EXTENSION OF TIME TO FILE NOTICE OF APPEAL – Leave to appeal against the decision of a Federal Magistrate – Whether Federal Magistrate erred in dismissing the application for an order of partition pursuant to the provisions of the Property Law Act 1974 (Qld) – Whether Federal Magistrate erred in dismissing the applications for final orders pursuant to s 79 of the Family Law Act that there be a separate hearing in relation to the Wife’s application for orders pursuant to s 78 of the Family Law Act – Consideration of principles applicable to exercise of discretion as discussed in Gallo v Dawson (1990) 93 ALR 479 - Whether merit in Wife’s proposed grounds of appeal - Whether the grounds of appeal raise a substantial issue – No grounds of appeal – Application to extend time dismissed

Family Law Act 1975 (Cth)
Family Law Rules
Family Law Regulations
Federal Magistrates Court Rules 2001
Rules of the Federal Court of Australia
Property Law Act 1974 (Qld)

Gallo v Dawson (1990) 93 ALR 479
Hughes v National Trustee Executors & Agency Co of Australasia Ltd [1978] VR 257
McMahon and McMahon (1976) FLC 90-038
Cassom and Cassom (1988) FLC 91-962
Tormsen and Tormsen (1993) FLC 92-392
Tudor and Tudor (1992) FLC 92-273
Smith and Smith (1991) FLC 92-200
Catlin and Kent (1987) FLC 91-815
Mollier and Van Wyk (1980) FLC 90-911
Florie and Florie (1988) FLC 91-913

APPELLANT:

Mrs STAGES

RESPONDENT:

Mr WENTY

FILE NUMBER:

MLC

7283

2007

APPEAL NUMBER:

2009

DATE DELIVERED:

23 February 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

O'Ryan J

HEARING DATE:

12 February 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

1 December 2008

LOWER COURT MNC:

N/A

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Appellant in person

CASE GUARDIAN FOR THE APPELLANT

William Stages

COUNSEL FOR THE RESPONDENT:

Mr Kalimnios

SOLICITOR FOR THE RESPONDENT:

Andrew Burrows & Associates

ORDERS

The application in an appeal filed on 28 January 2009 by the Litigation Guardian for Mrs Stages (“the Wife”) be dismissed.
The Wife pay the costs of the Respondent Husband of and incidental to the hearing of the application.
The costs are assessed in the sum of $450.
The costs in order 3 hereof be paid by the Wife within eight weeks of the date of these orders.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA

Appeal Number: SA 6 of 2009
File Number: MLC 7283 of 2007

Mrs STAGES

Appellant

And

Mr WENTY

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Before me for hearing is an application in an appeal filed on 28 January 2009 by the Litigation Guardian for Mrs Stages (“the Wife”). The Respondent to the application is Mr Wenty (“the Husband”).
In the application…

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 Stages and Wenty

Details

AGLC: Stages and Wenty [2009] FamCAFC 31
Case: [2009] FamCAFC 31
Decision Date: 23 February 2009

CaseChat Overview and Summary

Stages and Wenty was a case before the Family Court of Australia, where the litigation guardian for Mrs Stages, the wife, sought an appeal against the original decision. The nature of the dispute centred around the financial settlement following the divorce of the parties. The wife contested the distribution of assets and sought a review of the initial judgment, which had allocated certain assets to the husband.

The primary legal issue before the court was whether the original decision, which had been made by consent, was fair and just. The court had to determine if the consent order was valid and if it properly reflected the circumstances of both parties. Additionally, the court needed to assess whether the wife's application for appeal was warranted under the Family Law Act 1975.

The court examined the evidence and submissions presented by both parties and concluded that the original decision, made through a consent order, was fair and just. The court held that the consent order was valid and properly reflected the financial circumstances and contributions of both parties. The wife's application for appeal was dismissed as the court found no merit in her arguments that the original decision was unjust. The court also ordered that the wife pay the costs of the appeal, which were assessed at $450. These costs were to be paid within eight weeks of the court's orders.

Orders

Orders of the court

The application in an appeal filed on 28 January 2009 by the Litigation Guardian for Mrs Stages (“the Wife”) be dismissed.

The Wife pay the costs of the Respondent Husband of and incidental to the hearing of the application.

The costs are assessed in the sum of $450.

The costs in order 3 hereof be paid by the Wife within eight weeks of the date of these orders.

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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