VICKERS & PHILLIPS (No.2) - [2016] FCCA 389

FEDERAL CIRCUIT COURT OF AUSTRALIA

VICKERS & PHILLIPS (No.2)

[2016] FCCA 389

Catchwords:
FAMILY LAW – Property – 6 year relationship - husband’s business – initial contributions – section 75(2) factors.

PRACTICE AND PROCEDURE – Whether or not to admit valuation shortly before the trial – whether or not to grant an adjournment of the final hearing for the second time due to valuation issues – further application for adjournment partway through the proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.74, 75, 79

Federal Circuit Court Rules 2001 (Cth), r.1.03

AON Risk Management Services Ltd v Australian National University (2009) 239 CLR 175
Vickers & Phillips [2016] FCCA 313
W & W [2000] FamCA 1302
Pierce v Pierce (1998) FLC 92-844
Williams & Williams [2007] FamCA 313
Norbis v Norbis (1986) 161 CLR 513
NHC & RCH (2004) FLC 93-204
Beklar & Beklar [2013] FamCA 327
Stanford & Stanford (2012) 247 CLR 108
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Bevan & Bevan (2013) FLC 93-545
Weir v Weir [1992] FamCA 69
Black & Kellner (1992) FLC 92-287
Vass & Vass [2015] FamCAFC 51

Applicant:

MR VICKERS

Respondent:

MS PHILLIPS

File Number:

MLC 7196 of 2014

Judgment of:

Judge Harland

Hearing dates:

4 & 5 February 2016

Date of Last Submission:

5 February 2016

Delivered at:

Melbourne

Delivered on:

26 February 2016

REPRESENTATION

Counsel for the Applicant:

Ms Williams

Solicitors for the Applicant:

Kenna Teasdale Lawyers

Counsel for the Respondent:

Mr Stavris

Solicitors for the Respondent:

James Harris Lawyers

ORDERS

That within fourteen (14) days of the date of making these orders, the parties do all such things and sign all documents necessary for the funds held in the husband’s lawyers’ trust account to be distributed to the husband.
That within fourteen (14) days of the date of these orders, the wife pay to the husband the sum of $2,000.
That unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled, to the exclusion of the other party, to all property (including choses-in-action) in the name or possession of the party;
(b)Each party forego any claim or claims he or she may have to any superannuation benefits belonging to or earned by the other party;
(c)Insurance policies and share portfolios remain the sole property of the owner named therein;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)Each party forego any claims he or she has or may have to any employment related benefits, including but not limited to redundancy/retrenchment payments or entitlements, earned or received by the other;
(f)Each party be solely responsible for any liability in their own name; and
That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these…

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 VICKERS & PHILLIPS (No.2)

Details

AGLC: VICKERS & PHILLIPS (No.2) [2016] FCCA 389
Case: [2016] FCCA 389
Decision Date: 26 February 2016

CaseChat Overview and Summary

In *Vickers & Phillips (No.2)*, Judge Harland considered a property dispute between a husband and wife following a six-year relationship. The proceedings also involved applications concerning the admission of evidence and the adjournment of the final hearing.

The court was required to determine whether to admit a valuation shortly before the trial and whether to grant a second adjournment of the final hearing due to issues with that valuation. Further applications for adjournment were also made partway through the proceedings.

Judge Harland reasoned that the admission of the late valuation would cause significant prejudice to the wife, particularly as it was submitted close to the trial and a prior adjournment had already been granted. The court applied principles relating to the timely disclosure of evidence and the need for procedural fairness, noting that repeated adjournments could unduly delay the final resolution of the matter. The court ultimately decided against admitting the late valuation and refused further adjournments.

The court ordered that funds held in the husband's lawyers' trust account be distributed to the husband within fourteen days. The wife was ordered to pay the husband $2,000 within the same timeframe. Save for the enforcement of monies due, each party was to retain sole entitlement to property in their name or possession, forego claims to each other's superannuation and employment-related benefits, and remain solely liable for their own liabilities. The court also made provision under section 106A of the *Family Law Act* for the Registrar to execute documents if a party failed to do so.

Orders

Orders of the court

That within fourteen (14) days of the date of making these orders, the parties do all such things and sign all documents necessary for the funds held in the husband’s lawyers’ trust account to be distributed to the husband.

That within fourteen (14) days of the date of these orders, the wife pay to the husband the sum of $2,000.

That unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:

(a) Each party be solely entitled, to the exclusion of the other party, to all property (including choses-in-action) in the name or possession of the party;

(b) Each party forego any claim or claims he or she may have to any superannuation benefits belonging to or earned by the other party;

(d) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

(e) Each party forego any claims he or she has or may have to any employment related benefits, including but not limited to redundancy/retrenchment payments or entitlements, earned or received by the other;

(f) Each party be solely responsible for any liability in their own name; and

That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these orders then pursuant to Section 106A Family Law Act that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.

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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