VILMAR and GROOBER - [2017] FCWA 16

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: VILMAR and GROOBER [2017] FCWA 16

CORAM: O'BRIEN J

HEARD: 8 NOVEMBER 2016

DELIVERED : 13 FEBRUARY 2017

FILE NO/S: PTW 3678 of 2014

BETWEEN: MR VILMAR
Applicant
AND
MS GROOBER
Respondent

Catchwords:

LEAVE TO APPEAL - interlocutory order of Family Law Magistrate - test to be applied - application dismissed.

Legislation:

Family Court Act 1997 (WA)
Family Court Rules 1998 (WA)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr F Robertson
Respondent: Mr M Berry SC

Solicitors:

Applicant: Lewis Blyth & Hooper
Respondent: Western Legal

Case(s) referred to in judgment(s):

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170
Huntingdale Village Pty Ltd (Receivers and Managers appointed) v Korda [2015] WASCA
101
Jess v Jess (2014) FLC 93-620
Kuan v Toh (2016) FLC 93-717
Medlow v Medlow (2016) FLC 93-692
Niemann v Electronics Industries Ltd [1978] VR 431
Rutherford and Rutherford (1991) FLC 92-255
Silbert v Steinberg [2010] WASCA 113

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Mr Vilmar] (“the applicant”) seeks to appeal orders made by Magistrate Kaeser on 20 May 2016, dismissing an application for enforcement of orders made by the court on 28 October 2015. [Ms Groober] (“the respondent”) opposes the application.
2The parties were not married and the orders made by Magistrate Kaeser were interlocutory. An appeal accordingly lies to this Court, but leave to appeal is required.

Background

3The parties were in a de facto relationship. Following their separation, proceedings were commenced in relation to the alteration of property interests between them. An agreement for the resolution of those proceedings was reached and final orders were made by a Registrar in Chambers on 28 October 2015 (“the consent orders”).
4At the time the consent orders were made, the parties were the joint registered proprietors of [Property A] (“Property A”) and the applicant operated a business known as [Business A] (“the business”). Broadly, the agreement of the parties contemplated that the applicant would retain the business and responsibility for its associated liabilities and the respondent would retain Property A and responsibility for the debt secured by mortgage against it. The parties would otherwise each retain their own property and responsibility for their own liabilities.
5The consent orders were made in terms of a minute executed by the parties, who were both represented. The orders contained in that minute were in the following terms (errors are as they appear in the original):
1.That within 60 days of the date these orders are published:
(a)the Applicant shall do all things necessary and execute all such documents as are necessary to transfer to the Respondent all his interest in [Property A] in the State of Western Australia and being more particularly described as Lot [XXX] on Deposited Plan [XXXXX ] being the whole of the…

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 VILMAR and GROOBER

Details

AGLC: VILMAR and GROOBER [2017] FCWA 16
Case: [2017] FCWA 16
Decision Date: 13 FEBRUARY 2017

CaseChat Overview and Summary

In the case of Vilmar v Groober, the parties were involved in a dispute concerning an interlocutory order made by a Family Law Magistrate. The matter was brought before the court for leave to appeal the Magistrate's decision. The primary focus of the appeal was whether the Magistrate had applied the correct legal test in making the interlocutory order. The court was required to determine whether the Magistrate's decision was subject to review and, if so, whether the appropriate legal test was applied in making that decision.

The court considered whether the Magistrate had exercised discretion in making the interlocutory order and, if so, whether the correct legal principles were applied. It was necessary to examine the relevant statutory provisions and case law to ascertain the appropriate test to be applied. The court examined whether the Magistrate had considered all relevant factors and whether the order made was within the scope of the legal authority available. The court also had to consider whether the Magistrate's decision was reasonable and whether there were any grounds for interference.

After examining the evidence and the arguments presented, the court concluded that the Magistrate had applied the correct legal test in making the interlocutory order. The court found that the Magistrate had considered all relevant factors and exercised their discretion appropriately. The court held that the decision was within the scope of the legal authority available and was reasonable. As a result, the application for leave to appeal was dismissed. The court found no grounds for interference with the Magistrate's decision.

In light of the above, the court dismissed the application for leave to appeal. The interlocutory order made by the Family Law Magistrate was upheld, and no further appeal was permitted. The court's decision provides guidance on the appropriate legal test to be applied in similar cases involving interlocutory orders in family law matters.

Orders