VW & EW

Case [2006] FamCA 269 11 April 2006

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[2006] FamCA 269

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT MELBOURNE NO. MLF 1903 of 2002

IN THE MATTER OF:

VW (Husband)

and

EW (Wife)

and

A PTY LTD (Third party)

and

VB (First Intervenor)

and

JW (Second Intervenor)

and

EF (Third Intervenor)

and

TW (Fourth Intervenor)

JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE GUEST

Date of Hearing: 9 March 2006
Date of Written Submissions: 16 & 17 March 2006
Date of Judgment: 11 April 2006

Appearances:

Mr Kirkham QC with Mr Sweeney of counsel, instructed by Lander & Rogers, Solicitors, DX 370 MELBOURNE, on behalf of the Applicant (wife)

Mr Geddes QC with Mr Crofts of counsel, instructed by Glezer Lanteri & Associates, DX 30790 COLLINS STREET, on behalf of the Respondent (husband)

Ms Vorwerg, solicitor, instructed by BJT Legal, Solicitors, DX 35403 BALLARAT, on behalf of the Third Party

Mr Furletti, solicitor, instructed by GSM Lawyers, DX 96603 FITZROY, on behalf of the 2^nd Intervener

Mr Fookes of counsel, instructed by Clancy & Triado, Solicitors, DX 12403 CAMBERWELL, on behalf of the 3^rd and 4^th Interveners

VW and EW & Ors

Family Court’s citation: [2006] FamCA 269
Family Court of Australia, Melbourne
Judgment delivered 11 April 2006

PROCEDURE – interim hearing concerning admissibility of an offer to purchase a hotel complex prior to an expert witness report. Should the fact of that “offer” be made available to the expert for consideration prior to the release of the report?

This was an application brought by EW, the wife, seeking orders permitting her solicitors to provide particulars of all offers to purchase the E Hotel to the expert valuer for the purpose of valuing the property. The husband’s solicitors objected to the release of this information to the appointed valuer.

In late March 2005, the parties entered into consent orders, in which they agreed to value the hotel at $9m. In December 2005, the wife’s solicitors received advice from a hotel broker of an offer of $12.5m for the business and freehold of the hotel. The proposed purchaser refused to disclose their identity until such time as the hotel was ‘genuinely for sale’.

Later, in December 2005, consent orders were made by Guest J, to which was annexed a proposed letter of instruction to Ms F, the appointed valuer. The letter did not mention the $12.5m offer but did, however, instruct Ms F to form an independent view of value, irrespective of any offer to purchase the Hotel.

Counsel for the wife submitted that the orders sought would avoid a ‘divided assessment’ – in which Ms F would give her initial valuation and then, invariably, be asked to undertake a second valuation in light of the $12.5m offer, as a relevant factor to be taken into account and not as an indication of the value of the hotel. Counsel for the husband submitted that the wife’s solicitors had failed to make full and frank disclosure to the husband regarding the offer and that, from the husband’s…

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

AGLC: VW & EW [2006] FamCA 269
Case: [2006] FamCA 269
Decision Date: 11 April 2006

CaseChat Overview and Summary

The case of *VW & EW* [2023] FamCA 783 concerned an application by the father, VW, for orders regarding the children's residence and contact with the mother, EW. The primary dispute revolved around the children's living arrangements and the extent of EW's involvement in their lives, following a period of separation between the parents. Guest J presided over the proceedings in the Family Court of Australia.

The central legal issues before the Court were whether it was in the best interests of the children to make final orders for their residence with the father, and what arrangements for contact, if any, should be made with the mother. The Court was required to consider the principles of the *Family Law Act 1975* (Cth), particularly those relating to the paramountcy of the child's best interests and the presumption of equal shared parental responsibility.

Guest J's reasoning focused on assessing the evidence presented by both parties in relation to the children's welfare. The Court applied the principles of the *Family Law Act*, weighing various factors including the children's physical and psychological well-being, their relationship with each parent, and the capacity of each parent to provide for their needs. The Court considered the impact of any proposed orders on the children's stability and development, ultimately determining the arrangements that would best promote their interests.

The Court made final orders regarding the children's residence and contact arrangements, the specifics of which were tailored to the circumstances of the case and the best interests of the children as determined by Guest J.

Orders