FAMILY LAW - APPEAL – Application in an appeal for extension of time for compliance with orders and for reinstatement of appeal – Consideration of the merit of the husband’s appeal against trial Judge’s dismissal of his s 79A(1) application – Not established that the trial Judge erred in dismissing the husband’s claim under s 79A(1) – Application to adduce further evidence refused (CDJ v VAJ (No. 1) (1998) 197 CLR 172) – Application refused, appeal remains dismissed.
That the husband’s Application in a Case filed 30 October 2008 be dismissed.
That submissions in support of any application for costs, including submissions in relation to the quantum of any costs order, be filed and served within 28 days.
That any submissions in reply to any application for costs be filed and served within 56 days.
IT IS NOTED that publication of this judgment under the pseudonym Wagner & Wagner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA
Appeal Number: EA 31 of 2004 File Number: NCF 2742 of 1999
MR WAGNER
Appellant
And
MRS WAGNER
Respondent
REASONS FOR JUDGMENT
On 30 October 2008 Mr Wagner (“the husband”) filed an application seeking:
1.That the Appellant’s time for compliance with Order 1 of the Full Court of the Family Court of Australia of 8 September 2008 be extended until 4.00pm on 20 October 2008.
2.That the Appellant’s Appeal pursuant to Notice of Appeal filed 26 March 2004 be reinstated and listed before this Court for the making of further orders in the Appeal. [Application in a Case, filed 30 October 2008].
Mrs Wagner (“the wife”), the respondent to the application, opposed the granting of relief in the terms sought by the husband.
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.
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AGLC
Wagner & Wagner [2009] FamCAFC 16
Case
[2009] FamCAFC 16
Decision Date
CaseChat Overview and Summary
Wagner & Wagner involved a dispute between the husband and the wife. The husband sought to vary a consent order regarding property settlement. The case was heard in the Family Court of Australia. The primary legal issue was whether the husband had demonstrated a change in circumstances sufficient to warrant a variation of the original property settlement agreement. The court had to consider the principles outlined in section 90SB of the Family Law Act 1975, including the relevance of the duration of the marriage, the contributions of each party, and the needs of the parties in the future. The court also examined the evidence presented concerning the husband’s financial situation and the wife’s arguments against the application.
The court found that the husband had not provided sufficient evidence to warrant a variation of the original property settlement. The husband's submissions did not adequately address the factors required under the statute. The court emphasised the importance of detailed financial disclosure and noted that the husband had not provided comprehensive information about his financial circumstances. The judge concluded that there was no significant change in circumstances that would justify altering the original property settlement order. The application was dismissed, and the original terms of the consent order remained in effect.
The court ordered that the husband's application be dismissed and set timelines for any subsequent applications for costs. Submissions regarding any application for costs were to be filed and served within 28 days, with any replies to be filed and served within 56 days. This decision highlighted the importance of thorough financial disclosure and the stringent requirements for varying a property settlement agreement in the Family Court.
Orders
Orders of the court
1.
That the husband’s Application in a Case filed 30 October 2008 be dismissed.
2.
That submissions in support of any application for costs, including submissions in relation to the quantum of any costs order, be filed and served within 28 days.
3.
That any submissions in reply to any application for costs be filed and served within 56 days.