Walker and Walker (No 2) - [2014] FamCA 1152

FAMILY COURT OF AUSTRALIA

WALKER & WALKER (NO. 2)

[2014] FamCA 1152

FAMILY LAW – PROPERTY – Application by husband to have property and costs orders vacated – Application successful

FAMILY LAW – PRACTICE AND PROCEDURE – Wife’s application for a property settlement listed for hearing on a fixed date – Trial directions made – Orders made for the filing of affidavit material – Order for Appointment of Single Experts for the purposes or providing updated reports

Family Law Act 1975 (Cth)

Barbey & Tuttle [2013] FamCAFC 44

Clifford & Mountford [2006] FMCAfam 450

APPLICANT:

Mr Walker

RESPONDENT:

Ms Walker

FILE NUMBER:

LNC

350

2012

DATE DELIVERED:

12 November 2014

PLACE DELIVERED:

Launceston

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

12 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lewis

SOLICITOR FOR THE APPLICANT:

Levis Stace & Cooper

COUNSEL FOR THE RESPONDENT:

Mr Welch

SOLICITOR FOR THE RESPONDENT:

Philip Welch

Orders

The property and costs orders made 17 July 2014 (numbers 1 to 17) are vacated.
These proceedings be listed for final hearing, with priority, at 10.00am on 11, 12 and 13 February 2015 at Launceston.
The wife pay the hearing fee on or before 23 January 2015.
The parties be restrained from filing further material apart from the affidavits of the single experts after 19 December 2014 without the leave of the Court.
The husband pay the wife’s legal costs of these proceedings and the application to vacate the orders made 17 July 2014 on the basis of 90 per cent of her practitioner/client costs and 100 per cent of her practitioner/client disbursements.
Leave be given for the parties to have the matter relisted before me on the giving of seven (7) days notice to the court and the other party in the event that they require further directions.
Leave be given to the parties to issue subpoena to produce documents to Town R City Council.

IT IS DIRECTED

Mr C and Mr A are appointed as single experts for the purpose of preparing updated reports in these proceedings as to the valuation of the chattels and real property (respectively).
The parties provide instructions to those experts within twenty one (21) days from the date of this order.
Each party pay one half of the fees of the experts and in the event that the husband does not do so IT IS REQUESTED the wife pay the husband’s share of such fees and on payment of such of the husband’s share by the wife it will become a debt due to the wife and interest will accrue on those in accordance with the Family Law Rules.
If the husband is given seven (7) days notice directed by ordinary pre-paid post to his address at G Street, Town R, Tasmania and care of his solicitors, he will make the property available for inspection in accordance with that notice.
Each party file and serve the affidavits upon which they rely (and leave is given to 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 Walker and Walker (No 2)

Details

AGLC: Walker and Walker (No 2) [2014] FamCA 1152
Case: [2014] FamCA 1152
Decision Date: 12 November 2014

CaseChat Overview and Summary

In the matter of *Walker and Walker (No 2)*, Benjamin J considered an application by the husband to vacate property and costs orders previously made on 17 July 2014. The proceedings concerned a property settlement between the parties.

The court was required to determine whether the existing property and costs orders should be set aside and, if so, to make new directions for the future conduct of the proceedings. This included establishing a timetable for the filing of further evidence, appointing single experts to provide updated reports, and setting a date for a final hearing.

Benjamin J vacated the property and costs orders made on 17 July 2014. The court then listed the proceedings for a priority final hearing on 11, 12, and 13 February 2015. Directions were made for the appointment of single experts to provide updated reports on the valuation of chattels and real property, with parties to provide instructions to these experts within twenty-one days. The husband was ordered to pay the wife's legal costs of the proceedings and the application to vacate the previous orders on a specified basis. Further directions were given regarding the filing of affidavits, discovery of documents relating to livestock sales, and the provision of case outlines by both parties.

Orders

Orders of the court

The property and costs orders made 17 July 2014 (numbers 1 to 17) are vacated.

These proceedings be listed for final hearing, with priority, at 10.00am on 11, 12 and 13 February 2015 at Launceston.

The wife pay the hearing fee on or before 23 January 2015.

The parties be restrained from filing further material apart from the affidavits of the single experts after 19 December 2014 without the leave of the Court.

The husband pay the wife’s legal costs of these proceedings and the application to vacate the orders made 17 July 2014 on the basis of 90 per cent of her practitioner/client costs and 100 per cent of her practitioner/client disbursements.

Leave be given for the parties to have the matter relisted before me on the giving of seven (7) days notice to the court and the other party in the event that they require further directions.

Leave be given to the parties to issue subpoena to produce documents to Town R City Council.

IT IS DIRECTED

Mr C and Mr A are appointed as single experts for the purpose of preparing updated reports in these proceedings as to the valuation of the chattels and real property (respectively).

The parties provide instructions to those experts within twenty one (21) days from the date of this order.

10.

Each party pay one half of the fees of the experts and in the event that the husband does not do so IT IS REQUESTED the wife pay the husband’s share of such fees and on payment of such of the husband’s share by the wife it will become a debt due to the wife and interest will accrue on those in accordance with the Family Law Rules.

11.

If the husband is given seven (7) days notice directed by ordinary pre-paid post to his address at G Street, Town R, Tasmania and care of his solicitors, he will make the property available for inspection in accordance with that notice.

12.

Each party file and serve the affidavits upon which they rely (and leave is given to the parties to refer to previous affidavits to which they have already prepared and filed in these proceedings) for the purpose of this hearing, on or before 4.00pm 19 December 2014 together with sworn statements of financial circumstances.

13.

The wife shall provide to the husband, within twenty one (21) days copies of all documents, papers and applications she made to the Town R City Council in relation to the zoning and/or sub-division change of the I Street property.

14.

The husband shall provide to the wife, within twenty eight (28) days, full discovery of all documents relating to livestock sales made by him or for him from 1 July 2012 to the current date and full details of any livestock that he has in his possession or control at this present time.

15.

The parties shall provide a case outline, in electronic word format, to my administrative associate two (2) business days before the commencement of the hearing setting out:-

(a) the orders they seek;

(b) a chronology;

(d) an outline of their arguments.

16.

A copy of the reasons for these orders be taken out and placed on the Court file.

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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