Walmsley and Walmsley (No 4) - [2010] FamCA 680

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY (NO. 4)

[2010] FamCA 680

FAMILY LAW – PRACTICE AND PROCEDURE – application by the wife seeking that property settlement proceedings proceed on an undefended basis – where the matter has a long history – where the husband has continuously failed to comply with previous court orders – no further extension of time granted for the husband to file his documents – matter to proceed on an undefended basis

Family Law Act 1975 (Cth)
Family Law Rules 2004 r 1.14

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Doriemus v Vanderhum [2009] FamCAFC 56

APPLICANT:

Mr Walmsley

RESPONDENT:

Ms Walmsley

FILE NUMBER:

ADC

728

2008

DATE DELIVERED:

29 July 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

29 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

n/a

SOLICITOR FOR THE APPLICANT:

IN PERSON

COUNSEL FOR THE RESPONDENT:

n/a

SOLICITOR FOR THE RESPONDENT:

IN PERSON

Orders

The Initiating Application filed by the father on 21 February 2008 and all further amended applications for final orders are dismissed.
The Further Amended Response to Initiating Application filed by the wife on 20 April 2010 by way of property settlement will proceed on an undefended basis for final hearing on 19 October 2010 at 10.00 am before the Honourable Justice Dawe UPON NOTING the Court will allow a half to one day for the hearing.
The wife’s Application in a Case filed on 5 July 2010 and the husband’s Application in a Case and Response filed on 21 July 2010 are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Walmsley & Walmsley is approved pursuant to s 121(9) (g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 728 of 2008

MR WALMSLEY

Applicant

And

MS WALMSLEY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

The applications before the Court today, are those of the wife filed on 5 July 2010 in which she seeks an order that the property settlement proceedings between the husband and wife proceed on an undefended basis, and the application in a case filed by the husband on 21 July 2010 and his response filed on that day.
Document 149 (being the application in a case filed by the husband) simply seeks that the wife make available her documents of discovery immediately and advise the husband when they will be available at the wife’s former counsel’s offices for the husband to view.
The response filed by the husband on 21 July 2010 merely seeks the removal of the wife’s application filed on 5 July 2010.
There is before the Court no formal application by the husband seeking an extension of time to file his affidavit material. However, his affidavit filed on 21 July 2010 refers to seeking leave of the Court to accept the documents at the hearing today. However, when asked to provide the documents to the Court for purposes of examining those…

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 Walmsley and Walmsley (No 4)

Details

AGLC: Walmsley and Walmsley (No 4) [2010] FamCA 680
Case: [2010] FamCA 680
Decision Date: 29 July 2010

CaseChat Overview and Summary

In *Walmsley and Walmsley (No 4)*, Dawe J of the Family Court of Australia considered applications made by both the father and the wife concerning property settlement and final orders. The father had filed an Initiating Application on 21 February 2008, which was subsequently amended, seeking final orders. The wife had also filed a Further Amended Response to Initiating Application on 20 April 2010, by way of property settlement.

The court was required to determine the disposition of the father's applications for final orders and the wife's property settlement claim. Additionally, the court had to consider the wife's Application in a Case filed on 5 July 2010 and the husband's Application in a Case and Response filed on 21 July 2010.

Dawe J dismissed the father's Initiating Application and all further amended applications for final orders. The wife's property settlement claim, as outlined in her Further Amended Response, was permitted to proceed on an undefended basis for a final hearing. The court also dismissed the wife's Application in a Case and the husband's Application in a Case and Response. The final hearing for the wife's property settlement claim was scheduled for 19 October 2010, with an estimated duration of half to one day.

Orders

Orders of the court

The Initiating Application filed by the father on 21 February 2008 and all further amended applications for final orders are dismissed.

The Further Amended Response to Initiating Application filed by the wife on 20 April 2010 by way of property settlement will proceed on an undefended basis for final hearing on 19 October 2010 at 10.00 am before the Honourable Justice Dawe UPON NOTING the Court will allow a half to one day for the hearing.

The wife’s Application in a Case filed on 5 July 2010 and the husband’s Application in a Case and Response filed on 21 July 2010 are dismissed.

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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