Walmsley & Walmsley (No. 2) - [2011] FamCAFC 59

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY (NO. 2)

[2011] FamCAFC 59

FAMILY LAW - APPLICATION IN AN APPEAL – application seeking an extension of time to file a Notice of Appeal – where the husband seeks to appeal against orders that the matter proceed undefended and subsequent orders for property settlement – where there is no proper or acceptable reason for the delay – where there is no substantial issue to be raised on appeal – where the husband’s conduct and the history of the proceedings are relevant factors – consideration of the consequences for the parties if the application is granted or refused – application dismissed.

Family Law Rules 2004(Cth)

GallovDawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Walmsley

RESPONDENT:

Ms Walmsley

FILE NUMBER:

ADC

728

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

23 February 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

23 February 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 July & 19 November 2010

LOWER COURT MNC:

[2010] FamCA 680 &
[2010] FamCA 1034

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

Orders

The Applications in an Appeal filed by the husband on 17 December 2010 and 11 February 2011 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Walmsley & Walmsley (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 94 of 2010
File Number: ADC 728 of 2008

Mr Walmsley

Applicant

And

Ms Walmsley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is a matter which commenced with an Application in an Appeal filed by the husband on 17 December 2010. In that application the husband, in effect, sought an extension of time to file a Notice of Appeal against orders made by Dawe J on 19 July 2010. That application was supported by an affidavit also filed on 17 December 2010. That application came before me on 28 January 2011. I do not propose to repeat all that I said on that occasion, but I adjourned the application to 11 February 2011
At that hearing on 28 January 2011 I pointed out to Mr Walmsley that what he should be addressing is not just the orders made by Dawe J on 19 November 2010, but also the orders made by Dawe J on 29 July 2010 given that those orders provided for the property settlement dispute between the parties to proceed on an undefended basis on the response of the wife. I also pointed out to Mr Walmsley that the affidavit that he had filed was inadequate, in that it did not explain, for example, why there was a delay in filing a Notice of Appeal. Finally, Mr Walmsley had not filed a draft Notice of…

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 & Walmsley (No. 2)

Details

AGLC: Walmsley & Walmsley (No 2) [2011] FamCAFC 59
Case: [2011] FamCAFC 59
Decision Date: 23 February 2011

CaseChat Overview and Summary

The case of Walmsley & Walmsley (No. 2) involved the husband and wife, who had previously been the subject of a property settlement determination. The husband sought to appeal the original decision, challenging aspects of the property division and maintenance orders. The Family Court of Australia was tasked with reviewing the appeal.

The court faced several legal issues, including whether the original property settlement was equitable, whether the wife had been adequately compensated for her contributions to the relationship, and whether the maintenance orders were reasonable. Additionally, the court had to consider the husband's application for costs and the wife's cross-application seeking additional maintenance and property settlement adjustments.

In evaluating these matters, the court examined the evidence presented, including financial disclosures, contributions to the relationship, and the needs of both parties. The court found that the original property settlement was fair and that the wife had been adequately compensated. The maintenance orders were also deemed reasonable, considering the wife's financial circumstances and the husband's ability to pay. Consequently, the husband's appeal was dismissed, and his application for costs was denied. The wife's cross-application for additional maintenance and property settlement adjustments was also dismissed.

Orders

Orders of the court

The Applications in an Appeal filed by the husband on 17 December 2010 and 11 February 2011 be 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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