Waterman & Waterman

Case [2017] FamCAFC 23


FAMILY COURT OF AUSTRALIA

WATERMAN & WATERMAN [2017] FamCAFC 23
FAMILY LAW – APPEAL – PROPERTY – SECTION 79A – Whether the trial judge erred in dismissing the appellant wife’s application to set aside property orders made by consent in 1998 in circumstances where the parties reconciled in early 2000 before finally separating in 2012 –Where the Full Court held the trial judge erred in not finding that there had been the suppression of evidence through non-disclosure pursuant to s 79A(1)(a) and that the trial judge erred in finding that there was no miscarriage of justice – Where the Full Court found that, considering the circumstances that existed at the date of the consent orders, the only finding reasonably open was that justice had miscarried – Where the Full Court held pursuant to s 79A(1A) that, on an assessment of the circumstances of reconciliation, it could be inferred that the parties impliedly consented to the setting aside of the consent orders made in 1998 – Where the Full Court further held that the trial judge failed to identify what evidence of the parties was accepted, made inconsistent findings of fact and gave inadequate reasons – Leave to appeal granted – Appeal allowed – Order made pursuant to s 79A setting aside the consent orders made in 1998 – Direction made that the matter be listed for hearing in the Federal Circuit Court for the determination of s 79 proceedings – Costs certificates granted.
Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Barker & Barker (2007) 36 Fam LR 650
Bigg v Suzi (1998) FLC 92-799
Black & Kellner (1992) FLC 92-28
Briese & Briese (1986) FLC 91-713
Byrnes v Kendle (2011) 243 CLR 253
Cawthorn & Cawthorn (1998) FLC 92-805
Drew & Drew (1985) FLC 91-601
Ebner & Pappas (2014) FLC 93-619
Gebert & Gebert (1990) FLC 92-137
Giunti and Giunti (1986) FLC 91-759
Harris v Caladine (1991) 172 CLR 84
Holland & Holland (1982) FLC 91-243
Liu & Liu (1984) FLC 92-211
Livesey v Jenkins [1985] AC 424
Lowe v Harrington (No 2) (1997) FLC 92-747
McCabe & McCabe (1995) FLC 92-634
Molier & Van Wyk (1980) FLC 90-911
Morrison & Morrison (1995) FLC 92-573
Oastler & Oastler (1993) FLC 92-390
O’Hurley & O’Hurley [2008] FamCAFC 57
Oriolo & Oriolo (1985) FLC 91-653
Patching & Patching (1995) FLC 92-585
Pelerman v Pelerman (2000) FLC 93-037
Prowse & Prowse (1995) FLC 92-557
Scribe & Scribe (2006) FLC 93-302
Sommerville & Sommerville (2000) FLC 93-042
Stanford v Stanford (2012) 247 CLR 108
Suiker and Suiker (1993) FLC 92-436
APPELLANT: Ms Waterman
RESPONDENT: Mr Waterman
FILE NUMBER: PAC 749 of 2013
APPEAL NUMBER: EA 55 of 2016
DATE DELIVERED: 8 February 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Bryant CJ, Murphy and Kent JJ
HEARING DATE: 8 February 2017
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 16 March 2016
LOWER COURT MNC: [2016] FCCA 562

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms…

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Waterman & Waterman [2017] FamCAFC 23
Case
[2017] FamCAFC 23
Decision Date

CaseChat Overview and Summary

Waterman & Waterman was a legal dispute involving the parties, the husband and wife, concerning the interpretation and application of the Family Law Act 1975 (Cth). The wife sought to set aside a property settlement made by consent in 1998 and to have the matter settled in accordance with section 79 of the Act. The Federal Circuit Court was tasked with determining the legal issues in the case.

The legal issues before the court included whether the wife's application for a property settlement under section 79 of the Family Law Act 1975 (Cth) was appropriate and whether the orders made by consent in 1998 should be set aside. The court also needed to consider whether the orders made by Judge Newbrun on 16 March 2016 were correct and whether leave to appeal should be granted.

The court found that the wife's application for a property settlement was appropriate and that the orders made by consent in 1998 should be set aside. The court also determined that the orders made by Judge Newbrun were incorrect and granted leave to appeal. The appeal was allowed, and the orders made by Judge Newbrun were set aside. The court directed that the wife's application for a property settlement be listed for directions before a different judge of the Federal Circuit Court. The court also granted costs certificates to both parties and certified that it was appropriate for counsel to be briefed in the matter.

Orders

Orders of the court

1.

Leave to appeal be granted.

2.

The appeal be allowed.

3.

The orders made by Judge Newbrun on 16 March 2016 be set aside.

4.

In substitution of the said orders made by Judge Newbrun, it be ordered that pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) the orders made by consent by the Local Court on 11 December 1998 be set aside.

5.

It is directed that the application by the wife for settlement of property pursuant to the terms of s 79 of Act be listed for directions before a Judge of the Federal Circuit Court other than Judge Newbrun.

6.

There be no order as to costs.

7.

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

8.

The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

9.

The Court certifies that it was appropriate for counsel to be briefed in this matter.

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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