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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- AGLC
- Waterman & Waterman [2017] FamCAFC 23
- Case
- [2017] FamCAFC 23
- Decision Date
CaseChat Overview and Summary
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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