Wentner and Rater - [2010] FamCA 1188

FAMILY COURT OF AUSTRALIA

WENTNER & RATER

[2010] FamCA 1188

FAMILY LAW – PROPERTY – Settlement in relation to marriage

Family Law Act 1975 (Cth)

Balnaves v Balnaves (1988) FLC 91-952
Coghlan and Coghlan (2005) FLC 93-220
Figgins and Figgins (2002) FLC 93-122
Gosper and Gosper (1987) FLC 91-818
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
JEL and DDF (2001) FLC 93-075
Kessey and Kessey (1994) FLC 92-495
Kowali and Kowali (1981) FLC 91-092
Mallett v Mallett (1984) FLC 91-507
McLay and McLay (1996) FLC 92-667
Omacini and Omacini (2005) FLC 93-218
Pellegrino and Pellegrino (1997) FLC 92-789
Pierce and Pierce (1999) FLC 92-844
Rosati v Rosati (1998) FLC 92-804
SMB and MFB (2006) FamCA 46
Spencer v Commonwealth (1907) 5 CLR 418
Stay and Stay (1997) FLC 92-751
Williams v Williams (1985) FLC 91-628
Woodcock and Woodcock (1997) FLC 92-739

APPLICANT:

Mr Wentner

RESPONDENT:

Ms Rater

FILE NUMBER:

MLC

1003

2007

DATE DELIVERED:

20 December 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

7, 8 AND 9 DECEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR DE VRIES

SOLICITOR FOR THE APPLICANT:

GADENS LAWYERS

COUNSEL FOR THE RESPONDENT:

MR NICHOLSON

SOLICITOR FOR THE RESPONDENT:

SCHETZER CONSTANTINOU

Orders

That by 4.00pm on 1 February 2011, the wife pay to the husband $80,000.
That contemporaneously with the payment in paragraph 1:
(a)The husband withdraw any caveat lodged by him on the title to the property at B Street at his expense;
(b)The wife withdraw any caveat lodged by her on the title of L Street, at her expense;
(c)The husband arrange for the removal of the wife as a mortgagor relating to the mortgage securing the loan over the real property at L Street; and
(d)The wife arrange for the removal of the husband as a mortgagor relating to the mortgage securing the loan over the real property at B Street.
That the application of the husband filed 30 July 2010 and the response of the wife filed 15 January 2010 be otherwise dismissed.
That any material produced pursuant to subpoenae be returned to the recipient of the subpoena.
That should any party desire to make any application for costs arising out of these orders, such application be made by written submission filed and served no later than 4.00pm on 24 January 2011 and upon receipt of any such application, the recipient shall have until 4.00pm on 7 February 2011 to file and serve any written submission in reply.
That upon the receipt of any such submissions relating to costs referred to in these orders, the matters be determined by me in chambers.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1003 of 2007

MR WENTNER

Applicant

And

MS RATER

Respondent

REASONS FOR JUDGMENT

Mr Wentner (“the husband”) and…

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 Wentner and Rater

Details

AGLC: Wentner and Rater [2010] FamCA 1188
Case: [2010] FamCA 1188
Decision Date: 20 December 2010

CaseChat Overview and Summary

The matter before Justice Cronin concerned a dispute between a husband and wife, likely in the context of family law proceedings, involving financial settlements and the removal of caveats and mortgage responsibilities from jointly owned properties. The specific properties mentioned were located at B Street and L Street.

The court was required to determine the terms of the financial settlement between the parties, including the payment of a sum of money by the wife to the husband. Furthermore, the court needed to address the removal of caveats lodged by both parties on different properties and the consequent removal of each party as a mortgagor from the respective loans secured against those properties.

Justice Cronin ordered that the wife pay $80,000 to the husband by a specified date. Contemporaneously with this payment, the husband was to withdraw his caveat on the B Street property at his expense, and the wife was to withdraw her caveat on the L Street property at her expense. Additionally, the husband was to arrange for the wife's removal as a mortgagor from the L Street property's mortgage, and the wife was to arrange for the husband's removal as a mortgagor from the B Street property's mortgage. The court also ordered the dismissal of the husband's application filed on 30 July 2010 and the wife's response filed on 15 January 2010, and that any subpoenaed material be returned. Provisions were made for parties to make written submissions regarding costs.

Orders

Orders of the court

That by 4.00pm on 1 February 2011, the wife pay to the husband $80,000.

That contemporaneously with the payment in paragraph 1:

(a) The husband withdraw any caveat lodged by him on the title to the property at B Street at his expense;

(b) The wife withdraw any caveat lodged by her on the title of L Street, at her expense;

(c) The husband arrange for the removal of the wife as a mortgagor relating to the mortgage securing the loan over the real property at L Street; and

(d) The wife arrange for the removal of the husband as a mortgagor relating to the mortgage securing the loan over the real property at B Street.

That the application of the husband filed 30 July 2010 and the response of the wife filed 15 January 2010 be otherwise dismissed.

That any material produced pursuant to subpoenae be returned to the recipient of the subpoena.

That should any party desire to make any application for costs arising out of these orders, such application be made by written submission filed and served no later than 4.00pm on 24 January 2011 and upon receipt of any such application, the recipient shall have until 4.00pm on 7 February 2011 to file and serve any written submission in reply.

That upon the receipt of any such submissions relating to costs referred to in these orders, the matters be determined by me in chambers.

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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