Wernham and Campagnola

[2012] FamCA 66

FAMILY COURT OF AUSTRALIA

WERNHAM & CAMPAGNOLA [2012] FamCA 66

FAMILY LAW - PRACTICE AND PROCEDURE - Hearing - where husband seeks orders to set aside orders for property settlement pursuant to section 79A of the Family Law Act1975 (Cth) and orders for property settlement - where wife seeks that the threshold section 79A issue be heard in a discrete hearing - where the wife’s application is to be determined by the trial judge in the exercise of discretion having regard to the circumstances of each case - where costs of expensive valuations would be avoided if the husband failed to meet the threshold test - where efficient use of court’s time relevant - found that threshold section 79A issue is to be heard in a discrete hearing

Family Law Act 1975 (Cth) s 79A

Lancer and Lancer [2008] FamCACF 112

APPLICANT: Mr Wernham

RESPONDENT: Ms Campagnola

FILE NUMBER: SYC 4027 of 2011

DATE DELIVERED: 24 February 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 17 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Gayle Meredith & Associates

COUNSEL FOR THE RESPONDENT: Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT: APA Lawyers

Orders

1. That the matter be listed for hearing before the Honourable Justice Rees for determination, in the first instance, of the threshold issue.

2. That the matter be listed before the Honourable Justice Rees for directions on 30 March 2012 at 10 am.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wernham & Campagnola has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4027 of 2011

Mr Wernham

Applicant

And

Ms Campagnola

Respondent

REASONS FOR JUDGMENT

1. The substantive application before the court is an application by the husband (Mr Wernham) to set aside, pursuant to section 79A of the Family Law Act 1975 (Cth), orders for property settlement, made by consent on 4 April 1995.

2. The wife (Ms Campagnola) opposes the application and seeks that the threshold issue, whether the applicant can establish that there has been a miscarriage of justice by reason of one of the matters in section 79A(1)(a) be determined separately.

3. The matter before me for determination is the wife’s application that the hearing be divided into two with the issue of whether there has been a miscarriage of justice being considered in a discrete first hearing.

4. I have had the benefit of written submissions and supplementary submissions from both parties.

5. The substance of the husband’s assertions are found at Paragraph 9 of his affidavit sworn 1 July 2011. To understand his assertions, it is necessary to have regard to the affidavit sworn 20 March 1995 by the wife in support of the making of the consent orders which is annexure D to the affidavit of the husband in these proceedings.

6. He asserts that, although she disclosed owning three shares in…