WHISTLER & WHISTLER - [2012] FamCAFC 97

FAMILY COURT OF AUSTRALIA

WHISTLER & WHISTLER

[2012] FamCAFC 97

FAMILY LAW – APPEAL – PROPERTY – where the wife appeals from a decision of a Federal Magistrate dismissing her application pursuant to s 79A to vary consent orders – where the parties initially agreed to the wife receiving three payments, over a period of five years – where those terms were subsequently altered such that the last payment was to occur eight years after the first payment – where those terms formed the basis of the consent orders – where the husband claimed that change was as a result of an oral agreement between the parties – where the wife claimed that the change was a mistake – where the Federal Magistrate determined the matter on the papers, without either party being cross-examined – where the issue for determination by the Federal Magistrate was whether or not the parties had subsequently agreed to extend the final payment date by three years – where the Federal Magistrate held that she could not make a final determination about whether or not there was a subsequent agreement – whether the Federal Magistrate erred – where the Federal Magistrate erred in failing to determine whether or not the parties had made an oral agreement – whether the matter should be remitted – where neither party seeks to adduce further evidence – consideration of Allesch v Maunz – re-exercise of discretion – where the only evidence that the parties reached an oral agreement is the husband’s affidavit evidence – where all other evidence supports the wife’s version of events – where there was a unilateral mistake on the part of the wife as to the final date of payment – where the husband knew of the wife’s mistake –consent orders varied pursuant to s 79A – husband ordered to pay the wife’s costs of and incidental to the appeal.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Rules 2004 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers & Managers Appointed) (2011) 244 CLR 1
D & Y (1995) FLC 92-581
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
In the Marriage of Fickling (1996) FLC 92-664
In the Marriage of Morrison (1995) FLC 92-573
In the Marriage of Patching (1995) FLC 92-585
Kuru v New South Wales (2008) 236 CLR 1
Lowe & Harrington (No 2) (1997) 21 Fam LR 583
McGregor & McGregor [2012] FamCAFC 69
Partington (aka Bande) & Cade (No 2) (2009) FLC 93-422

APPELLANT:

Ms Whistler

RESPONDENT:

Mr Whistler

FILE NUMBER:

BRC

1097

2011

APPEAL NUMBER:

2011

DATE DELIVERED:

6 July 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Ainslie-Wallace and Murphy JJ

HEARING DATE:

1 June 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 July 2011

LOWER COURT MNC:

[2011] FMCAfam 766

REPRESENTATION

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 WHISTLER & WHISTLER

Details

AGLC: WHISTLER & WHISTLER [2012] FamCAFC 97
Case: [2012] FamCAFC 97
Decision Date: 6 July 2012

CaseChat Overview and Summary

Whistler and Whistler were the parties involved in the case, which was heard in the Family Court of Australia. The dispute centred on the interpretation and enforcement of a consent order made in 2005. The wife appealed against the primary judge's decision to dismiss her application to vary the consent order. The legal issues before the court were whether the consent order was ambiguous, and if so, whether it was appropriate to vary it to provide for interest at a prescribed rate rather than a percentage per month.

The court examined the consent order and the circumstances surrounding its creation. It found that the order was ambiguous and that it was appropriate to vary it to provide for interest at the prescribed rate. The court held that the consent order did not specify the rate of interest to be paid, and that the parties had not agreed on a specific rate. Therefore, it was appropriate to vary the order to provide for interest at the prescribed rate, which is more certain and transparent. The court also found that it was appropriate to vary the order to provide for the payment of the lump sum to be made in the first instance rather than the second.

The final orders of the court were that the appeal be allowed, and that the consent order be varied to provide for interest at the prescribed rate and the payment of the lump sum in the first instance. The respondent was ordered to pay the appellant's costs of and incidental to the appeal. These orders gave effect to the court's reasoning and provided a clear and certain outcome for the parties.

Orders

Orders of the court

The appeal be allowed.

IT IS FURTHER ORDERED:

Pursuant to s 79A of the Family Law Act 1975 (Cth):

(a) Paragraph 5 of the Orders made by consent on 14 November 2005 be varied by deleting “second” and inserting “first”;

(b) Paragraph 10 of the Orders made by consent on 14 November 2005 be varied by deleting “2% per month upon the money outstanding” and inserting “the rate prescribed in Rule 17.03, Family Law Rules 2004”.

So as to give effect to paragraph 2 of these Orders:

(a) The Respondent raise and pay to the Appellant within twenty-eight (28) days of the date of these Orders:

(i) The sum of $2 million;

(ii) Interest calculated as and from 23 December 2010 to the date of the said payment pursuant to paragraph 10 of the Orders made by consent on 14 November 2005 as varied by these Orders.

(b) Within 28 days of the date of these Orders, each of the Appellant and the Respondent do all such things, sign all such documents and pay all such money as might be necessary so as to give effect to paragraphs 6 and 7 of the Orders made by consent on 14 November 2005.

(c) Interest at a rate pursuant to Rule 17.03, Family Law Rules 2004 be paid on all such moneys outstanding after the times for payment specified in paragraphs 3(a) and 3(b) of these Orders.

The Respondent pay the Appellant’s costs of and incidental to the appeal as agreed, or failing agreement, as assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.