Whitmore & Whitmore (No 2)

[2022] FedCFamC1A 168

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Whitmore & Whitmore (No 2) [2022] FedCFamC1A 168   

Appeal from:

Whitmore & Whitmore [2022] FedCFamC2F 489

Appeal number(s):

NAA 122 of 2022

File number(s):

NCC 657 of 2019

Judgment of:

ALDRIDGE J

Date of judgment:

11 October 2022

Catchwords:

FAMILY LAW – APPEAL – PROPERTY – Where the appellant contends that the primary judge erred by failing to make an order that he retain the home and pay the respondent a fixed sum by reference to the value of the home at the time of the hearing – Adequacy of reasons – Challenges to weight – No error established – Appeal dismissed – Appellant to pay costs of the respondent in a fixed sum.   

Legislation:

Family Law Act 1975 (Cth) ss 75, 79A

Cases cited:

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

Noetel and Quealey (2005) FLC 93-230; [2005] FamCA 677

Olsson & Olsson [2022] FedCFamC1A 129

Ravasini and Ravasini (1983) FLC 91-312

Number of paragraphs:

37

Date of hearing:

6 October 2022

Place:

Sydney

The Applicant:

Litigant in person

Counsel for the Respondent:

Ms Windsor

Solicitor for the Respondent:

Koulouris & Associates

ORDERS

NAA 122 of 2022
NCC 657 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR WHITMORE

Appellant

AND:

MS WHITMORE

Respondent

order made by:	ALDRIDGE J
DATE OF ORDER:	11 october 2022

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the costs of the respondent fixed in the sum of $12,500.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Whitmore & Whitmore (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE J:

Introduction

1. Mr Whitmore (“the appellant”) appeals against property orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) made on 2 March 2022 in proceedings between him and Ms Whitmore (“the respondent”).

2. Earlier on 23 November 2021, the primary judge made a suite of final parenting and property orders in the proceedings.

3. By means of an Application in a Proceeding filed on 31 January 2022, the respondent sought enforcement of the property orders because the appellant had failed to cooperate with the respondent in the sale of the former matrimonial home of which he had remained the occupant.

4. On 2 March 2022, the primary judge set aside the earlier orders for sale and replaced them with orders that the appellant vacate…