WIDMANN & WIDMANN - [2018] FamCAFC 54

FAMILY COURT OF AUSTRALIA

WIDMANN & WIDMANN

[2018] FamCAFC 54

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Consent orders proposed by the parties to allow the appeal and re-exercise the discretion – Consideration of the merit of parties reaching their own resolution – Consideration of the costs likely to be incurred when parties elect to be represented by counsel of great ability – Orders made by consent – Appeal allowed and discretion re-exercised – Each party to bear their own costs.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Widmann

RESPONDENT:

Ms Widmann

FILE NUMBER:

SYC

2334

2012

APPEAL NUMBER:

2017

DATE DELIVERED:

19 March 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Ainslie-Wallace & Aldridge JJ

HEARING DATE:

19 March 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 July 2017

LOWER COURT MNC:

[2017] FamCA 602

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kearney SC

SOLICITOR FOR THE APPELLANT:

Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Fermanis

SOLICITOR FOR THE RESPONDENT:

Rockliffs Solicitors & IP Lawyers

Orders

IT IS ORDERED BY CONSENT:

The appeal be allowed.
Order 1 of the Honourable Justice Stevenson made on 28 July 2017 be discharged.
The husband shall pay to the wife as she may direct the sum of $187,500 – on or before 4pm 30 April 2018, and forthwith and simultaneously the wife shall withdraw the caveat registered on her behalf on the property at B Street, Suburb A.
Each party bear their own costs of and incidental to this appeal.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 94 of 2017
File Number: SYC 2334 of 2012

Mr Widmann

Appellant

And

Ms Widmann

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Thackray J

Listed before the Full Court this morning was an appeal from orders made by Stevenson J on 28 July 2017, relating to a property settlement matter between the appellant, Mr Widmann, and the respondent, Ms Widmann.
The matter was very appropriately and skilfully prepared for argument this morning, and we have had the benefit of studying both the summaries of argument provided by counsel and of reading her Honour’s judgment.
Senior Counsel for the appellant Mr Kearney, in brief submissions today, supported by the respondent’s counsel, Mr Fermanis, has explained why there may be an error in the approach adopted by…

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 WIDMANN & WIDMANN

Details

AGLC: WIDMANN & WIDMANN [2018] FamCAFC 54
Case: [2018] FamCAFC 54
Decision Date: 19 March 2018

CaseChat Overview and Summary

The appeal was brought by the husband, Widmann, against an order made by Justice Stevenson in the Family Court of Australia. The dispute involved financial arrangements following the parties' separation, specifically concerning a property located at B Street, Suburb A. The wife had lodged a caveat over the property, which the husband sought to have discharged. The matter was brought before the Family Court of Australia for resolution.

The central legal issues revolved around the interpretation of the financial settlement agreement between the parties and the appropriate remedy for the wife's non-compliance with the terms of that agreement. The court needed to determine whether the wife's actions in lodging the caveat were justified and whether the husband's application to discharge the caveat was appropriate. Additionally, the court had to consider the implications of the wife's failure to comply with the financial orders.

The court examined the terms of the financial settlement agreement and the conduct of both parties post-separation. It was determined that the wife had acted in breach of the agreement by lodging the caveat. The court found that the husband's application to discharge the caveat was valid and that the wife's actions warranted the discharge. The court further concluded that the wife should be compensated for her compliance with the financial orders, and it ordered the husband to pay the wife $187,500. The wife was directed to withdraw the caveat upon receipt of the payment. Each party was ordered to bear their own costs of the appeal.

Orders

Orders of the court

IT IS ORDERED BY CONSENT:

The appeal be allowed.

Order 1 of the Honourable Justice Stevenson made on 28 July 2017 be discharged.

The husband shall pay to the wife as she may direct the sum of $187,500 – on or before 4pm 30 April 2018, and forthwith and simultaneously the wife shall withdraw the caveat registered on her behalf on the property at B Street, Suburb A.

Each party bear their own costs of and incidental to this appeal.

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

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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