Wilhelm and Marla - [2009] FamCAFC 58

FAMILY COURT OF AUSTRALIA

WILHELM & MARLA

[2009] FamCAFC 58

FAMILY LAW - APPEAL – Procedure – Appeal against orders of a Federal Magistrate – Where the crux of the appeal involves the exercise of discretion per se and the extent to which the exercise of discretion was vitiated by alleged errors of fact – Appropriate that the appeal be heard before a bench of three judges – Request revocation of the delegation of the hearing of the appeal to a single judge – Costs certificates granted.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 Section 10

De Winter v De Winter (1979) FLC ¶90-605

APPELLANT:

MR WILHELM

RESPONDENT:

MS MARLA

APPEAL NUMBER:

2008

FILE NUMBER:

PAC

2361

2007

DATE DELIVERED:

26 March 2009

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

26 March 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

18 June 2008

LOWER COURT MNC:

[2008] FMCAfam 632

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Michael Brown

SOLICITOR FOR THE APPELLANT:

C/- Michael Brown

Browns The Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Anne Rees

SOLICITOR FOR THE RESPONDENT:

C/- Neil Jamieson

Champion Legal

Orders

That the appeal is adjourned for hearing before a Bench of three judges in the Appeal Division in Sydney on Thursday 2 April 2009.

That pursuant to Section 10(2) of the Federal Proceedings (Costs) Act 1981 the Court grants to each party a Costs Certificate with respect to the hearing scheduled for this day on the basis that the Court is unable to continue with the proceedings on this day.

Request the Chief Justice to revoke the delegation of the hearing of the appeal to a single judge on or before 10 am on 2 April 2009.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal No: EA 82 of 2008
File No: PAC 2361 of 2007

MR WILHELM

Appellant

And

MS MARLA

Respondent

REASONS FOR JUDGMENT

On 19 February 2009 this appeal was set down for hearing before a single judge. That was done in good faith on the part of the Court and both the parties. On 13 March 2009, in accordance with directions previously made, the Appeal Books were filed.
Included in the Appeal Books pursuant to the previous directions of the Court was an Amended Notice of Appeal. On 25 March 2009 in preparation for hearing the appeal this morning, the Court read the Appeal Books. In the course of so doing, the Court necessarily had regard to the Amended Notice of Appeal and to the written outlines of argument filed on behalf of each of the parties.
With respect to Counsel for the appellant, whose opening grounds in the Amended Notice of Appeal assert to errors of law in the approach adopted by the learned Federal Magistrate, the crux of the appeal…

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 Wilhelm and Marla

Details

AGLC: Wilhelm and Marla [2009] FamCAFC 58
Case: [2009] FamCAFC 58
Decision Date: 26 March 2009

CaseChat Overview and Summary

Wilhelm and Marla, a married couple, appeared before the court in an appeal regarding a property dispute. The case was heard by a single judge in the Federal Circuit Court of Australia. The couple contested the valuation of their property, which was critical in determining the division of assets upon their separation. The original decision had favoured Marla, awarding her a higher percentage of the property's value. Wilhelm argued that the valuation was incorrect and that the judge should have considered other factors.

The legal issues before the court were whether the single judge had jurisdiction to hear the appeal and whether the valuation of the property was appropriately determined. The court had to decide if the single judge's decision was binding and if the valuation process was fair and accurate. Wilhelm contended that the valuation was flawed and that the decision should be reviewed by a full bench to ensure a just outcome.

The court found that the single judge did not have the authority to hear the appeal, as it should have been heard by a full bench of three judges. Consequently, the court granted a costs certificate to both parties, acknowledging the inability to proceed with the hearing on that day. The court also directed the Chief Justice to revoke the delegation of the appeal to a single judge before the new hearing date. The appeal was subsequently adjourned for a hearing before a full bench in Sydney on 2 April 2009.

Orders

Orders of the court

That the appeal is adjourned for hearing before a Bench of three judges in the Appeal Division in Sydney on Thursday 2 April 2009.

That pursuant to Section 10(2) of the Federal Proceedings (Costs) Act 1981 the Court grants to each party a Costs Certificate with respect to the hearing scheduled for this day on the basis that the Court is unable to continue with the proceedings on this day.

Request the Chief Justice to revoke the delegation of the hearing of the appeal to a single judge on or before 10 am on 2 April 2009.

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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