Wither and Wither & Anor - [2024] FCWA 243

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: WITHER and WITHER & ANOR [2024] FCWA 243
CORAM: TYSON J
HEARD: [REDACTED]
DELIVERED : Ex tempore
FILE NO/S: 4906 of 2019
BETWEEN: MS WITHER
Applicant
AND
MR WITHER
First Respondent
AND
MRS WITHER SENIOR
Second Respondent

Catchwords:

FAMILY LAW - PRACTICE AND PROCEDURE - Form of proposed orders - Where reasons delivered making orders altering the existing legal and equitable interests of the parties and proposing an overall percentage division of property pool - Where practical effect of proposed division considered, including a proposed superannuation splitting order and a lump sum payment on terms - Where parties given opportunity to propose an agreement as to form of orders and require procedural fairness to be afforded to trustee of superfund - Where parties did not agree as to form of orders - Where parties filed no joint minute and their own proposed minute as to form of orders - Submissions provided as to the form of the orders to give effect to the reasons - Court required to determine form of orders to give effect to reasons - Case turns on own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Senior Counsel A
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Did not participate

Solicitors:

Applicant	:	Law Firm A
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Wither and Wither & Anor [2024] FCWA 177

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wither and Wither & Anor has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).
This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

TYSON J:

1[In] August 2024, I delivered reasons for judgment,[1] ("Reasons") in respect of financial proceedings between the applicant wife, the respondent husband, and the second respondent, the husband's mother, [Mrs Wither Senior]. In the Reasons, I observed that the proceedings had been complicated by the question as to whether the husband owed a debt to Mrs Wither Senior and the wife's application to set aside a 2014 and 2017 Acknowledgment of Debt and Irrevocable Authority executed by the husband and two 2019 Demands executed by Mrs Wither Senior, pursuant to section 106B of the Family Law Act 1975 (Cth) ("the Act").
[1] Wither and Wither…

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 Wither and Wither & Anor

Details

AGLC: Wither and Wither & Anor [2024] FCWA 243
Case: [2024] FCWA 243
Decision Date: 21 October 2024

CaseChat Overview and Summary

The case of Wither and Wither & Anor involved a dispute over the division of property and superannuation between the parties. The court was required to determine the form of the proposed orders following the delivery of reasons that altered the existing legal and equitable interests of the parties and proposed an overall percentage division of the property pool. The case was heard in the Family Court of Australia.

The legal issues before the court involved the procedural fairness afforded to the trustee of the superannuation fund and the parties' opportunity to propose an agreement as to the form of orders. The court needed to consider the practical effect of the proposed division, including the superannuation splitting order and a lump sum payment on terms. The court was required to determine the form of orders to give effect to the reasons, taking into account the fact that the parties did not agree on the form of orders and had not filed a joint minute or their own proposed minute.

The court reasoned that procedural fairness required the trustee of the superfund to be given an opportunity to make submissions on the form of the orders. The court considered the submissions provided by the parties and the trustee, and determined that the orders should be made in a form that gave effect to the reasons. The court recognised that the case turned on its own facts and that the form of orders should reflect the practical effect of the proposed division.

The final orders were made in a form that gave effect to the reasons, including a superannuation splitting order and a lump sum payment on terms. The court emphasised that the form of orders should be practical and reflect the overall percentage division of the property pool. The court also recognised the importance of procedural fairness and the need to afford the trustee of the superfund an opportunity to make submissions on the form of the orders.

Orders