Wither and Wither & Anor - [2024] FCWA 16

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: WITHER and WITHER & ANOR [2024] FCWA 16
CORAM: TYSON J
HEARD: [REDACTED]
DELIVERED : 31 JANUARY 2024
FILE NO/S: 4906 of 2019
BETWEEN: MS WITHER
Applicant
AND
MR WITHER
First Respondent
AND
MRS WITHER SENIOR
Second Respondent
AND
MR B
Seeking Leave to Intervene

Catchwords:

FAMILY LAW - PRACTICE AND PROCEDURE - Application to Amend Final Relief Sought - Where leave is required - Leave granted - Case turns on its own facts

FAMILY LAW - Application for interlocutory order pursuant to s 106B to set aside the transfer of shares effected by the husband - Where the wife sought final orders, to retain the shares the subject of the disposition - Where the Court is satisfied that the disposition was likely to defeat the anticipated order, irrespective of the husband's intention - Where the Court is satisfied it is appropriate to exercise discretion on an interim basis and set aside the transfer - Case turns on its own facts

FAMILY LAW - Application for injunctions - Where the Court is satisfied the wife has a reasonable claim to alter property interests and that her claim may be defeated or damaged if the injunction is not granted - Where the Court exercises discretion to grant an injunction on balancing the hardship and convenience between the parties - Case turns on its own facts

Legislation:

Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Senior Counsel A
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Did not participate
Seeking Leave to Intervene	:	Self-Represented Litigant

Solicitors:

Applicant	:	Law Firm A
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Self-Represented Litigant
Seeking Leave to Intervene	:	Counsel B

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

ANZ Banking Group Ltd v Harper (1988) FLC 91-938
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Calvin & McTier (2017) FLC 93-785
Carter and Carter (1981) FLC 91-061
Chancellor & McCoy (2016) FLC 93-752
D'Cruz & Pierce and Ors [2008] FamCA 819
Dickons v Dickons (2012) 50 Fam LR 244
Fields & Smith (2015) FLC 93-638
Gelley and Gelley (No 2) 15 Fam LR 483
Gould and Gould; Swire Investments Ltd (1993) FLC 92-434
In the Marriage of Gelley and Gelley (No 2) (1992) FLC 92-291
In the Marriage of Pflugradt (1981) FLC 91-.63
Lovine & Connor and Anor (2012) FLC 93-515
Mallet v Mallet (1984) 156 CLR 605
Mullen & De Bry (2006) FLC 93-293
Norton & Locke [2013] FamCAFC 202
Pflugradt and Pflugradt (1981) FLC 91-052
Riemann & Riemann and Ors (No 3) [2017] FamCA 911
Stowe & Stowe (1981) FLC 91-027
VC & CG and Ors (2010) FLC 93-434
Vedders & Gittens (2023) FLC 94-156
Wallis & Manning (2017) FLC 93-759

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED.

IT IS NOTED that publication…

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.

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Details

AGLC: Wither and Wither & Anor [2024] FCWA 16
Case: [2024] FCWA 16
Decision Date: 31 JANUARY 2024

CaseChat Overview and Summary

In the Family Court of Australia, the case of Wither and Wither & Anor involved a dispute regarding the amendment of final relief sought in a family law matter. The wife, represented by Wither, sought leave to amend her final relief to include an order to retain shares that had been transferred by the husband. The court was required to decide whether leave should be granted for this amendment and whether it was appropriate to set aside the transfer of the shares on an interim basis.

The central legal issues before the court were whether the wife had established a likelihood that the transfer of the shares would defeat the anticipated order and whether the court should exercise its discretion to grant an injunction to prevent the husband from retaining the shares. The court considered the unique facts of the case, including the wife's reasonable claim to alter the property interests and the potential for her claim to be prejudiced if the injunction was not granted.

The court found that the transfer of the shares was likely to defeat the anticipated order and that it was appropriate to exercise its discretion on an interim basis to set aside the transfer. The court was satisfied that the wife had a reasonable claim to alter property interests and that the granting of an injunction was necessary to prevent her claim from being prejudiced. The court balanced the hardship and convenience between the parties and concluded that it was appropriate to grant the injunction. The case was determined on its own unique facts, and the court exercised its discretion in line with the specific circumstances presented.

The final orders included granting leave for the wife to amend her final relief sought, setting aside the transfer of the shares on an interim basis, and granting an injunction to prevent the husband from retaining the shares. The court's decision was based on the unique facts of the case and the need to prevent the wife's claim from being prejudiced.

Orders