Wolter and Wolter

[2010] FamCA 1118

FAMILY COURT OF AUSTRALIA

WOLTER & WOLTER [2010] FamCA 1118

FAMILY LAW – PROCEDURE – Adjournment application

Family Law Act 1975 (Cth)

APPLICANT: Ms Wolter

RESPONDENT: Mr Wolter

FILE NUMBER: SYC 5747 of 2009

DATE DELIVERED: 2 December 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 2 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Knox

SOLICITOR FOR THE APPLICANT: Shipton & Associates

SOLICITOR FOR THE RESPONDENT: Doolan Wagner & Callaghan

Orders

1. The application of the husband to vacate the hearing date scheduled for 21 December 2010 be dismissed.

2. Leave granted to the wife to file and serve an updating affidavit as to the current situation in relation to mortgages on any properties that are jointly or solely owned by the parties and in relation to her current situation in respect of her employment by 14 December 2010.

3. Leave granted to the husband to file and serve any updating affidavit by 14 December 2010.

4. Leave granted to the parties to file and serve an updating financial statement by 14 December 2010.

5. Both parties file and serve summaries of argument by 17 December 2010.

6. Each party’s costs of today be reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5747 of 2009

MS WOLTER

Applicant

And

MR WOLTER

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the husband makes an application to vacate the hearing date that has been scheduled for 21 December 2010. The application listed for hearing before me on 21 December is an application brought by the wife that a financial agreement that was entered into between the parties on 9 October 2003 be set aside pursuant to section 90K of the Family Law Act. 

2. The material upon which the wife seeks to reply has been identified before me.  The wife has indicated she wishes to file a short updating affidavit going to two matters.  Firstly, the current outstanding liabilities under mortgages in respect of the properties either held by the parties either in their joint names or in their individual names and her current financial situation in relation to her employment.  She also wants to update her financial statement.

3. The husband’s contention is that he has been disadvantaged by not being fully aware of the entire basis upon which the wife is seeking to set the financial agreement aside. 

4. However, it is clear that the husband has had available to him the wife’s affidavit evidence upon which she will seek to rely at the hearing from sometime in March 2010.  The husband has sought more precise particulars.  They were primarily provided to the husband in a letter written by the wife’s lawyer on 28 May 2010. 

5. There has been some further refinement of the precise subsections of 90K(1) FLA that the wife relies upon. Her primary claim is under section 90K(1)(d) FLA. The wife asserts that there has been a material change in circumstance since the agreement was entered into, namely, the birth of three children. That doesn’t come as any surprise to the husband. It is clearly the primary plank upon which the wife bases her case.

6. The wife also seems to wishes to assert that the agreement is void:

   6.1.as a result of the fact the parties had reached a subsequent agreement to do things that weren’t envisaged by the agreement; and

   6.2.because it is uncertain in terms of what would happen if the parties entered into the purchase of a jointly owned asset that decreased in value (and now has a negative value) in circumstances which have affected the unencumbered nature of property owned by the wife when the agreement was entered into.

7. The ambit of the dispute is relatively clear.  I formed the view that the husband could not be said to be prejudiced.  It is 2 December today.  The hearing is set for 21 December.  The husband has had ample opportunity, given what he has been provided to date and the further discussion I have had with counsel for the wife, to be in a position to know what the case is that is being prosecuted. 

8. In those circumstances I make an order dismissing the application for vacation of the hearing date.

I certify that the preceding eight (8) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 2 December 2010.

Associate: 

Date:  8.12.2010