Widmann & Widmann [2018] FamCAFC 54 (19 March 2018)

Last Updated: 3 May 2018

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

of

2012

APPEAL NUMBER:

EA

94

of

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:
(1) The appeal be allowed.
(2) Order 1 of the Honourable Justice Stevenson made on 28 July 2017 be discharged.
(3) 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.
(4) 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

1. 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.
2. 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.
3. 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 the primary judge. As there may have been an error, the parties have agreed that the appeal should be allowed and the discretion re-exercised so as to achieve a different outcome than that which her Honour thought appropriate. It has also been agreed that the parties will bear their own costs of the appeal, including attending here today.
4. The Court encourages parties to reach their own resolution. It is unfortunate that some agreements are not reached earlier, but that is the reality of life. It is often only towards the latter stages of litigation that it becomes apparent that an agreement would be the better outcome rather than to continue to the bitter end.
5. I think it important to explain to the parties, although I am sure it has already been explained by their very competent counsel, what would have happened had they not reached the agreement that has been presented to us today.
6. First, today we would have heard what I think would have been most eloquent submissions on what is a very interesting point of law. It is sad when a couple separate; it is an awful thing to happen to them. They have many regrets, much anxiety and much expense if they have their dispute fought out in court. But it is particularly disconcerting for that couple when they are caught up in what lawyers would regard as a “very interesting point of law”.
7. The parties might not know it, but the matter before the Court today is one which, and I think I speak for my colleagues in saying, posed very interesting legal questions. Now, whilst that is interesting for the lawyers and very interesting for the judges, it is not good for the parties, because resolution of difficult legal issues costs a lot of money. And I know this one has already cost them a lot of money, and it has probably cost them many sleepless nights. So it is very unfortunate for the parties that they have been caught up in this.
8. Returning to what would have happened today, after counsel had presented us with their brilliant arguments, in the finest tradition of the New South Wales bar, we would have inevitably, with a matter of such difficulty, had to go away and consider our decision. We would have spent, I think, collectively between us, some hundreds of hours considering the matter and writing the best judgment that we could, in order to advance the law in this jurisdiction.
9. Considering the complexity of this matter, the parties would not have had an outcome for some many months. Then, at the end of the process, one of the parties would have been bitterly disappointed. I am not sure necessarily which party that might have been, but I see that the parties have come to an agreement about which of them it might have been, and I see the merit in that.
10. Then there would have been an argument about who would pay the costs. This has been an expensive matter because the parties have counsel of very high reputation, and I imagine they have been charged quite a lot for the privilege of having such counsel representing them. We would then have had to consider that argument and decide which party would have to bear the burden of paying not just their legal costs, but the other party’s costs as well.
11. After that, there is the possibility in a case like this – a greater possibility than average – that the matter might have been of such interest that it may have attracted the attention of the High Court. And if the parties had to be involved in that process, whatever money they have left, they might have lost.
12. So all things considered, both counsel, the solicitors who instructed them, but most importantly, the parties, ought to be congratulated for what they have done here today because they will look back on this as probably one of the best decisions they ever made. Because today, for the first time during this litigation, they have taken control of their own destiny. They have worked out for themselves what the outcome is going to be, and they have done it in a civilised and sensible fashion. Speaking for myself, I consider they have reached a good decision and I have no hesitation in saying that I would join, I hope with my colleagues, in being prepared to make the orders we have been asked to make.

AINSLIE-WALLACE J

13. I am content to make the orders sought.

ALDRIDGE J

14. I am content to make the orders.

THACKRAY J

15. There will be orders by consent in terms of the minute. The Court will now adjourn.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ainslie-Wallace & Aldridge JJ) delivered on 19 March 2018.

Associate:

Date: 27 April 2018