Absolom & Hallett - [2023] FedCFamC2F 291

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Absolom & Hallett [2023] FedCFamC2F 291

File number(s): ADC 1901 of 2022

Judgment of: JUDGE DICKSON

Date of judgment: 17 March 2023

Catchwords: FAMILY LAW – PROPERTY – interim proceedings – partial property settlement – where the husband brings an application for the transfer of a property into his sole name by way of partial property settlement pending Trial – where the husband’s application is brought on the basis that he requires “ financial autonomy “and to obtain a credit card – where the matrimonial asset pool is unknown - where it is not just and equitable for the orders sought by the husband to made at an interim hearing- costs.

Legislation: Family Law Act 1975 (Cth) ss 79, 80, 117

Cases cited:
Gabel & Yardley [2008] FamCAFC 162

Sresbodan & Sresbodan [2013] FamCA 480

Strahan v Strahan [2009] FamCAFC 166

Division: Division 2 Family Law

Number of paragraphs: 36

Date of hearing: 3 March 2023

Place: Adelaide

Counsel for the Applicant: Mr Boehm

Solicitor for the Applicant: Brite Legal

Counsel for the Respondent: Mr Bowler

Solicitor for the Respondent: ASW Lawyers
ORDERS

ADC 1901 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ABSOLOM

Applicant

AND:
MS HALLETT

Respondent

order made by:

JUDGE DICKSON

DATE OF ORDER:

17 MARCH 2023

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 17 January 2023 and the Response to Application in a Proceeding filed 21 February 2023 ( “ the interim applications “ ) are dismissed.
2.That at final settlement of the parties competing applications for adjustment of property, the husband do pay the wife’s costs of and incidental to the said interim applications in such sum as the parties agree in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and in default of agreement as ordered by the Court.
3.The matter be listed for Trial Directions and Management on 15 May 2023 at 10:00am in the D Street, City E Circuit, such hearing to take place in open Court on a face-to-face basis in accordance with Court protocols.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Absolom & Hallett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS…

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.

Keep reading for free

Create a free CaseChat account to read Absolom & Hallett and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FedCFamC2F 291
Decision Date

CaseChat Overview and Summary

The case of Absolom & Hallett was heard by Judge Dickson in the Federal Circuit and Family Court of Australia. The parties, Mr Absolom and Ms Hallett, were before the Court to contest interim applications regarding partial property settlement and ancillary orders. The husband sought an order for the transfer of a property into his sole name, claiming that he required financial autonomy and to obtain a credit card. The wife opposed the application, arguing that it was not just and equitable for the orders sought by the husband to be made at an interim hearing.

The Court was required to decide whether the husband's application for partial property settlement should be granted. The legal principles applied in this case included the power of the Court to make orders for the adjustment of property between parties under section 79 of the Family Law Act 1975, and the need for the Court to consider whether it is just and equitable to make an order at an interim stage.

The Court dismissed the husband's application for partial property settlement. The Court found that the net value of the matrimonial asset pool was not confirmed, and that there was no evidence of the husband being rejected for a credit card in his sole name or being in financial difficulty. The Court also noted that the husband's desire for financial autonomy was not sufficiently compelling to exercise its discretion to make an order for interim property settlement. The Court further found that making such an order could potentially result in the husband refinancing the mortgage only to repeat the exercise if he was required to pay the wife a settlement sum.

In relation to costs, the Court considered that an order for costs was justified but proposed to exercise its discretion such that the costs would be paid pursuant to Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and adjusted as part of the final settlement in favour of the wife.

The Court ordered that the interim applications be dismissed, and that the husband pay the wife's costs of and incidental to the said interim applications. The matter was listed for Trial Directions and Management on 15 May 2023.

Orders