Adair & Adair

Case [2019] FamCAFC 70


Family Court of Australia

ADAIR & AdAIR

[2019] FamCAFC 70

FAMILY LAW – APPEAL – PROPERTY – Where the primary judge made property settlement orders providing for three parcels of real property exclusively held by the husband to be transferred to the wife – Where the three parcels of real property were the parties’ only alienable assets – Where the appellant husband was unable to demonstrate he was not afforded procedural fairness – Where various findings made by the primary judge were open on the evidence – Where the primary judge gave sufficient reasons for the findings made – Where the Full Court considers admissibility of evidence under the Evidence Act 1995 (Cth) and the Family Law Act 1975 (Cth) – Where the primary judge’s consideration of findings made by another judge in relation to family violence was valid – Where the primary judge made no discretionary error in applying Kennon & Kennon (1997) FLC 92-757 to property settlement orders – Where the primary judge’s adjustments made pursuant to ss 75(2) and 79(4) of the Family Law Act 1975 (Cth) were just and equitable – Where no appealable error established – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where no merit in appeal – Where the appellant abandoned grounds of appeal before or during the appeal – Where the remaining grounds of appeal were wholly unsuccessful – Where the appellant is ordered to pay the respondent’s costs of and incidental to the appeal in a fixed amount.

Evidence Act 1995 (Cth) ss 91, 93, 135, 136, 190

Family Law Act 1975 (Cth) ss 69ZM, 69ZT, 69ZX, 75(2), 79(4)

Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10

De Winter and De Winter (1979) FLC 90-605

Farmer and Bramley (2000) FLC 93-060; [2000] FamCA 1615

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27

National Companies & Securities Commission v News Corporation Limited (1984) 156 CLR 296; [2012] HCA 29

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

RCB v Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Appellant:

Mr Adair

Respondent:

Ms Adair

File Number:

PAC
3305

of
2013

Appeal Number:

EA
60

of
2018

DATE DELIVERED:

29 April 2019

Place Delivered:

Newcastle

Place Heard:

Sydney

Judgment of:

Strickland, Ryan & Austin JJ

Hearing date:

1 March 2019

Lower court jurisdiction:

Family Court of Australia

lower court judgment date:

18 April 2018

LOWER COURT MNC:

[2018] FamCA 239

REPRESENTATION

COUNSEL FOR THE Appellant:

Mr Bennett

SOLICITOR FOR THE Appellant:

Adam Jones Solicitor

SOLICITOR FOR THE RESPONDENT:

Mr Bainbridge, Bainbridge Legal

Orders

(1)      The appeal be dismissed.

(2)      The appellant pay the respondent’s costs of…

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AGLC
Adair & Adair [2019] FamCAFC 70
Case
[2019] FamCAFC 70
Decision Date

CaseChat Overview and Summary

The appeal, Adair & Adair, involved the husband, the appellant, challenging property settlement orders made by the primary judge. The wife, the respondent, was awarded exclusive ownership of three parcels of real property, which constituted the only alienable assets of the parties. The husband argued that procedural fairness was not afforded to him, that certain findings made by the primary judge were not supported by the evidence, and that the primary judge had erred in various respects. The wife maintained that the primary judge's orders were just and equitable and that the husband had failed to demonstrate any error in law or fact.

The court was required to consider whether the husband had been denied procedural fairness, whether the findings made by the primary judge were supported by the evidence, and whether there had been any error in the application of legal principles. The court also examined the admissibility of evidence under relevant legislation and the validity of the primary judge's consideration of findings made by another judge in relation to family violence. Furthermore, the court assessed whether the primary judge had made any discretionary errors in applying established legal principles to the property settlement orders, and whether the adjustments made by the primary judge were just and equitable.

The Full Court found that the husband had not demonstrated a lack of procedural fairness, that various findings made by the primary judge were open on the evidence, and that the primary judge's reasons for the findings made were sufficient. The court considered that the admissibility of evidence had been properly assessed under the relevant legislation, and that the primary judge's consideration of findings related to family violence was valid. The court also held that the primary judge had not made any discretionary errors in applying the relevant legal principles to the property settlement orders, and that the adjustments made were just and equitable. As a result, the court found no appealable error and dismissed the appeal.

The court ordered that the appeal be dismissed and that the appellant pay the respondent's costs of and incidental to the appeal, fixed in the sum of $15,000 within 28 days of the date of these orders. This form of the order is subject to the entry of the order in the Court's records.

Orders

Orders of the court

(1) The appeal be dismissed.

(2) The appellant pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $15,000 within 28 days of the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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