Arthurman & Arthurman

Case [2019] FamCAFC 214


FAMILY COURT OF AUSTRALIA

ARTHURMAN & ARTHURMAN [2019] FamCAFC 214
FAMILY LAW – APPEAL – INTERIM PROPERTY – Leave to appeal – Whether the primary judge erred by refusing the husband’s application for summary dismissal of the wife’s application for the dissolution of a trust, reimbursement of land tax associated with sale of property and indemnification against future liability – Where the wife filed a Notice of Contention – Where the primary judge found that only the wife’s application for dissolution of the trust had no reasonable prospect of success but declined to strike out part of the wife’s application as the husband had not sought that his Honour do so – Whether the primary judge’s decision was “attended by substantial doubt” to warrant granting leave to appeal – Where the husband asserted that the primary judge had made errors of fact – No error of fact found – Where even if there was an error of fact, it would not be material to the outcome of the primary judge’s decision – Where the decision of the primary judge was not attended by sufficient doubt to warrant the grant of leave to appeal – The husband has not established that he will suffer a substantial injustice if leave to appeal were refused – Leave to appeal not granted – Where the parties had agreed costs of the appeal should follow the event – Husband ordered to pay the wife’s costs of the appeal in a fixed sum.
Family Law Act 1975 (Cth) ss 79, 79A, 94AA
Federal Court of Australia Act 1976 (Cth) s 31A
Family Law Rules 2004 (Cth) rr 1.04, 1.10, 10.12, 10.14
Family Law Regulations 1984 (Cth) reg 15A(1)(a)
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Apoda & Apoda [2013] FamCA 265
Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317
Bretton & Bondai [2013] FamCAFC 168
Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Lindon v The Commonwealth (No.2) (1996) 136 ALR 251; [1996] HCA 14
Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29
Nicholson v Nicholson (1974) 2 NSWLR 59
Pelerman & Pelerman (2000) FLC 93-037; [2000] FamCA 881
Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97
Rand & Rand (2010) FLC 93-444; [2010] FamCAFC 167
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Vadisanis & Vadisanis (2015) FLC 93-671; [2015] FamCAFC 180
Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78
APPELLANT: Mr Arthurman
RESPONDENT: Ms Arthurman
FILE NUMBER: SYC 399 of 2017
APPEAL NUMBER: EAA 114 of 2018
DATE DELIVERED: 19 November 2019
PLACE DELIVERED: Melbourne
PLACE HEARD: Sydney
JUDGMENT OF: Alstergren CJ, Aldridge…

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Arthurman & Arthurman [2019] FamCAFC 214
Case
[2019] FamCAFC 214
Decision Date

CaseChat Overview and Summary

In the case of Arthurman & Arthurman, the dispute before the court involved a husband who sought leave to appeal a decision of a primary judge regarding his wife's application for the dissolution of a trust, reimbursement of land tax associated with the sale of property, and indemnification against future liability. The wife had filed a Notice of Contention, and the primary judge determined that only the application for the dissolution of the trust had no reasonable prospect of success. The husband argued that the primary judge erred in refusing his application for summary dismissal and that the decision was attended by substantial doubt.

The court was required to decide whether the primary judge had made an error in refusing the husband’s application for summary dismissal. Specifically, the court needed to assess if the husband's application for leave to appeal was justified and whether the primary judge’s decision was attended by substantial doubt. The husband contended that the primary judge had made errors of fact, but the court found no such errors and concluded that even if there were, they would not have been material to the outcome.

The court reasoned that the primary judge's decision was not attended by sufficient doubt to warrant the grant of leave to appeal. The husband had not established that he would suffer a substantial injustice if leave to appeal were refused. Consequently, the court dismissed the application for leave to appeal and also dismissed the appeal itself. The parties had agreed that the costs of the appeal should follow the event, leading to the husband being ordered to pay the wife's costs of the appeal in a fixed sum of $4,950.

Orders

Orders of the court

1.

The application for leave to appeal be dismissed.

2.

The appeal be otherwise dismissed.

3.

There be costs fixed in the amount of $4,950 to be paid by the appellant to the respondent.

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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