Baker & Darzi - [2014] FamCAFC 17

FAMILY COURT OF AUSTRALIA

BAKER & DARZI AND ANOR

[2014] FamCAFC 17

FAMILY LAW – APPEAL – PROPERTY – ALTERATION OF PROPERTY INTERESTS – Where it was submitted by the appellant wife that the trial judge erred by determining that she was not seeking to have paid to her more than $100,000 – Where the Full Court found the trial judge had so erred.

FAMILY LAW – APPEAL – Re-exercise of discretion – where neither party sought to adduce further evidence for the purpose of the re-exercise of the trial judge’s decision – On findings of fact, assessment of assets and contributions of the parties by the trial judge – where the wife receives a further amount of $285,125 and the wife has already received $100,000 of that amount – where costs certificate to issue to the wife.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981(Cth)

APPELLANT:

Ms Baker

FIRST RESPONDENT:

Mr Darzi

SECOND RESPONDENT:

Ms Darzi

FILE NUMBER:

PTW

5453

2008

APPEAL NUMBER:

2013

DATE DELIVERED:

14 February 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Perth

JUDGMENT OF:

Strickland, Ainslie-Wallace
& Crisford JJ

HEARING DATE:

30 October 2013

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

20 February 2013

LOWER COURT MNC:

[2013] FCWA 16

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Rod Hooper SC

SOLICITOR FOR THE APPELLANT:

Dwyer Durack

FIRST RESPONDENT:

In person

THE SECOND RESPONDENT:

No appearance

Orders

Extend time for the filing of the wife’s summary of argument nunc pro tunc.
Grant leave to the wife to amend the grounds of appeal in terms as appear in the summary of argument.
Grant leave to the wife to add further documents to be considered on the appeal in the form of appeal book volume 10.
Appeal against order 1 of Walters J made on 20 February 2013 be allowed.
Set aside order 1 of Walters J made 20 February 2013 and in lieu thereof order:
(a)Husband and Ms Darzi jointly or severally pay to the wife the sum of $285,125 within 28 days of the date of these orders.
(b) Note, of that sum, the wife has already received $100,000.
That the Court grants to the appellant wife a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal.

IT IS ALSO NOTED that publication of this judgment by this Court under the pseudonym Baker & Darzi and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA
AT PERTH

Appeal Number: WA 8 of 2013
File Number: PTW 5453 of 2008

Ms Baker

Appellant

and

Mr Darzi

First Respondent

and

Ms Darzi
Second Respondent

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.

Continue reading Baker & Darzi

Details

AGLC: Baker & Darzi [2014] FamCAFC 17
Case: [2014] FamCAFC 17
Decision Date

CaseChat Overview and Summary

Ms Baker appeals against an order made by Walters J in property proceedings with Mr Darzi and his mother, Ms Darzi. The order from which the wife appeals is in the following terms: the husband and the wife must forthwith sign all documents and do all such acts and things as shall be necessary to cause the sum of $100,000 currently held in trust to be paid to the wife, together with all interest accrued thereupon. The wife argues that the trial judge erred in determining that she was not seeking to have paid to her more than the $100,000 held in trust. The Full Court found that the trial judge erred in determining that the wife was not seeking to have paid to her more than the $100,000 held in trust. The Full Court found that the wife’s appeal makes no challenge to any findings of fact made by his Honour, to his articulation of the law or to his conclusions about the contributions of the parties and each of them. The Full Court found that in all of the circumstances of this matter, it is appropriate that they re-exercise the trial judge’s discretion rather than remitting the matter for further hearing. The Full Court found that the wife should receive $285,125, noting of course that of that amount, $100,000 has already been received by the wife. The Full Court ordered that the husband and the husband’s mother each bear his or her own costs of the appeal.

Orders