BATEMAN & BOWE - [2016] FamCAFC 39

FAMILY COURT OF AUSTRALIA

BATEMAN & BOWE

[2016] FamCAFC 39

FAMILY LAW – APPEAL – PROPERTY – Where the appellant is bound by the way in which he presented his case before the trial judge – Where the appellant sought that a development property be included in the asset pool at trial, and thus it was not open to him on appeal to suggest otherwise – Where the trial judge was not in error in adopting an agreed pre-completion value for the development property where there was no value otherwise asserted – Where there was no error in the trial judge taking the value of the development property and its relative liabilities as at the date when the value of the assets and liabilities were struck – Where it would be illogical to include the development property at its pre-completion value, but exclude the liabilities incurred to bring the property to that value – Where there was no evidence which would indicate the trial judge was in error in his treatment of the development property – Where the trial judge clearly identified, considered and weighed the appellant’s contributions – Where there was no error by the trial judge in determining that the respondent made a greater contribution to the development property – Where there was no error by the trial judge in finding that the appellant made an indirect contribution to the development property – Where the trial judge clearly considered the greater income of the appellant and the appellant’s financial contributions post-separation – Where there was no error by the trial judge in how he treated the non-disclosure of the respondent – Where there was no error in the trial judge accepting the existence of a debt to third parties – Where there was no error by the trial judge in making the adjustment that he did pursuant to s 90SF(3) of the Family Law Act 1975 (Cth) – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Where neither party sought to pursue their application in an appeal – Applications in an appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Order for costs in favour of the respondent.

Family Law Act 1975 (Cth) – ss 90SM(3) and 90SF(3)
Family Law Rules 2004 (Cth)

Af Petersens and Af Petersens (1981) FLC 91-095
Biltoft and Biltoft (1995) FLC 92-614
Coghlan and Coghlan (2005) FLC 93-220
Gronow v Gronow (1979) 144 CLR 513
Jones v Dunkel (1959) 101 CLR 298
Kowaliw and Kowaliw (1981) FLC 91-092
Omacini and Omacini (2005) FLC 93-218
Prince and Prince (1984) FLC 91-501
Stanford v Stanford (2012) 247 CLR 108
Metwally v University of Wollongong (1985) 60 ALR 68
Zalewski and Zalewski (2005) FLC 93-241

APPELLANT:

Mr Bateman

RESPONDENT:

Ms Bowe

FILE NUMBER:

SYC

5565

2010

APPEAL NUMBER:

2013

DATE DELIVERED:

21 March 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Strickland & Ryan JJ

HEARING DATE:

6…

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.

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Details

AGLC: BATEMAN & BOWE [2016] FamCAFC 39
Case: [2016] FamCAFC 39
Decision Date: 21 March 2016

CaseChat Overview and Summary

In the case of Bateman & Bowe, the appellant sought to appeal a decision made by the trial judge concerning the division of assets following the separation of the parties. The appellant argued that the trial judge had erred in several respects, including in the valuation of a development property, the consideration of contributions to the property, and the treatment of a debt to third parties. The respondent opposed the appeal and argued that the trial judge's decision should be upheld. The appeal was heard by the Family Court of Australia.

The legal issues before the court included whether the trial judge erred in valuing the development property, in considering the contributions made by each party to the property, and in treating the debt to third parties. The court was required to determine whether the trial judge's decision was correct and, if not, whether the errors were significant enough to warrant a different outcome. The court also needed to consider whether any applications in the appeal should be pursued and whether costs should be awarded.

The court found that the trial judge was not in error in adopting the pre-completion value of the development property as there was no other value asserted. The court held that it would be illogical to include the development property at its pre-completion value but exclude the liabilities incurred to bring the property to that value. The court also found that the trial judge had correctly considered the contributions made by each party to the property, including the indirect contributions made by the appellant. The court held that there was no error in the trial judge's treatment of the debt to third parties or in the adjustment made pursuant to section 90SF(3) of the Family Law Act 1975 (Cth). The appeal was dismissed, and the applications in the appeal were also dismissed. The appellant was ordered to pay the respondent's costs of and incidental to the appeal.

In summary, the court dismissed the appeal and found that the trial judge's decision was correct. The court held that there was no error in the valuation of the development property, the consideration of contributions, or the treatment of the debt to third parties. The applications in the appeal were also dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

The appeal be dismissed.

The application in an appeal filed on 16 January 2015 and the response filed on 3 February 2015 be dismissed.

The application in an appeal dated 13 March 2015 be dismissed.

The appellant pay the costs of the respondent of and incidental to the appeal with such costs to be assessed in default of agreement.

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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