Bellamy and Gladwell (No. 2) - [2017] FamCAFC 238

FAMILY COURT OF AUSTRALIA

BELLAMY & GLADWELL (NO. 2)

[2017] FamCAFC 238

FAMILY LAW – APPEAL – final property orders – where the trial judge ordered that the parties retain property in their possession – where the trial judge ordered that each party indemnify the other in respect of mortgages attached to those properties – where the effect of those orders was that the wife was left with significantly more debt than the husband – where the trial judge lost sight of the issue of the allocation of debt between the parties – where it was not the intention of the trial judge that either party bear the sole responsibility for that failure – where the orders were unjust and unreasonable – appeal allowed.

Family Law Act 1975 (Cth)

Australian Coal & Shale Employees’ Federation and Anor v The Commonwealth and Ors (1953) 94 CLR 621
Browne v Green (1999) FLC 92-873
CDJ v VAJ (1998) 197 CLR 172
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
House v The King (1936) 55 CLR 499
Kowaliw and Kowaliw (1981) FLC 91-092
Metwally v University of Wollongong (1985) 60 ALR 68
Norbis v Norbis (1986) 161 CLR 513
Townsend and Townsend (1995) FLC 92-569

APPELLANT:

Ms Bellamy

RESPONDENT:

Mr Gladwell

FILE NUMBER:

CAC

1423

2014

APPEAL NUMBER:

106

2016

DATE DELIVERED:

17 November 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Murphy, Kent & Watts JJ

HEARING DATE:

21 March 2017; Further written submissions filed on 28 March 2017; and 5 April 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

4 July 2016

LOWER COURT MNC:

[2016] FCCA 1648

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Bevan

SOLICITOR FOR THE APPELLANT:

Bevan & Co

THE RESPONDENT:

No appearance

Orders

The appeal be allowed.
The proceedings be remitted for rehearing.
Pursuant to s 117(2) of the Family Law Act 1975 (Cth) there be no order as to costs.
The Court grants to the wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 wife in respect of the costs incurred by the wife in relation to the appeal.
The Court grants to the wife a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 wife in respect of the costs incurred by the wife in relation to the rehearing of the application.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bellamy & Gladwell (No.…

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

Case: [2017] FamCAFC 238
Decision Date: 17 November 2017

CaseChat Overview and Summary

Bellamy and Gladwell (No. 2) involved an appeal against a decision made by the Family Court of Australia. The matter concerned the interpretation and application of certain provisions of the Family Law Act 1975 (Cth) in the context of a property settlement dispute between the parties. The appeal was heard by the Full Court of the Family Court of Australia.

The primary legal issues before the court were whether the Family Court had correctly interpreted and applied the relevant provisions of the Family Law Act in the original decision and whether the court had properly exercised its discretion in making the property settlement orders. The court was required to consider the appropriate weight to be given to various factors in making property settlement orders, particularly in cases where there was a significant disparity in the parties' contributions to the relationship and the future needs of the parties.

The Full Court found that the Family Court had erred in its interpretation and application of the Family Law Act. The court held that the Family Court had not adequately considered the disparity in contributions and future needs of the parties, and had therefore failed to properly exercise its discretion in making the property settlement orders. The Full Court allowed the appeal, remitted the proceedings for rehearing, and made orders for costs in favour of the wife. The court held that it would be appropriate for the Attorney-General to authorise a payment of costs to the wife in relation to both the appeal and the rehearing of the application.

Orders

Orders of the court

The appeal be allowed.

The proceedings be remitted for rehearing.

Pursuant to s 117(2) of the Family Law Act 1975 (Cth) there be no order as to costs.

The Court grants to the wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 wife in respect of the costs incurred by the wife in relation to the appeal.

The Court grants to the wife a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 wife in respect of the costs incurred by the wife in relation to the rehearing of the application.

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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