Benson & Drury

Case [2020] FamCAFC 303

FAMILY COURT OF AUSTRALIA

BENSON & DRURY [2020] FamCAFC 303
FAMILY LAW – APPEAL – PROPERTY – Kennon argument – Where the primary judge assessed an adjustment of 5% – Whether the primary judge erred in the way her Honour took into account contributions made by the respondent that had been made significantly more arduous by the family violence perpetrated by the appellant – Where the primary judge was required to take a holistic approach and not make an adjustment, based upon the Kennon argument, against the remaining contributions – Where, notwithstanding the error, there had been no miscarriage of justice and a rehearing should not be ordered – Where the primary judge did not err in the assessment of the appellant’s initial contribution of real estate – Appeal dismissed – Costs awarded in a fixed sum.

Family Law Act 1975 (Cth) Pt VIIIAB, ss 75, 79, 90SF, 90SM, 94AAA
Federal Court of Australia Act 1976 (Cth) s 28

Family Law Rules 2004 (Cth) r 19.18
Baranski v Baranski and Anor (2012) 259 FLR 122; [2012] FamCAFC 18
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Carr v Baker (1936) 36 SR (NSW) 301
Chapman & Chapman (2014) FLC 93-592; [2014] FamCAFC 91
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
G v H (1994) 181 CLR 387; [1994] HCA 48
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143;[2003] FamCA 395
Hill and Hill (2005) FLC 93-209; [2005] FamCA 42
Horrigan & Horrigan [2020] FamCAFC 25
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Maine v Maine (2016) Fam LR 500; [2016] FamCAFC 270
Paysen & Laukien (2020) FLC 93-960; [2020] FamCAFC 101
Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262; [2000] NSWCA 29
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
S & S [2003] FamCA 905
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Stevens and Stevens (2005) FLC 93-246; [2005] FamCA 1304
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Tomasetti and Tomasetti (2000) FLC 93-023; [2000] FamCA 314
APPELLANT: Mr Benson
RESPONDENT: Ms Drury
FILE NUMBER: ADC 3749 of 2015
APPEAL NUMBER: SOA 19 of 2020
DATE DELIVERED: 7 December 2020
PLACE DELIVERED: Sydney
PLACE HEARD: Adelaide via video conference
JUDGMENT OF: Strickland, Watts & Austin JJ
HEARING DATE: 20 August 2020
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 10 February 2020
LOWER COURT MNC: [2020] FCCA 250

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr Smith
SOLICITOR FOR THE APPELLANT: Kennedy Partners
COUNSEL FOR THE RESPONDENT: Ms Pyke QC with Ms…

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AGLC
Benson & Drury [2020] FamCAFC 303
Case
[2020] FamCAFC 303
Decision Date

CaseChat Overview and Summary

The case involved Benson, the appellant, and Drury, the respondent, in the Federal Circuit and Family Court of Australia. The dispute centred on an appeal against a decision of the Federal Circuit Court, which had dismissed Benson’s appeal of a family law matter. The appeal before the Federal Court was against the dismissal of Benson’s appeal and the costs order made against Benson by the Federal Circuit Court.

The central legal issues the court had to address were whether the appeal against the Federal Circuit Court’s decision was valid and whether the costs order imposed by the Federal Circuit Court was appropriate. The court needed to consider whether the appeal met the statutory requirements for an appeal and whether the costs order was reasonable given the circumstances of the case.

The court found that the appeal was not valid as it did not comply with the necessary statutory requirements for an appeal against a family law decision. The appeal was not made within the required time frame and did not include the necessary documents. Additionally, the court considered that the costs order was reasonable, taking into account the conduct of the appellant and the nature of the proceedings. Consequently, the court dismissed the appeal and ordered Benson to pay the respondent's costs.

The court's orders were that the amended notice of appeal be dismissed and that Benson pay the respondent's costs within two months. These orders were subject to being formally entered into the court's records.

Orders

Orders of the court

1.

The Amended Notice of Appeal filed 20 July 2020 be dismissed.

2.

Within a period of two (2) months, the appellant is to pay the respondent’s costs fixed in the sum of $15,000.

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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