Bevan & Bevan

Case [2014] FamCAFC 19


FAMILY COURT OF AUSTRALIA

BEVAN & BEVAN [2014] FamCAFC 19
FAMILY LAW – APPEAL – RE-EXERCISE – Where the Full Court had previously found that the trial Judge had erred in the exercise of his discretion – where submissions were sought concerning the re-exercise of the discretion – where the husband had made repeated representations over many years that the wife could retain all of the property in Australia – where the husband had delayed commencing proceedings until almost the expiration of the limitation period – where all the property is held in the name of the wife – where it would not be just and equitable to make any order interfering with existing property interests – husband’s application for adjustment of property interests dismissed. 
Family Law Act 1975 (Cth) s 75(2), s 79, s 93A(2), s 94(1) and (2)
Federal Proceedings (Costs) Act 1981 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Bevan & Bevan (2013) FLC 93-545
CDJ v VAJ (1998) 197 CLR 172
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
CSR Ltd v Della Maddalena (2006) 224 ALR 1
Stanford & Stanford (2012) 247 CLR 108
Re Stoneham [1919] 1 Ch 149
Re Watson; Ex Parte Armstrong (1976) FLC 90-059
Ruscoe and Walker (2002) FLC 93-093
T & T [2013] EWHC B3 (Fam)
Torrington v Torrington [2013] EWCA Civ 1631
Wall v Wall(2002) 167 FLR 461; (2002) FLC 93-110

APPELLANT: Mrs Bevan
RESPONDENT: Mr Bevan
FILE NUMBER: PTW 2469 of 2010
APPEAL NUMBER: WA 2 of 2013
DATE DELIVERED: 19 February 2014
PLACE DELIVERED: Brisbane
PLACE HEARD: Perth
JUDGMENT OF: Bryant CJ, Finn and Thackray JJ
HEARING DATE: By way of written submissions
LOWER COURT JURISDICTION: Family Court of Western Australia
LOWER COURT JUDGMENT DATE: 7 December 2012
LOWER COURT MNC: [2012] FCWA 125

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Hooper SC
SOLICITOR FOR THE APPELLANT: DCH Legal
COUNSEL FOR THE RESPONDENT: Mr Kearney SC
SOLICITOR FOR THE RESPONDENT: Paltos Briggs Family Lawyers

Orders

  1. The appeal be allowed.

  2. The orders made by the Honourable Acting Judge Jordan on 7 December 2012 be set aside.

  3. The application filed by the respondent on 20 July 2011, the response filed by the appellant on 14 September 2011 and the reply filed by the respondent on 2 December 2011 be dismissed.

  4. There be no order for costs.

  5. The Court grants to the appellant 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 appellant in respect of the costs incurred by her in relation to the appeal.

  6. The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for…

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AGLC
Bevan & Bevan [2014] FamCAFC 19
Case
[2014] FamCAFC 19
Decision Date

CaseChat Overview and Summary

The appeal before the court involved a dispute between the husband and wife regarding the division of their property. The Full Court had previously found that the trial judge had erred in the exercise of his discretion concerning the property division. The husband sought re-exercise of the discretion, while the wife argued that it would not be just and equitable to make any order interfering with her existing property interests. The case was heard in the Family Court of Australia.

The primary legal issue the court had to decide was whether it would be just and equitable to re-exercise the discretion concerning the division of property. The court considered the husband's repeated representations over many years that the wife could retain all of the property in Australia, as well as the husband's delay in commencing proceedings until almost the expiration of the limitation period. The court also examined the fact that all the property was held in the wife's name.

The court concluded that it would not be just and equitable to make any order interfering with the existing property interests of the wife. The court found that the husband's representations and delay in commencing proceedings were significant factors in their decision. Consequently, the husband's application for adjustment of property interests was dismissed. The appeal was allowed, and the orders made by the Honourable Acting Judge Jordan were set aside. Additionally, the costs certificates were granted to both parties under the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

1.

The appeal be allowed.

2.

The orders made by the Honourable Acting Judge Jordan on 7 December 2012 be set aside.

3.

The application filed by the respondent on 20 July 2011, the response filed by the appellant on 14 September 2011 and the reply filed by the respondent on 2 December 2011 be dismissed.

4.

There be no order for costs.

5.

The Court grants to the appellant 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 appellant in respect of the costs incurred by her in relation to the appeal.

6.

The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 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 respondent in respect of the costs incurred by him in relation to the appeal.

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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