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.
The orders made by the Honourable Acting Judge Jordan on 7 December 2012 be set aside.
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.
There be no order for costs.
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.
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…
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
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.