FAMILY COURT OF AUSTRALIA
| BISHOP & BISHOP | [2013] FamCAFC 138 |
| FAMILY LAW – APPEAL – PROPERTY – Where the appellant husband appealed property settlement orders on the basis that the Federal Magistrate erred in excluding an inheritance received by the wife late in the marriage and a property the wife purchased post-separation from the parties’ property “pool” – Where the appellant husband also alleged the Federal Magistrate erred in his findings regarding the parties’ contributions to their superannuation entitlements and the parties’ contributions to their non-superannuation property “pool” – Where the Full Court found that the Federal Magistrate failed to make findings regarding the parties’ contributions to their superannuation entitlements – Appeal allowed – Remitted for rehearing – No order for costs – Certificates for costs granted. |
| Family Law Act 1975 (Cth) |
Federal Proceedings (Costs) Act 1981 (Cth)
| Bonnici v Bonnici (1992) FLC 92-272 Coghlan and Coghlan (2005) FLC 93-220 Gronow v Gronow (1979) 144 CLR 513 |
| APPELLANT: | Mr Bishop |
| RESPONDENT: | Mrs Bishop |
| FILE NUMBER: | CAC | 142 | of | 2008 |
| APPEAL NUMBER: | EA | 5 | of | 2012 |
| DATE DELIVERED:: | 6 September 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Finn, May and Strickland JJ |
| HEARING DATE: | 26 October 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 11 August 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 790 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr C. Othen |
| SOLICITOR FOR THE APPELLANT: | Garden Montgomerie Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr G. Brzostowski SC |
| SOLICITOR FOR THE RESPONDENT: | Walsh Blair Lawyers |
Orders
The appeal against the orders made by Federal Magistrate Lindsay (as he then was) on 11 August 2011 be allowed.
The orders be set aside.
The proceedings between the parties for property settlement be remitted for re-hearing by a Judge of the Federal Circuit Court (other than Judge Lindsay).
The application filed on behalf of the husband on 23 October 2012 to adduce further evidence be dismissed.
The application made orally on behalf of the wife in Court on 26 October 2012 to adduce further evidence be dismissed.
There be no order for costs in relation to the appeal.
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 him 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 the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being…
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- Bishop & Bishop [2013] FamCAFC 138
- Case
- [2013] FamCAFC 138
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CaseChat Overview and Summary
The legal issues that the Full Court had to determine included whether the orders made by the Federal Magistrate were correct, whether further evidence should be adduced, and whether the orders for costs were appropriate. The Court considered the arguments presented by both parties and examined the evidence and submissions made during the appeal. The Full Court found that the orders made by the Federal Magistrate were incorrect and that the appeal should be allowed.
Consequently, the Full Court set aside the orders made by the Federal Magistrate and remitted the proceedings for property settlement for re-hearing by a Judge of the Federal Circuit Court (other than Judge Lindsay). The Court also dismissed the applications made by both parties to adduce further evidence. The Court granted costs certificates to both parties pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth), which would allow the Attorney-General to authorise payments for costs incurred by each party in relation to the appeal and the new trial.
Orders
Orders of the court
1. The appeal against the orders made by Federal Magistrate Lindsay (as he then was) on 11 August 2011 be allowed.
2. The orders be set aside.
3. The proceedings between the parties for property settlement be remitted for re-hearing by a Judge of the Federal Circuit Court (other than Judge Lindsay).
4. The application filed on behalf of the husband on 23 October 2012 to adduce further evidence be dismissed.
5. The application made orally on behalf of the wife in Court on 26 October 2012 to adduce further evidence be dismissed.
6. There be no order for costs in relation to the appeal.
7. 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 him in relation to the appeal.
8. 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 her in relation to the appeal.
9. The Court grants to each party 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
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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