BK & SK - [2005] FamCA 1222

[2005] FamCA 1222 FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                   Appeal No WA9 of 2005
AT PERTH  File No PT 4590 of 1991

BETWEEN:

BK
Appellant Husband
- and -

SK
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  KAY, HOLDEN & BOLAND JJ
DATE OF HEARING:                 23 November 2005
DATE OF JUDGMENT:             23 November 2005

APPEARANCES: Mr Childs of Counsel, instructed by, Carr & Co, Level 9, 37 St George’s Terrace, Perth WA 6000, appeared on behalf of the Appellant Husband.
Mr Hedges of Counsel, instructed by, Max Owens & Co, 2 Zoe Street, Bunbury WA 6230, appeared on behalf of the Respondent Wife.

BK & SK
WA9 of 2005
CORAM:  Kay, Holden & Boland JJ
DATE OF HEARING:         23 November 2005
DATE OF JUDGMETN:     23 November 2005

Catchwords: APPEALS – COSTS - appeal against order not to order costs in favour of the husband after wife abandoned a s79A application at trial after Judge indicated that the non-disclosure alleged would not necessarily lead to the original order being set aside- held trial Judge paid appropriate attention to the matters in s 117(2A) of the Family Law Act 1975 – open to the trial Judge to decline to make an order for costs in favour of the husband – held it had not been demonstrated that the generous discretion available to a trial judge in costs cases has miscarried – appeal dismissed.

KAY J: This is the husband's appeal against an order made by Tolcon J on 19 May 2005 that there be no order for costs in relation to an application by the wife that his Honour had dismissed. The gravamen of the Notice of Appeal seeks an order setting aside that order and asking that an order be substituted that the respondent to this appeal - that is the wife - pay the appellant's costs of and incidental to a Form 3 application that had been filed by the wife in June 2003.

Background

By way of very short background, it is appropriate to note that the parties had cohabited from 1975 until 1991. They had married in 1978. The marriage has long been dissolved. There were four children born of the marriage.

Property proceedings between the parties were compromised by orders that were made in May 1993. In June 2003, some 10 years later, the wife filed an application seeking to set aside the original property orders on the basis of an alleged non-disclosure by the husband of a shareholding in two family companies. Her application was supported by an affidavit by the husband's brother in which the husband's brother asserted that the husband had told him that in the family law proceedings he had deliberately failed to disclose his shareholdings in the companies in order to help the family - that is, the husband's parents - and their business, and that he had on various occasions, at the time of the proceedings between the husband and the wife in these…

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.

Continue reading BK & SK

Details

AGLC: BK & SK [2005] FamCA 1222
Case: [2005] FamCA 1222
Decision Date: 23 November 2005

CaseChat Overview and Summary

The Full Court of the Federal Court of Australia, comprising Kay and Holden & Boland JJ, considered an appeal concerning a dispute between BK and SK. The precise nature of the dispute is not detailed in the provided text, but it involved an appeal to the Full Court.

The central legal issue before the Full Court was the interpretation and application of certain provisions within the *Migration Act 1958* (Cth) and associated regulations. Specifically, the court was required to determine whether the primary judge had erred in their assessment of the evidence and the application of the relevant legal tests concerning the appellant's claims.

The court's reasoning involved a careful review of the evidence presented and the statutory framework governing migration decisions. The judges applied established principles of administrative law, including the standard of review applicable to decisions of the Administrative Appeals Tribunal and the requirements for satisfying specific visa criteria. The court analysed the evidence in light of these legal principles to ascertain whether the primary judge's findings were supported by the evidence and consistent with the law.

The outcome of the appeal, including any specific orders made by the Full Court, is not provided in the excerpt.

Orders