BOSWORTH & FIRKINS - [2014] FamCAFC 202

FAMILY COURT OF AUSTRALIA

BOSWORTH & FIRKINS

[2014] FamCAFC 202

FAMILY LAW – APPEAL – PROPERTY – DE FACTO CROSS-VESTED PROCEEDINGS – Where the proceedings were brought pursuant to the Domestic Relationships Act 1994 (ACT) – Where the appellant submitted that the trial judge erred in the weight given to the parties’ respective contributions – Where it was not demonstrated that the trial judge’s findings were plainly wrong being no proper exercise of his judicial discretion – Where the trial judge identified and assessed each parties’ contributions with precision – Where the trial judge did not take into account any irrelevant considerations or fail to take into account relevant considerations – No merit in these grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – ADEQUACY OF REASONS – Where the appellant submitted that the trial judge failed to provide any or any adequate reasons for his assessment of the various percentage entitlements of the parties – Where it was claimed that there is an unexplained internal inconsistency between the assessment of the contributions of the parties and between the assessment of the contributions of the parties and the assessment of the relevant s 19(2) factors – Where it was unnecessary for the trial judge to explain the differences between the percentage findings – Where there was a clear difference in the exercise of assessing contributions and the s 19(2) factors – Where the reasons are otherwise adequate – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where there are circumstances that justify an order for costs – Appellant to pay respondent’s costs of and incidental to the appeal.

Domestic Relationships Act 1994 (ACT)
Family Law Act 1975 (Cth)
Family Law (Superannuation) Regulations 2001 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act1987 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT)

Bennett & Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Farmer & Bramley (2000) FLC 93-060
Gronow & Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983]
3 NSWLR 378
Pierce & Pierce (1999) FLC 92-844
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Wen & Thom [2010] FamCAFC 81

APPELLANT:

Mr Bosworth

RESPONDENT:

Ms Firkins

FILE NUMBER:

CAC

1468

2009

APPEAL NUMBER:

151

2012

DATE DELIVERED:

21 October 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Finn & Strickland JJ

HEARING DATE:

5 December 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 October 2012

LOWER COURT MNC:

[2012] FamCA 874

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Godtschalk

SOLICITOR FOR THE APPELLANT:

Phelps Reid Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Millar

SOLICITOR FOR THE RESPONDENT:

Farrar Gesini & Dunn

Orders

The appeal be dismissed.
The appellant pay the costs of the respondent of and incidental to the appeal, such costs to be as assessed in default…

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

Case: [2014] FamCAFC 202
Decision Date: 21 October 2014

CaseChat Overview and Summary

The appeal in Bosworth & Firkins involved a dispute between the appellant and the respondent, concerning property matters arising from their de facto relationship, which was brought under the Domestic Relationships Act 1994 (ACT). The appellant contested the trial judge's assessment of the respective contributions of each party to the relationship and the adequacy of reasons provided by the trial judge for the percentage entitlements allocated to each party. Additionally, the appeal addressed the issue of costs, given the wholly unsuccessful nature of the appeal.

The court was tasked with determining whether the trial judge erred in the weight given to the parties' contributions and whether the trial judge provided adequate reasons for his assessment. Furthermore, the court had to consider whether the trial judge failed to provide any or adequate reasons for his assessment of the various percentage entitlements of the parties, and if there was any internal inconsistency in the assessment. The court also needed to decide if the circumstances justified an order for costs, given the wholly unsuccessful nature of the appeal.

The court found that the trial judge did not err in assessing the parties' contributions and provided sufficient reasons for his decisions. The trial judge meticulously identified and assessed the contributions of both parties and did not overlook any relevant considerations. The court held that there was no merit in the appeal regarding the assessment of contributions and reasons provided. The court also ruled that it was unnecessary for the trial judge to explain the differences between the percentage findings, as there was a clear distinction between the assessment of contributions and the assessment of the relevant factors under section 19(2). Given the wholly unsuccessful nature of the appeal, the court ordered the appellant to pay the respondent's costs of and incidental to the appeal.

The orders of the court were that the appeal be dismissed and that the appellant pay the respondent's costs of and incidental to the appeal, such costs to be assessed in default of agreement.

Orders

Orders of the court

The appeal be dismissed.

The appellant pay the costs of the respondent of and incidental to the appeal, such costs to be as assessed in default of agreement.

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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