BRADIE & BRADIE - [2012] FamCAFC 220

FAMILY COURT OF AUSTRALIA

BRADIE & BRADIE

[2012] FamCAFC 220

FAMILY LAW – APPEAL – NOTICE OF APPEAL – PROPERTY – where the husband appeals the order made by the Federal Magistrate that he retain the Queensland property when he sought orders for the sale of that property – where it is alleged that the Federal Magistrate failed to give adequate reasons why this property should be retained by the husband contrary to his submissions and orders sought – where the husband seeks an adjustment pursuant to ss 75(2)(c) and (d) of the Family Law Act 1975 (Cth) in circumstances where he will have the primary care of the children of the marriage and the financial obligation for their upbringing and education – where the wife opposes the appeal – where it is found that the Federal Magistrate failed to give adequate reasons for her decision that the husband retain the Queensland property – where there is merit in the grounds of appeal – where the Federal Magistrate “painstakingly” worked through all of the relevant s 75(2) factors – where the husband has not demonstrated that the Federal Magistrate’s overall finding in relation to the relevant s 75(2) factors was erroneous – where there is no merit in these grounds of appeal – where the appeal is allowed in part – where it is appropriate to re-exercise the discretion – orders made for the sale of the Queensland property with the parties jointly undertaking that task, any capital gains tax liability to be met equally by the parties with the proceeds of sale remaining to be shared between the parties as to 53 per cent to the husband and 47 per cent to the wife.

FAMILY LAW –APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE COMPRISING A VALUATION OF THE PROPERTY – where it is now unnecessary to consider the application given the appeal is to be allowed in part and the order made by the Federal Magistrate is to be set aside – application dismissed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the husband sought that the wife pay his costs in the event that the appeal was successful – where in the event that the appeal was successful the wife sought a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – where there is no suggestion that the wife led the Federal Magistrate into error – where there is no basis on which the wife should pay the husband’s costs –where the appeal has been allowed on a question of law – where there is no order for costs – costs certificates to issue to the parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

Family Law Act 1975 (Cth) ss 75(2)(c)-(d), s 79
Federal Proceedings (Costs) Act 1981 (Cth)

Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Norbis v Norbis

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 BRADIE & BRADIE

Details

AGLC: BRADIE & BRADIE [2012] FamCAFC 220
Case: [2012] FamCAFC 220
Decision Date

CaseChat Overview and Summary

The appeal in this matter was brought by the husband, Mr Bradie, against the orders made by the Federal Magistrate, Mead FM, on 9 December 2011. The wife, Ms Bradie, opposed the appeal. The husband appealed against orders 1(e), 1(f) and 1(g) of the Federal Magistrate's orders. The husband's grounds of appeal were that the Federal Magistrate erred in ordering that the property at H Street, Queensland be retained by the husband contrary to his submissions and orders sought, that she failed to provide reasons as to why the property should be retained, and that she failed to make an adjustment in his favour pursuant to ss 75(2)(c) and (d) of the Family Law Act 1975 (Cth). The wife opposed the appeal on the basis that the Federal Magistrate had not erred in law.

The Court found merit in Grounds 1 and 3 of the husband's appeal. The Court held that the Federal Magistrate had failed to provide adequate reasons for her decision that the husband retain the property. The Court held that the Federal Magistrate had comprehensively considered all of the relevant s 75(2) factors and concluded that there should be no adjustment in the husband's favour. The Court held that there was no merit in Grounds 4, 5 and 6 of the husband's appeal. The Court dismissed the husband's application to adduce further evidence in the form of a valuation of the property.

The Court allowed the appeal in part and set aside the order that the husband retain the property. The Court ordered that the property be sold forthwith and that the proceeds of sale be applied first to pay all costs, commissions and expenses incurred in respect of the sale, secondly to pay any capital gains tax levied against the husband consequent upon the sale, and thirdly to pay 53 per cent of the remaining balance of the proceeds of sale to the husband and 47 per cent to the wife. The Court also ordered that pending settlement of sale of the property the parties open a joint bank account at BankSA, arrange for the payment into that bank account of all rentals received in relation to the property, arrange for the payment out of that account of the rates, taxes, insurances, other like assessments, body corporate levies, and the cost of repairs and maintenance payable in respect of the property, and in the event that there is insufficient credit at any time in the bank account the parties equally deposit sufficient monies in that account to meet the ongoing liabilities. The Court also ordered that upon settlement of sale of the property the parties close the joint account at BankSA and distribute the balance thereof equally between themselves. The Court also ordered that there be no order as to costs, and that costs certificates be issued to the parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

Orders