FAMILY COURT OF AUSTRALIA
| BULOW & BULOW | [2020] FamCAFC 120 |
| FAMILY LAW – APPEAL – PROPERTY – Where the appellant alleges apprehended and actual bias by the primary judge – Where it is readily apparent that all the appellant is doing in many of his grounds of appeal is identifying orders made or reasons delivered by the primary judge with which he disagrees and suggesting therefore that his Honour was biased – Where none of the grounds of appeal demonstrate bias on the part of the primary judge nor error in his Honour refusing to recuse himself – Appeal dismissed. |
| APPELLANT: | Mr Bulow |
| RESPONDENT: | Ms Bulow |
| FILE NUMBER: | ADC | 1674 | of | 2014 |
| APPEAL NUMBER: | SOA | 43 | of | 2019 |
| DATE DELIVERED: | 19 May 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 25 February 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 July 2019 |
| LOWER COURT MNC: | [2019] FCCA 2251 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders 25 February 2020
The Application in an Appeal filed by the husband on 21 February 2020 be dismissed.
The Notice of Appeal filed on 26 August 2019 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bulow & Bulow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 43 of 2019
File Number: ADC 1674 of 2014
| Mr Bulow |
Appellant
And
| Ms Bulow |
Respondent
REASONS FOR JUDGMENT
Introduction
On 26 August 2019 Mr Bulow (“the husband”) filed a Notice of Appeal from an order made by a Judge of the Federal Circuit Court of Australia on 29 July 2019. The appeal is opposed by Ms Bulow (“the wife”).
The order appealed from dismissed paragraphs 1, 2, 3,…
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- AGLC
- Bulow & Bulow [2020] FamCAFC 120
- Case
- [2020] FamCAFC 120
- Decision Date
CaseChat Overview and Summary
In the case of Bulow & Bulow, the Full Court addressed an appeal regarding the property settlement made between the parties post their divorce. The primary judge had ordered a distribution of assets, including a cash sum from the sale of the former matrimonial home to the husband and the remaining proceeds to the wife. Additionally, a superannuation interest was split between the parties. The wife appealed the decision, arguing that the primary judge had erred in assessing the contributions applicable to the superannuation interest. The husband, on the other hand, argued that the court should uphold the original orders. The court found that the primary judge's error in assessing the superannuation interest had broader implications for the entire property settlement, including the consideration of section 75(2) factors. Consequently, the court determined that certain orders needed to be set aside and the case remitted for a rehearing.
The legal issues before the court included whether the primary judge's assessment of the superannuation interest was correct and whether the error in that assessment had broader implications for the overall property settlement. Additionally, the court needed to decide whether the primary judge could conduct the rehearing or if a new judge should be appointed. The court found that the primary judge's error in assessing the superannuation interest had ramifications for the entire property settlement, necessitating the setting aside of certain orders. The court also concluded that the primary judge could conduct the rehearing as the evidence before the Full Court did not permit a re-exercising of the discretion. The court emphasized that its decision did not imply that any particular order must be made in the rehearing, but rather that the parties' contentions should be reconsidered in light of the correct evidence.
The court's reasoning led to the conclusion that the orders regarding the superannuation interest and the overall property settlement must be set aside. The court found that the primary judge did not have the necessary evidence to fully understand the effects of a splitting order on the parties, and therefore, the matter had to be remitted for rehearing. The court also determined that the primary judge could conduct the rehearing, as the evidence before the Full Court did not allow for a reconsideration of the orders. The court clarified that its decision did not dictate any specific outcome for the rehearing but rather required that the parties' arguments be reconsidered with the correct evidence in mind.
The final orders included setting aside the primary judge's orders regarding the superannuation interest and the overall property settlement. The court remitted the matter for rehearing before the primary judge, emphasizing that the rehearing should be based on evidence that allowed for a proper assessment of the superannuation interest and its implications for the property settlement. The court also noted that the wife's application for costs of the trial would be addressed once the rehearing was concluded.
The legal issues before the court included whether the primary judge's assessment of the superannuation interest was correct and whether the error in that assessment had broader implications for the overall property settlement. Additionally, the court needed to decide whether the primary judge could conduct the rehearing or if a new judge should be appointed. The court found that the primary judge's error in assessing the superannuation interest had ramifications for the entire property settlement, necessitating the setting aside of certain orders. The court also concluded that the primary judge could conduct the rehearing as the evidence before the Full Court did not permit a re-exercising of the discretion. The court emphasized that its decision did not imply that any particular order must be made in the rehearing, but rather that the parties' contentions should be reconsidered in light of the correct evidence.
The court's reasoning led to the conclusion that the orders regarding the superannuation interest and the overall property settlement must be set aside. The court found that the primary judge did not have the necessary evidence to fully understand the effects of a splitting order on the parties, and therefore, the matter had to be remitted for rehearing. The court also determined that the primary judge could conduct the rehearing, as the evidence before the Full Court did not allow for a reconsideration of the orders. The court clarified that its decision did not dictate any specific outcome for the rehearing but rather required that the parties' arguments be reconsidered with the correct evidence in mind.
The final orders included setting aside the primary judge's orders regarding the superannuation interest and the overall property settlement. The court remitted the matter for rehearing before the primary judge, emphasizing that the rehearing should be based on evidence that allowed for a proper assessment of the superannuation interest and its implications for the property settlement. The court also noted that the wife's application for costs of the trial would be addressed once the rehearing was concluded.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The reasons of the Full Court as to why only those orders were set aside, what was to be the subject of the rehearing, and why the primary judge was able to conduct that rehearing are as follows:CONCLUSIONS AND ORDERS106.The form of his Honour’s orders saw each of the parties retaining property in their respective ownership or possession; a cash sum payable from the proceeds of sale of the former matrimonial home being paid to the husband and the balance of proceeds paid to the wife. Separately, as has been seen, a splitting order was made in respect of the husband’s superannuation interest. We consider that error attends the assessment of contributions applicable to the latter. 107.However, as we have sought to explain, that error, which pertains to the nature, form and characteristics of the husband’s superannuation interest, has ramifications for the totality of the s 79 orders. A consideration of the same impacts potentially upon any splitting order but also, by reason of the scheme specific provisions in respect of any splitting order, upon an assessment of the relevant s 75(2) factors. 108.As a consequence, both paragraph 2 of his Honour’s orders and paragraph 1(a) of those orders must be set aside. 109.In light of our conclusion that his Honour was not favoured with evidence as to the ramifications of the proposed, or any, splitting order, it is not possible for this Court to contemplate re-exercising the discretion; the evidence before us does not permit of that outcome. Unfortunately for the parties, the matter must be remitted for rehearing.110.We see no reason why the remitted proceedings cannot be reheard by [the primary Judge]. Indeed, it might be thought expeditious that his Honour does so. However, our orders will leave that issue for the Federal Circuit Court of Australia. 111.We hasten to point out that nothing we have said suggests that any different splitting order, or other order, must necessarily be made. Rather, the parties’ respective contentions must be seen in light of evidence that permits a court to understand the effects for both parties of any splitting order and the ramifications of the same within a consideration of s 79 as a whole. The matter was duly listed before the primary judge on 28 February 2019 for directions. At that time it was noted that there was an outstanding Application of the wife in relation to the costs of the trial, and a Response to that application by the husband. His Honour indicated that that should await the outcome of the rehearing, and he ordered the documents relevant to that matter be placed in a sealed envelope. As to the rehearing, his Honour raised with the counsel for the wife and the husband how he saw that proceeding, and invited and received submissions from both sides as to that issue. I note that the husband’s position was that there needed to be an entirely new hearing, but that was not the position of his Honour, or counsel for the wife. I record at this early stage of these reasons that the husband was entirely misguided in relation to his understanding of what was to happen in the rehearing.
Ratio Decidendi
Legal Principle Established
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