FAMILY LAW – APPEAL – PROPERTY – Treatment of property acquired after separation – Where the husband received a substantial inheritance four years after the parties separated – Whether the trial magistrate erred by including the inheritance among the assets to be divided between the parties – Where the court has the power to make an order in relation to after-acquired property – Where the decision to make an order dividing after-acquired property is a matter of discretion – Whether the trial magistrate erred by ordering the husband to give effect to the property orders within 28 days – Whether the parties were afforded procedural fairness – Where the parties were provided with an opportunity to comment on the form of orders before judgment was delivered – No appealable error established – Appeal dismissed – Husband to pay the wife’s costs of the appeal.
Family Law Act 1975 (Cth) ss 4, 31, 44(3), 75(2), 79(1), 79(2), 79(4)
Bishop & Bishop (2013) FLC 93-553 Bonnici & Bonnici (1992) FLC 92-272
The appeal against the orders made by Magistrate Calverley on 17 November 2016 is dismissed.
The appellant pay the respondent’s costs of the appeal as agreed or in default of agreement as assessed.
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 Calvin & McTier 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH
Appeal Number: WA 27 of 2016 File Number: PTW 2263 of 2011
Mr Calvin
Appellant
and
Ms McTier
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Calvin (“the husband”) appeals against…
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
AGLC
Calvin & McTier [2017] FamCAFC 125
Case
[2017] FamCAFC 125
Decision Date
CaseChat Overview and Summary
Calvin & McTier was a case that came before the Magistrates Court of Victoria. The appellant, Calvin, brought an appeal against the orders made by Magistrate Calverley on 17 November 2016. The nature of the dispute involved legal issues related to the appeal against those specific orders. The court was tasked with determining whether the appeal was justified and if the orders made by the magistrate should be upheld or overturned.
The legal issues before the court centred on the merits of the appeal against the orders made by the magistrate. The court needed to assess whether there were grounds for overturning the magistrate’s decision. This involved examining the application of the law to the facts of the case and considering whether any errors were made that would warrant the appeal being successful. The court also needed to consider the appropriate costs to be awarded in relation to the appeal.
The court found that the appeal was not well-founded and dismissed it accordingly. The reasoning behind this decision involved a detailed examination of the evidence and arguments presented by both parties. The court concluded that the magistrate’s orders were correct and that there were no grounds for overturning them. As a result, the appeal was dismissed, and the respondent was awarded costs as per the orders. These orders stipulated that the appellant must pay the respondent’s costs of the appeal as agreed, or in the event of no agreement, as assessed by the court.
Orders
Orders of the court
1.
The appeal against the orders made by Magistrate Calverley on 17 November 2016 is dismissed.
2.
The appellant pay the respondent’s costs of the appeal as agreed or in default of agreement as assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.