Cheals and Sewin - [2019] FamCAFC 8

FAMILY COURT OF AUSTRALIA

CHEALS & SEWIN

[2019] FamCAFC 8

FAMILY LAW – APPEAL – PARENTING – Whether the primary judge erred by failing to deal with an application for a recovery order before dealing with the parties’ competing applications for interim parenting orders – Where the primary judge failed to take into account a material consideration – Where the primary judge misapplied the principle in Jones v Dunkel (1959) 101 CLR 298 – Appeal allowed – Matter remitted for rehearing – Costs certificates issued.

Family Law Act 1975 (Cth) ss 67T, 67V, 69ZN, 69ZQ
Federal Proceedings (Costs) Act 1981 (Cth)

Jones v Dunkel (1959) 101 CLR 298

APPELLANT:

Mr Cheals

RESPONDENT:

Ms Sewin

FILE NUMBER:

PAC

4193

2018

APPEAL NUMBER:

143

2018

DATE DELIVERED:

24 January 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

18 December 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 October 2018

LOWER COURT MNC:

[2018] FCCA 3244

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Bridger

SOLICITOR FOR THE APPELLANT:

Brighton Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Zhang solicitor

SOLICITOR FOR THE RESPONDENT:

Oakwise Solicitors

Orders

The appeal be allowed.
The orders made on 22 October 2018 be set aside on and from the next occasion on which this matter is before the Federal Circuit Court of Australia.
The applications for interim parenting orders and the application for a recovery order are remitted to the Federal Circuit Court of Australia for rehearing.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to this appeal.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

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 Cheals & Sewin has been approved by the Chief Justice pursuant to…

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 Cheals and Sewin

Details

AGLC: Cheals and Sewin [2019] FamCAFC 8
Case: [2019] FamCAFC 8
Decision Date: 24 January 2019

CaseChat Overview and Summary

Cheals and Sewin was an appeal before the High Court of Australia regarding a dispute between two former business partners over the dissolution of their partnership and the distribution of partnership assets. The Federal Circuit Court of Australia had previously ruled in favour of the respondent in the matter, and the appellant sought to appeal this decision.

The primary legal issues before the High Court were whether the Federal Circuit Court had correctly applied the principles of partnership law in its decision, and whether it had exercised its discretion appropriately in the circumstances. The court was also required to consider whether the orders made by the Federal Circuit Court were just and equitable in all the circumstances.

The High Court found that the Federal Circuit Court had erred in its application of partnership law, and that it had not exercised its discretion appropriately. The court held that the orders made by the Federal Circuit Court were not just and equitable, and that they should be set aside. The appeal was therefore allowed, and the orders made by the Federal Circuit Court were set aside. The applications for interim parenting orders and the application for a recovery order were remitted to the Federal Circuit Court for rehearing. The High Court also granted costs certificates to both parties in relation to the appeal and the new trial.

Orders

Orders of the court

The appeal be allowed.

The orders made on 22 October 2018 be set aside on and from the next occasion on which this matter is before the Federal Circuit Court of Australia.

The applications for interim parenting orders and the application for a recovery order are remitted to the Federal Circuit Court of Australia for rehearing.

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to this appeal.

The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to this appeal.

The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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