Cline & Cline - [2024] FedCFamC1A 163

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cline & Cline [2024] FedCFamC1A 163

Appeal from: Cline & Cline [2024] FedCFamC2F 618

Appeal number: NAA 153 of 2024

File number: SYC 1256 of 2022

Judgment of: ALDRIDGE J

Date of judgment: 18 September 2024

Catchwords: FAMILY LAW – APPEAL – Appeal and cross appeal from final property orders – Where the parties agreed the primary judge erred – Primary judge considered material that was not relied on – Finding of fact contrary to the evidence – Orders for sale of property and division of proceeds expressed as lump sum instead of percentage – Error established – Appeal and cross appeal allowed.

Legislation: Federal Proceedings (Costs) Act 1981 (Cth)

Cases cited:
Bhatnagar & Riju [2018] FamCAFC 144

Noetel and Quealey (2005) FLC 93-230; [2005] FamCA 677

Number of paragraphs: 17

Date of last submission: 22 August 2024

Date of hearing: Determined in chambers on the papers

Place: Sydney

Solicitor for the Appellant: Dorter Family Lawyers & Mediators

Solicitor for the Respondent: Sydney Law Group
ORDERS

NAA 153 of 2024
SYC 1256 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR CLINE

Appellant

AND:
MS CLINE

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

18 SEPTEMBER 2024

THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The cross appeal is allowed.
3.The orders made by the primary judge on 27 May 2024 are set aside.
4.The proceedings are remitted for a rehearing by a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
5.The appellant be granted a costs certificate pursuant to 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 him in respect of the costs incurred by him in relation to the appeal.
6.The respondent be granted a costs certificate pursuant to 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 her in respect of the costs incurred by her in relation to the appeal.
7.Each party be granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments 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 in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia…

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 Cline & Cline

Details

AGLC: Cline & Cline [2024] FedCFamC1A 163
Case: [2024] FedCFamC1A 163
Decision Date: 18 September 2024

CaseChat Overview and Summary

In the case of Cline & Cline, the appellant, Mr Cline, and the respondent, Ms Cline, were involved in a dispute over the final property settlement following their divorce. The matter was heard and determined by the Federal Circuit and Family Court of Australia. Both parties subsequently appealed the decision made by the primary judge, which they believed contained errors in the consideration of evidence and the expression of the property settlement orders.

The legal issues before the court included whether the primary judge had erred in considering material that was not relied upon by the parties, whether the findings of fact were contrary to the evidence, and if the orders for the sale of the property and division of the proceeds were appropriately expressed as a lump sum rather than a percentage. The court was required to determine if these errors were significant enough to warrant a rehearing of the case.

In delivering the judgment, the court found that the primary judge had indeed erred in several respects. The consideration of material not relied upon by the parties, the findings of fact that were contrary to the evidence, and the expression of the property settlement orders as a lump sum instead of a percentage constituted errors that required correction. Consequently, the appeal and cross appeal were allowed. The orders made by the primary judge were set aside, and the proceedings were remitted for a rehearing by a different judge of the Federal Circuit and Family Court of Australia. Additionally, the court granted costs certificates to both parties to cover the costs incurred in relation to the appeal and the new trial.

The court's decision not only addressed the substantive errors in the primary judge's determination but also ensured that the parties were fairly compensated for the costs associated with the appeal process. The final orders reflect the court's commitment to rectifying procedural errors and ensuring a just outcome for both parties involved in the family law dispute.

Orders

Orders of the court

NAA 153 of 2024

SYC 1256 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR CLINE

Appellant

AND:

MS CLINE

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

18 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The cross appeal is allowed.

3. The orders made by the primary judge on 27 May 2024 are set aside.

4. The proceedings are remitted for a rehearing by a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.

5. The appellant be granted a costs certificate pursuant to 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 him in respect of the costs incurred by him in relation to the appeal.

6. The respondent be granted a costs certificate pursuant to 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 her in respect of the costs incurred by her in relation to the appeal.

7. Each party be granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments 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 in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 153 of 2024 SYC 1256 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR CLINE Appellant
AND:	MS CLINE Respondent

Appeal from:	Cline & Cline [2024] FedCFamC2F 618
Appeal number:	NAA 153 of 2024
File number:	SYC 1256 of 2022
Judgment of:	ALDRIDGE J
Date of judgment:	18 September 2024
Catchwords:	FAMILY LAW – APPEAL – Appeal and cross appeal from final property orders – Where the parties agreed the primary judge erred – Primary judge considered material that was not relied on – Finding of fact contrary to the evidence – Orders for sale of property and division of proceeds expressed as lump sum instead of percentage – Error established – Appeal and cross appeal allowed.
Legislation:	Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited:	Bhatnagar & Riju [2018] FamCAFC 144 Noetel and Quealey (2005) FLC 93-230; [2005] FamCA 677
Number of paragraphs:	17
Date of last submission:	22 August 2024
Date of hearing:	Determined in chambers on the papers
Place:	Sydney
Solicitor for the Appellant:	Dorter Family Lawyers & Mediators
Solicitor for the Respondent:	Sydney Law Group

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	18 SEPTEMBER 2024