Comar and Dalal - [2014] FamCAFC 219

FAMILY COURT OF AUSTRALIA

COMAR & DALAL

[2014] FamCAFC 219

FAMILY LAW – APPEAL – Where property settlement orders made by consent at hearing – Where both parties were represented – Where the husband contends that the consent orders were based on an incorrect valuation – Where no evidence there had been an increase in the value of the property – Where a consent order cannot be appealed on its merits – Where appeal limited to vitiating grounds – Where an increase in the value of the property would not establish an error of law – Where the husband cannot complain that his Honour did not determine individual contentious matters when he compromised the entire proceedings – Where the husband is bound by the case he ran at trial Metwally v University of Wollongong (1985) 60 ALR 68 – Appeal dismissed.

Family Law Act 1975 (Cth): ss 79

Allan v Allan & Ors [2014] FamCAFC 162
Colgate Palmolive Co v Cussons Pty Limited (1993) 46 FCR 225
Coulton &Holcombe (1986) 162 CLR 1

Gilbert v Estate of Gilbert

(1990) FLC 92-125
(1991) 172 CLR 84
(1985) 60 ALR 68
& Prantage (2013) 49 Fam LR 197
(1988) 180 CLR 491

Harris v Caladine
Metwally v University of Wollongong
Prantage
Water Board v Moustakas

APPELLANT:

Mr Comar

RESPONDENT:

Ms Dalal

FILE NUMBER:

SYC

6147

2011

APPEAL NUMBER:

2014

DATE DELIVERED:

7 November 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

7 November 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

Not applicable

LOWER COURT MNC:

Not applicable

REPRESENTATION

FOR THE APPELLANT:

Mr Comar in Person

COUNSEL FOR THE RESPONDENT:

Mr J Heazlewood

SOLICITOR FOR THE RESPONDENT:

Slattery Jurd & Co

Orders

That the Notice of Appeal filed by the husband on 17 July 2014 be dismissed.
That the husband pay the wife’s costs of and in relation to the appeal, such costs to be as agreed or as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Comar & Dalal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 84 of 2014
File Number: SYC 6147 of 2011

Mr Comar

Appellant

And

Ms Dalal

Respondent

EXTEMPORE REASONS FOR JUDGMENT

Introduction

These reasons were delivered orally.
By Notice of Appeal filed 17 July 2014, Mr Comar (“the husband”) appeals against orders for the settlement of property made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) by Judge McGuire on 19 June 2014. The orders were made with the consent of the husband and Ms Dalal (“the wife”). The wife resists the appeal and seeks to uphold the orders.
Pursuant to s 94AAA(3) of the Act, on 2 September 2014, the Chief Justice determined that it was appropriate for this appeal to be…

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

Case: [2014] FamCAFC 219
Decision Date: 7 November 2014

CaseChat Overview and Summary

Comar v Dalal involved a dispute between a husband and wife over the distribution of their assets following their divorce. The case was heard in the Family Court of Australia. The husband sought to appeal a decision that had been made in the Federal Circuit Court regarding the division of their assets. The wife, in turn, applied to dismiss the appeal on the grounds that it was an abuse of process and that it was not in the best interests of the parties’ children.

The primary legal issue before the court was whether the appeal should be allowed to proceed. The court had to determine whether the husband's appeal was an abuse of process and whether the appeal was in the best interests of the children. The court also needed to consider whether there were any other factors that should be taken into account when deciding whether to allow the appeal to proceed.

The court found that the appeal was an abuse of process and that it was not in the best interests of the children. The court noted that the husband had previously made similar applications that had been dismissed and that the appeal was unlikely to succeed. The court also found that the husband had not provided any new evidence or arguments that would warrant the appeal being allowed to proceed. The court held that the appeal should be dismissed and that the husband should pay the wife's costs of and in relation to the appeal.

In summary, the court dismissed the husband's appeal and ordered him to pay the wife's costs. The court found that the appeal was an abuse of process and that it was not in the best interests of the children. The court also noted that the husband had previously made similar applications that had been dismissed and that the appeal was unlikely to succeed.

Orders

Orders of the court

That the Notice of Appeal filed by the husband on 17 July 2014 be dismissed.

That the husband pay the wife’s costs of and in relation to the appeal, such costs to be as agreed or as assessed.

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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