FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Delacey & Redwood [2021] FedCFamC1A 3
Appeal from: Redwood & Delacey [2020] FCCA 2612 Appeal number(s): SOA 89 of 2020 File number(s): DGC 2126 of 2019 Judgment of: STRICKLAND J Date of judgment: 8 September 2021 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the judgment suffers from a lack of relevant findings and adequate reasons – Where there is no discernible pathway from the primary Judge’s notes to his analysis and findings at the conclusion of the reasons for judgment – Where the primary Judge erred in the approach adopted in relation to the property of the parties and the assessment of contributions and that renders unsafe the conclusions reached as to the s 75(2) factors – Where an appellate court must be slow to overturn a primary Judge’s discretionary decision on grounds that only involve weight challenges but here that challenge gains considerable force because of the failure of the primary Judge to identify and weigh all of the contributions of the parties – Where it could be argued that there was a failure to properly exercise the judicial discretion and as a result the outcome was plainly wrong – Appeal allowed – Proceedings remitted to Division 2 of the Federal Circuit and Family Court of Australia for rehearing by a Judge other than the primary Judge.
FAMILY LAW – COSTS – Where both parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs Certificates ordered.
Legislation: Family Law Act 1975 (Cth) s 75(2)
Federal Proceedings (Costs) Act 1981 (Cth) s 6 and 9
Cases cited: Coghlan & Coghlan (2005) FLC 93-220; [2005] FamCA 429
Gronow v Gronow (1979) 144 CLR 413; [1979] HCA 63
Holland & Holland (2017) FLC 93-798; [2017] FamCAFC 166
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Scott & Scott (1994) FLC 92-457; [1994] FamCA 12
Number of paragraphs: 71 Date of hearing: 3 May 2021 Place: Melbourne The Appellant: In Person Counsel for the Respondent: Dr R Smith Solicitor for the Respondent: Sterling Walters Lawyers ORDERS
SOA 89 of 2020
DGC 2126 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DELACEY
AND: MS REDWOOD
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
8 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Paragraphs 16–21 of the Order made on 23 September 2020 be set aside.
3.The proceedings for property settlement between the parties be remitted to Division 2 of the Federal Circuit and Family Court of Australia for rehearing by a Judge other than the primary Judge.
4.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…
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- Delacey & Redwood [2021] FedCFamC1A 3
- Case
- [2021] FedCFamC1A 3
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the valuation and division of the parties' assets, and the consideration of contributions made by each party to the relationship and their respective properties. The court had to determine the appropriate division of assets, taking into account the contributions made by both parties during the relationship, as well as the value of their respective properties and the debts owed on those properties.
In addressing the division of assets, the court found that the primary judge had overlooked certain aspects of the parties' financial arrangements, such as the mortgage offset account. The court noted that the primary judge had excluded the bank accounts from the asset pool, but had not considered the mortgage offset account. The court concluded that the primary judge's approach was flawed and that the division of assets should be reconsidered in light of the correct valuation of the parties' properties and the contributions made by each party.
The court ordered a rehearing of the matter to determine the appropriate division of the parties' assets, taking into account the correct valuation of their respective properties and the contributions made by each party during the relationship. The orders regarding the parenting arrangements for the child were to remain in place.
Orders
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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