FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dorin & Alina [2024] FedCFamC1A 26
Appeal from: Alina & Dorin (No 3) [2023] FedCFamC2F 878 Appeal number: NAA 215 of 2023 File number: SYC 166 of 2017 Judgment of: TREE J Date of judgment: 8 March 2024 Catchwords: FAMILY LAW – APPEAL – Property – Appeal from final property orders – Consideration of Stanford & Stanford (2012) 247 CLR 108 – Whether the primary judge conflated the consideration of s 79(2) of the Family Law Act 1975 (Cth) (“the Act”) with the ultimate consideration of whether the outcome was just and equitable – Whether the primary judge failed to consider s 79(2) separately from the assessment of the factors under s 79(4) of the Act – Where there are arithmetical errors in the judgment – Where there is insufficient exposure of reasoning for the conclusion reached by the primary judge – Appeal allowed – Costs certificates granted for the appeal and the rehearing.
FAMILY LAW – CROSS APPEAL – Property – Where the success of the appeal means that all of the orders of the primary judge must be set aside and the cross-appeal falls away – Cross appeal dismissed..
Legislation: Family Law Act 1975 (Cth) ss 75, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.13
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Number of paragraphs: 40 Date of hearing: 5 December 2023 and 8 March 2024 Place: Heard in Cairns (via video link) and in Sydney Counsel for the Appellant: Mr Condon SC and Mr Watkins Solicitor for the Appellant: Juris Cor Legal Counsel for the Respondent: Ms Bateman Solicitor for the Respondent: Burt & Allen Lawyers ORDERS
NAA 215 of 2023
SYC 166 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DORIN
Appellant
AND: MR ALINA
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
8 MARCH 2024
THE COURT ORDERS THAT:
1.The Appeal is allowed.
2.The Further Amended Notice of Cross-Appeal filed 4 October 2023 is dismissed.
3.The matter is remitted for rehearing by a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
4.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 the appeal.
5.The respondent is granted a costs certificate pursuant to s…
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- AGLC
- Dorin & Alina [2024] FedCFamC1A 26
- Case
- [2024] FedCFamC1A 26
- Decision Date
CaseChat Overview and Summary
The legal issues involved whether the primary judge had conflated the consideration of s 79(2) of the Act with the overall consideration of whether the outcome was just and equitable. Additionally, it was argued that the primary judge had failed to separately consider s 79(2) from the assessment of the factors under s 79(4) of the Act. There were also arithmetical errors in the judgment, and insufficient reasoning for the conclusions reached by the primary judge.
The court found that the primary judge had conflated the considerations under s 79(2) and s 79(4), leading to an incorrect calculation of the husband’s entitlements. There were arithmetical errors in the judgment, which should have resulted in a different property division. Furthermore, the court found that the reasoning provided by the primary judge was insufficient to justify the conclusions reached. As a result, the appeal was allowed, and the cross-appeal was dismissed. The matter was remitted for rehearing by a different judge.
The court ordered that the appeal be allowed, the cross-appeal be dismissed, and the matter be remitted for rehearing by a different judge of the Federal Circuit and Family Court of Australia (Division 2). The appellant was granted a costs certificate for the appeal, and both parties were granted costs certificates for the rehearing.
Orders
Orders of the court
NAA 215 of 2023
SYC 166 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS DORIN
Appellant
AND:
MR ALINA
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
8 MARCH 2024
THE COURT ORDERS THAT:
1. The Appeal is allowed.
2. The Further Amended Notice of Cross-Appeal filed 4 October 2023 is dismissed.
3. The matter is remitted for rehearing by a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
4. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 the appeal.
5. The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 the appeal.
6. The Court grants to each party 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 the parties in respect of the costs incurred by them in relation to the rehearing.
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).
Background
Background to the litigation
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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