EADY & RADCLIFF - [2020] FCCA 436

FEDERAL CIRCUIT COURT OF AUSTRALIA

EADY & RADCLIFF

[2020] FCCA 436

Catchwords:
FAMILY LAW – Section 79A application – inherent/implied jurisdiction of the Court – exercise of jurisdiction.

Legislation:

Family Law Act 1975 (Cth), ss.79, 79A

Federal Circuit Court of Australia Act 1999 (Cth)

Cases cited:

Johnson & Johnson (1997) FLC 92-764

Re: F: Litigants in Person Guidelines [2001] FAMCA 348

Merribee Pastoral Industries Pty Limited & Anor v Australia and New Zealand Banking GroupLimited (1998) 193 CLR 502
Jackson & Sterling Industries Limited (1986-87) 162 CLR 612
Taylor v Taylor (1979) 143 CLR 1
DJL & The Central Authority (2000) 201 CLR 226
Mullane v Mullane (1983) 158 CLR 436
Aon Risk Services Pty Limited v Australian National University (2009) 239 CLR 175
Cropper v Smith (1884) 26 Ch D 700
Cameron v Cole (1944) 68 CLR 571
Re Macks: Ex Parte Saint (2000) 204 CLR 158

Applicant:

MR EADY

Respondent:

MS RADCLIFF

File Number:

SYC 7014 of 2016

Judgment of:

Judge Kemp

Hearing date:

18 February 2020

Date of Last Submission:

18 February 2020

Delivered at:

Sydney

Delivered on:

28 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr Batey

Solicitors for the Applicant:

Commisso & Associates

Counsel for the Respondent:

Mr Coleman SC

Solicitors for the Respondent:

Kydon Segal Legal Lawyers

THE COURT ORDERS THAT:

The husband’s application for leave to amend his Amended Response filed on 15 April 2019, in terms of the matters particularised in Exhibit “A” tendered on 18 February 2020, be granted.
The husband’s application for leave to amend his Amended Response filed on 15 April 2019, in terms of the matters particularised in Exhibit “B” tendered on 18 February 2020, be refused.
The matter be listed for further directions on 14 May 2020 at 9.30am.

THE COURT NOTES THAT:

On 18 February 2020 it reserved both parties’ costs in respect of that day and the leave questions identified in orders 1 and 2, above.

IT IS NOTED that publication of this judgment under the pseudonym Eady & Radcliff is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7014 of 2016

MR EADY

Applicant

And

MS RADCLIFF

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings involve the wife’s Application in a Case filed on 25 May 2018 and her further Application in a Case filed on 8 May 2019, whereby she seeks to uphold the enforcement of property orders made, by consent of the parties, on 28 July 2017 (“the final property orders”) pertaining, inter alia, to the distribution of sale proceeds from the sale of real property at A street, Suburb B NSW (“the Suburb B property”) and to dismiss the husband’s Amended Response filed on 15 April 2019.
The husband’s said Amended Response sought an order, pursuant to s.79A of the Family Law Act 1975 (“the Act”), that order 11 of the final property orders be set aside and that further orders be made…

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 EADY & RADCLIFF

Details

AGLC: EADY & RADCLIFF [2020] FCCA 436
Case: [2020] FCCA 436
Decision Date: 28 February 2020

CaseChat Overview and Summary

In the matter of Eady & Radcliff, heard before Judge Kemp, the husband sought to amend his Amended Response filed on 15 April 2019. The dispute concerned an application under section 79A of the *Family Law Act 1975* (Cth), which deals with the alteration of property interests. The husband's proposed amendments related to matters particularised in two exhibits, "A" and "B", tendered on 18 February 2020.

The primary legal issue before the court was whether to grant the husband leave to amend his Amended Response in accordance with the particulars provided in Exhibit "A" and Exhibit "B". This involved an assessment of the court's inherent or implied jurisdiction to permit such amendments in the context of a section 79A application.

Judge Kemp granted the husband leave to amend his Amended Response in terms of the matters particularised in Exhibit "A", but refused leave to amend in terms of the matters particularised in Exhibit "B". The court's reasoning and the specific legal principles applied to reach these conclusions are not detailed in the provided text. The matter was subsequently listed for further directions.

Orders

Orders of the court

The husband’s application for leave to amend his Amended Response filed on 15 April 2019, in terms of the matters particularised in Exhibit “A” tendered on 18 February 2020, be granted.

The husband’s application for leave to amend his Amended Response filed on 15 April 2019, in terms of the matters particularised in Exhibit “B” tendered on 18 February 2020, be refused.

The matter be listed for further directions on 14 May 2020 at 9.30am.

THE COURT NOTES THAT:

On 18 February 2020 it reserved both parties’ costs in respect of that day and the leave questions identified in orders 1 and 2, above.

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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