Edgar & Faines - [2009] FamCAFC 22

FAMILY COURT OF AUSTRALIA

EDGAR & FAINES

[2009] FamCAFC 22

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Property settlement – Parties were married for a short time – Federal Magistrate considered the matter on an asset by asset basis – Federal Magistrate made orders dividing the assets approximately 39 percent to the appellant, 61 percent to the respondent – Appellant submitted that the Federal Magistrate erred in considering the capital growth on the respondent’s property to be a contribution made wholly by the respondent – Appellant submitted that the orders were manifestly unjust – Federal Magistrate’s reasoning recognised an indirect contribution made by the appellant to the conservation of the property – Ultimate difference in the property division was considerably less than the capital growth on the respondent’s property – Division of property not outside the ambit of reasonable exercise of discretion – Appeal dismissed

FAMILY LAW - APPEAL – COSTS – Appellant pay the respondent’s costs of and incidental to the appeal

Family Law Act 1975 (Cth) s 74(c); s 75(2); s 79(4)(a)
Federal Proceedings (Costs) Act 1981 (Cth)

Bilous v Mudaliar and Anor, (2006) 35 FamLR 55
G and G (2004) FamCA 1179
SL & EHL [2005] FamCA 132
Williams and Williams [2007] FamCA 313

APPELLANT:

Mr EDGAR

RESPONDENT:

Ms FAINES

APPEAL NUMBER:

115

2008

FILE NUMBER:

BRC

13181

2007

DATE DELIVERED:

19 February 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

WARNICK J

HEARING DATE:

11 February 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

24 November 2008

LOWER COURT MNC:

[2008] FMCAfam 1345

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr O’Neill

SOLICITOR FOR THE APPELLANT:

Andrew Morris Legal Practice

COUNSEL FOR THE RESPONDENT:

Mr Burridge

SOLICITOR FOR THE RESPONDENT:

Family Law Solutions

Orders

That the appeal be dismissed.
That the husband pay the wife’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 115 of 2008

File Number: BRC13181 of 2007

Mr EDGAR

Appellant

And

Ms FAINES

Respondent

REASONS FOR JUDGMENT

This appeal, in many ways ordinary, still enters upon the shadowy area of the values that may affect the outcome of property settlement cases.
Mr Edgar, now 60 years of age and Ms Faines, now 51 years of age, began cohabiting in late 2003, married in 2004 but separated in November 2006. On 24 November 2008, Spelleken FM made orders by way of alteration of their property interests. For reasons which she expressed, her Honour did not approach the matter on the basis of the percentage distribution of a total asset pool but rather, on an asset by asset basis. As appears from her Honour’s judgment, she intended that the comparative positions in which her…

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 Edgar & Faines

Details

AGLC: Edgar & Faines [2009] FamCAFC 22
Case: [2009] FamCAFC 22
Decision Date: 19 February 2009

CaseChat Overview and Summary

The case of Edgar & Faines involves an appeal from a decision made by a Federal Magistrate concerning a property settlement between former spouses. The parties were married for a brief period, and the Federal Magistrate divided their assets in a ratio of approximately 39 percent to the appellant, 61 percent to the respondent. The appellant argued that the Federal Magistrate erred in attributing the capital growth on the respondent's property solely to the respondent's efforts and claimed that the resulting orders were manifestly unjust. The appellant further argued that the ultimate difference in the property division was significantly less than the capital growth on the respondent's property.

The court considered the arguments made by the appellant, particularly regarding the Federal Magistrate's consideration of the capital growth on the respondent's property. The court found that the Federal Magistrate's reasoning acknowledged an indirect contribution made by the appellant to the conservation of the property. The court held that the difference in the property division was not excessive, and the division fell within the reasonable exercise of the Federal Magistrate's discretion. As a result, the appeal was dismissed.

The court also addressed the issue of costs, determining that the appellant should pay the respondent's costs of and incidental to the appeal. This decision was based on the agreed terms or, in the absence of an agreement, assessed costs. The final orders of the court were to dismiss the appeal and to require the appellant to pay the respondent's costs of and incidental to the appeal.

Orders

Orders of the court

That the appeal be dismissed.

That the husband pay the wife’s costs of and incidental to the appeal as agreed and in default of agreement, 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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