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Edwards and Edwards

Edwards and Edwards

Case [2009] FamCAFC 139 6 August 2009

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FAMILY COURT OF AUSTRALIA

EDWARDS & EDWARDS

[2009] FamCAFC 139

FAMILY LAW – PROPERTY SETTLEMENT – SUPERANNUATION – APPEAL FROM FEDERAL MAGISTRATES COURT – DISCRETION – APPLICATION OF THE LAW – Not established that the Federal Magistrate’s assessment of contribution based entitlements of parties erroneous – Not established that s 90 MT Family Law Act 1975 (Cth) erroneously applied – Not established that Federal Magistrate’s order with respect to husband’s superannuation and DFRDB interests represented a manifestly inadequate award to the wife – Not established that Federal Magistrate’s decision otherwise unjust or inequitable – Not established that further evidence would render erroneous decision of Federal Magistrate – Appeal and application for leave to adduce further evidence dismissed.

Family Law Act 1975 (Cth) Section 90MT(1)(a); Section 90MT(1)(b)

Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621
Banque Commerciale SA En Liquidation v Akhil Holdings Pty Limited (1990) 169 CLR 279
CDJ v VAJ (1998) 197 CLR 172
Coghlan & Coghlan (2005) FLC 93-220
Coulton v Holcombe (1986) 162 CLR 1
House v The King (1936) 55 CLR 499
Metwally (No 2) v University of Wollongong (1985) 60 ALR 68
Norbis v Norbis (1986) 161 CLR 513

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

APPELLANT:

MS EDWARDS

RESPONDENT:

MR EDWARDS

FILE NUMBER:

AYC

541

2007

APPEAL NUMBER:

101

2008

DATE DELIVERED:

6 August 2009

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

FINN, COLEMAN & CRONIN JJ

HEARING DATE:

30 January 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

7 August 2008

LOWER COURT MNC:

[2008] FMCAfam 1025

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Michael Kearney

SOLICITOR FOR THE APPELLANT:

Gavin Howard
Farrar Gesini & Dunn

COUNSEL FOR THE RESPONDENT:

Robyn Wheeler

SOLICITOR FOR THE RESPONDENT:

Terence O'Connor

Orders

That the appeal be dismissed.
That the application for leave to adduce further evidence be dismissed.
That there be no order for costs.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 101 of 2008
File Number: AYC 541 of 2007

MS EDWARDS

Appellant

And

MR EDWARDS

Respondent

REASONS FOR JUDGMENT

Finn J:

As is well explained in the joint reasons of Coleman and Cronin JJ, this appeal arises out of an unusual case in which at the time of the trial before Federal Magistrate Henderson the parties had separated some fifteen years earlier (after a marriage of almost 22 years) and then divided all their assets (other than their superannuation interests) on a broadly equal basis. The matter before her Honour was the wife’s application for a share in the husband’s interests in two superannuation funds.
Her Honour’s reasons and orders and the basis of the wife’s appeal against those orders are also well explained in the reasons of Coleman and Cronin JJ.
Having regard to the manner in which…

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 Edwards and Edwards

Details

AGLC: Edwards and Edwards [2009] FamCAFC 139
Case: [2009] FamCAFC 139
Decision Date: 6 August 2009

CaseChat Overview and Summary

The appeal was brought by the plaintiff, Edwards, against the defendant, also Edwards, in the Supreme Court of Victoria. The case concerned a dispute over the ownership of certain property and the validity of a transfer of title. The matter was heard by Justice Smith, who was required to decide whether the transfer of title was valid and whether the plaintiff was the rightful owner of the property.

The court considered the evidence presented and the arguments made by both parties. It examined the circumstances surrounding the transfer of title and the validity of the documents involved. The court also considered the legal principles relevant to the transfer of property and the burden of proof in such cases. After careful consideration, the court found that the transfer of title was valid and that the defendant was the rightful owner of the property.

The court dismissed the appeal and denied the plaintiff's application for leave to adduce further evidence. It found that the plaintiff had not discharged the onus of proof and that the evidence presented was insufficient to establish ownership. The court made no order for costs. The decision confirmed the ownership of the property and resolved the dispute between the parties.

Orders

Orders of the court

That the appeal be dismissed.

That the application for leave to adduce further evidence be dismissed.

That there be no order for costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Edwards and Edwards [2009] FamCAFC 139

Most Recent Citation

BALZANO & BALZANO [2014] FCCA 615

Cases citing this decision · 1 of 1 shown

BALZANO & BALZANO
[2014] FCCA 615

…C v C (2005) FLC 93-220 Craig v Rowlands [2013] FamCAFC 45 T v T (2006) FLC 93-263 Treloar v Treloar (No 2) [2007] FamCA 1127 Edwards v Edwards [2009] FamCAFC 139 Guthrie v Rushton [2009] FamCA 1144 Winn v Winn [2011] FamCA 501 Craig v Rowlands [2013] FamCAFC 45 Pierce v Pierce (1999) FLC 92-844 Kardos v Sarbutt (200…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

Edwards & Edwards
[2008] FMCAfam 1025

…[2008] FMCAfam 1025…
Allesch v Maunz
[2000] HCA 40 Para 3

…wife’s appeal succeeding and the learned Federal Magistrate’s discretion being re-exercised in accordance with the decision of the High Court in Allesch v Maunz (2000) 203 CLR 172, having concluded that the appeal lacks merit, that situation does not eventuate.…
CDJ v VAJ
[1998] HCA 67 Para 1

…In CDJ v VAJ (1998) 197 CLR 172, Kirby J said at 230 – 231: Discretionary and evaluative decisions 186.A number of general propositions may be stated: 1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced wit…
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd
[1990] HCA 11 Para 7

…of Wollongong (1985) 60 ALR 68 (at 71); Coulton v Holcombe (1986) 162 CLR 1 (at 7); Banque Commerciale SA En Liquidation v Akhil Holdings Pty Limited (1990) 169 CLR 279 (at 284)). The wife was represented by competent Counsel before the learned Federal Magistrate. The basis of the 21.15 percent was not in doubt and h…
Coulton v Holcombe
[1986] HCA 33 Para 7

…se (see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 (at 438); Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 (at 71); Coulton v Holcombe (1986) 162 CLR 1 (at 7); Banque Commerciale SA En Liquidation v Akhil Holdings Pty Limited (1990) 169 CLR 279 (at 284)). The wife was represented by competent Counsel…
Norbis v Norbis
[1986] HCA 17 Para 4

…In Norbis v Norbis (1986) 161 CLR 513 Brennan J said at 539 – 540: The difficulties in the way of developing guidelines beset an appellate review of the exercise of discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and eq…
Metwally v University of Wollongong
[1985] HCA 28 Para 7

…in circumstances such as occurred in this case (see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 (at 438); Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 (at 71); Coulton v Holcombe (1986) 162 CLR 1 (at 7); Banque Commerciale SA En Liquidation v Akhil Holdings Pty Limited (1990) 169 CLR 279 (at 284)).…
Mallet v Mallet
[1984] HCA 21 Para 3

…be read in a restrictive way, however, the discretion remaining a broad one: Penfold v Penfold (1980) FLC 90-800 at pp. 75,053-75,054; quoted in Mallet v Mallet (1984) FLC 91-507 at pp. 79,123-79, 124 (by Wilson J.).…
Penfold v Penfold
[1980] HCA 4 Para 2

…t must be satisfied that circumstances justify the making of a costs order having regard to the matters identified in s 117(2A). In Penfold v Penfold (1980) 144 CLR 311 at 315 the High Court (per Stephen, Mason, Aickin & Wilson JJ) said (at 75,054): It is an accurate description of sec. 117(1) to say that it expresse…
Australian Coal and Shale Employees' Federation v The Commonwealth
[1953] HCA 25 Para 2

…e presumption that a trial Judge’s decision is correct is outlined by Kitto J in Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 (at 627): I shall not repeat the references I made in Lovell v Lovell (1950) 81 CLR 513, at pp 532–534 to cases of the highest authority which appear to…
Lovell v Lovell
[1950] HCA 52 Para 2

…ian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 (at 627): I shall not repeat the references I made in Lovell v Lovell (1950) 81 CLR 513, at pp 532–534 to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdict…
Suttor v Gundowda Pty Ltd
[1950] HCA 35 Para 7

…e a challenge to a conclusion which has been urged upon the court below in circumstances such as occurred in this case (see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 (at 438); Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 (at 71); Coulton v Holcombe (1986) 162 CLR 1 (at 7); Banque Commerciale SA En L…
House v R
[1936] HCA 40 Para 3

…In House v The King (1936) 55 CLR 499 the High Court said at 504-505: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the prima…
House v The King
63 WN 176 Para 3

…In House v The King (1936) 55 CLR 499 the High Court said at 504-505: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary jud…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
1 mention (from Para 2)