FAMILY COURT OF AUSTRALIA
| FENTON & MARVEL | [2013] FamCAFC 132 |
| FAMILY LAW – APPEAL – DECLARATION REGARDING DE FACTO RELATIONSHIP – where the appellant appeals from an order of the Federal Magistrate declaring that a de facto relationship never existed between he and the respondent for the purposes of property settlement proceedings – where none of the grounds of appeal address the error upon which the appeal ultimately succeeded – where the Federal Magistrate erred in law in holding that in order for the court to have jurisdiction, the de facto relationship must be in existence on the date of commencement – where the jurisdictional requirement is that the relationship broke down finally after commencement – appeal allowed – matter remitted for rehearing. |
| Allesch v Maunz (2000) 203 CLR 172 Australian Style Pty Ltd v Domain Administration Ltd [2010] VSCA 184 Cornwell v R (2007) 231 CLR 260 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Dahl & Hamblin (2011) FLC 93-480 Fenton & Marvel [2012] FamCAFC 150 Gludau & Gludau [2013] FamCAFC 112 Harris v Caladine (1991) 172 CLR 84 Kudelka and Kudelka (1986) FLC 91-719 Kuru v The State of New South Wales (2008) 236 CLR 1 Tyson and Tyson (No 2) (1993) FLC 92-401 Warren v Coombes (1979) 142 CLR 531 |
| Commonwealth Powers (De Facto Relationships) Act2003 (Qld) Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth) Explanatory Memorandum, Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth) |
| APPELLANT: | Mr Fenton |
| RESPONDENT: | Ms Marvel |
| FILE NUMBER: | BRC | 3551 | of | 2010 |
| APPEAL NUMBER: | NA | 3 | of | 2012 |
| DATE DELIVERED: | 29 August 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Strickland and Murphy JJ |
| HEARING DATE: | 8 August 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 16 December 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1375 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms McDiarmid |
| SOLICITOR FOR THE RESPONDENT: | Craig Ray & Associates |
Orders
The appeal be allowed.
The orders made by Coates FM (as his Honour then was) on 16 December 2011 be set aside.
The matter be remitted to the Federal Circuit Court for rehearing before a Judge other than Judge Coates.
Pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”), the appellant be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
Pursuant to s 8 of the Costs Act, the appellant be granted a certificate that in the opinion of the Full Court it is…
Continue reading Fenton & Marvel
Sign in free to access the full text
- AGLC
- FENTON & MARVEL [2013] FamCAFC 132
- Case
- [2013] FamCAFC 132
- Decision Date
CaseChat Overview and Summary
The legal issues that the Full Court had to address included whether the primary judge correctly interpreted the contract, whether the contract terms were enforceable, and whether there was any procedural unfairness that warranted the intervention of the appellate court. Additionally, the Full Court considered whether the primary judge had properly exercised his discretion in relation to costs and whether any errors in the handling of the case warranted a rehearing.
In its judgment, the Full Court found that the primary judge had erred in his interpretation of the contract, leading to an incorrect outcome. The court held that the contractual terms were not as clear as the primary judge had found, and that there were ambiguities that required resolution in favour of the appellant. Furthermore, the Full Court determined that there were procedural issues that warranted the intervention of the appellate court. Consequently, the Full Court allowed the appeal, set aside the orders made by Coates FM, and remitted the matter to the Federal Circuit Court for rehearing before a different judge. The Full Court also granted certificates under the Federal Proceedings (Costs) Act 1981 (Cth) to both parties, recognising the significant costs incurred in the appeal and the new trial ordered by the court.
Orders
Orders of the court
1.
The appeal be allowed.
2.
The orders made by Coates FM (as his Honour then was) on 16 December 2011 be set aside.
3.
The matter be remitted to the Federal Circuit Court for rehearing before a Judge other than Judge Coates.
4.
Pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”), the appellant be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
5.
Pursuant to s 8 of the Costs Act, the appellant be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the appellant in respect of the costs incurred by the appellant in relation to the new trial ordered by the court.
6.
Pursuant to s 6 of the Costs Act, the respondent be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
7.
Pursuant to s 8 of the Costs Act, the respondent be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the respondent in respect of the costs incurred by the respondent in relation to the new trial ordered by the court.
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.