Fortnum & Tamplin (No 3) - [2022] FedCFamC1F 1073

Federal Circuit and Family Court of Australia
(DIVISION 1)
Fortnum & Tamplin (No 3) [2022] FedCFamC1F 1073

File number(s): ADC 2365 of 2017

Judgment of: KARI J

Date of judgment: 13 December 2022

Catchwords: FAMILY LAW - PROPERTY SETTLEMENT- Ex Tempore Reasons - Final orders – Orders made by consent– Just and equitable - Where the Court considers that the parties have reached a commercial resolution – Where the matter has had a long trajectory, with the parties incurring significant legal fees – Where the orders see the approximate equal division of the parties’ net assets

Legislation: Family Law Act 1975 (Cth), ss 79, 79A

Cases cited: Fortnum & Tamplin (No 2) [2022] FedcFamC1F 209

Division: Division 1 First Instance

Number of paragraphs: 13

Date of hearing: 13 December 2022

Place: Adelaide

Counsel for the Applicant: Mr Tredrea

Solicitor for the Applicant: Carmen Wood & Associates

Counsel for the Respondent: Mr Culshaw

Solicitor for the Respondent: Culshaw Miller Lawyers
ORDERS

ADC 2365 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS FORTNUM

Applicant

AND:
MR TAMPLIN

Respondent

order made by:

KARI J

DATE OF ORDER:

13 DECEMBER 2022

THE COURT ORDERS THAT:
1.That there be orders in terms of paragraphs 1 to 18 of the amended Draft Minute of Order this day signed by me.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Fortnum & Tamplin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J

This matter comes before me today in relation to financial issues arising from the parties’ relationship. I do not propose to recite any detailed history of the matter because I have delivered a very long interlocutory judgment earlier this year (Fortnum & Tamplin (No 2) [2022] FedCFamC1F 209), where I set out the very lengthy trajectory of the matter. I am cognisant of all of the matters set out in those reasons in giving these reasons and ultimately making the orders that I am invited to make today.
The parties, as I understand it, have been engaged with the assistance of their legal representatives in negotiations to resolve their competing claims before the court.
I understand that the applicant has an application before the Court pursuant to s 79A of the Family Law Act

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 Fortnum & Tamplin (No 3)

Details

AGLC: Fortnum & Tamplin (No 3) [2022] FedCFamC1F 1073
Case: [2022] FedCFamC1F 1073
Decision Date

CaseChat Overview and Summary

This case involved a dispute between Ms Fortnum and Mr Tamplin over financial issues arising from their relationship. The matter was before the Federal Circuit and Family Court of Australia, Division 1. Ms Fortnum had applied under section 79A of the Family Law Act 1975 (Cth) to set aside final orders for property settlement made on 11 July 2017. If successful, she would have a consequential application for property settlement under section 79 of the Act. The court was required to decide whether to set aside the final orders and make new orders for property settlement in light of the parties' commercial resolution.

The court considered that the parties had reached a commercial resolution of the matter and that the proposed orders would result in an approximate equal division of the parties' net assets. Given the lengthy trajectory of the case and the significant legal fees incurred by both parties, the court found that the proposed orders were just and equitable. The court also noted that the parties had been engaged in negotiations with the assistance of their legal representatives and that an early resolution of the matter had been a focus for Ms Fortnum. The court was satisfied that the parties had considered the legal fees they had incurred and the potential for saving further legal fees by avoiding a trial hearing.

In light of the submissions made by counsel for both parties and the approximate equal division of the parties' net assets, the court decided to make the orders that it had been invited to make. The court found that the orders being proposed were an improvement on the earlier orders made in July 2017, which the court had found to be difficult to comprehend and likely unenforceable. The court made orders in terms of the Minute of Order as amended and signed by the judge on the same day.

Orders