Gabel and Yardley - [2007] FamCA 1322

FAMILY COURT OF AUSTRALIA

GABEL & YARDLEY

[2007] FamCA 1322

FAMILY LAW – PROPERTY – Superannuation – Application to reopen property proceedings six years after an adjournment granted under s 79(5) of the Family Law Act 1975 pending the ‘falling in’ of the husband’s superannuation – whether the property orders made were of an ‘interim’ or ‘partial’ nature – effect of reopening under the Family Law Legislation Amendments (Superannuation) Act 2001 and whether this would permit the making of a ‘splitting order’

Family Law Act 1975 (Cth)

Family Law Legislation Amendments (Superannuation) Act 2001(Cth)

Harris & Harris (1993) FLC 92-378

Hickey & Hickey and the Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143

Burridge & Burridge (1980) FLC 90-902

Gebert & Gebert (1990) FLC 92-137

Coghlan & Coghlan (2005) FLC 93-220

PAJ & GMJ [2003] FamCA 751

Taylor & Taylor (1977) FLC 90-226

Bassi and KD Sales Force Specialists Pty Ltd & Maas (1999) FLC 92-867

Grace & Grace (1998) FLC 92-792

Martin & Martin (1986) FLC 91-737

Carson & Carson (1999) FLC 92-835

O’Shea & O’Shea (1988) FLC 91-964

Robson & Robson and Ors (2003) FLC 93-145

Van Essen & Van Essen (2000) FLC 93-028

Meggitt Overseas Ltd and Ors & Grdovic (1998) 43 NSWLR 527

Versace & Armstrong [2001] FMCAfam 231

T & T [2001] FamCA 866

Townsend & Townsend (1995) FLC 92-569

Chorn & Hopkins (2004) FLC 93-204

APPLICANT:

Ms Gabel

RESPONDENT:

Mr Yardley

FILE NUMBER:

CAF

1684

1997

DATE DELIVERED:

12 November 2007

PLACE DELIVERED:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

14-15 September 2005

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Brzostowski

SOLICITOR FOR THE APPLICANT:

Ms Dobinson

COUNSEL FOR THE RESPONDENT:

Ms Tonkin

SOLICITOR FOR THE RESPONDENT:

Ms Barralet

Orders

The wife’s application filed 21 February 2002 (as subsequently amended) is dismissed.
The husband’s application reflected in his response most recently amended 13 December 2004 is dismissed.
The finalisation of the hearing of matters relating to the division of the property of the parties is set down for hearing on a date to be notified to the parties as soon as possible after the expiration of the time for filing an appeal against these orders or the delivery of judgment in the appeal.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 1684 of 1997

MS CABEL

Applicant

And

MR YARDLEY

Respondent

REASONS FOR JUDGMENT

Foreword

On 3 October 1997, the wife sought a property division under s 79 of the Family Law Act 1975 (the Act) by filing an application for final orders. The matter was heard before me on 17-18 August 1999 and I made orders and delivered reasons on 18 August 1999.
The judgment provided that the property of the parties, excluding superannuation, would be divided 60 percent to the wife and 40 percent to the husband. Among other things, the orders…

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 Gabel and Yardley

Details

AGLC: Gabel and Yardley [2007] FamCA 1322
Case: [2007] FamCA 1322
Decision Date: 12 November 2007

CaseChat Overview and Summary

In *Gabel and Yardley*, heard before Faulks DCJ, the dispute concerned applications made by both the wife and the husband relating to the division of their property. The wife's application was filed on 21 February 2002, and the husband's application was most recently amended on 13 December 2004.

The court was required to determine the applications made by each party concerning the division of their property. The specific nature of the dispute and the grounds for each party's application are not detailed in the provided text, but the ultimate determination was whether to grant or dismiss these applications.

Faulks DCJ dismissed both the wife's application and the husband's application. The court then ordered that the finalisation of the hearing of matters relating to the division of the parties' property be set down for a future date, to be notified to the parties after the time for filing an appeal against these orders has expired or after any appeal has been determined.

Orders

Orders of the court

The wife’s application filed 21 February 2002 (as subsequently amended) is dismissed.

The husband’s application reflected in his response most recently amended 13 December 2004 is dismissed.

The finalisation of the hearing of matters relating to the division of the property of the parties is set down for hearing on a date to be notified to the parties as soon as possible after the expiration of the time for filing an appeal against these orders or the delivery of judgment in the appeal.

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.