Galloway and Midden (No. 2) - [2014] FamCAFC 60

FAMILY COURT OF AUSTRALIA

GALLOWAY & MIDDEN (NO. 2)

[2014] FamCAFC 60

FAMILY LAW – APPEAL – PROPERTY – Appeal against property settlement orders under Part VIIIAB – Where the trial judge, despite failing to identify the appellant’s existing legal or equitable interest in the foreign properties, included the properties in the "pool" – Where the properties were included in the property the appellant was to retain as a result of the trial judge's property settlement orders – Where the trial judge failed to consider how, if at all, the appellant could secure the transfer of the properties to herself – Whether Australian court could order transfer – Whether agreement on trust would be enforced in the foreign country – Where there was no identification of remedies the appellant could pursue or account taken of costs of pursuit to rescue foreign property – Appeal allowed – Matter remitted for rehearing.

Family Law Act 1975 (Cth)

Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit Court Rules 2001(Cth)

ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Fencott v Muller (1983) 152 CLR 570
Michael Wilson and Partners Ltd v Robert Colin Nichols [2008] NSWSC 1230
Nelson v Nelson (1995) 184 CLR 538
Re Wakim; Ex Parte McNally (1999) 198 CLR 511
Stanford v Stanford (2012) 247 CLR 108

APPELLANT:

Ms Galloway

RESPONDENT:

Mr Midden

FILE NUMBER:

DNC

199

2012

FIRST APPEAL NUMBER:

2013

SECOND APPEAL NUMBER:

2013

DATE DELIVERED:

11 April 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Murphy & Kent JJ

HEARING DATE:

8 April 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

25 October 2013

23 December 2013

LOWER COURT MNC:

[2013] FCCA 1711
[2013] FCCA 2264

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Gordon

SOLICITOR FOR THE APPELLANT:

Powell & Co Legal, Darwin

COUNSEL FOR THE RESPONDENT:

Ms Truman

SOLICITOR FOR THE RESPONDENT:

DS Family Law, Darwin

Orders

Appeal NA71/2013

The appeal be allowed in part.
Orders (1) to (12) inclusive and Order (15) of the orders made by Judge Harland on 25 October 2013 as amended on 23 December 2013 be set aside.
The matter be remitted to the Federal Circuit Court of Australia for re-hearing before a Federal Circuit Court judge other than Judge Harland.
There be no order under s 117 of the Family Law Act 1975 (Cth) as to costs.
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 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…

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 Galloway and Midden (No. 2)

Details

AGLC: Galloway and Midden (No. 2) [2014] FamCAFC 60
Case: [2014] FamCAFC 60
Decision Date

CaseChat Overview and Summary

In Galloway and Midden (No. 2), the Full Court of the Family Court of Australia allowed appeals against property settlement orders made by the Federal Circuit Court. Ms Galloway, the appellant, challenged the property settlement orders that included properties in Country F in the pool of property, despite not having control over those properties. The court found that the trial judge had failed to identify Ms Galloway's existing legal or equitable interest in the Country F properties and did not consider how she could secure the transfer of the properties to herself. The Full Court held that the appeal was to be allowed and the matter was to be remitted for re-hearing in the Federal Circuit Court. The court also granted costs certificates to both parties for the appeal and for the re-hearing, pursuant to the Federal Proceedings (Costs) Act 1981.

The court found that the trial judge had overlooked the fact that the Country F properties were structured in a way that circumvented Country F law, which prohibits a foreigner from owning more than one property. The court held that the trial judge did not identify the nature of Ms Galloway's interest in the Country F properties or the remedies she could pursue to secure the transfer of the properties to her. Furthermore, the trial judge did not consider the costs or potential costs to Ms Galloway in pursuing such remedies.

In relation to the other grounds of appeal, the Full Court found no merit in most of them, as they were not relevant to the overall property settlement or would be reconsidered in the re-hearing. However, the court found that the costs order made by the trial judge should be set aside as a consequence of the setting aside of the property orders.

Orders