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)
| APPELLANT: | Ms Galloway |
| RESPONDENT: | Mr Midden |
| FILE NUMBER: | DNC | 199 | of | 2012 |
| FIRST APPEAL NUMBER: | NA | 71 | of | 2013 |
| SECOND APPEAL NUMBER: | NA | 79 | of | 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…
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- AGLC
- Galloway and Midden (No. 2) [2014] FamCAFC 60
- Case
- [2014] FamCAFC 60
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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