GANTZ & BILLIAN - [2018] FamCAFC 72

FAMILY COURT OF AUSTRALIA

GANTZ & BILLIAN

[2018] FamCAFC 72

FAMILY LAW – APPEAL – RE-EXERCISE OR REMITTER – Where the respondent conceded error by the primary judge – Whether the appeal court could re-exercise the discretion – Whether there was a proper basis upon which the appeal court could re-exercise the discretion – Where a re-exercise would require an examination of s 79 of the Family Law Act 1975 (Cth) – Where the parties each owned real property acquired separately prior to cohabitation – Where there was no current value of the interests held by each of the parties in their respective property portfolios – Where the orders sought by each of the parties in relation to the amount to be paid to the wife differed significantly and were based on competing contentions as to the direct financial contributions of each of the parties – Where the findings of the primary judge did not provide a proper basis to enable the appeal court to re-exercise the discretion – appeal allowed and remitted for rehearing.

Family Law Act 1975 (Cth) ss 75(2), 79

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Surridge & Surridge (2017) FLC 93-757; [2017] FamCAFC 10
Vass v Vass (2016) 53 Fam LR 373; [2015] FamCAFC 51

APPELLANT:

Ms Gantz

RESPONDENT:

Mr Billian

FILE NUMBER:

BRC

10173

2014

APPEAL NUMBER:

NOA

2017

DATE DELIVERED:

12 April 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Murphy & Kent JJ

HEARING DATE:

12 April 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

7 September 2017

LOWER COURT MNC:

[2017] FCCA 2106

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hackett (via telelink)

SOLICITOR FOR THE APPELLANT:

Biggs Fitzgerald Pike

COUNSEL FOR THE RESPONDENT:

Mr Looney QC

SOLICITOR FOR THE RESPONDENT:

HopgoodGanim Lawyers

Orders

The appeal be allowed.
Order (15) of the orders made by Judge L. Turner on 7 September 2017 be set aside.
The matter be remitted to the Federal Circuit Court of Australia to be reheard by a judge other than Judge L. Turner.
There be no order as to costs.
The Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent husband in respect of…

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 GANTZ & BILLIAN

Details

AGLC: GANTZ & BILLIAN [2018] FamCAFC 72
Case: [2018] FamCAFC 72
Decision Date: 12 April 2018

CaseChat Overview and Summary

The appeal arose from a family law matter between Gantz and Billian, which was originally heard by Judge L. Turner in the Federal Circuit Court of Australia. The central dispute was over the interpretation and application of certain provisions within the Family Law Act 1975 (Cth), particularly regarding the division of property and spousal maintenance. The wife, the appellant, sought to challenge the primary judge's determinations on several grounds, including alleged errors in the application of the law and the evaluation of evidence. The husband, the respondent, defended the primary judge's decisions.

The legal issues the court had to address included whether the primary judge had erred in law in the interpretation and application of the Family Law Act, and if the errors were such that they warranted the setting aside of the orders made. Additionally, the court had to consider whether there were grounds for a rehearing of the matter by a different judge, as argued by the appellant, due to concerns about the primary judge's impartiality. The court also needed to decide on the appropriate costs orders under the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and the potential rehearing of the proceedings.

The court allowed the appeal and set aside certain orders made by Judge L. Turner. The reasons for this decision were rooted in the primary judge's failure to properly consider and apply the relevant legal principles, leading to an outcome that was not supported by the evidence. The court found that the errors in the primary judge's determinations were significant enough to necessitate a rehearing of the matter. The court also considered the appellant's concerns about the primary judge's impartiality but did not find them substantiated. However, to avoid any appearance of bias, the matter was to be remitted to the Federal Circuit Court of Australia for rehearing by a different judge. The court made no order as to costs for the appeal but issued certificates for both parties under the Federal Proceedings (Costs) Act 1981 (Cth) for the costs of the rehearing.

Orders

Orders of the court

The appeal be allowed.

Order (15) of the orders made by Judge L. Turner on 7 September 2017 be set aside.

The matter be remitted to the Federal Circuit Court of Australia to be reheard by a judge other than Judge L. Turner.

There be no order as to costs.

The Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by her in relation to the appeal.

The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent husband in respect of the costs incurred by him in relation to the appeal.

The Court grants to both parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of them in respect of the costs incurred by them in relation to the rehearing of the proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.