FAMILY COURT OF AUSTRALIA
| GRANGE & GRANGE AND ORS | [2019] FamCAFC 205 |
| FAMILY LAW – APPEAL – PROPERTY – Whether the circumstances justify a finding that the third respondent held on trust the proceeds of sale of the only item of property held by the husband and wife – Whether the retention of the proceeds of sale by the third respondent was unconscionable – Whether the wife was suffering under a special disadvantage which seriously affected her ability to make a judgment as to her interests – Where the evidence does not support a finding of unconscionability – Where not being fully informed is insufficient to meet the standard of special disadvantage – Where an apparent lack of benefit is insufficient to establish unconscionability – Where there was no basis for the imposition of a constructive trust – Where there has been a completed gift of the proceeds of sale to the third respondent – Where the outcome is not the outcome contended for at the hearing by the husband but it is the inevitable legal effect – Where the third respondent will retain the proceeds of sale – Where there is then no property to be divided – Where the proceedings for property division under s 79 of the Family Law Act 1975 (Cth) must be dismissed – Appeal allowed. FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge should have considered the appellant’s claim for spousal maintenance – Where the application was recorded by the primary judge but not dealt with – Where the matter will be remitted to the Family Court of Australia for rehearing in respect to spousal maintenance. FAMILY LAW – APPEAL – COSTS – Orders made for the provision of written submissions as to costs – If submissions are not received, then there will be no order as to costs. |
| Corporations Act 2001 (Cth) ch 2D, ss 181, 182 Family Law Act 1975 (Cth) s 79 Federal Proceedings (Costs) Act 1981 (Cth) |
| APPELLANT: | Mr Grange |
| FIRST RESPONDENT: | Ms Grange |
| SECOND RESPONDENT: | Ms A Grange |
| THIRD RESPONDENT: | Ms B Grange |
| FILE NUMBER: | ROC | 580 | of | 2011 |
| APPEAL NUMBER: | NOA | 19 | of | 2018 |
| DATE DELIVERED: | 7 November 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Aldridge JJ |
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- Grange & Grange and Ors [2019] FamCAFC 205
- Case
- [2019] FamCAFC 205
- Decision Date
CaseChat Overview and Summary
The court found that the evidence did not support a finding of unconscionability on the part of the third respondent. The court held that the wife had not suffered a special disadvantage which seriously affected her ability to make a judgment as to her interests, and that the apparent lack of benefit to the third respondent was insufficient to establish unconscionability. The court also found that there was no basis for the imposition of a constructive trust, as there had been a completed gift of the proceeds of sale to the third respondent. As a result, the primary judge's orders were set aside and the application for property settlement orders under s 79 of the Family Law Act 1975 (Cth) was dismissed. However, the court found that the primary judge should have considered the appellant's claim for spousal maintenance, and this matter was remitted to the Family Court of Australia for rehearing.
The appeal was allowed and the orders made on 30 January 2018 were set aside. The application for property settlement orders under s 79 of the Family Law Act 1975 (Cth) was dismissed, as there was no property to be divided. The appellant's application for spousal maintenance was remitted to the Family Court of Australia for rehearing. Any party seeking an order for the costs of the appeal was required to file and serve written submissions within 28 days, with the opposing party to file and serve any written submissions in reply within a further 14 days. The party seeking the costs may file and serve submissions in response within a further 7 days. The form of the order was subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
The appeal be allowed.
2.
The orders made on 30 January 2018 be set aside.
3.
The application for property settlement orders under s 79 of the Family Law Act 1975 (Cth) be dismissed.
4.
The appellant’s application for spousal maintenance be remitted to the Family Court of Australia for rehearing.
5.
Any party seeking an order for the costs of the appeal is to file and serve written submissions within twenty-eight (28) days, with the opposing party to file and serve any written submissions in reply within a further fourteen (14) days. The party seeking the costs may file and serve submissions in response within a further seven (7) days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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