Grayden & Grayden - [2003] FamCA 359

[2003] FamCA 359

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT SYDNEY Appeal No. EA 13 of 2003

File No. SYM 6188 of 2002

IN THE MATTER OF: GRAYDEN
ANNE THERESE

Appellant Wife

AND: GRAYDEN
DAVID

Respondent Husband

CORAM: WARNICK, MAY AND BOLAND JJ

DATE OF HEARING: 10 April 2003

DATE OF JUDGMENT: 11 April 2003

JUDGMENT OF THE COURT

Appearances: Mr Broun QC appeared on behalf of the Appellant Wife
Wife’s address for service: 34/2 Adcock Avenue, West Gosford, NSW, 2250

Mr Neil of Queens Counsel with Mr Bell instructed by Dettman & Dettman, Solicitors, 85/47 Neridah Street, Chatswood, NSW, 2067 appeared on behalf of the Respondent Husband

Name of Appeal	GRAYDEN AND GRAYDEN
Appeal Number	EA 13 of 2003
Date of Appeal Hearing	10 April 2003
Date of Judgment	11 April 2003
Coram	Warnick, May and Boland JJ

Catchwords: APPEAL FROM A DECREE NISI OF A REGISTRAR OF THE FEDERAL MAGISTRATES SERVICE – Incompetent Appeal – Registrar exercising delegated power not exercising original jurisdiction for the purpose of section 94AAA Family Law Act – An essential part of the delegation of power was the provisions for review by a Federal Magistrate

APPEAL FROM A DECREE NISI OF A REGISTRAR OF THE FEDERAL MAGISTRATES SERVICE – Jurisdiction cannot be acquired by consent

This was an appeal by the wife against the decision of a Deputy Registrar of the Federal Magistrates Service to dispense with the service of the husband’s application for divorce and to grant a decree nisi. Both orders were made on 4 February 2002. On the hearing of the appeal, counsel for both parties proffered orders to be made by consent which would have had the effect of allowing the appeal, remitting the application for divorce for re-hearing and granting leave to the husband to withdraw that application. Both parties disputed that the appeal was otherwise than competent.

HELD:-

When the Deputy Registrar made the order and decree appealed from, she was exercising delegated jurisdiction, an essential part of that delegation being the provision of a system of review by the Federal Magistrates who, pursuant to section 8(4) of the Federal Magistrates Act 1999 comprise the Federal Magistrates Court. The Deputy Registrar was not exercising original jurisdiction under the Family Law Act.
Accordingly, no appeal lies from the exercise of power to this Court and the appeal is incompetent.
Horne v. Horne (1997) FLC 92-734; Briggs v. Glentham Pty Ltd (1992) 8 WAR 339; Hunt v. Knabe (No 2) (1992) 8 WAR 96 considered and applied.

Jurisdiction cannot be acquired by consent.
Hunt v. Knabe (No 2) (1992) 8 WAR 96.

Appeal dismissed.

Reportable.

The first and possibly the only question requiring answer in this appeal is “is it competent?”.
The issue arises in this way. On 4 February 2003, a Deputy Registrar, serving in the Federal Magistrates Court at Sydney, dispensed with service of an application for divorce by David Grayden and then granted a…

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 Grayden & Grayden

Details

AGLC: Grayden & Grayden [2003] FamCA 359
Case: [2003] FamCA 359
Decision Date: 11 April 2003

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal concerning property settlement proceedings between Mr and Mrs Grayden. The primary dispute revolved around the division of assets acquired during the marriage, with particular emphasis on the valuation and treatment of certain business interests.

The central legal issues before the Full Court were whether the primary judge erred in: (1) failing to adequately consider the impact of a significant debt owed by one of the parties to a third party when valuing the marital assets; (2) making an unequal division of the net property pool that was not justified by the evidence; and (3) failing to provide sufficient reasons for the final property settlement orders.

The Full Court found that the primary judge had indeed erred in failing to properly account for the substantial debt, which significantly impacted the net value of the asset pool. The Court reiterated the principle that all relevant financial resources, including debts, must be considered when determining a just and equitable property division. Furthermore, the Court held that the reasons provided by the primary judge were insufficient to justify the unequal distribution of property, lacking the necessary clarity and detail to demonstrate how the final orders were reached.

Consequently, the Full Court allowed the appeal, set aside the original property settlement orders, and remitted the matter back to the Family Court for redetermination by a different judge.

Orders