Harley & Harley - [2022] FedCFamC2F 241

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harley & Harley [2022] FedCFamC2F 241

File number(s): PAC 4184 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 8 March 2022

Catchwords: FAMILY LAW – property proceedings - proceedings transferred to the Family Court of Australia, Division 1 - Order made

Legislation:
Family Law Act 1975 (the Act), s. 106B

Federal Circuit and Family Court of Australia Act 2021

Corporations Act 2001 (Cth), s. 1337C

Federal Circuit Court of Australia Act 1999 (repealed)

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Cases cited: Morris & Rosetti [2017] FamCA 249

Division: Division 2 Family Law

Number of paragraphs: 21

Date of last submission/s: 21 February 2022

Date of hearing: 21 February 2022

Place: Parramatta

Solicitor for the Applicant: Mr McCann

Solicitor for the First Respondent: Ms Sharpe

Solicitor for the Second Respondent: Ms Michael
ORDERS

PAC 4184 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HARLEY

Applicant

AND:
MS HARLEY

First Respondent

AND:
MS B HARLEY

Second Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

8 MARCH 2022

THE COURT ORDERS THAT:
1.These property proceedings are forthwith transferred to the Federal Circuit and Family Court of Australia, Division 1, with such proceedings to be mentioned in that Court on a date to be advised to the parties.

NOTATION:
A.The file in these proceedings is now sent to the National Assessment Team for allocation of relevant Court dates in the Federal Circuit and Family Court of Australia, Division 1.
B.The Court refers to its written Reasons for Judgment in relation to the above Order.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Harley & Harley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:

The within Reasons for Judgment relate to this Court’s Order of 8 March 2022 that these property proceedings be transferred to the Federal Circuit and Family Court of Australia, Division 1.
There are three parties to these property proceedings; the Applicant Husband, the First Respondent Wife, and the Second Respondent who is a daughter of the Husband and Wife.
BACKGROUND
On 22 November 2019, the Applicant Husband and the First Respondent Wife entered into consent final property Orders in this Court. Under those Orders, inter alia:
(a)a property at…

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 Harley & Harley

Details

AGLC: Harley & Harley [2022] FedCFamC2F 241
Case: [2022] FedCFamC2F 241
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) was presented with a property dispute involving Mr Harley (the Applicant), Ms Harley (the First Respondent), and their daughter, the Second Respondent. The Applicant sought to set aside the sale of a property at C Street, Suburb D, and claimed that the sale was conducted at below market value. He also alleged that the First Respondent failed to account for her share of the proceeds from the sale of two other properties at E1 and E2 Street, Suburb D. The First Respondent denied these allegations, asserting that the property sales were conducted at arm's length and that there were no remaining proceeds to account for. The Applicant sought to transfer these proceedings to the Family Court of Australia, Division 1, citing the complexity of the issues and the anticipated length of the final hearing.

The legal issues before the court included whether the First Respondent sold the properties unilaterally and in breach of the court's orders, whether the sale of the property at C Street, Suburb D was at market value, whether the sale should be set aside, and whether the Applicant should be appointed trustee for the sale of that property. The court also needed to determine whether the First Respondent failed to account to the Applicant for his share of the proceeds from the sale of the properties at E1 and E2 Street, Suburb D, and if so, whether she should compensate the Applicant.

In reaching its decision, the court considered the relevant principles set out in Morris & Rosetti [2017] FamCA 249 and the Central Practice Direction of the Federal Circuit and Family Court of Australia. The court noted that the former Protocol between the Family Court of Australia and the Federal Circuit Court of Australia provided guidance on the appropriate court for certain types of proceedings, but could not lawfully fetter the discretion of either court to transfer proceedings. The court also considered the factors relevant to the assessment of the appropriate division for the hearing of a matter, including the complexity of the legal, factual or jurisdictional issues involved, the likely length of the case, and the impact on litigants of the matter being transferred.

Given the complexity of the issues, the anticipated length of the final hearing, and the potential for extensive and significant cross-examination, the court decided to transfer the proceedings to the Family Court of Australia, Division 1. The court found that the administration of justice would be best served by transferring these proceedings, and that it was likely to be heard and determined at less cost and more convenience to the parties.

In conclusion, the court ordered that the property proceedings be forthwith transferred to the Federal Circuit and Family Court of Australia, Division 1, with such proceedings to be mentioned in that Court on a date to be advised to the parties.

Orders