HINKLER & ANGLIN - [2020] FamCAFC 167

FAMILY COURT OF AUSTRALIA

HINKLER & ANGLIN

[2020] FamCAFC 167

FAMILY LAW – APPEAL – PROPERTY – Appeal against final property adjustment orders – Where the primary judge’s orders fail to effect finality of proceedings – Where the primary judge’s orders are not just and equitable – Where the respondent wife conceded the appeal – Error established – Appeal allowed – Orders set aside – Matter remitted – Costs certificates ordered.

Family Law Act 1975 (Cth) ss 79(2), 81
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

B & B (Costs Certificates) (2007) FLC 93-339; [2007] FamCA 1177
Cramer v Davies (1997) 72 ALJR 146
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

APPELLANT:

Mr Hinkler

RESPONDENT:

Ms Anglin

FILE NUMBER:

PAC

1039

2016

APPEAL NUMBER:

EAA

2019

DATE DELIVERED:

15 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Ainslie-Wallace, Austin & Tree JJ

HEARING DATE:

6 July 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 August 2019

LOWER COURT MNC:

[2019] FCCA 2309

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Mando

SOLICITOR FOR THE APPELLANT:

MIC Lawyers

SOLICITOR ADVOCATE FOR

THE RESPONDENT:

Mr Vassili

SOLICITOR FOR THE RESPONDENT:

Michael Vassili Barristers & Solicitors

Orders made on 6 July 2020

The appellant be granted leave to rely on an Amended List of Authorities dated 5 July 2020.
The respondent be granted leave to rely on an Amended Summary of Argument and Amended List of Authorities dated 1 July 2020.
The respondent be granted leave to rely on an Application in an Appeal seeking costs on an indemnity basis dated 1 July 2020.
The appeal against the orders of a judge of the Federal Circuit Court made on 22 August 2019 is allowed and those orders are set aside.
The proceedings be remitted to the Federal Circuit Court for rehearing by a judge other than the primary judge.
The Court grants to the appellant 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 in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent 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 that Act to the respondent in respect of the costs incurred by her in relation to this appeal.
The Court grants to the appellant and the respondent 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…

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.

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Details

AGLC: HINKLER & ANGLIN [2020] FamCAFC 167
Case: [2020] FamCAFC 167
Decision Date: 15 July 2020

CaseChat Overview and Summary

This appeal concerns the property settlement orders made by the Federal Circuit Court in relation to the marriage of Mr Hinkler and Ms Anglin. Mr Hinkler appeals the orders made by the primary judge on the basis that they are not just and equitable and fail to effect finality of proceedings. The appeal was heard by the Full Court of the Family Court of Australia. The appeal court considered that the primary judge's orders were flawed as they failed to provide for finality of proceedings and could not be considered just and equitable as between the parties. The appeal court held that it was not only entitled but obliged to correct the error, even though it had not been raised by the parties. The appeal was allowed, the orders of the primary judge were set aside, and the matter was remitted to the Federal Circuit Court for rehearing by a different judge.

The appeal court considered the legal issues raised by the appeal, including whether the appeal court had the authority to correct an error in the primary judge's orders, even if it was not raised by the parties. The appeal court referred to the case of Warren v Coombes, which stated that if an appeal court holds the decision of the trial judge to be wrong, it should correct it. The appeal court also considered the case of B & B (Costs Certificates), which sets out the requirements for granting costs certificates in appeals finalised by consent. The appeal court held that the necessary statutory preconditions to grant costs certificates to the husband and the wife in respect of the appeal and any rehearing had been met, and it was entirely appropriate that costs certificates be ordered in these circumstances.

The appeal court granted leave to the appellant to rely on an Amended List of Authorities, and to the respondent to rely on an Amended Summary of Argument, an Amended List of Authorities, and an Application in an Appeal seeking costs on an indemnity basis. The appeal court allowed the appeal against the orders of the primary judge and set aside those orders. The proceedings were remitted to the Federal Circuit Court for rehearing by a judge other than the primary judge. The appeal court granted costs certificates to the appellant and the respondent in respect of the appeal and the rehearing, pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).

Orders