Hunter and Borman & Anor

Case [2020] FamCAFC 250

FAMILY COURT OF AUSTRALIA

HUNTER & BORMAN AND ANOR [2020] FamCAFC 250
FAMILY LAW – APPEAL – PROPERTY – Where the parties were in a de facto relationship for approximately 34 years – Whether the primary judge intended to make no orders adjusting the existing property interests of either party in favour of the other – Whether it is readily discernible from the reasons for judgment that the primary judge was not satisfied as to the just and equitable requirement of s 90SM(3) or whether the outcome of the application of s 90SM(4) was that no property adjustment orders be made – Whether the primary judge’s reasons for judgment are adequate – Whether the primary judge failed to take account of material considerations – Appeal allowed and proceedings remitted for rehearing – Where costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) are granted.
Family Law Act 1975 (Cth) ss 79, 90SF, 90SM, 117
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Boensch v Pascoe (2019) 375 ALR 15; [2019] HCA 49
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Mullane v Mullane (1983) 158 CLR 436; [1983] HCA 4
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
APPELLANT: Ms Wallace as Case Guardian for Ms Hunter
RESPONDENT: Mr Borman
INTERVENOR: Attorney-General for the State of Queensland
FILE NUMBER: BRC 2660 of 2015
APPEAL NUMBER: NOA 29 of 2020
DATE DELIVERED: 9 October 2020
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Ryan, Kent & Tree JJ
HEARING DATE: 24 September 2020
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 20 December 2019;
Orders made: 16 March 2020
LOWER COURT MNC: [2019] FamCA 1003

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Galloway
SOLICITOR FOR THE APPELLANT: Frigo Adamson Legal Group
COUNSEL FOR THE RESPONDENT: Mr Wilson QC
SOLICITOR FOR THE RESPONDENT: Alex Mackay & Co
SOLICITOR FOR THE INTERVENOR: No appearance

Orders

  1. The appeal be allowed.

  2. As and from the making of final orders upon the re-exercise of discretion as a consequence of the remitter of these proceedings the orders made on 16 March 2020, save and except for Orders (11) and (12) concerning the J Foundation, be set aside.

  3. The proceedings be remitted for rehearing by a judge other than the primary judge.

  4. There be no order for costs pursuant to s 117 of the Family Law Act 1975 (Cth).

  5. 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…

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Hunter and Borman & Anor [2020] FamCAFC 250
Case
[2020] FamCAFC 250
Decision Date

CaseChat Overview and Summary

Hunter and Borman & Anor was a family law appeal heard in the Family Court of Australia. The primary issue was the appeal of a decision regarding the distribution of assets and property between the parties. The appeal was brought by Hunter against Borman and another respondent. The appeal court was tasked with deciding whether the original decision was correct in its exercise of discretion and whether the proceedings should be remitted for rehearing.

The court had to determine whether the primary judge exercised their discretion correctly in making the orders and if there were any grounds for setting aside the orders made on 16 March 2020, excluding the orders concerning the J Foundation. The court also had to consider if the proceedings should be remitted for rehearing by a different judge and whether any costs should be awarded to either party.

The Family Court of Australia allowed the appeal, setting aside the orders made on 16 March 2020, except for those concerning the J Foundation. The court held that the original decision was flawed in its exercise of discretion and that the proceedings should be remitted for rehearing by a different judge. The court also declined to order costs under section 117 of the Family Law Act 1975 but granted costs certificates under the Federal Proceedings (Costs) Act 1981 for both parties in relation to the appeal and the rehearing.

Orders

Orders of the court

1.

The appeal be allowed.

2.

As and from the making of final orders upon the re-exercise of discretion as a consequence of the remitter of these proceedings the orders made on 16 March 2020, save and except for Orders (11) and (12) concerning the J Foundation, be set aside.

3.

The proceedings be remitted for rehearing by a judge other than the primary judge.

4.

There be no order for costs pursuant to s 117 of the Family Law Act 1975 (Cth).

5.

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 the appellant in relation to the appeal.

6.

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 the respondent in relation to the appeal.

7.

The Court grants to the appellant and the respondent a costs certificate pursuant to 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 the appellant and the respondent in respect of the costs incurred by them in relation to the rehearing ordered.

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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