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
The appeal be allowed.
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.
The proceedings be remitted for rehearing by a judge other than the primary judge.
There be no order for costs pursuant to s 117 of the Family Law Act 1975 (Cth).
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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- AGLC
- Hunter and Borman & Anor [2020] FamCAFC 250
- Case
- [2020] FamCAFC 250
- Decision Date
CaseChat Overview and Summary
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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