Jamine & Jamine (No.2)

Case [2012] FamCAFC 104

FAMILY COURT OF AUSTRALIA

JAMINE & JAMINE (NO. 2) [2012] FamCAFC 104

FAMILY LAW – APPEAL – Appeal against orders for property settlement – Where a 5 per cent adjustment was made pursuant to s 75(2) on account of the husband’s non-disclosure – The adjustment of 5 per cent was within the range of the trial Judge’s discretion – Where an order was made that the husband resign as trustee of a trust over a one-half interest in a property held for the benefit of an adult disabled child – Where the trial Judge held that in exercising his power under Part VIII he could remove one of the trustees – The husband and wife’s interest in the property provided a relevant connection between the exercise of power under Part VIII and the exercise of the power to remove a trustee – The trial Judge’s decision to remove the husband as trustee was within his discretion – Appeal dismissed.

FAMILY LAW – APPEAL – Appeal against a costs order made following a two day delay in the commencement of the trial – Where the husband provided a medical report as to why he could not attend the trial – Where the trial Judge held the wife should not be financially inconvenienced by the husband’s inability to attend the trial – The trial Judge’s decision to order costs was within his discretion – Appeal dismissed.

FAMILY LAW – COSTS – Where the husband submitted there is a financial disparity between the husband and wife and the appeal against his removal as trustee was not frivolous or vexatious – No merit in the appeals – Husband ordered to pay wife’s costs of appeal.
Family Law Act 1975 (Cth), s 80(1)(e)
Browne v Green (2002) FLC 93-115
Davidson and Davidson (No 2) (1994) FLC 92-469
Gould and Gould (2007) FLC 93-333
Harris and Harris (1991) FLC 92-254
Kannis and Kannis [2002] FamCA 1150
APPELLANT: Mr Jamine
RESPONDENT: Ms Jamine
FILE NUMBER: MLC 3286 of 2008
FIRST APPEAL NUMBER: SOA 73 of 2011
SECOND APPEAL NUMBER: SOA 84 of 2011
DATE DELIVERED: 19 July 2012
PLACE DELIVERED: Perth
PLACE HEARD: Melbourne
JUDGMENT OF: Thackray, Strickland and Ainslie-Wallace JJ
HEARING DATE: 9 July 2012
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 19 September 2011
3 November 2011
LOWER COURT MNC: [2011] FamCA 792 [2011] FamCA 843

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Moisidis
SOLICITOR FOR THE APPELLANT: Bowlen Dunstan & Associates Pty
COUNSEL FOR THE RESPONDENT: Ms Johns
SOLICITOR FOR THE RESPONDENT: Slater & Gordon

Orders

  1. The appeal against the orders of the Honourable Justice Cronin made on 19 September 2011 be dismissed.

  2. The appeal against the orders of the Honourable Justice Cronin made on 3 November 2011 be dismissed.

  3. The husband pay the wife’s costs of, and incidental to, the appeals as agreed and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jamine & Jamine has been approved…

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Details
AGLC
Jamine & Jamine (No.2) [2012] FamCAFC 104
Case
[2012] FamCAFC 104
Decision Date

CaseChat Overview and Summary

The case of Jamine & Jamine (No.2) involved an appeal against orders for property settlement made by the trial Judge, Justice Cronin. The husband argued that the 5 per cent adjustment made pursuant to s 75(2) due to his non-disclosure was excessive. Additionally, he contested the order that required him to resign as trustee of a trust over a one-half interest in a property held for the benefit of their adult disabled child. The wife sought costs following a two-day delay in the commencement of the trial, attributed to the husband's inability to attend due to medical reasons. The husband argued that the appeal against his removal as trustee was not frivolous or vexatious, and that there was a financial disparity between him and the wife.

The court was required to decide whether the trial Judge's adjustment of 5 per cent was within his discretion under s 75(2). It also had to determine if the Judge's decision to remove the husband as trustee was within his discretion under Part VIII of the Family Law Act. Furthermore, the court had to assess whether the trial Judge's decision to order costs was within his discretion, given the husband's inability to attend the trial and the wife's financial inconvenience.

The court found that the 5 per cent adjustment made by the trial Judge was within the range of his discretion, considering the husband's non-disclosure. The court also held that the trial Judge's decision to remove the husband as trustee was within his discretion, as there was a relevant connection between the exercise of power under Part VIII and the exercise of the power to remove a trustee. The court further found that the trial Judge's decision to order costs was within his discretion, as the husband's inability to attend the trial caused a two-day delay, and the wife should not be financially inconvenienced by this.

The appeal against the orders of the Honourable Justice Cronin made on 19 September 2011 and 3 November 2011 were dismissed. The husband was ordered to pay the wife's costs of, and incidental to, the appeals as agreed and in default of agreement, as assessed.

Orders

Orders of the court

1.

The appeal against the orders of the Honourable Justice Cronin made on 19 September 2011 be dismissed.

2.

The appeal against the orders of the Honourable Justice Cronin made on 3 November 2011 be dismissed.

3.

The husband pay the wife’s costs of, and incidental to, the appeals as agreed and in default of agreement, as assessed.

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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