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
The appeal against the orders of the Honourable Justice Cronin made on 19 September 2011 be dismissed.
The appeal against the orders of the Honourable Justice Cronin made on 3 November 2011 be dismissed.
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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- AGLC
- Jamine & Jamine (No.2) [2012] FamCAFC 104
- Case
- [2012] FamCAFC 104
- Decision Date
CaseChat Overview and Summary
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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