Lane and Lane

[2017] FamCAFC 140

FAMILY COURT OF AUSTRALIA

LANE & LANE [2017] FamCAFC 140

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Proposed consent orders to allow the appeal and vary the property settlement – Appeal allowed – Appellant to pay the respondent’s costs in a fixed sum.

APPELLANT: Mr Lane

RESPONDENT: Ms Lane

FILE NUMBER: ADC 4391 of 2013

APPEAL NUMBER: SOA 82 of 2016

DATE DELIVERED: 17 May 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Thackray, Strickland & Johnston JJ

HEARING DATE: 17 May 2017

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 23 August 2016

LOWER COURT MNC: [2016] FCCA 2067

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr McQuade

SOLICITOR FOR THE APPELLANT: C M Tucker & Associates

COUNSEL FOR THE RESPONDENT: Mr Praolini

SOLICITOR FOR THE RESPONDENT: Scales & Partners

Orders by consent

1. The appeal be allowed.

2. Paragraphs 1, 2, 3 and 4 of the orders made by Judge Brown on 23 August 2016 be set aside.

3. Pursuant to section 79 of the Family Law Act 1975 (Cth) in addition to the sums already paid to the respondent following the sale of the former matrimonial home pursuant to orders 3 of the orders of the Federal Circuit Court made on 4 February 2015, the appellant pay the respondent the sum of eighty five thousand dollars ($85,000) payable as follows:

   (a)Eighty thousand dollars ($80,000) within twenty eight (28) days of the date of this order; and

   (b)Five thousand dollars ($5,000) within six (6) months of the date of this order.

4. The appellant pay the respondent’s costs agreed at the sum of fifteen thousand dollars ($15,000) within sixty (60) days of the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lane & Lane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number:  SOA 82 of 2016
File Number: ADC 4391 of 2013

Mr Lane

Appellant

And

Ms Lane

Respondent

EX TEMPORE REASONS FOR JUDGMENT

THACKRAY J

1. I will make some brief observations about the orders proposed to be made by consent.

2. The Court had listed before it today a Notice of Appeal filed on 15 September 2016 by the appellant, Mr Lane.  The appeal was originally opposed by Ms Lane. The orders appealed were those made by his Honour Judge Brown in the Federal Circuit Court on 23 August 2016.

3. After the filing of the appeal, the parties filed summaries of argument; however, in relatively recent times, the parties gave consideration to advice received from their counsel; took a pragmatic approach to the resolution of this matter; and came to terms in relation to the disposition of the appeal.  We have been provided with a Minute of Consent Orders setting out the proposed terms.

4. Counsel for the respondent has appropriately acknowledged that in arriving at this settlement, which results in some reduction of his client’s entitlements, there has been at least one error of law. The relief to be granted stands to be considered in light of this concession.

5. We have not had the benefit of oral submissions, but we have read the primary judgment and written submissions.  On this basis, I consider it is appropriate for the court to make orders as proposed, save for paragraph 5 of the Minute, which deals with an issue that was not the subject of the appeal.

6. In proposing that orders be made in terms of paragraphs 1 to 4 of the Minute, I should record that it is intended that immediately following the rising of the Full Court, a member of the bench will come back into court as a single judge of the Family Court of Australia to take an oral application for orders to be made by consent in terms of paragraph 5 of the Minute. 

7. On that basis, I would make orders in terms of paragraphs 1 to 4 of the Minute.

RECORDED:  NOT TRANSCRIBED

1. There being no dissent from my proposed form of order, there will be orders accordingly. 

2. We would like to express our gratitude to counsel and the solicitors for giving advance notice of the settlement, which has saved us much time and difficulty.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Johnston JJ) delivered on 17 May 2017.

Associate: 

Date:  19/7/17