FAMILY COURT OF AUSTRALIA
| MARCIN & MARCIN | [2020] FamCAFC 85 |
| FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals from final orders adjusting the parties’ property interests 52/48 per cent in favour of the husband – Where the parties’ financial affairs are complex – Where the husband’s grounds of appeal allege bias and a denial of procedural fairness in relation to the single expert’s valuation evidence – Where there is no demonstration of bias or denial of procedural fairness – Where it was open for the primary judge to find that the single expert had difficulty acquiring information from the husband – Where the husband’s submission that the primary judge’s reasons were inadequate is rejected – Where there is no error in the primary judge’s treatment of the wife’s premature distribution of assets – Where there is no error in his Honour’s separate treatment of the wife’s inheritance – Where the primary judge’s alleged failure to take into account the financial dependence of the husband’s partner is rejected – Where the single expert’s valuation evidence is revealed by further evidence to be erroneous and so its acceptance by the primary judge was a material factual error – Where the primary judge made findings based on the single expert’s evidence being correct when it transpired it was not – Where, otherwise, the Full Court does not accept that the orders reflect an outcome which was anything but just and equitable – Where the Full Court considers whether to remit the matter or re-exercise discretion – Whether there should be variation made to correct mathematical error in Order 30 – Appeal allowed in part – Where the appeal is to be relisted on a date to be fixed to receive the parties’ oral submissions regarding re-exercise of discretion or remitter for re-hearing – Costs reserved. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband seeks leave to adduce further evidence – Where the further evidence comprises a contentious appeal book containing material which is already part of the Court record and various affidavits – Where the parties agreed there is no impediment to the husband’s reliance upon the material which is part of the Court record – Where some of the affidavits are permitted as further evidence in the appeal as the evidence demonstrates the primary judge’s factual error – Where application is otherwise dismissed. |
| Family Court Act 1997 (WA) Part 5A Family Court Rules 1998 (WA) rr 12, 13 |
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- AGLC
- Marcin & Marcin [2020] FamCAFC 85
- Case
- [2020] FamCAFC 85
- Decision Date
CaseChat Overview and Summary
The court found that there was no evidence of bias or procedural unfairness in the primary judge's handling of the case. However, the court identified a material factual error in the primary judge's reliance on the single expert's valuation evidence. This error led to the Full Court concluding that the primary judge's findings were based on incorrect information. Despite this, the Full Court did not find the final orders to be unjust or inequitable, but it did acknowledge the need for a re-exercise of discretion or remitter. The court also granted the husband's application to adduce further evidence, including certain affidavits and parts of the court record, to demonstrate the primary judge's factual error.
The appeal was allowed in part, and the matter was to be re-listed to hear the parties' submissions on whether the appeal should be finalised by the re-exercise of discretion or by remitting the proceedings for re-hearing. The court reserved its decision on costs. The form of the order is subject to the entry of the order in the Court's records.
Orders
Orders of the court
1.
Leave is granted to the appellant to adduce further evidence and to rely upon:
(a) The affidavit of Ms B, sworn or affirmed on 16 March 2020;
and the following parts of the court record:
(b) The material comprising the Contentious Appeal Book (but excluding the parties’ filed affidavits, save for those filed by the husband on 5 November 2018, 16 May 2019 and 18 July 2019);
(c) The appellant’s Form 2 Application, filed on 9 May 2017;
(d) The respondent’s Form 2A, filed on 26 May 2017; and
(e) The transcript of proceedings before the primary judge on 15 September 2017.
2.
Otherwise, the Application in an Appeal filed by the appellant on 16 March 2020 is dismissed.
3.
The appeal is allowed in part.
4.
The appeal will be re-listed on a date to be fixed to receive the parties’ oral submissions about whether the appeal is to be finalised by the re-exercise of discretion or the remitter of the proceedings for re-hearing.
5.
Costs are reserved.
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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