MARCON & CUSSEN - [2017] FamCAFC 150

FAMILY COURT OF AUSTRALIA

MARCON & CUSSEN

[2017] FamCAFC 150

FAMILY – LAW APPEAL – PROPERTY– Procedural fairness – Primary judge delivered reasons and listed matter for further submissions – Failure to allow parties to give submissions on superannuation pool – Reasons – Primary judge gave no further reasons for final orders made where he had indicated submissions would be taken into account – Appealable error demonstrated – Matter remitted to Federal Circuit Court of Australia – Costs certificates granted.

Family Law Act 1975 (Cth) s 75(2)

Calder & Calder (2016) FLC 93-691
Coghlan and Coghlan (2005) FLC 93-220

APPELLANT:

Ms Marcon

RESPONDENT:

Mr Cussen

FILE NUMBER:

BRC

2236

2014

APPEAL NUMBER:

2016

DATE DELIVERED:

3 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace, Aldridge & Loughnan JJ

HEARING DATE:

19 July 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

20 June 2016

LOWER COURT MNC:

[2016] FCCA 74

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Fisher (direct brief)
THE RESPONDENT:	In person

Orders

The appeal against the orders of Judge Baumann made on 20 June 2016 is upheld and the orders of 20 June 2016 are set aside.
The matter is remitted to the Federal Circuit Court of Australia to be determined by a judge other than Judge Baumann.
There be no order as to costs.
That the Court grants to the appellant wife a costs certificate pursuant to the provisions 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 wife in respect of the costs incurred by her in relation to the appeal.
That the Court grants to the respondent husband 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 husband in respect of the costs incurred by him in relation to the appeal.
That the Court grants to each of the parties a costs certificate pursuant to the provisions of 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 each of the parties in respect of the costs incurred by the appellant wife and respondent husband in relation to the rehearing of the application.

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 Marcon & Cussen 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MARCON & CUSSEN

Details

AGLC: MARCON & CUSSEN [2017] FamCAFC 150
Case: [2017] FamCAFC 150
Decision Date: 3 August 2017

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Marcon & Cussen involves a dispute between a husband and wife concerning their property settlement. The wife, the appellant, sought to appeal against the orders made by Judge Baumann on 20 June 2016. The primary legal issues before the court were whether the appeal against Judge Baumann's orders was valid and if the court should remit the matter to the Federal Circuit Court of Australia for reconsideration by a different judge.

The court found that the appeal against Judge Baumann's orders was justified, leading to the decision to uphold the appeal and set aside the orders of 20 June 2016. The court also determined that the matter should be remitted to the Federal Circuit Court of Australia for determination by a different judge, thereby ensuring a fresh perspective and avoiding any potential bias. The court did not make any order regarding the costs of the appeal, but it did grant costs certificates to both parties, enabling them to seek reimbursement for their legal expenses from the Attorney-General. These certificates were also granted for the costs related to the rehearing of the application.

The final orders of the court include upholding the appeal against the orders of 20 June 2016, setting aside those orders, remitting the matter to the Federal Circuit Court of Australia for a rehearing by a different judge, and granting costs certificates to both parties for the appeal and the rehearing.

Orders

Orders of the court

The appeal against the orders of Judge Baumann made on 20 June 2016 is upheld and the orders of 20 June 2016 are set aside.

The matter is remitted to the Federal Circuit Court of Australia to be determined by a judge other than Judge Baumann.

There be no order as to costs.

That the Court grants to the appellant wife a costs certificate pursuant to the provisions 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 wife in respect of the costs incurred by her in relation to the appeal.

That the Court grants to the respondent husband 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 husband in respect of the costs incurred by him in relation to the appeal.

That the Court grants to each of the parties a costs certificate pursuant to the provisions of 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 each of the parties in respect of the costs incurred by the appellant wife and respondent husband in relation to the rehearing of the application.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.