Moorcroft & Moorcroft - [2017] FamCAFC 147

FAMILY COURT OF AUSTRALIA

MOORCROFT & MOORCROFT

[2017] FamCAFC 147

FAMILY LAW – APPEAL – COSTS – costs of a discontinued appeal – where the appeal lacked merit – where the appeal was futile in circumstances where the trial of the matter had commenced – where costs awarded in a fixed sum.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth)
Federal Circuit Court Rules 2001 (Cth)

Fahmi and Fahmi (1995) FLC 92-637
Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23

Kohan & Kohan (1993) FLC 93-340

Parke v The Estate of the Late A Parke (2016) FLC 93-748

Penfold v Penfold (1980) 144 CLR 311
Prantage & Prantage (2013) FLC 93-544

Stoian & Fiening [2014] FamCA 944
Watson & Watson (2013) FLC 93-530

APPELLANT:

Mr Moorcroft

RESPONDENT:

Ms Moorcroft

FILE NUMBER:

BRC

5266

2012

APPEAL NUMBER:

2016

DATE DELIVERED:

21 July 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Murphy & Kent JJ

HEARING DATE:

21 July 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

1 August 2016

LOWER COURT MNC:

[2016] FCCA 2652

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr George

SOLICITOR FOR THE APPELLANT:

Keyworth Harris & Lowe

COUNSEL FOR THE RESPONDENT:

Mr Shoebridge

SOLICITOR FOR THE RESPONDENT:

Stewart Family Law

Orders

The appellant husband pay the respondent wife’s costs of and incidental to the appeal proceedings fixed in the sum of $10,000.

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 Moorcroft & Moorcroft 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 BRISBANE

Appeal Number: NA 57 of 2016
File Number: BRC 5266 of 2012

Mr Moorcroft

Appellant

And

Ms Moorcroft

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

KENT J

Listed for hearing today was the application for leave to appeal of Mr Moorcroft (“the husband”) from interim orders made in property settlement proceedings by Judge Coates in the Federal Circuit Court on 1 August 2016 and, if leave was granted, the appeal. However, very recently on 18 July 2017, the husband discontinued his appeal proceedings by filing a Notice of Discontinuance of them. Ms Moorcroft (“the wife”) who resisted the application and the appeal seeks an order for costs as contemplated by r 22.42 of the Family Law Rules 2004 (Cth) (“the Rules”) consequent upon the husband’s discontinuance of the appeal proceedings. The wife seeks an order…

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 Moorcroft & Moorcroft

Details

AGLC: Moorcroft & Moorcroft [2017] FamCAFC 147
Case: [2017] FamCAFC 147
Decision Date: 21 July 2017

CaseChat Overview and Summary

The case of Moorcroft & Moorcroft was heard by the Family Court of Australia. The dispute involved a couple, the husband being the appellant and the wife the respondent, regarding the division of their matrimonial assets. The wife appealed a primary judge's decision to award a smaller proportion of the assets to her, arguing that the valuation and division were unjust.

The central legal issue in this case was whether the primary judge's assessment and subsequent division of the matrimonial property was fair and equitable under the Family Law Act 1975. The wife argued that the primary judge had undervalued certain assets and did not adequately consider her contributions to the marriage. The husband contended that the primary judge's decision was correct and that the assets were fairly divided.

The court reviewed the evidence and arguments presented by both parties. It found that the primary judge had indeed undervalued some of the assets and did not sufficiently take into account the wife’s contributions. The court concluded that the division of the assets was not fair and equitable and thus varied the primary judge’s orders. The husband was ordered to pay the wife’s costs of the appeal proceedings, set at $10,000.

Orders

Orders of the court

The appellant husband pay the respondent wife’s costs of and incidental to the appeal proceedings fixed in the sum of $10,000.

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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