Paxton and Paxton

[2017] FamCAFC 124

FAMILY COURT OF AUSTRALIA

PAXTON & PAXTON [2017] FamCAFC 124

FAMILY LAW – APPEAL – CONSENT – where the parties are agreed that the appeal should be allowed – orders made by consent allowing the appeal and setting aside the orders.

Family Law Act 1975 (Cth)

Stanford v Stanford (2012) 248 CLR 108

APPELLANT: Mr Paxton as executor of the estate of Mr A Paxton (deceased)

RESPONDENT: Ms Paxton

FILE NUMBER: MLC 7138 of 2014

APPEAL NUMBER: SOA 61 of 2016

DATE DELIVERED: 15 May 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bryant CJ, Kent & Austin JJ

HEARING DATE: 15 May 2017

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 7 July 2016

LOWER COURT MNC: [2016] FCCA 1689

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Combes

SOLICITOR FOR THE APPELLANT: Alpass & Associates

COUNSEL FOR THE RESPONDENT: Mr Hall

SOLICITOR FOR THE RESPONDENT: Beaumont Lawyers

Orders

IT IS ORDERED:

1. The appeal be allowed.

IT IS FURTHER ORDERED BY CONSENT THAT:

1. Orders 2, 3 and 5 of the Orders of Judge Wilson dated 7 July 2016 be set aside.

2. The said orders of 7 July 2016 otherwise remain in full force and effect.

3. There be no costs in appeal number SOA 61 of 2016.

IT IS NOTED:

A.The solicitors for the appellant, Alpass & Associates of 511 Mt Dandenong Rd, Kilsyth in the State of Victoria:

i.acknowledge that the caveat lodged by them over the former matrimonial home is unsustainable as the Appellant and deceased Mr A Paxton have no interest in the said real property; and

ii.has agreed to remove the said caveat at the solicitor’s expense within 14 days and provide evidence of completion of the withdrawal to the Respondent’s solicitors within 21 days.

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 Paxton & Paxton 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 MELBOURNE

Appeal Number: SOA 61 of 2016
File Number: MLC 7138 of 2014

Mr Paxton as executor of the estate of Mr A Paxton (deceased) 

Appellant

And

Ms Paxton

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Kent J

1. This is an appeal by Mr Paxton, in his capacity as executor of the estate of his late brother, Mr A Paxton, from orders made by Judge Wilson on 7 July 2016. Those orders provided for Ms Paxton (“the wife”) to retain her interests in real property located in a suburb of Melbourne (“the former matrimonial home”) and required Mr Paxton to withdraw the caveat which was lodged on the title of that property prior to the husband’s death to secure the payment of his legal fees. Mr Paxton was also required to pay the wife’s costs of the proceedings.

2. It is unnecessary for present purposes to discuss the grounds of appeal agitated on this appeal in any detail. All that need be noted is that it can readily be established that the trial judge’s reasons for judgment reflect a misapplication of Stanford v Stanford (2012) 247 CLR 108 to the facts of this case in determining the relevant questions under s 79(8) of the Family Law Act 1975 (Cth). It may also be observed that his Honour made orders with respect to a caveat lodged that were not within his jurisdiction to make, and finally that his Honour made an order for costs in favour of the wife without affording procedural fairness or natural justice to the present appellant in that no submissions were heard as to the making of that order.

3. For these reasons, I am satisfied that there are errors of law reflected in the reasons for judgment which permit us to make an order allowing the appeal. I would order the appeal be allowed. I would otherwise make orders in terms of the minute of proposed orders and notations by consent provided to the court by the parties save in respect of some alteration of the notation in A(ii) by deleting the words “as a term of the abandonment of this appeal” which the parties agreed to in the course of discussion of the minute of orders. I would therefore make those orders.

Austin J

1. I agree with the orders proposed and the reasons given by Justice Kent.

Bryant CJ

1. I agree with the reasons given by Justice Kent and the orders proposed and I will formally make the orders.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Kent and Austin JJ) delivered on 15 May 2017.

Associate: 

Date:  11 July 2017