R v The Queen - [2001] FamCA 1822

JFRYANMA

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT PARRAMATTA

Appeal No. EA 69 of 2001 File No. ZP 1173of 2000

IN THE MATTER OF:

MR R

Appellant/Husband

- and-

MS R

Respondent/Wife

REASONS FOR JUDGMENT

BEFORE: HEARD: JUDGMENT:

APPEARANCES:

JUSTICE IR COLEMAN

9^th day of November 2001 12^th day of November 2001

Mr Campton of Counsel, (instructed by Matthews Dooley & Gibson, Solicitors, Level 4, 85 Flnshcombe Road, Blacktown NSW 2148) appeared on behalf of the appellant husband.

Mr Sansom of Counsel, (instructed by Watts McCray, Solicitors, Level 4, Lachlan Tower, 17-21 Macquarie Street, Parramatta NSW 2151), appeared on behalf of the respondent wife.

NAME OF APPEAL: APPEAL NUMBER:

DATE OF APPEAL HEARING: DATE OF JUDGMENT: CORAM:

R &R

EA 69 of 2001

9 November 2001

12 November 2001 Coleman J

CATCHWORDS: Section 79A Family Law Act: Adequacy of learned Federal Magistrate's reasons for finding consent to setting aside previous order under s79: Conclusion not open to Federal Magistrate: Appeal allowed.

NOT REPORTABLE

This is an appeal against orders made by the learned Federal Magistrate on the 19th of July 2000 in proceedings between the parties to this appeal. The orders, the subject of challenge, appear at Appeal Book pages three and following. The substance of the orders complained of was that orders for settlement of property made on 29 April 1994 be set aside, that the respondent husband pay to the applicant wife by way of settlement of property the sum of $83,994.50 within one month of the courts order, whereupon the wife transfer the whole of her right, title and interest in the former matrimonial home of the parties at Suburb B, subject to the existing mortgage to D Bank, to the respondent husband. The parties were otherwise ordered to be beneficially entitled to retain all property real or personal in their possession.

The original Notice of Appeal, which is found at Appeal Books pages one and two, was, by consent, informally amended by counsel for the appellant, the husband in the proceedings, to rely upon grounds particularised in the summary of argument and list of authorities filed on behalf of the appellant on 5 November 2001.

The Notice of Appeal sought that the orders of the learned Federal Magistrate be set aside, that the respondent wife's application filed 5 September 2000 be dismissed and that the respondent wife pay the appellant's costs of and incidental to the appeal. The submissions made on behalf of the appellant on the hearing of the appeal, sought orders in the same terms as contained in the original Notice of Appeal but it was conceded on behalf of the appellant that if the appeal succeeded on grounds challenging adequacy of reasons it may well be that, although the orders made by the learned Federal Magistrate would be set aside, dismissal of the application of 5 September 2000 need not automatically result.

By way of background to the dispute I refer to the following matters which appear…

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 R v The Queen

Details

AGLC: R v The Queen [2001] FamCA 1822
Case: [2001] FamCA 1822
Decision Date: 12 November 2001

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Family Court of Australia, with Justice Coleman presiding. The appeal was brought by the appellant against the respondent, challenging a decision made by a Federal Magistrate concerning the adequacy of reasons provided for setting aside a previous order under section 79A of the *Family Law Act 1975* (Cth).

The central legal issue before the Full Court was whether the Federal Magistrate's reasons for finding that the respondent had consented to the setting aside of a previous consent order were sufficiently adequate and supported by the evidence. Specifically, the court had to determine if the conclusion reached by the Federal Magistrate was one that was open to them on the material before them.

Justice Coleman found that the Federal Magistrate's reasons were inadequate and that the conclusion that the respondent had consented to the setting aside of the previous order was not open to them. The appeal was therefore allowed.

Orders