RAFTER & RAFTER - [2013] FamCAFC 158

FAMILY COURT OF AUSTRALIA

RAFTER & RAFTER

[2013] FamCAFC 158

FAMILY LAW – APPEAL – PROPERTY – where the appellant husband sought to have consent orders altered pursuant to s 79A of the Family Law Act 1975 (Cth) – where the appellant’s application unsuccessful – where the appellant ordered to pay spousal maintenance and arrears in respect of same – where the appellant appeals those orders – where the appellant contends the trial Judge erred in not finding that the carrying out of the consent orders was impracticable – where the appellant contends the trial Judge made erroneous findings of fact in respect of the spousal maintenance order – whether the trial Judge erred – where no error demonstrated – appeal dismissed – appellant ordered to pay the wife’s costs of the appeal.

FAMILY LAW – APPEAL – COSTS – where the appellant ordered to pay the respondent wife’s costs of the s 79A application and her application for spousal maintenance – where the appellant appeals that order – where the appellant claims the trial judge erred in determining that he should pay the respondent wife’s costs – whether the trial judge erred – where no error demonstrated – appeal against costs order dismissed – appellant ordered to pay the respondent wife’s costs of the appeal.

Family Law Act 1975 (Cth)

Bennett and Bennett (1991) FLC 92-191
Cawthorn & Cawthorn (1998) FLC 92-805
Caska & Caska (1998) 23 Fam LR 659
CDJ v VAJ (1998) 197 CLR 172
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Hillcrown Pty Ltd & Anor v O’Brien & Anor [2011] QCA 129
La Rocca & La Rocca (1991) FLC 92-222
Wills v Australian Broadcasting Commission (No 3) (2010) 89 IPR 252

APPELLANT:

Mr Rafter

RESPONDENT:

Ms Rafter

FILE NUMBER:

BRC

9414

2008

APPEAL NUMBERS:

NA
NA

61
102

of
of

2012
2012

DATE DELIVERED:

9 October 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, Ainslie-Wallace and Murphy JJ

HEARING DATE:

6 August 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

4 June 2012 and 20 November 2012

LOWER COURT MNC:

[2012] FamCA 611
[2012] FamCA 975

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Galloway

SOLICITOR FOR THE RESPONDENT:

Rostron Carlyle Solicitors

Orders

That Appeal NA 61 of 2012 against the Orders made by O’Reilly J on 4 June 2012 is dismissed.
That Appeal NA 102 of 2012 against the Orders made by O’Reilly J on 20 November 2012 is dismissed.
That the Application in an Appeal filed 23 June 2013 is dismissed.
The appellant husband pay the respondent wife’s costs of and incidental to both appeals in an amount agreed in writing between the parties or, failing agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rafter & Rafter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT…

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 RAFTER & RAFTER

Details

AGLC: RAFTER & RAFTER [2013] FamCAFC 158
Case: [2013] FamCAFC 158
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Rafter & Rafter [2013] FamCAFC 158 involved an appeal by the husband against the orders made by O’Reilly J on 4 June 2012 and 20 November 2012. The husband sought to have consent orders altered and to challenge the spousal maintenance order. The appeals were dismissed by the Full Court of the Family Court of Australia, and the husband was ordered to pay the wife’s costs of the appeals.

The substantive appeal concerned the husband’s argument that the consent orders for property settlement should be altered due to impracticability, as defined in s 79A(1)(b) of the Family Law Act 1975 (Cth). The husband argued that a failed investment and his insolvency made it impracticable for him to fulfill the terms of the consent orders. However, the Full Court found that the husband’s arguments were based on misunderstandings of the findings made by the trial judge. The Full Court held that there was no error in the trial judge’s determination and dismissed the substantive appeal.

The costs appeal involved the husband’s challenge to the trial judge’s order that he pay 90% of the wife’s costs of the proceedings. The Full Court found that the trial judge carefully considered the relevant factors and correctly applied the principles of the Act. The Full Court held that there was no error in the trial judge’s determination and dismissed the costs appeal.

In conclusion, the appeals were unsuccessful, and the husband was ordered to pay the wife’s costs of the appeals. The Full Court of the Family Court of Australia found no error in the trial judge’s determinations and dismissed both the substantive appeal and the costs appeal.

Orders