Redman v Redman

REDMAN
v
REDMAN
[2014] HCASL 23
C21/2013

The applicant and respondent are a married couple. On 28 February 2012 the applicant and respondent filed an "Application for Consent Orders" pursuant to s 79 of the Family Law Act 1975 (Cth) ("the Act") to transfer property owned by the applicant (the family home) to the applicant and respondent as joint tenants. At the time of the application there was no suggestion that the parties' relationship was broken or was about to break down.
On 9 March 2012 the Registrar of the Family Court of Australia dismissed the application. On 28 March 2012 the applicant applied for a review of the Registrar's decision. Faulks Deputy CJ dismissed the application.
The applicant appealed to the Full Court of the Family Court of Australia (Bryant CJ, Finn and Watts JJ). The Full Court granted leave to appeal, holding that Faulks Deputy CJ erred by inferring that the sole purpose of seeking the consent orders was to avoid the cost of stamp duty. The Full Court also held that his Honour erred in concluding that the consent orders would preclude the parties from having other orders made if the marriage subsequently broke down. However, the Full Court refused to re-exercise the discretion conferred by s 79 of the Act and dismissed the appeal. The Full Court was not satisfied that the order sought by the applicant would be "just and equitable". There was no principled reason for interfering with the parties' existing legal and equitable interests. The Full Court noted that granting the order would have no utility as the same outcome could be reached if the applicant paid the stamp duty. Further, there was no evidence in relation to the contributions made to the property by the parties and whether the respondent had received independent legal advice, given her limited English language skills.
The applicant applies for special leave to appeal to this Court. He claims that the Full Court erred by failing to re-exercise the discretion to make the consent orders to adjust the property interests of the parties. The application does not raise any question of principle nor does the application enjoy sufficient prospects of success to warrant a grant of special leave to appeal. Special leave should be refused.

S.M. Kiefel
6 March 2014 P.A. Keane

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

CaseChat Overview and Summary

In Redman v Redman, the applicant and respondent, a married couple, sought to transfer property from the applicant to themselves as joint tenants. The application was dismissed by the Registrar of the Family Court of Australia, a decision subsequently upheld by Faulks Deputy CJ on review. The applicant appealed to the Full Court of the Family Court of Australia, which allowed the appeal on the grounds that Faulks Deputy CJ had erred in his conclusions about the purpose of the consent orders and the impact on future proceedings if the marriage were to break down. However, the Full Court dismissed the appeal as it was not satisfied the order sought would be "just and equitable", and found no principled reason to interfere with the parties' existing legal and equitable interests. The applicant sought special leave to appeal to the High Court of Australia.

The legal issues before the court included whether the Full Court was correct in its refusal to re-exercise its discretion under section 79 of the Family Law Act 1975 (Cth) to make the consent orders and whether the Full Court erred in its assessment of the justice and equity of the order sought. The Full Court found that the order would not be "just and equitable" because it would interfere with the parties' existing legal and equitable interests without a principled reason, and that granting the order would have no utility as the same outcome could be reached by the applicant paying the stamp duty. Further, the Full Court noted that there was no evidence regarding the contributions made to the property by the parties and whether the respondent had received independent legal advice.

The High Court found that the application did not raise any question of principle and did not enjoy sufficient prospects of success to warrant a grant of special leave to appeal. The court held that the Full Court was correct in its refusal to re-exercise its discretion to make the consent orders and that its assessment of the justice and equity of the order sought was sound. The High Court found that there was no principled reason to interfere with the parties' existing legal and equitable interests, and that the order sought would not be "just and equitable". The court also noted that granting the order would have no utility, as the same outcome could be reached by the applicant paying the stamp duty. The High Court therefore dismissed the application for special leave to appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established