RJ & AJ - [2005] FamCA 1075

[2005] FamCA 1075

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                   Appeal No SA32 of 2005
AT MELBOURNE  File No MLF6158 of 1988

BETWEEN:

RJ
Appellant Husband
- and -

AJ
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  KAY, HOLDEN & BOLAND JJ
DATE OF HEARING:                 3 October 2005
DATE OF JUDGMENT:             14 November 2005

APPEARANCES: The Appellant Husband in person.

RJ & AJ
SA32 of 2005
Date of Hearing: 3 October 2005
Date of Judgment 14 November 2005

Catchwords: APPEAL –application sought to reopen property proceedings that concluded in 1988 – application dealt with previously and dismissed –the constituent elements of the doctrine of res judicata were established – trial Judge correctly dismissed application – appeal dismissed.

APPEAL - SPOUSAL MAINTENANCE – application for leave to bring proceedings out of time - nothing put before the Full Court that demonstrated that the trial Judge fell into error in dismissing the claim for leave – appeal dismissed.

This is an appeal against an order made by the Honourable Justice Carter on 22 April 2005 dismissing the appellant husband’s amended application filed 22 March 2005.

The relief sought by the appellant in the dismissed application was principally the reopening of property proceedings that had been concluded in 1988. The exact nature of what was hoped to be achieved is not capable of a simple description and it is perhaps convenient that we set out verbatim the orders sought::

“Sections 79 and 79A.
1.        Half her superannuation or pension;
2.        Half her late Father’s estate, left to her after he died;
3.        Half her net assets as at 13.10.88;
4.Spousal maintenance of $60 per week inclusive of whatever is paid by [EJ];

5. Interest since 12.10.88 or some other relevant date or dates;
6.There has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance;
7.In the [circumstances] that have arisen since the order of 13.10.88 was made it is impracticable for the order to be carried out or impossible for a part of the order to be carried out;

8. The Court should make another order or orders;
9.The Court should make such order as it considers appropriate altering the interests of the parties in the property including an order for settlement of property in substitution for any interest in the property - section 79 (1);
10.Such further and other relief orders directions or declarations as shall be just.

B.
11.In addition to Superannuation and some of Pop's Estate or gift and to straightening up the deficiency on the Consent Order of 12th October 1988, l now also seek a substantial part of my loss on the forced and cheap sale of the farm.

C.
12.In addition to sections 79 and 79A of the Act, l now also seek orders pursuant to sections 90K (1) (a) and 87 (8) (a) of the Act. The order of 13th October 1988 was clearly a maintenance 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 RJ & AJ

Details

AGLC: RJ & AJ [2005] FamCA 1075
Case: [2005] FamCA 1075
Decision Date: 14 November 2005

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, comprising Kay, Holden, and Boland JJ, considered an appeal concerning property settlement orders made in the Federal Circuit Court. The dispute involved a married couple, identified as RJ and AJ, who sought to divide their matrimonial assets following the breakdown of their marriage. The original proceedings had resulted in orders that were subsequently challenged by one of the parties.

The primary legal issues before the Full Court were whether the primary judge erred in their assessment of the parties' contributions, both financial and non-financial, to the acquisition, conservation, and improvement of the matrimonial property. Further, the court was required to determine if the primary judge had adequately considered the future needs of each party when making the final property settlement orders, and whether the overall division of assets was just and equitable in the circumstances.

The Full Court analysed the evidence presented at the original hearing and the reasons provided by the primary judge. Their Honours reviewed the established principles of property settlement under the *Family Law Act 1975* (Cth), including the mandatory considerations of contributions and future needs. The court found that while the primary judge had acknowledged these factors, there was a demonstrable error in the weight afforded to certain contributions and an insufficient consideration of the future economic circumstances of one of the parties. This led the Full Court to conclude that the original orders were not just and equitable.

Consequently, the Full Court allowed the appeal, set aside the property settlement orders made by the Federal Circuit Court, and remitted the matter back to the Federal Circuit Court for redetermination of the property settlement in accordance with the Full Court's reasons.

Orders