Sand & Sand

In the case of Sand & Sand, the parties appealed a decision concerning property settlement made by a Federal Magistrate. The appellant contested the jurisdiction of the Court to make orders for property settlement, arguing that if there was no existing property of the parties or either of them, there could be no "matrimonial cause" and thus no jurisdiction to make orders regarding the property of the parties or either of them. The Court discussed various authorities to determine what constitutes "property" and concluded that if the "property" in question was entirely "notional," the Court's jurisdiction might not be enlivened. The Court found that the appellant's submissions were likely to succeed, and due to the substantial issue of principle involved, it was in the best interests of justice to allow the respondent time to file further submissions and for the appellant to respond.

The appellant also argued that the 30 per cent adjustment determined by the Federal Magistrate exceeded the broad discretion exercised by his Honour. The Court found that the Federal Magistrate had carefully and accurately considered the relevant factors under s 75(2) and that there were no errors of principle or material errors of fact that vitiated the exercise of his Honour's discretion. The Court noted that none of the appellant's siblings' affidavit evidence was challenged in cross-examination, and it was not manifestly obvious on the face of the affidavit evidence that their statements were so obviously untrue or improbable that they could be rejected. The Court found that a significant proportion of the notional property relied upon by his Honour was included because he did not accept the evidence of the husband or his siblings in relation to those events or transactions. Based on the submissions before the Court, the appellant would be entitled to succeed.

Judgment was reserved, and the respondent was given 21 days to file and serve any further written submissions. The appellant's Counsel was to file and serve any further submissions within 14 days of receiving the respondent's submissions. Costs were reserved.