FAMILY COURT OF AUSTRALIA
| SELWOOD & SELWOOD | [2016] FamCAFC 40 |
| FAMILY LAW – APPEAL – PROPERTY – Where it was not open to the appellant to cherry pick the evidence to suggest the trial judge failed to use the advantage she had in assessing the credit and reliability of the parties and their witnesses – Where the nexus between the appellant’s evidence and the trial judge’s adverse credit findings in relation to the appellant was readily apparent – Where the delay in finalising the matter did not demonstrate error in the trial judge’s assessment of the appellant’s evidence – Where the trial judge gave specific reasons for accepting or rejecting the evidence of particular witnesses – Where there is no basis for asserting that the delay in finalising the matter prevented the appellant from receiving a fair hearing – Where delay of itself does not indicate that a trial has miscarried or that a decision is unsafe – Where it was not demonstrated that any delay has affected the trial judge’s decision – Where no issue of estoppel arose because the consent orders only determined the dispute between the interveners and the parties but not the dispute between the parties – Where the principle of res judicata does not apply because there was no suggestion of re-litigating the same issue – Where there was no error by the trial judge in permitting the wife to agitate matters relating to the claims and counter claims between the interveners and the parties, or in making findings based on that evidence – Where it was readily apparent that the trial judge appropriately identified and weighed all of the appellant’s contributions – Where there was no double-counting by the trial judge – Where it was not open to the trial judge to take into account the appellant’s alleged failure to maintain the mortgage – Where this error does not warrant appellate interference – Where there was ample evidence to justify a finding that the appellant had failed to adequately disclose his true financial position – Where there was no issue of procedural fairness in relation to the orders providing for the respondent to retain the former matrimonial home – Where the trial judge’s pathway for making this order was apparent – Appeal dismissed. FAMILY LAW – COSTS – Where costs should follow the event – Where the appeal was dismissed – Costs order in favour of the respondent – Where part of the appeal was allowed by consent – Where there should be no costs in relation to that part of the appeal – Where that part of the appeal was allowed on a question of law – Costs certificates ordered. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) – ss 6 and 9 |
| Bevan & Bevan (2013) FLC 93-545 Blair v Curran (1939) 62 CLR 464 Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 Gould and Gould (2007) FLC 93-333 Gronow v Gronow (1979) 144… |
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- AGLC
- SELWOOD & SELWOOD [2016] FamCAFC 40
- Case
- [2016] FamCAFC 40
- Decision Date
CaseChat Overview and Summary
The legal issues before the court encompassed whether the trial judge correctly assessed the credit and reliability of the parties, whether there was procedural unfairness or delay in finalising the matter, and whether the trial judge appropriately considered the husband's contributions to the relationship and the financial disclosure. Additionally, the court examined whether the husband's failure to maintain a mortgage and the issue of double-counting of contributions were correctly handled by the trial judge.
The court found that the trial judge had adequately assessed the evidence and provided clear reasoning for her decisions. The judge's findings regarding the husband's credibility and financial disclosure were supported by the evidence presented. The court held that the husband's selective presentation of evidence did not undermine the trial judge's assessment. It was also determined that the delay in finalising the matter did not indicate any procedural unfairness or impact the trial judge's decision. The court dismissed the husband's arguments regarding double-counting and the alleged failure to consider his mortgage maintenance. The appeal was dismissed, and the husband was ordered to pay the wife's costs of the appeal, except for specific grounds where costs certificates were ordered instead.
The final orders of the court were to dismiss the appeal, order the husband to pay the wife's costs of the appeal except for specific grounds, and to issue costs certificates for those grounds in accordance with the Federal Proceedings (Costs) Act 1981 (Cth).
Orders
Orders of the court
1.
The appeal be dismissed.
2.
The appellant husband pay the costs of the respondent wife of and incidental to the appeal save and except in relation to Grounds 12 and 13 of the Amended Notice of Appeal filed on 20 February 2015.
3.
In relation to the said Grounds 12 and 13, and pursuant to the orders made by the Full Court on 16 April 2015:
(a) there be no order as to costs;
(b) the court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to those grounds of appeal; and
(c) the court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to those grounds of appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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