Sexton & Sexton

Case [2012] FamCAFC 218

FAMILY COURT OF AUSTRALIA

SEXTON & SEXTON [2012] FamCAFC 218

FAMILY LAW – APPEAL – PROPERTY – whether the Federal Magistrate erred in only allowing the husband to rely on part of his affidavit – appeal in relation to the exercise of judicial discretion – where the Federal Magistrate took account of the husband’s non-compliance with orders about filing of evidence – where the Federal Magistrate found the husband’s non-compliance was a course of conduct and the husband provided no satisfactory reasons for non-compliance – whether the Federal Magistrate erred in failing to have regard to costs order as compensation to the wife for further delay or adjournment – consideration of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 – Federal Magistrate’s discretion did not miscarry – no error demonstrated.

FAMILY LAW – APPEAL – Adequacy of reasons – whether the Federal Magistrate erred in adopting the wife’s submissions as her reasons for judgment – whether the wife’s submissions were sufficient to constitute reasons for judgment – where the husband failed to comply with orders to file evidence – where the only evidence before the Federal Magistrate was the wife’s evidence – where the Federal Magistrate had no submissions by the husband about the division of property – adequacy of reasons depends on the context in which they were given – reasons were adequate – appeal dismissed.

FAMILY LAW – COSTS – Appeal wholly unsuccessful – no submissions made about any other s 117(2A) factors – costs order made in favour of the wife.
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Bell & Bell [2000] FamCA 1301
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
APPELLANT: Mr Sexton
RESPONDENT: Ms Sexton
FILE NUMBER: BRC 10959 of 2008
APPEAL NUMBER: NA 58 of 2011
DATE DELIVERED: 21 December 2012
PLACE DELIVERED: Canberra
PLACE HEARD: Brisbane
JUDGMENT OF: Bryant CJ, Faulks DCJ and Murphy J
HEARING DATE: 18 April 2012
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 28 June 2011
LOWER COURT MNC: [2011] FMCAfam 689

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr G Page SC
SOLICITOR FOR THE APPELLANT: Bernays Lawyers
COUNSEL FOR THE RESPONDENT: Ms C E Carew
SOLICITOR FOR THE RESPONDENT: Best Wilson Family Law

Orders

  1. The appeal against the orders of Federal Magistrate Cassidy made on


    28 June 2011 be dismissed.

  2. The appellant pay the respondent’s costs of and incidental to the appeal as agreed, or in default of agreement, as assessed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT

Appeal Number: NA 58   of 2011
File Number: BRC  10959  of 2008

Mr Sexton

Appellant

And

Ms Sexton

Respondent

REASONS FOR JUDGMENT

Introduction  

  1. This is an appeal brought by the…

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AGLC
SEXTON & SEXTON [2012] FamCAFC 218
Case
[2012] FamCAFC 218
Decision Date

CaseChat Overview and Summary

In the case of Sexton & Sexton, the appellant husband sought to appeal certain orders made by the Federal Magistrate regarding the division of property between himself and the respondent wife. The Federal Circuit Court was tasked with determining whether the Federal Magistrate had erred in their consideration of the husband's affidavit, in their assessment of the husband's non-compliance with orders regarding the filing of evidence, and in the adequacy of the reasons provided for the judgment. The court also examined whether the Federal Magistrate should have taken into account a costs order as compensation for further delay or adjournment caused by the husband's non-compliance.

The legal issues before the court were whether the Federal Magistrate had erred in allowing the husband to rely only on part of his affidavit, in failing to consider the husband's non-compliance with orders as a course of conduct, and in not taking into account the costs order as compensation for the wife's additional delay. Furthermore, the court considered whether the Federal Magistrate's adoption of the wife's submissions as her reasons for judgment was sufficient and whether there was any error in the exercise of judicial discretion.

The court found that the Federal Magistrate's exercise of discretion did not miscarry and that there was no demonstrated error in their decision-making process. The court noted that the husband had failed to comply with orders to file evidence, resulting in the Federal Magistrate relying solely on the wife's evidence. The court held that the adequacy of reasons depends on the context in which they were given, and in this case, the reasons provided were deemed adequate. The court also determined that the Federal Magistrate had appropriately taken into account the husband's non-compliance as a course of conduct. Finally, the court found no merit in the argument that the Federal Magistrate should have considered the costs order as compensation for the wife's additional delay.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of and incidental to the appeal as agreed, or in default of agreement, as assessed.

Orders

Orders of the court

1.

The appeal against the orders of Federal Magistrate Cassidy made on

28 June 2011 be dismissed.

2.

The appellant pay the respondent’s costs of and incidental to the appeal as agreed, or in default of agreement, as assessed.

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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