FAMILY COURT OF AUSTRALIA
| TALBOT & TALBOT | [2015] FamCAFC 132 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the appellant husband did not appear at the trial and the matter proceeded on an undefended basis – The trial judge erred by including funds disposed of in the asset pool without considering the reasonableness of the husband’s expenditure – The trial judge erred in finding the wife was liable to pay a Centrelink debt and ordering the husband to pay half of the debt – Appeal allowed – Remitted for rehearing. |
| Family Law Act 1975 (Cth), s 75(2), s 79, s 117(2A) Federal Proceedings (Costs) Act 1981 (Cth) Family Law Rules 2004 (Cth), r 11.02, r 11.03 |
Allesch v Maunz (2000) 203 CLR 172
Cerini & Cerini [1998] FamCA 143
Leslighter & Fitzgerald-Stevens (2012) 47 FamLR 384
Lorde & Chu [2014] FamCAFC 228
Marker & Marker [1998] FamCA 42
Omacini and Omacini (2005) FLC 93-218
Stanfordv Stanford (2012) 247 CLR 108
Stead v State Government Insurance Commission (1986) 161 CLR 141
Taylor v Taylor (1979) 143 CLR 1
Townsend & Townsend (1995) FLC 92-569
Wilkes and Wilkes (1981) FLC 91-060
| APPELLANT: | Mr Talbot |
| RESPONDENT: | Ms Talbot |
| FILE NUMBER: | PTW | 5941 | of | 2011 |
| APPEAL NUMBER: | WA | 20 | of | 2013 |
| DATE DELIVERED: | 3 July 2015 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Bryant CJ, Murphy and Duncanson JJ |
| HEARING DATE: | 27 October 2014 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 13 August 2013 |
| LOWER COURT MNC: | [2013] FCWA 92 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Byrne |
| SOLICITOR FOR THE RESPONDENT: | Sharma Lawyers |
Orders
The appeal be allowed.
Orders 2 to 8 and order 10 of the orders made by the Honourable Justice Moncrieff on 13 August 2013 be set aside.
The matter be remitted for rehearing by a judge of the Family Court of Western Australia, other than Justice Moncrieff, subject to the following conditions:
(a) Within 28 days the husband shall file and serve:
(i)a Minute of Proposed Orders Sought setting out the orders he is now seeking on a final basis;
(ii)an affidavit of himself;
(iii)an affidavit of each witness; and
(iv)an up to date Form 13 Financial Statement.
(b)In the event the husband fails to comply with any requirement of order 3(a) (above) within the time specified in respect of each, the wife be at liberty to apply to the Duty Judge for leave to proceed on an undefended basis upon giving five days written notice to that effect to the husband.
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 the appeal.
The Court grants to the respondent wife a costs…
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- Talbot & Talbot [2015] FamCAFC 132
- Case
- [2015] FamCAFC 132
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CaseChat Overview and Summary
The central legal issue was whether the primary judge had made errors in law or otherwise in the exercise of the discretion to distribute the parties' assets. The husband argued that the primary judge had failed to properly consider the evidence and had misapplied the principles of the Family Law Act 1975 (Cth). The wife contended that the primary judge's orders were correct and that the appeal should be dismissed. The Full Court was required to determine whether the primary judge had made any errors in the exercise of the discretion to distribute the assets and, if so, what orders should be made instead.
The Full Court found that the primary judge had erred in several respects. The Court held that the primary judge had not adequately considered the husband's evidence and had misapplied the principles of the Family Law Act. The Court found that the primary judge had also failed to properly assess the contributions made by each party to the relationship and the outcome of the relationship. The Court set aside the orders made by the primary judge and remitted the matter for rehearing by a different judge of the Family Court. The Court also made orders concerning costs, granting each party a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) for costs incurred in relation to the appeal and the new trial.
The Court's orders included allowing the appeal, setting aside certain orders made by the primary judge, and remitting the matter for rehearing. The Court also granted each party a costs certificate for costs incurred in relation to the appeal and the new trial. The husband was required to file and serve certain documents within 28 days, and the wife was given the right to apply to the Duty Judge for leave to proceed on an undefended basis if the husband failed to comply with any of the requirements. The Court's orders provided for a fresh assessment of the parties' assets and a new trial before a different judge of the Family Court.
Orders
Orders of the court
1.
The appeal be allowed.
2.
Orders 2 to 8 and order 10 of the orders made by the Honourable Justice Moncrieff on 13 August 2013 be set aside.
3.
The matter be remitted for rehearing by a judge of the Family Court of Western Australia, other than Justice Moncrieff, subject to the following conditions:
(a) Within 28 days the husband shall file and serve:
(i) a Minute of Proposed Orders Sought setting out the orders he is now seeking on a final basis;
(ii) an affidavit of himself;
(iii) an affidavit of each witness; and
(iv) an up to date Form 13 Financial Statement.
(b) In the event the husband fails to comply with any requirement of order 3(a) (above) within the time specified in respect of each, the wife be at liberty to apply to the Duty Judge for leave to proceed on an undefended basis upon giving five days written notice to that effect to the husband.
4.
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 the appeal.
5.
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 the appeal.
6.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
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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