Thynne & Madison

Case [2007] FamCA 558

FAMILY COURT OF AUSTRALIA

THYNNE & MADISON [2007] FamCA 558

FAMILY LAW – APPEAL FROM DECISION OF A FEDERAL MAGISTRATE – PROPERTY SETTLEMENT – Appeal from a discretionary judgment – Exercise of discretion - Section 79 Family Law Act 1975 – Nature of the husband’s interest in a Tunisian property – Direct financial contributions of the husband of the marriage – Property acquired after separation - Section 75(2) Family Law Act 1975 – Ages and years of working life of the parties - Appeal dismissed.

FAMILY LAW – APPEAL - FUTHER EVIDENCE – CDJ v VAJ (1998) 157 ALR 686 – Failure of the appellant to file evidence which might lead to a different result – Application to adduce further evidence dismissed.

Family Law Act 1975 (Cth)

AMS v AIF (1999) FLC 92-852
Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
Axtell and Axtell (1982) FLC 91-208
CDJ v VAJ (1998) 157 ALR 686
In the Marriage of Clauson (1995) 18 Fam LR 693
De Winter v De Winter (1979) FLC 90-605
Farmer & Bramley (2000) FLC 93-060
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
In the Marriage of Mallet (1983-1984) 52 ALR 193
Lawler & Lawler (1988) FLC 91-927
Norbis v Norbis (1986) FLC 91-712
Pierce v Pierce (1999) FLC 92-844
Soblusky & Soblusky (1976) FLC 90-124
Spiteri & Spiteri (2005) FLC 93-214

APPELLANT: MR THYNNE
RESPONDENT: MS MADISON
FILE NUMBER: TVM 558 of 2005
APPEAL NUMBER: NA 29 of 2006
DATE DELIVERED: 8 June 2007
PLACE DELIVERED: Brisbane
JUDGMENT OF: May J
HEARING DATE: 2 August 2006
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 6 April 2006
LOWER COURT MNC: [2006] FMCAfam 138

Orders

  1. That the appellant have leave to rely on the amended Notice of Appeal dated 17 July 2006.

  2. That the application to adduce further evidence is dismissed.

  3. That the appeal is dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Thynne & Madison.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 29  of 2006
File Number: TVM 558  of 2005

MR THYNNE

Appellant

And

MS MADISON

Respondent

REASONS FOR JUDGMENT

  1. In a Notice of Appeal filed on 28 April 2006, the husband seeks to appeal from orders made in relation to the wife’s property settlement application by Federal Magistrate Slack on 6 April 2006. A direction had been given pursuant to s 94AAA(3) that the matter be heard by a single Judge. An amended Notice of Appeal was filed on 17 July 2006 attached to an affidavit.

Background

  1. On 20 January 2004 the wife filed an application seeking leave to institute proceedings for property settlement out of time. That application was heard in the Family Court at Townsville on 15 March 2004 and an order was made granting leave. On 22 April 2004 the wife filed an…

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AGLC
Thynne & Madison [2007] FamCA 558
Case
[2007] FamCA 558
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal before May J in the Family Court of Australia, brought by the appellant husband against a property settlement decision made by a Federal Magistrate. The dispute centred on the division of property, including the nature of the husband's interest in a Tunisian property and his direct financial contributions during the marriage, as well as property acquired after separation. The appeal also involved an application to adduce further evidence.

The primary legal issues before the court were whether the Federal Magistrate had erred in the exercise of their discretion under section 79 of the *Family Law Act 1975* when determining the property settlement, and whether to grant leave to adduce further evidence on appeal. The court was required to consider the relevant factors under section 75(2) of the Act, including the ages and remaining years of working life of the parties, in assessing the appeal.

May J dismissed the application to adduce further evidence, referencing the principles outlined in *CDJ v VAJ*. The court noted that the purpose of admitting further evidence on appeal is to prevent miscarriage of justice, and that ordinarily, such evidence must demonstrate it would have produced a different result at trial. The failure to adduce the evidence before the primary judge was a significant factor, and the court was not satisfied that the proposed further evidence would have altered the outcome. Consequently, the appeal itself was dismissed.

Orders

Orders of the court

1.

That the appellant have leave to rely on the amended Notice of Appeal dated 17 July 2006.

2.

That the application to adduce further evidence is dismissed.

3.

That the appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In CDJ v VAJ (1998) FLC 92-828 McHugh, Gummow and Callinan JJ made the following observation in relation to the exercise of the discretionary power conferred by s 93A(2) (emphasis added):"104.In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake…although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion.…109.One consideration in construing s 93A(2) is its remedial nature.Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.…111.Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original… Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable... In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal... Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.…116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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