Vickery and Drew - [2012] FamCAFC 221

FAMILY COURT OF AUSTRALIA

VICKERY & DREW

[2012] FamCAFC 221

FAMILY LAW – APPEAL – PROPERTY – termination agreement between the parties pursuant to Pt 4 of the Property (Relationships) Act 1984 (NSW) – termination agreement set aside at first instance – overturned on appeal – parties not informed at first instance that Federal Magistrate intended to make a decision concerning the setting aside of the termination agreement – breach of natural justice – appeal conceded on this point by respondent.

Family Law Act 1975 (Cth)
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Property (Relationships) Act 1984 (NSW)

Dahl & Hamblin (2011) FLC 93-480

APPELLANT:

Mr Vickery

RESPONDENT:

Ms Drew

FILE NUMBER:

CAC

132

2010

APPEAL NUMBER:

169

2010

ORDERS MADE:

8 November 2011

REASONS DELIVERED:

24 December 2012

PLACE DELIVERED:

Perth

PLACE HEARD:

Canberra

JUDGMENT OF:

Bryant CJ, Finn and Strickland JJ

HEARING DATE:

8 November 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

26 November 2010

LOWER COURT MNC:

[2010] FMCAfam 1307

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Wilson

SOLICITOR FOR THE APPELLANT:

Creaghe Lisle Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Jackson

SOLICITOR FOR THE RESPONDENT:

Farrell Lusher

Orders made 8 November 2011

That to the extent that is necessary, leave to appeal be granted.
That the appeal be allowed.
That Order 3 of the orders of the Honourable Federal Magistrate Neville made on 26 November 2010 be set aside.
That the matter be remitted for rehearing before a Federal Magistrate other than Federal Magistrate Neville on the issue of the validity of the termination agreement between Mr Vickery and Ms Drew dated 1 February 2008 and made pursuant to Part 4 of the Property (Relationships) Act 1984 (NSW).
That the appeal otherwise be dismissed.
That there be no order as to costs.
That the Court grants to the appellant a costs certificate pursuant to section 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 in respect of the costs incurred by the appellant in relation to the appeal.
That the Court grants to the respondent a costs certificate pursuant section 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 in respect of the costs incurred by the respondent in relation to the appeal.
That the Court grants to the appellant a costs certificate pursuant to section 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a cost certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the appellant in respect of such part as the Attorney-General considers appropriate of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vickery and Drew

Details

AGLC: Vickery and Drew [2012] FamCAFC 221
Case: [2012] FamCAFC 221
Decision Date: 8 November 2011

CaseChat Overview and Summary

In this case, Mr Vickery appealed against orders made by Federal Magistrate Neville concerning a Termination Agreement between him and Ms Drew, which had been executed under the Property (Relationships) Act 1984 (NSW). The primary legal issue before the Full Court was whether the Federal Magistrate had jurisdiction to set aside the Termination Agreement. The Full Court also considered whether there had been a breach of natural justice in the way the matter had been handled at first instance. The mother conceded that there had been a breach of natural justice, as neither party had been informed that the Federal Magistrate intended to make a decision concerning the setting aside of the Termination Agreement, thus neither party had had the opportunity to make submissions on that issue.

The Full Court found that the Federal Magistrate had jurisdiction to set aside the Termination Agreement because the relationship between the parties had lasted for periods aggregating at least two years, with at least one of those periods occurring after 1 March 2009, the date on which Part VIIIAB of the Family Law Act 1975 (Cth) came into effect. The Full Court concluded that the Federal Magistrate's order setting aside the Termination Agreement should be discharged and the application to set aside the Termination Agreement remitted to the Federal Magistrates Court for rehearing. The Full Court dismissed the remaining grounds of appeal, which challenged the Federal Magistrate's jurisdiction to hear the matter. The Full Court granted costs certificates to the parties in respect of the appeal and the rehearing.

Orders