[2000] FamCA 1302
FAMILY LAW ACT 1975
IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEYAppeal No. EA83 OF 1999 File No. SY8069 OF 1997
IN THE MATTER OF: Mr W
Appellant/Husband
AND: Ms W
Respondent/Wife
CORAM: LINDENMAYER, KAY & HANNON, JJ. DATE OF HEARING: 22 MARCH, 2000
DATE OF JUDGMENT: 26 OCTOBER, 2000
JUDGMENT OF THE COURT
Appearances: Mr Brereton of Senior Counsel (instructed by Adrian Twigg & Co, Solicitors) for the Appellant/Husband
Mr Lloyd of Counsel (instructed by Gillis Delaney Brown, Solicitors) for the Respondent/Wife
INTRODUCTION
1. This is an appeal by Mr W (“the husband”) from orders made by “the trial Judge” on 25 August, 1999, by which his Honour determined proceedings between the husband and Ms W (“the wife”) for orders under s.79 of the Family Law Act 1975 (“the Act”) altering the parties’ interests in their property.
2. The orders of the trial Judge the subject of this appeal are those numbered 3, 4, 5, 6 and 7 of the orders (numbering 15 in all) which were made by his Honour on that date. However, in order to understand orders 3 and 4, it is first necessary to know that orders 1 and 2 provided for the sale of a boat known as “XXX”. The relevant orders then provided as follows:-
“3. On sale of the said boat after payment of the costs of and incidental to sale 65% of the balance of the price is to be paid to the wife forthwith and the remaining part of the balance is to be paid to the husband forthwith.
4. In the event that the husband is given a notice of assessment of capital gains tax payable on the proceeds of sale of the boat the wife shall within one month of being notified by the husband of his said capital gains tax liability pay 65% of it to the Commissioner of Taxation in partial discharge of that liability.
5. Within one month of sale of the said boat the wife shall pay to the husband the sum of $126,448.00.
6. In the event that the wife complies with Order 5. the husband shall forthwith do all things and execute all documents necessary to transfer to the wife and shall transfer to the wife free of all encumbrances all his right title and interest at law and in equity in the premises situate at and known as [M Road, Suburb E].
7. In the event the wife fails to comply with Order 5. the parties shall sell the premises known as and situate [at M Road, Suburb E] within three months of that failure and after payment of all costs of and associated with the said sale shall distribute the balance of the proceeds as follows:
(i)$118,719.00 to the wife;
(ii)65% of the balance to the wife;
(iii)the remainder to the husband.”
3. By his Notice of Appeal filed on 24 September, 1999, the husband asks for the following orders, which…
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CaseChat Overview and Summary
The primary legal issues before the Full Court were whether it should re-exercise the discretion of the trial judge regarding the matters dealt with in the set-aside orders, or remit the proceedings for a rehearing. Further, the Court considered whether, if it re-exercised discretion, it should do so based on the trial judge's findings of fact (as varied by the Full Court), or on facts to be found anew, potentially with further evidence. The Court also had to determine, if it declined to re-exercise discretion, whether the proceedings should be reheard entirely or only on specific issues. Finally, the Court was required to consider submissions on costs, including the wife's appeal from a costs order made by Cohen J on 12 November 1999, and the costs of the current appeal.
The Full Court allowed the appeal and set aside specific orders made by the trial judge. The Court's reasoning, as indicated by the detailed orders for further submissions, suggests a determination that the trial judge's exercise of discretion was flawed or required reconsideration. The Court did not definitively re-exercise the discretion itself but instead outlined a process for the parties to make submissions on how the matter should proceed. This process involves detailed written submissions on the procedural and substantive questions outlined in the orders, with a timetable for their filing and service. The appeal was then stood over for further consideration and final determination following the receipt of these submissions.
Orders
Orders of the court
153. In accordance with the foregoing reasons, the orders of the Court are as follows:-
1. That the appeal be allowed.
2. That orders 3, 4, 5, 6 and 7 of the orders made herein on 25 August, 1999 be and are hereby set aside.
3. That the parties file and serve written submissions, according to the timetable set out in order 4 hereof, as to the following matters:-
(a) whether this Court should now re-exercise the discretion of the trial Judge in relation to the matters dealt with in the orders referred to in order 1 hereof, or remit the proceedings for rehearing before a single Judge;
(b) whether, in the event that this Court were to re-exercise the discretion of the trial Judge, it should do so on the basis of the facts found by the trial Judge, as varied by this Court’s findings, or on the basis of the facts as they may be found by this Court now to be and, if the latter, whether that party would seek to place before this Court further evidence, and if so what evidence (in outline only) that party would seek to adduce and from whom;
(c) whether, in the event that this Court declines to re-exercise the discretion of the trial Judge, the proceedings should be remitted for a complete rehearing or a rehearing limited to certain (and if so what) issues only;
(d) any other matters considered relevant to the ultimate determination of this appeal in accordance with the Court’s reasons for judgment published this day; and
(e) if the parties agree that it is appropriate to make submissions on costs at this time, then:-
(i) the appeal by the wife from the costs order of Cohen J of 12 November, 1999 (“the Costs Appeal”) (including the application to re-instate that appeal); and
(ii) the costs of this appeal and of the costs appeal.
4. That unless the parties otherwise agree in writing or the Court or a Registrar otherwise orders, the submissions referred to in order 3 hereof be filed and served in accordance with the following timetable:-
(a) the appellant husband’s submissions within 14 days after the date of these orders;
(b) the respondent wife’s submissions within 10 days after receipt of the husband’s submissions; and
(c) the appellant husband’s submissions in reply (if any) within 7 days after the receipt of the wife’s submissions.
5. That each party endorse on the cover sheet of any submissions filed pursuant to these orders the date of service thereof on the other party.
6. That each party have liberty to apply to the Registrar for the relisting of the appeal for further argument or for any other procedural directions upon 4 days notice to the other party.
7. That, subject to any further order or direction of the Court or Registrar, the appeal be stood over for further consideration and final determination, following the receipt of the submissions referred to in order 3 hereof.
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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