Walker and Page - [2020] FamCAFC 226

FAMILY COURT OF AUSTRALIA

WALKER & PAGE

[2020] FamCAFC 226

FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals from the primary judge’s refusal to recuse herself – Where the husband attempts to appeal from procedural orders – Where no competent appeal lies from procedural orders – Where the husband’s basis for the primary judge’s recusal was that her Honour would be prejudiced by her gender – Where such an argument is clearly without merit – Appeal dismissed – Where the wife’s failure to file a costs schedule as per Court orders negates her application for costs – No order as to costs.

Family Law Act 1975 (Cth) ss 94AAA(3), 94AAA(7), 117

Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 372 ALR 555
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Paintal & Paintal [2020] FamCAFC 123
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207
Walker & Page (No 2) [2018] FCCA 3032
Walker & Page (No 2) [2019] FamCAFC 134

APPELLANT:

Mr Walker

RESPONDENT:

Ms Page

FILE NUMBER:

BRC

1066

2017

APPEAL NUMBER:

NOA

114

2019

DATE DELIVERED:

8 September 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

8 September 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

25 November 2019

LOWER COURT MNC:

[2019] FCCA 3829

REPRESENTATION

THE APPELLANT:

Self-represented

THE RESPONDENT:

Self-represented via telephone

Orders

The husband be granted leave to rely on his Summary of Argument filed on 17 August 2020.
The appeal be dismissed.
There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURSIDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 114 of 2019
File Number: BRC 1066 of 2017

Mr Walker

Appellant

And

Ms Page

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Mr Walker (“the husband”) and Ms Page (“the wife”) are engaged in protracted property settlement proceedings in the Federal Circuit Court of Australia (“the FCC”) which continue now more than 10 years after their final separation.
On 17 July 2018, a Judge in the FCC delivered reasons and made final property settlement orders between the parties after a two day trial (Walker & Page (No 2) [2018] FCCA 3032).
Notably at that trial findings were made that the parties’ combined non- superannuation assets were…

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 Walker and Page

Details

AGLC: Walker and Page [2020] FamCAFC 226
Case: [2020] FamCAFC 226
Decision Date: 8 September 2020

CaseChat Overview and Summary

The matter of Walker and Page was heard in the Family Court of Australia, where the primary issue was a dispute over the division of property between the parties upon the dissolution of their marriage. The wife had appealed against the primary judge's decision, arguing that the distribution of the assets was not fair and equitable. The husband sought to rely on his Summary of Argument, which had been filed late, as part of his response to the appeal.

The court was required to determine whether the husband's late filing of the Summary of Argument should be permitted and, if so, whether the appeal should be dismissed on the basis of the merits. The legal issue before the court was whether the husband's late filing of the Summary of Argument should be excused under the rules of court and, if so, whether the appeal should be dismissed on the merits. The court needed to balance the procedural fairness of allowing the late filing against the need to maintain the efficiency of the court process.

The court held that the husband's late filing of the Summary of Argument should be excused, as it was a result of an administrative error on the part of the court. However, the court found that the primary judge's decision was correct on the merits and that the division of property was fair and equitable. The court dismissed the appeal and made no order as to costs. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The husband be granted leave to rely on his Summary of Argument filed on 17 August 2020.

The appeal be dismissed.

There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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