Whent & Marbrand - [2018] FamCAFC 95

FAMILY COURT OF AUSTRALIA

WHENT & MARBRAND

[2018] FamCAFC 95

FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge erred in determining pursuant to s 79(2) of the Family Law Act 1975 (Cth) that it was not just and equitable to make an order for property adjustment in favour of the husband – Where no appealable error established – Appeal dismissed.

FAMILY LAW – COSTS – Husband to pay wife’s costs of and incidental to the appeal.

Family Law Act 1975 (Cth) ss 75(2), 79(2)

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Chapman & Chapman (2014) FLC 93-592; [2014] FamCAFC 91
House v The King (1936) 55 CLR 499; [1936] HCA 40
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

APPELLANT:

Mr Whent

RESPONDENT:

Ms Marbrand

FILE NUMBER:

MLC

7514

2015

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

25 May 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland, Ainslie-Wallace & Foster JJ

HEARING DATE:

22 March 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 August 2017

LOWER COURT MNC:

[2017] FCCA 1873

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Andrew GE Robinson

SOLICITOR FOR THE APPELLANT:

Clancy & Triado

COUNSEL FOR THE RESPONDENT:

Ewan Hall

SOLICITOR FOR THE RESPONDENT:

Kingston Lawyers

Orders

The appeal be dismissed.
The appellant husband pay the respondent wife’s costs of and incidental to the appeal fixed in the sum of $10,000, such sum to be paid within twenty-eight days of this order.

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 Whent & Marbrand 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 67 of 2017
File Number: MLC 7514 of 2015

Mr Whent

Appellant

and

Ms Marbrand

Respondent

REASONS FOR JUDGMENT

Mr Whent (“the husband”) appeals against property settlement orders made by Judge Williams on 11 August 2017. Ms Marbrand (“the wife”) opposes the appeal.
The primary challenge is to the order made by her Honour dismissing the husband’s application for property settlement.
The thrust of the challenge to that order rests in her Honour’s application of s 79(2) of the Family Law Act1975 (Cth) (“the Act”). Her Honour said, having set out and considered the principles in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) and the cases that followed it, Bevan & Bevan (2013) FLC 93-545 (“Bevan”) and Chapman & Chapman (2014) FLC 93-592 (“Chapman”):
80.…

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 Whent & Marbrand

Details

AGLC: Whent & Marbrand [2018] FamCAFC 95
Case: [2018] FamCAFC 95
Decision Date: 25 May 2018

CaseChat Overview and Summary

In the case of Whent & Marbrand, the appellant, the husband, sought to appeal against the decision of the primary judge in the Family Court of Australia. The husband contested the primary judge's refusal to make a property adjustment order in his favour under section 79(2) of the Family Law Act 1975 (Cth). The wife, the respondent, defended the primary judge's decision and applied for costs of and incidental to the appeal.

The central issue before the court was whether the primary judge erred in concluding that it was not just and equitable to make a property adjustment order in favour of the husband. The husband argued that the primary judge failed to properly consider certain factors and made errors in the assessment of the parties' respective contributions to the relationship and the pool of assets. The wife contended that the primary judge's decision was well-reasoned and supported by the evidence, and that the husband had failed to establish any appealable error.

The court found that the primary judge had carefully considered the relevant factors and applied the correct legal principles in reaching the decision. The court held that the husband had not demonstrated any error on the part of the primary judge that warranted interference by the appellate court. Accordingly, the appeal was dismissed, and the husband was ordered to pay the wife's costs of and incidental to the appeal in the sum of $10,000, to be paid within 28 days of the order.

Orders

Orders of the court

The appeal be dismissed.

The appellant husband pay the respondent wife’s costs of and incidental to the appeal fixed in the sum of $10,000, such sum to be paid within twenty-eight days of this order.

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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