Winston and Winston (No 2) - [2013] FamCAFC 147

FAMILY COURT OF AUSTRALIA

WINSTON & WINSTON (NO. 2)

[2013] FamCAFC 147

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where the husband appealed against property orders of the Federal Magistrate – where the husband’s central complaints relate to the Federal Magistrate’s finding that the husband’s mother would not enforce the repayment to her of loans of $1,353,100 and $15,516.35 when the mother’s evidence that repayment would be required went unchallenged – where the loan of $1,353,100 was secured by mortgage over property the value of which was included by the Federal Magistrate in the property to be adjusted – where the Federal Magistrate failed to give any or any adequate reasons for excluding these loans in identifying the property and its value available for division given that the mother’s evidence was unchallenged – appeal allowed – where the husband sought a re-exercise of the discretion – where the wife sought to adduce further evidence for the purpose of any re-exercise of discretion – proceedings to be remitted for re-hearing – costs certificates to issue to the husband – wife at liberty to apply for costs certificates.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Af Petersens and Af Petersens (1981) FLC 91-095
Allesch v Maunz (2000) 203 CLR 172
Bennett and Bennett (1991) FLC 92-191
Biltoft and Biltoft (1995) FLC 92-614

Devries v Australian National Railways Commission (1993) 177 CLR 472
Harris and Harris (1993) FLC 92-378
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

APPELLANT:

Mr Winston

RESPONDENT:

Ms Winston

FILE NUMBER:

BRC

10703

2008

APPEAL NUMBER:

2012

DATE DELIVERED:

26 September 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, Strickland & Kent JJ

HEARING DATE:

5 September 2012 and by written submissions filed on 27 March 2013 and 17 April 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

28 November 2011

LOWER COURT DATE OF ORDERS:

20 December 2011

LOWER COURT MNC:

[2011] FMCAfam 929

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Page SC

SOLICITOR FOR THE APPELLANT:	Couper Geysen Family & Animal Law
FOR THE RESPONDENT:	In person

Orders

The appeal against the orders for property settlement (Orders 11-22 inclusive) made by Federal Magistrate Howard (as he then was) on 20 December 2011 be allowed.
Orders 11-22 inclusive made by Federal Magistrate Howard (as he then was) on 20 December 2011 be set aside.
The proceedings for property settlement be remitted for re-hearing by a judge of the Federal Circuit Court of Australia other than Judge Howard.
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 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 to the costs incurred by the appellant…

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 Winston and Winston (No 2)

Details

AGLC: WINSTON & WINSTON (NO. 2) [2013] FamCAFC 147
Case: [2013] FamCAFC 147
Decision Date: 26 September 2013

CaseChat Overview and Summary

In the matter of Winston and Winston, the husband appealed against the property settlement orders made by the Federal Magistrate. The husband’s primary contention was that the Federal Magistrate erred in finding that his mother would not enforce repayment of two loans amounting to $1,353,100 and $15,516.35, respectively, despite the unchallenged evidence indicating that repayment would be required. Furthermore, the husband argued that the Federal Magistrate failed to provide adequate reasons for excluding these loans when determining the property and its value available for division.

The court was required to decide whether the Federal Magistrate appropriately exercised the discretion under the Family Law Act 1975 to exclude the loans when identifying the property pool. The court also needed to determine whether the Federal Magistrate's failure to give reasons for this decision constituted a significant error that warranted a re-hearing of the proceedings. Additionally, the court needed to address the issue of costs, considering the outcome of the appeal and the circumstances of the case.

The court found that the Federal Magistrate did not provide adequate reasons for excluding the loans, which constituted a significant error. Consequently, the appeal was allowed, and the property settlement orders were set aside. The court remitted the proceedings for re-hearing by another judge of the Federal Circuit Court of Australia. The court also granted the husband a costs certificate for the appeal and the new trial, while permitting the wife to apply for costs certificates within a specified timeframe.

Orders

Orders of the court

The appeal against the orders for property settlement (Orders 11-22 inclusive) made by Federal Magistrate Howard (as he then was) on 20 December 2011 be allowed.

Orders 11-22 inclusive made by Federal Magistrate Howard (as he then was) on 20 December 2011 be set aside.

The proceedings for property settlement be remitted for re-hearing by a judge of the Federal Circuit Court of Australia other than Judge Howard.

There be no order as to costs.

The Court grants to the appellant a costs certificate pursuant to the provisions of s 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 to the costs incurred by the appellant in relation to the appeal.

The Court grants to the appellant a costs certificate pursuant to the provisions of s 8 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 to such part as the Attorney-General considers appropriate of any costs incurred by the appellant in relation to the new trial.

The respondent be at liberty to make application to the Court for costs certificates pursuant to the provisions of s 6 and s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) by writing to the Appeals Registrar within twenty-eight (28) days of the date of these Orders seeking the grant of such certificates.

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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