Wolff and Holden - [2014] FamCAFC 74

FAMILY COURT OF AUSTRALIA

WOLFF & HOLDEN

[2014] FamCAFC 74

FAMILY LAW – APPEAL – PROPERTY – DE FACTO RELATIONSHIP – EVIDENCE – Where the appellant alleged that the trial judge erred by having regard and attaching significance to a document which was not properly in evidence – Where the Full Court found that the trial judge had so erred – Where the Full Court found that the trial judge’s finding as to the date of the document was made in the absence of evidence and his reliance on that finding to conclude an absence of jurisdiction constituted a material error of law – Where the Full Court also found that the provision of a translation of the document to the Court after the closure of oral evidence deprived the appellant of procedural fairness – Matter remitted for rehearing – Costs certificates granted.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

APPELLANT:

Ms Wolff

RESPONDENT:

Mr Holden

FILE NUMBER:

SYC

349

2012

APPEAL NUMBER:

132

2012

DATE DELIVERED:

6 May 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Thackray and Austin JJ

HEARING DATE:

19 March 2014

LOWER COURT JURISDICTION:

Federal Magistrates Court (as it then was)

LOWER COURT JUDGMENT DATE:

13 September 2012

LOWER COURT MNC:

[2012] FMCAfam 924

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Coulton

SOLICITOR FOR THE APPELLANT:

Accentro Legal

COUNSEL FOR THE RESPONDENT:

Mr Cairns

SOLICITOR FOR THE RESPONDENT:

K M Harkness & Co

Orders made on 19 March 2014

The oral application to adduce further evidence of:
(a)the email from [the respondent’s solicitor] to the Associate to Foster FM dated 20 August 2012; and
(b)the email from [the respondent’s solicitor] to [the appellant’s solicitor] dated 30 May 2013
is allowed by consent.
The application in an appeal to adduce further evidence filed 24 January 2014 be dismissed.
The appeal be allowed.
The orders of Foster FM made on 13 September 2012 be set aside.
The matter be remitted for rehearing by a judge of the Federal Circuit Court.
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 of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 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 and the respondent a costs certificate pursuant to the provisions of s…

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 Wolff and Holden

Details

AGLC: Wolff and Holden [2014] FamCAFC 74
Case: [2014] FamCAFC 74
Decision Date

CaseChat Overview and Summary

The parties to this appeal were Ms Wolff and Mr Holden, who were formerly in a de facto relationship. Ms Wolff appealed against a decision of the Federal Magistrates Court which found that the relationship between the parties ended in January 2006 and dismissed Ms Wolff's claim for property settlement orders. The appeal was allowed by the Full Court and the matter was remitted for rehearing by a judge of the Federal Circuit Court.The legal issues that arose in this appeal concerned the admissibility of evidence and procedural fairness. The Full Court found that the trial judge erred by having regard and attaching significance to a document that was not properly in evidence and by providing a translation of the document to the Court after the closure of oral evidence, which deprived the appellant of procedural fairness. These errors vitiated the trial judge's decision.The Full Court found that the trial judge's finding as to the date of the document was made in the absence of evidence, and his reliance on that finding to conclude an absence of jurisdiction constituted a material error of law. The Full Court also found that the provision of a translation of the document to the Court after the closure of oral evidence deprived the appellant of procedural fairness. These errors were sufficient to warrant the setting aside of the trial judge's orders and the remitting of the matter for rehearing.The Full Court granted costs certificates to both parties in relation to the appeal, the new trial ordered, and the original proceedings. The appeal was allowed, the orders of the trial judge were set aside, and the matter was remitted to the Federal Circuit Court for further hearing.

Orders