Yates & Allen and Anor - [2008] FamCAFC 190

FAMILY COURT OF AUSTRALIA

YATES & ALLEN AND ANOR

[2008] FamCAFC 190

FAMILY LAW - APPEAL – From decision of Federal Magistrate – Federal Magistrate erred in fact in relation to the evidence with respect to moneys advanced to the husband constituting a contribution by or on behalf of the husband – Exercise of discretion on those facts miscarried (De Winter v De Winter (1979) FLC ¶90-605) – In the alternative, the failure to refer the moneys in the contribution valuation phase renders deficient the learned Federal Magistrate's Reasons for Judgment (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 at 279) – Further in the alternative, given the contribution by or on behalf of the husband of the moneys, in the absence of any clear explanation for why it did not assume significance, the conclusion with respect to contributions falls sufficiently beyond the broad ambit of the discretion which the learned Federal Magistrate is exercising, as to enliven appellate intervention (see Norbis v Norbis (1986) 161 CLR 513 and House v The King (1936) 55 CLR 499) – The appeal is allowed and the matter remitted for rehearing before the Federal Magistrates Court.

Family Law Act 1975 (Cth)

Biltoft and Biltoft (1995) 19 Fam LR 82
De Winter v De Winter (1979) FLC ¶90-605
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 at 279
Norbis v Norbis (1986) 161 CLR 513
House v The King (1936) 55 CLR 499

APPELLANT:

MR YATES

RESPONDENT:

MS ALLEN

SECOND RESPONDENT:

DR YATES

APPEAL NUMBER:

2008

FILE NUMBER:

PAM

2005

DATE DELIVERED:

21 NOVEMBER 2008

PLACE HEARD:

PARRAMATTA

JUDGMENT OF:

COLEMAN J

HEARING DATE:

21 NOVEMBER 2008

LOWER COURT JURISDICTION:

FEDERAL MAGISTRATES COURT

LOWER COURT JUDGMENT DATE:

27 JUNE 2008

LOWER COURT MNC:

[2008] FMCAfam 565

REPRESENTATION

COUNSEL FOR THE APPELLANT:

MR CAIRNS

SOLICITOR FOR THE APPELLANT:

HUNTER LAWYERS

COUNSEL FOR THE RESPONDENT:

MR WONG

SOLICITOR FOR THE RESPONDENT:

EQUITY LAWYERS

COUNSEL FOR THE SECOND RESPONDENT:

MR MADDOX

Orders

That the appeal be allowed.
That the matter be remitted for hearing before a Federal Magistrate other than Neville FM.
That the Court grants to the Respondent Wife a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 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 Wife in respect of the costs incurred by the Respondent Wife in relation to the appeal.
That the Court grants to the each party a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act 1981 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted…

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 Yates & Allen and Anor

Details

AGLC: Yates & Allen and Anor [2008] FamCAFC 190
Case: [2008] FamCAFC 190
Decision Date: 21 November 2008

CaseChat Overview and Summary

The appeal before the court involved the parties Yates and Allen, with a dispute arising from a decision of the Federal Magistrate. The central issue pertained to the Federal Magistrate's handling of evidence concerning moneys advanced to the husband, which the appellants argued constituted a contribution by or on behalf of the husband. The appellants contended that the Federal Magistrate erred in fact regarding this evidence, leading to an exercise of discretion that miscarried. They further argued that the failure to refer to these moneys in the contribution valuation phase rendered the reasons for judgment deficient.

The court was required to determine whether the Federal Magistrate erred in fact and whether this error impacted the exercise of discretion in the case. The appellants argued that the omission of the moneys advanced to the husband from the contribution valuation phase was a significant error that warranted appellate intervention. They relied on precedents such as De Winter v De Winter and Soulemezis v Dudley (Holdings) Pty Ltd to support their claims of error and deficiency in the reasons for judgment. The court examined whether the contribution by or on behalf of the husband should have assumed more significance in the Federal Magistrate's assessment and whether the conclusion on contributions was beyond the broad ambit of the magistrate's discretion.

The court concluded that the Federal Magistrate did indeed err in fact concerning the evidence about the moneys advanced to the husband, which should have been considered as a contribution. The failure to properly reference this in the contribution valuation phase was a significant oversight that affected the exercise of discretion. The court found that the conclusion on contributions fell beyond the broad ambit of the Federal Magistrate's discretion, thus justifying appellate intervention. The appeal was allowed, and the matter was remitted for rehearing before a different Federal Magistrate. Additionally, the court granted a costs certificate to the respondent wife and to each party for costs incurred in relation to the appeal and the new trial.

Orders

Orders of the court

That the appeal be allowed.

That the matter be remitted for hearing before a Federal Magistrate other than Neville FM.

That the Court grants to the Respondent Wife a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 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 Wife in respect of the costs incurred by the Respondent Wife in relation to the appeal.

That the Court grants to the each party a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act 1981 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

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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