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Farrah & Farrah (No. 2) [2012] FamCAFC 195; (22 November 2012)

Last Updated: 26 November 2012

FAMILY COURT OF AUSTRALIA


FARRAH & FARRAH (NO. 2)

FAMILY LAW – APPEAL – PROPERTY – Where the respondent concedes error on the part of the Federal Magistrate though for different reasons – Where further evidence in relation to the appellant’s financial circumstances inhibits a re-exercise by the Full Court and require remission of the matter – Appeal allowed and costs certificates ordered.


APPELLANT:
Mr Farrah

RESPONDENT:
Mrs Farrah

FILE NUMBER:
BRC 695 of 2010

APPEAL NUMBER:
NA 25 of 2012

DATE DELIVERED:
22 November 2012


PLACE DELIVERED:

Sydney

PLACE HEARD:
Brisbane

JUDGMENT OF:
May, Ainslie-Wallace & Murphy JJ

HEARING DATE:
6 November 2012

LOWER COURT JURISDICTION:
Federal Magistrates Court

LOWER COURT JUDGMENT DATE:
28 February 2012

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:
Mr Burridge

SOLICITOR FOR THE APPELLANT:
MacDonnells Law

COUNSEL FOR THE RESPONDENT:
Mr Jordan

SOLICITOR FOR THE RESPONDENT:
Crowley Greenhalgh Solicitors


ORDERS

(1) The appeal be allowed.
(2) Order 1 of the orders made by Federal Magistrate Coates on 28 February 2012 be set aside together with the amended orders made on 26 June 2012.
(3) The matter be remitted for rehearing by a Federal Magistrate other than
Federal Magistrate Coates.
(4) The Court grants to the appellant husband 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 husband in respect of the costs incurred by him in relation to the appeal against the property orders.
(5) The Court grants to the respondent wife 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 wife in respect of the costs incurred by the respondent wife in relation to the appeal against the property orders.
(6) The Court grants to each of the parties 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 each of the parties in respect of the costs incurred by them in relation to the re-hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Farrah & Farrah (No. 2) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).


THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE



Appeal Number: NA 25 of 2012
File Number: BRC 695 of 2012


Mr Farrah

Appellant

And


Mrs Farrah

Respondent


REASONS FOR JUDGMENT

  1. On 27 March 2012 the appellant filed a Notice of Appeal in relation to Order 1 of the orders made by Coates FM on 28 February 2012. The appeal was listed for hearing on 6 November 2012. On 26 October 2012 the respondent filed an Application in an Appeal seeking leave to extend time to file a Cross Appeal. The applications were listed with the appeal for hearing before this Full Court on 6 November 2012.
  2. On 6 November 2012 the Full Court heard the application to extend time and delivered orders and ex tempore reasons for judgment dismissing the application to extend time to file a cross appeal.
  3. Counsel for the respondent submitted in relation to the appeal that it was conceded that the appeal must be allowed. At that time we made orders in relation to the appeal and indicated that we would deliver our reasons in relation to the appeal and costs. These are those reasons.
  4. It also became apparent from counsel for the husband’s submissions that remission for rehearing before another Federal Magistrate was inevitable by reason of further evidence intended to be adduced in relation to the husband’s financial circumstances.

Background

  1. The appeal in this matter is in relation to the division of property between the parties where the Federal Magistrate ordered that the appellant receive 46 per cent and the respondent 54 per cent of the pool of assets as found by the Federal Magistrate.
  2. The husband’s notice of appeal listed four grounds:
    1. The learned Magistrate erred in the assessment of contributions and applied incorrect principle in relation to the husband’s compensation monies received in August 2007.
    2. The learned Magistrate erred as a matter of fact in finding that the wife’s income was $13,000.00 or $480.00 per week.
    3. The learned Magistrate erred as a matter of fact in finding that the husband was: -

(a) on a permanent disability pension of $500.00 per week; and

(b) in receipt of a total income of $2,398.00 per week.

  1. That the learned Magistrate erred relation [sic] to an adjustment made under s.75(2) of the Family Law Act 1975 in finding that the wife should receive an uplift of 5% in her favour based on income.
  2. In relation to ground 1, it was said in the written submissions on behalf of the respondent wife that it was agreed the Federal Magistrate erred in the assessment of contributions, but for reasons different than those propounded by the appellant husband. It was contended that his Honour failed to take into account the following:
  3. It was submitted that the Federal Magistrate’s treatment of the insurance payment, although correct in outcome, was incorrect in law and tainted by mistake of fact.
  4. The written submissions for the husband on this ground suggest that his Honour erred in the treatment of the his compensation monies because the husband had submitted that the portion of the compensation amount referrable to the period after the date of trial, being an amount of $197, 898 ought to be treated as a sole contribution by him.
  5. As it is necessary that the matter be reheard, it is not appropriate for us to comment further on these arguments other than to observe that the treatment by the Federal Magistrate of the moneys received by the husband was in error.
  6. In relation to grounds 2, 3 and 4, the summary of argument on behalf of the respondent wife records that she:

(a) agrees with the submissions that the learned Magistrate erred in his findings of fact;

(b) submits that the errors arose most probably through his having reference to material not properly before him;

(c) submits that the errors are imported into and clearly influence the Federal Magistrate’s determination at Reasons, paragraph 98, that there be an adjustment in the wife’s favour of 5%; and

(d) agrees that the mistakes of fact are such that they comprise an appellable error such that the orders ought to be set aside.


  1. While further errors are conceded by the wife, we do not consider it necessary or expeditious in these circumstances to consider in any further detail those other grounds of appeal as the appeal must be allowed. It is apparent, by reason of the clear concession by the respondent wife of error of law and of fact on the part of the Federal Magistrate, that appealable error is made out in the husband's ground 1. Having so found, and with the consent of the parties, the appeal must be allowed.

COSTS

  1. It is clear on any view of the arguments placed before us by the appellant and the respondent that the appeal has been allowed by reason of a number of errors of the Federal Magistrate. In these circumstances, it is appropriate that there be no orders as to costs, and that the parties be issued with costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the appeal and the rehearing.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 22 November 2012.

Associate:

Date: 22 November 2012



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