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[2012] FamCAFC 195
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Farrah & Farrah (No. 2) [2012] FamCAFC 195; (22 November 2012)
Last Updated: 26 November 2012
FAMILY COURT OF AUSTRALIA
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.
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May, Ainslie-Wallace & Murphy JJ
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LOWER COURT JURISDICTION:
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Federal Magistrates Court
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LOWER COURT JUDGMENT DATE:
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REPRESENTATION
COUNSEL FOR THE
APPELLANT:
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SOLICITOR FOR THE APPELLANT:
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COUNSEL FOR THE RESPONDENT:
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SOLICITOR FOR THE RESPONDENT:
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Crowley Greenhalgh Solicitors
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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
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Appeal Number: NA 25 of
2012
File Number: BRC 695 of 2012
Appellant
And
Respondent
REASONS FOR JUDGMENT
- 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.
- 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.
- 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.
- 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
- 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.
- The
husband’s notice of appeal listed four grounds:
- 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.
- 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.
- 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.
- 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.
- 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:
- (a) that the
submissions of the husband did not reflect the reality that by the date of
separation the total monies received by husband
being $412,400.81 had reduced as
a result of a loss in value in the husband’s CFS superfund to $258,366,88;
or
- (b) a loss of
value, notionally reducing the asserted future benefit from $197,898 to
$121,806.
- 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.
- 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.
- 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.
- 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.
- 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
- 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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