FAMILY LAW ─ APPEAL ─ PROPERY SETTLEMENT ─ Challenge to the jurisdiction of the Court to make orders for settlement of property ─ Where the thrust of the appellant’s challenges is that, if there is no “property” of the parties to the marriage or either of them, there can be no “matrimonial cause” and, accordingly, the jurisdiction to make orders with respect to the property of the parties to the marriage or either of them cannot be enlivened ─ Discussion of the authorities which discuss what constitutes “property” ─ Where the “property” in respect of which the learned Federal Magistrate made orders pursuant to s 79 was represented entirely by “notional” property ─ Where it is difficult to accept that jurisdiction was not limited to property then existing ─ Where the Court is satisfied by the submission currently before it that jurisdiction could not be enlivened in circumstances where the only “property of the parties” was “notional” ─ Where the submissions currently before the Court satisfy the Court that the “jurisdictional” challenges on behalf of the appellant would be entitled to succeed ─ Where the appeal involves a substantial issue of principle and where determining the appeal in the absence of an effective contradictor, may not be in the best interests of justice (see Tryon & Clutterbuck [2010] FamCAFC 80), and possibly erroneous ─ Where the broader interests of justice would be better served by allowing the respondent time to file further submissions, primarily in response to the Court’s preliminary conclusions in these reasons and the appellant having an opportunity to respond.
FAMILY LAW ─ APPEAL ─ PROPERY SETTLEMENT ─ Where the thrust of the “weight” challenges of the appellant is that the 30 per cent s 75(2) adjustment determined by the learned Federal Magistrate exceeded the generous ambit of the undoubtedly broad discretion which his Honour was exercising ─ Where the learned Federal Magistrate carefully, and in this Court’s view accurately considered each of the relevant s 75(2) factors ─ Where there was no error of principle or material errors of fact which vitiated the exercise of his Honour’s discretion ─ Where central to these challenges is the reality that none of the affidavit evidence of the appellant’s siblings was challenged in cross-examination, because neither sibling was required for cross-examination in relation to the evidence given by them ─ Where it is not manifestly obvious on the face of the affidavit evidence of either of the appellant’s siblings that their evidence was so obviously untrue or improbable that it could be rejected ─ Where a significant proportion of the notional property upon which his Honour relied was included because he did not accept the evidence of the husband or his siblings in relation to those events or transactions ─ Where on the submissions before the Court as they currently stand, the appellant would be entitled to succeed.
NOTE: The period for seeking special leave to appeal to the High Court has not expired.