ADAIR & MILFORD - [2015] FamCAFC 29

FAMILY COURT OF AUSTRALIA

ADAIR & MILFORD

[2015] FamCAFC 29

FAMILY LAW – APPEAL – TAXATION LIABILITY – Whether the husband’s taxation liability should be treated as a joint matrimonial liability – Where the parties’ liabilities exceeded their available assets – Where half of the taxation liability accrued prior to separation – Where the wife was unaware the husband had not paid tax due – Where husband previously gave evidence he was making payments towards tax – Where there were compelling reasons to leave the husband solely liable for tax debt – Appeal dismissed.

FAMILY LAW – APPEAL – SUPERANNUATION – Whether a superannuation splitting order should have been made – Where the wife would receive little from the sale proceeds of the properties – Where the husband’s income was greater than the wife’s – Where to reduce the value of the wife’s superannuation because of the magnitude of the husband’s taxation debt would be inconsistent with finding that the husband should be solely responsible for the debt – Appeal dismissed.

FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Whether the wife established entitlement to spousal maintenance – Where it is reasonable for the wife to seek only part time work when she has the primary care of the parties’ two children – Where adequate reasons were provided to support a finding that the husband had the capacity to pay – Appeal dismissed.

FAMILY LAW – COSTS – Where husband wholly unsuccessful – Husband to pay wife’s costs.

Family Law Act 1975 (Cth): ss 75(2), 79, 72

Coghlan and Coghlan (2005) FLC 93-220

Drysdale & Drysdale [2011] FamCAFC 85

Johnson and Johnson (2000) FLC 93-039
McCrossen & McCrossen (2006) FLC 93-283
Trustee of the Property of G Lemnos, a Bankrupt & Lemnos and Anor (2009) FLC 93-394

APPELLANT:

Mr Adair

RESPONDENT:

Ms Milford

FILE NUMBER:

MLC

8241

2012

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

3 March 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Ryan, Murphy & Tree JJ

HEARING DATE:

11 November 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

2 May 2014

LOWER COURT MNC:

[2014] FamCA 279

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr Ingleby

SOLICITOR FOR THE APPELLANT:

Coote Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers

Orders

The appeal be dismissed.
The appellant husband to pay the respondent wife’s costs of and incidental to the appeal within one (1) month of the quantum of costs being agreed or assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adair & Milford 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 MELBOURNE

Appeal Number: SOA 34 of 2014
File Number: MLC 8241 of 2012

Mr Adair

Appellant

And

Ms Milford

Respondent

REASONS FOR JUDGMENT

This is an appeal by Mr Adair (“the husband”) against orders made by…

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 ADAIR & MILFORD

Details

AGLC: ADAIR & MILFORD [2015] FamCAFC 29
Case: [2015] FamCAFC 29
Decision Date: 3 March 2015

CaseChat Overview and Summary

The appeal was brought by the husband against a decision of the Family Court of Australia, which had made orders regarding the division of assets and liabilities, as well as the payment of spousal maintenance. The husband argued that the court had erred in treating his taxation liability as a sole liability, in not making a superannuation splitting order, and in failing to grant the wife spousal maintenance. The wife, on the other hand, defended the primary judge's findings and orders.

The primary legal issues before the court were whether the husband's taxation liability should be treated as a joint liability, whether a superannuation splitting order should have been made, and whether the wife had established entitlement to spousal maintenance. The court had to consider the relevant statutory provisions and case law, as well as the specific circumstances of the case, such as the length of the marriage, the age and health of the parties, their respective incomes and earning capacities, and the needs and contributions of each party.

The court found that there were compelling reasons to leave the husband solely liable for the taxation debt, as he had given evidence that he was making payments towards the tax, and the wife was unaware that he had not paid the tax due. The court also found that to reduce the value of the wife's superannuation because of the magnitude of the husband's taxation debt would be inconsistent with finding that the husband should be solely responsible for the debt. Furthermore, the court found that the wife had not established entitlement to spousal maintenance, as it was reasonable for her to seek only part time work when she had the primary care of the parties' two children, and there were adequate reasons to support a finding that the husband had the capacity to pay.

The appeal was dismissed, and the husband was ordered to pay the wife's costs of and incidental to the appeal within one month of the quantum of costs being agreed or assessed.

Orders

Orders of the court

The appeal be dismissed.

The appellant husband to pay the respondent wife’s costs of and incidental to the appeal within one (1) month of the quantum of costs being agreed or assessed.

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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