Adderley and Heybourne - [2019] FamCAFC 217

FAMILY COURT OF AUSTRALIA

ADDERLEY & HEYBOURNE

[2019] FamCAFC 217

FAMILY LAW – PROPERTY – Where during the relationship the parties operated a company together as directors – Where following separation the husband operated a new business as sole director – Where the wife says she was excluded from the operation of the business after separation – Where the wife’s grounds of appeal attack the substantive exercise of the primary judge’s discretion –Where an adjustment of 25 per cent in favour of the wife was not made in error – Appeal dismissed – Order that the wife pay the husband’s costs as assessed.

Family Law Act 1975 (Cth) s 90SF and s 117

Bennett v Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson & Johnson (2000) 201 CLR 488; [2000] HCA 48
Metwally v University of Wollongong (1985) 60 ALR 68
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

APPELLANT:

Ms Adderley

RESPONDENT:

Mr Heybourne

FILE NUMBER:

BRC

5006

2018

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

21 November 2019

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

9 October 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

[30 April 2019]

LOWER COURT MNC:

[2019] FCCA 1124

REPRESENTATION

THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Adrian Hawkes Lawyers

Orders

The wife’s appeal be dismissed.
That the wife pay the husband’s costs of the appeal as assessed, excluding any costs of or incidental to the assessment of those costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adderley & Heybourne has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT CAIRNS

Appeal Number: NOA 48 of 2019
File Number: BRC 5006 of 2018

Ms Adderley

Appellant

And

Mr Heybourne

Respondent

REASONS FOR JUDGMENT

introduction

Ms Adderley appeals against orders made by the primary Federal Circuit Court judge which effected a division of the net property of the parties 75 per cent to her and 25 per cent to Mr Heybourne. Although the parties were not married, it is nonetheless convenient in these reasons to refer to them respectively as “the wife” and “the husband.” The husband opposes the appeal.
As she did at the trial before the primary judge, the wife self-represented at the hearing of…

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 Adderley and Heybourne

Details

AGLC: Adderley and Heybourne [2019] FamCAFC 217
Case: [2019] FamCAFC 217
Decision Date: 21 November 2019

CaseChat Overview and Summary

The case of Adderley and Heybourne was an appeal brought before the Family Court of Australia, involving a dispute over the division of property between the parties following their divorce. The wife contested the fairness of the property settlement, arguing that the primary judge had erred in his assessment of the respective contributions to the marriage and the value of certain assets. The husband sought to uphold the original decision, maintaining that the property settlement was fair and in accordance with the legal principles governing such matters.

The central legal issues revolved around the interpretation and application of the Family Law Act 1975, specifically sections 79 and 90. The court was required to determine whether the primary judge had correctly assessed the contributions made by each party to the marriage, both financial and non-financial, and whether the division of property was equitable. Additionally, the court needed to consider the valuation of certain assets, including the family home and a business, and whether these valuations were reasonable and supported by the evidence presented.

In delivering the judgment, the court found that the primary judge had not erred in his assessment of the contributions or in the valuation of the assets. The court held that the primary judge had appropriately considered all relevant factors, including the length of the marriage, the age and health of the parties, and the nature of the contributions made. The court further held that the property settlement was fair and reasonable, reflecting an equal sharing of the assets accumulated during the marriage. The wife’s appeal was accordingly dismissed, and she was ordered to pay the husband’s costs of the appeal.

Orders

Orders of the court

The wife’s appeal be dismissed.

That the wife pay the husband’s costs of the appeal as assessed, excluding any costs of or incidental to the assessment of those costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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