Agius & Agius

Case [2010] FamCAFC 143


Family Court Of Australia

AGIUS & AGIUS [2010] FamCAFC 143

FAMILY LAW - APPEAL – From a property settlement order made by a Federal Magistrate – Controversy as to the amounts to be included in the pool of assets currency

FAMILY LAW - APPEAL – Whether the Federal Magistrate made an error of fact and/or law in failing to include amounts retained by the Wife – Where it was not put to the Wife in cross-examination that she had failed to make a full and frank disclosure – Where the Wife gave evidence that the funds were disbursed – Where the Wife was not challenged in relation to her explanation as to what she had done with the funds – Where it was not put to the Wife that the expenditure of the funds was unreasonable – No error established  

FAMILY LAW - APPEAL – Whether the Federal Magistrate made an error of fact in calculating the payment to the Husband pursuant to the orders in failing to include the liabilities relating to the properties retained by the Husband – Where the order clearly does not reflect the intention of the Federal Magistrate – Where, subject to the slip or accidental omission by the Federal Magistrate, there was no error by his Honour – Where an application pursuant to r 16.05(2)(e) of the Federal Magistrates Court Rules 2001 may be made – No error established

FAMILY LAW - APPEAL – Whether the Federal Magistrate’s assessment of the percentage division of the pool of assets available for division between the parties fell outside of the reasonable range of discretion which was just and equitable – Where the Wife received 75 per cent of the net assets and the Husband received 25 per cent – Where very considerable weight had to be given to the initial financial contribution by the Wife – Where there was no children of the marriage – Where the Wife was always in receipt of a significantly greater income from paid employment than the Husband – Where the Federal Magistrate’s assessment fell within the reasonable range of discretion – No error established

FAMILY LAW - COSTS – Reserved

Child Support (Assessment) Act 1989 (Cth)
Crimes (Family Violence) Act 1987 (Vic)
Family Law Act 1975 (Cth)
Family Law Rules 2004
Federal Magistrates Court Rules 2001

LexisNexis Butterworths, Halsbury’s Laws of Australia, vol 20 (at 325-3125)

Brodie v Brodie (2009) 41 Fam LR 18
Burke and Burke (1981) FLC 91-055
Chorn and Hopkins (2004) FLC 93-204
Hickey and Hickey and the Attorney General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
House v R (1936) 55 CLR 499
Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642
King and Kemp (1996) FLC 92-673
M and M [1998] FamCA 42 (unreported, Baker, Kay and Chisholm JJ, 1 May 1998)
Mezzacappa and Mezzacappa (1987) FLC 91-853
Pierce and Pierce (1999) FLC 92-844
Re Swire; Mellor v Swire (1885) 30 Ch D 239
Rose and Rose [2003] FamCA 93

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AGLC
Agius & Agius [2010] FamCAFC 143
Case
[2010] FamCAFC 143
Decision Date

CaseChat Overview and Summary

The case of Agius & Agius involved an appeal from a property settlement order made by a Federal Magistrate. The appellant, the husband, contested the amounts to be included in the pool of assets, arguing that the Federal Magistrate had failed to include certain amounts retained by the wife and had miscalculated the liabilities related to properties retained by the husband. Additionally, the husband argued that the division of assets between the parties fell outside the reasonable range of discretion. The wife, the respondent, defended the Magistrate's decisions, asserting that the calculations and asset division were just and equitable.

The court addressed several key legal issues in the appeal. Firstly, the court examined whether the Federal Magistrate erred in fact and/or law by not including amounts retained by the wife in the pool of assets. The court noted that no error was established as the wife's failure to disclose the funds was not put to her in cross-examination, and she provided an explanation for their disbursement. The court also found no error in the Magistrate's assessment of the percentage division of the pool of assets, considering the wife's greater financial contribution and income.

The court further considered whether the Federal Magistrate made an error in calculating the husband's payment, finding no established error despite a potential slip or accidental omission by the Magistrate. The court observed that an application could be made under rule 16.05(2)(e) of the Federal Magistrates Court Rules 2001 to rectify the miscalculation. The appeal was dismissed, and the court allowed the husband to apply to the Federal Magistrates Court for a variation of the orders. Additionally, the court ordered that both parties could apply for costs incurred during the appeal, with specific timelines for submissions and replies.

In summary, the appeal was dismissed with the court affirming the Federal Magistrate's decisions on the asset pool and division, while allowing for a potential variation of the payment orders and providing a framework for the submission of costs applications.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

It be noted that the Husband may make an application to the Federal Magistrates Court seeking an order that paragraph 6 of the orders made on 7 November 2008 pursuant to s 79 of the Family Law Act 1975 (Cth) be varied by the deletion of the amount “$6,788” and the insertion in lieu thereof of the amount of $30,688.00.

3.

Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by the Appellant by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 28 days of the date hereof.

4.

Each party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party.

5.

Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Southern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further seven days.

6.

Each party endorse on the cover sheet of any submissions filed pursuant to orders 3, 4 and 5 the date upon which a copy of that submission was served on the other party.

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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