ALAIM & ALAIM - [2017] FamCAFC 170

FAMILY COURT OF AUSTRALIA

ALAIM & ALAIM

[2017] FamCAFC 170

FAMILY LAW – APPEAL – whether the primary judge erred in the structure of the orders ultimately made – whether the primary judge failed to make orders to give effect to findings – whether the primary judge erred in making orders by reference to both fixed sums and percentages – where the final orders did not provide for the discharge or refinance of existing mortgages upon the transfer of property – where such error could be remedied pursuant to the “slip rule” or by consent pursuant to s 79A(1A) – whether the primary judge erred in assessing the husband’s contributions – whether the primary judge erred in assessing the wife’s future needs pursuant to s 75(2) – whether the result was manifestly unjust – where no material error demonstrated. FAMILY LAW – APPLICATION IN AN APPEAL –– leave granted to rely on amended grounds of appeal – application to adduce further evidence dismissed. FAMILY LAW – COSTS – where the appellant is ordered to pay the wife’s costs.
Family Law Act 1975 (Cth) ss 75(2), 79A Family Law Rules 2004 (Cth) r 17.02
Allesch v Maunz (2000) 203 CLR 172 Babett & Falconer (2015) FLC 98–067 Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 Carlisle Homes Pty Ltd v Barrett Property GroupPty Ltd [2009] FCAFC 31 CDJ v VAJ (1998) 197 CLR 172 Dickons & Dickons [2012] FamCAFC 154 Elford & Elford (2016) FLC 93–695 Fields & Smith (2015) FLC 93–638 Gilles & Irby (2016) FLC 93-687 Gronow v Gronow (1979) 144 CLR 513 Housing Commission (New South Wales) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Hunter v Transport Accident Commission (2005) 43 MVR 130 In the Marriage of Abdo and Abdo (1989) FLC 92–013; (1988) 12 FamLR 861 In the Marriage of Bennett and Bennett (1991) FLC 92–191; (1990) 14 FamLR 397 In the Marriage of Money and Money (1994) FLC 92–485; (1994) 17 FamLR 814 In the Marriage of Waters and Jurek (1995) FLC 92–635 ; (1995) 20 FamLR 190 Mallett v Mallet (1984) 156 CLR 605 Norbis v Norbis (1986) 161 CLR 513 Petruski & Balewa [2013] FamCAFC 15 Pierce v Pierce (1999) FLC 92–844; (1998) 24 FamLR 377 Sun Alliance Insurance Limited v Massoud [1989] VR 8 Vance & Vance (2011) FLC 93–461
APPELLANT:	Mr Alaim

RESPONDENT:

Ms Alaim

FILE NUMBER:

SYC

3205

2012

APPEAL NUMBER:

153

2014

DATE DELIVERED:

23 August 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Kent and Cronin JJ

HEARING DATE:

17 August 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

24 October 2014

LOWER COURT MNC:

[2014] FCCA 2424

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Maurice

SOLICITOR FOR THE APPELLANT:

Gregory Miller, Willis & Bowring

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Anne Day & Associates Lawyers

Orders Made on 17 August 2016

UPON the appeal coming before the…

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.

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Details

AGLC: ALAIM & ALAIM [2017] FamCAFC 170
Case: [2017] FamCAFC 170
Decision Date: 23 August 2017

CaseChat Overview and Summary

The appeal concerns a family law matter between Mr Alaim and his former wife, Ms Alaim. The primary judge's orders regarding property settlement, spousal maintenance, and child support were the subject of the appeal. The Court of Appeal considered several issues, including whether the primary judge erred in the structure of the orders, whether the primary judge failed to make orders to give effect to findings, whether the primary judge erred in making orders by reference to both fixed sums and percentages, and whether the primary judge erred in assessing the husband's contributions and the wife's future needs.

The Court of Appeal found no material error in the primary judge's assessment of the husband's contributions and the wife's future needs. The court held that the primary judge's orders did not provide for the discharge or refinance of existing mortgages upon the transfer of property; however, such error could be remedied pursuant to the "slip rule" or by consent pursuant to s 79A(1A) of the Family Law Act 1975 (Cth). The Court of Appeal concluded that the result was not manifestly unjust and dismissed the appeal. The appellant was ordered to pay the wife's costs.

In addition to the appeal, the appellant sought leave to rely on amended grounds of appeal and to adduce further evidence. The Court of Appeal granted leave to rely on amended grounds of appeal but dismissed the application to adduce further evidence. The court held that the application was an attempt to relitigate the matter and was not in the interests of justice. The appellant was ordered to pay the wife's costs for the application.

Orders