Alberti & Alberti (No. 2) - [2017] FamCAFC 245

FAMILY COURT OF AUSTRALIA

ALBERTI & ALBERTI (NO. 2)

[2017] FamCAFC 245

FAMILY LAW – APPEAL – where the respondent concedes that the orders the subject of appeal are unenforceable – where the appeal is allowed.

Family Law Act 1975 (Cth)

House v The King (1936) 55 CLR 499

APPELLANT:

Mr Alberti

RESPONDENT:

Ms Alberti

FILE NUMBER:

BRC

1422

2016

APPEAL NUMBER:

2017

DATE DELIVERED:

23 November 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy, Kent & Carew JJ

HEARING DATE:

17 November 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

15 February 2017

LOWER COURT MNC:

[2017] FCCA 953

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr Brown, Browns The Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr George

SOLICITOR FOR THE RESPONDENT:

Geldard Sherrington Lawyers

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 Alberti & Alberti (No. 2) 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 9 of 2017
File Number: BRC 1422 of 2016

Mr Alberti

Appellant

And

Ms Alberti

Respondent

REASONS FOR JUDGMENT

On 11 May 2017 Judge Coates made orders for property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) between Ms Alberti (“the wife”) and Mr Alberti (“the husband”).
Those orders purported to give effect to reasons for judgment the primary judge had delivered orally on 15 February 2017 following the trial of the parties’ competing applications for property adjustment orders which took place on 13 February 2017.
On 17 November 2017 at the outset of the hearing of the husband’s appeal from those orders we afforded counsel for the wife, who to that point had opposed the appeal, the opportunity to address an apparent fundamental error in the orders. That error is discussed further below but, in summary, by the terms of the orders it was not possible to identify the amount of an ordered cash payment by the husband to the wife, rendering the order unenforceable (Order 2). Counsel for the wife properly acknowledged that the identified error was indeed an error rendering the order unenforceable, and that the error was incapable of correction by operation of the slip rule.
Counsel for the wife consequently acknowledged, correctly in our view, that the appeal must succeed and the subject orders be set aside.
Counsel for the wife sought to have the hearing of the appeal stood down so that he might seek formal…

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 Alberti & Alberti (No. 2)

Details

AGLC: Alberti & Alberti (No. 2) [2017] FamCAFC 245
Case: [2017] FamCAFC 245
Decision Date: 23 November 2017

CaseChat Overview and Summary

In the Family Court of Australia, Mr Alberti appealed against orders for property adjustment made by the Federal Circuit Court of Australia in proceedings between him and Ms Alberti. The appeal was heard and allowed by Murphy, Kent and Carew JJ. The primary judge's orders were unenforceable due to an error in calculating the amount of a cash payment to be made by the husband to the wife. This error, and other deficiencies in the findings, rendered the orders incapable of correction and the appeal had to succeed. The appeal was allowed, the orders were set aside and the proceedings were remitted for rehearing. The remaining issue was the costs of the appeal. The wife had opposed the appeal but ultimately joined in an order that the appeal be allowed, the orders be set aside and the proceedings remitted. She also opposed the husband's application for an order for costs. The Full Court made an order that the wife pay the husband's costs of the appeal proceedings, fixed in the sum of $12,000.

The primary judge made several errors in his orders. First, Order 2, which required the husband to pay a sum sufficient to give effect to the overall division of 80 per cent to the wife and 20 per cent to the husband, was unenforceable because it was not possible to calculate the payment sum. There was no "schedule attached to the reasons for judgment" as stated in Order 2 and many of the asset items listed in Orders 3 and 4 did not appear in that "schedule", either by identification or by value. Second, the primary judge failed to determine issues which were joined between the parties and required resolution for the discretion to make just and equitable orders under s 79 of the Family Law Act 1975 (Cth) to be legitimately exercised. These included the husband's contention that a total sum of $22,263 should be notionally added back and credited against the wife's entitlement, as being retained by her, for the purpose of overall adjustment and the wife's contention that nothing ought be notionally added back.

The Full Court also considered other apparent errors made by the primary judge. The primary judge had relied upon affidavits not in evidence to make findings adverse to the husband. The primary judge also erred in not making orders for sale of the Suburb R property and in not taking into account the husband's inheritance of $96,000. The Full Court concluded that there were ample reasons for the appeal to be allowed and for the subject orders to be set aside. The wife had been unsuccessful in the appeal proceedings and it ought to have been obvious to her legal representatives that the subject orders could not sustain review on appeal. There were justifying circumstances within the meaning of s 117(2) of the Family Law Act 1975 (Cth) for a costs order in favour of the husband to be made in respect of the appeal proceedings.

Orders