Amero & Croft

Case [2010] FamCAFC 118

FAMILY COURT OF AUSTRALIA

AMERO & CROFT [2010] FamCAFC 118

FAMILY LAW - APPEAL – PROPERTY – Whether the Federal Magistrate erred in failing to follow the “four step” approach set out in Hickey & Hickey & the Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 – Where such approach is not mandatory but a guideline – Where the Federal Magistrate adopted a broad brush approach to the parties’ assets and liabilities – Where the Federal Magistrate did not identify whether he intended to assess the parties’ contributions on a global or an asset by asset basis – Where the Federal Magistrate was inconsistent in his approach to the parties’ superannuation interests – Where no findings were made about the weight to be afforded to the parties’ initial contributions – Where the Federal Magistrate did not translate the general finding that the husband’s financial and non-financial contributions exceeded those of the wife to a quantitative assessment – Where the Federal Magistrate failed to express any conclusion in respect of relevant s 75(2) factors – Appealable error established.

FAMILY LAW - APPEAL – PROPERTY – Whether the trial Judge erred in making findings of fact not supported by the evidence – Appealable error not established.

FAMILY LAW - APPEAL – RE-DETERMINATION – Where there is no agreed pool of assets – Where there is a lack of appropriate findings – Matter remitted for re-hearing.

FAMILY LAW - COSTS – Where it is appropriate to grant costs certificates for the appeal and re-hearing.

Family Law Act 1975 (Cth) – s 75(2), s 79, s 117(1)
Federal Proceedings (Costs) Act 1981 (Cth)
Allesch v Maunz (2000) 203 CLR 172
Anastasio & Anastasio (1981) FLC 91-093
Brodie & Brodie (2009) 41 Fam LR 18
Bushby & Bushby (1988) FLC 91-919
Coghlan & Coghlan (2005) FLC 93-220
De Winter v De Winter (1979) 23 ALR 211
Hickey & Hickey & the Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Loude & Loude [2009] FamCAFC 52
Mallet v Mallet (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Quinn & Quinn (1979) FLC 90-677
APPELLANT: Mr Amero
RESPONDENT: Ms Croft
FILE NUMBER: PAC 1709 of 2008
APPEAL NUMBER: EA 97 of 2009

DATE DELIVERED:

 25 June 2010
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Boland J
HEARING DATE: 10 February 2010
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 31 July 2009
LOWER COURT MNC: [2009] FMCAfam 763

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Thomas
SOLICITOR FOR THE APPELLANT: King Cain Solicitors
COUNSEL FOR THE RESPONDENT: Ms Snelling
SOLICITOR FOR THE RESPONDENT: Higgins & Higgins Solicitors

Orders

  1. The appeal be allowed.

  2. The orders made by Federal Magistrate Lindsay on 31 July 2009 be set aside.

  3. The parties’ competing property applications be listed for rehearing before a Federal Magistrate other than Lindsay FM.

  4. The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs)…

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Details
AGLC
Amero & Croft [2010] FamCAFC 118
Case
[2010] FamCAFC 118
Decision Date

CaseChat Overview and Summary

The appeal before the court was between Amero (the husband) and Croft (the wife). The dispute arose from a decision of the Federal Magistrate regarding property settlement after the parties' divorce. The Federal Circuit Court was asked to review the Magistrate's decision. The central legal issue was whether the Federal Magistrate erred in his assessment of the property settlement by not adhering to a structured approach, particularly the "four step" approach outlined in a previous case. The court considered whether the Magistrate's failure to follow this guideline constituted an error and, if so, whether it was sufficient to warrant a re-hearing of the case.

The court found that while the "four step" approach was not mandatory, the Magistrate's broad brush assessment of the parties' assets and liabilities without clear identification of the basis for his assessment was problematic. The Magistrate did not specify whether he assessed the contributions on a global or asset by asset basis, nor did he make any findings about the weight of the initial contributions. The court also noted inconsistencies in the handling of superannuation interests and the absence of a quantitative assessment translating the general finding that the husband's contributions exceeded those of the wife into specific figures. Additionally, the Magistrate failed to make any findings on relevant statutory factors. The court concluded that these shortcomings amounted to appealable error.

Given the identified errors, the appeal was allowed, and the orders made by the Federal Magistrate were set aside. The matter was remitted for re-hearing before a different Federal Magistrate. The court also granted costs certificates to both parties for the appeal and the anticipated re-hearing, recognising the financial burden of the legal proceedings on both sides.

Orders

Orders of the court

1.

The appeal be allowed.

2.

The orders made by Federal Magistrate Lindsay on 31 July 2009 be set aside.

3.

The parties’ competing property applications be listed for rehearing before a Federal Magistrate other than Lindsay FM.

4.

The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

5.

The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.

6.

The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.

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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