Barker & Barker - [2007] FamCA 153

FAMILY COURT OF AUSTRALIA

BARKER & BARKER

[2007] FamCA 153

APPEAL – PROPERTY

Per Finn J:

Whether trial Judge’s reasons for judgment were inadequate – Trial Judge did not express final conclusion as to content and value of parties’ property – No explanation given as to why entirety of property not identified and valued – Not possible to ascertain whether orders were just and equitable – Findings as to contribution assessment and s 75(2) adjustment also inadequate – Appeal allowed – Matter to be reheard.

Per Warnick and Boland JJ:

Whether trial Judge’s reasons for judgment were inadequate – Whether trial Judge’s reasons disclose that her Honour followed preferred approach to determination of proceedings under s 79 – Trial Judge did not address alleged interest of husband in a particular bank account – Trial Judge did not deal with asserted advances made by husband to new partner – Trial Judge did not deal with parties’ paid legal costs – Trial Judge’s reasons do not disclose she was unable to identity with any precision the pool of assets – Unable to discern consideration trial Judge gave to all asserted assets and liabilities of parties – Merit in this ground.

Whether reasons sufficient to support overall result – Unable to discern from trial Judge’s reasons weight afforded to parties’ contributions – Unclear as result of trial Judge’s lack of identification of pool of property approach to assessment of contribution – Adequacy of reasons ground established.

Whether trial Judge erred in failing to make s 75(2) adjustment in favour of wife – Number of relevant factors trial Judge required to consider under s 75(2) – Trial Judge appears not to have given any appropriate weight to these factors with consequent adjustment in wife’s favour – Appealable error – Ground established.

Appeal allowed – matter to be remitted for retrial.

COSTS

Per Finn J:

No order for costs – Not appropriate case for grant of certificates under Federal Proceedings (Costs) Act 1981 (Cth).

Per Warnick and Boland JJ:

Trial Judge made findings each party failed to make full, frank, complete and timely disclosure – Cognisant of trial Judge’s comments about lack of appropriate preparation of matter and difficulties faced by trial Judge as a result – Each party to pay own costs of appeal – Not appropriate to grant certificates under Federal Proceedings (Costs) Act 1981 (Cth).

Family Law Act 1975 (Cth) s 75(2), s 79
Federal Proceedings (Costs) Act 1981, ss 6, 8 and 9

Bennet and Bennet (1991) FLC 92-191
Chang v Su (2002) FLC 93-117
Chorn and Hopkins (2004) FLC 93-204
Clauson and Clauson (1995) FLC 92-595
Davut and Raif (1994) FLC 92-503
Ferraro and Ferraro (1993) FLC 92-335
Gronow v Gronow(1979) 144 CLR 513
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
House v The King (1936) 55 CLR 499
Lee Steere and Lee Steere (1985) FLC 91-626
Norbis and Norbis (1986) 161 CLR 513
Pastrikos and Pastrikos (1980) FLC 90-897
Prpic and…

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: Barker & Barker [2007] FamCA 153
Case: [2007] FamCA 153
Decision Date: 8 March 2007

CaseChat Overview and Summary

The appeal concerned the adequacy of a trial judge's reasons for judgment in property settlement proceedings between Barker and Barker. The primary dispute revolved around the division of the parties' property.

The Full Court was required to determine whether the trial judge's reasons for judgment were inadequate, specifically concerning the identification and valuation of the parties' property pool, the assessment of contributions, and the application of section 75(2) of the Family Law Act 1975 (Cth). The court also considered whether the trial judge had adequately addressed all asserted assets and liabilities, including a particular bank account, advances made by the husband to a new partner, and the parties' paid legal costs.

The Full Court, comprising Finn, Warnick and Boland JJ, found that the trial judge's reasons were inadequate. They held that it was not possible to ascertain whether the orders made were just and equitable because the trial judge had not expressed a final conclusion as to the content and value of the parties' property, nor provided an explanation for why the entirety of the property was not identified and valued. Furthermore, the reasons did not disclose the preferred approach to the determination of proceedings under section 79, the weight afforded to contributions, or the consideration given to relevant factors under section 75(2) for an adjustment in favour of the wife.

Consequently, the appeal was allowed, and the matter was remitted for a rehearing. No order for costs was made, and certificates under the Federal Proceedings (Costs) Act 1981 (Cth) were not granted, with each party ordered to pay their own costs of the appeal.

Orders