FAMILY COURT OF AUSTRALIA
| BENJAMIN & BARDOT | [2010] FamCAFC 252 |
| FAMILY LAW – APPEAL – From a Family Court Judge – Property FAMILY LAW – APPEAL – PROPERTY - ADD-BACKS – Whether the orders of the trial Judge were in error in failing properly to take into account a liability of the wife as an indirect contribution of the husband – Where the wife borrowed money to pay for rental accommodation expenses – Chorn & Hopkins (2004) FLC 93-204 considered – Reasonable living expenses – Whether the trial Judge erred in failing to properly take into account the contributions of the husband – Norman & Norman [2010] FamCAFC 66 considered FAMILY LAW – APPEAL – PROPERTY - SUPERANNUATION – Whether the trial Judge erred in his approach to s 75(2) of the Family Law Act 1975 (Cth) with respect to the husband’s superannuation interest – Coghlan & Coghlan (2005) FLC 93-220 considered HELD – per Faulks DCJ and Le Poer Trench J: Grounds 1 and 5: Add-Backs and Contributions – There is no requirement for a trial Judge to attribute a percentage assessment to each individual contribution in respect of each individual piece of property – A trial Judge is required to undertake an overall assessment of the respective contributions of the parties – the trial Judge did not err in his approach to the parties’ respective contributions Grounds 4 and 7: The trial Judge was not required to treat the husband’s superannuation interest separately from the property or financial resources of the parties by references to factors that may have been attributable to that interest – The trial Judge was required to have regard to evidence properly adduced about the nature of the superannuation interest – There was no evidence before the trial Judge which would have enabled an adjustment pursuant to s 75(2) of the Family Law Act 1975 (Cth) to have been made as urged by the husband HELD – per Boland J: Grounds 1 and 5: The husband sought to isolate a single factual matter to demonstrate appealable error – Norbis & Norbis (1986) 161 CLR 513 and Farmer & Bramley (2000) FLC 93-060 considered – Approach taken by the husband was an over zealous concentration of one aspect of contribution – The trial Judge did not err in his assessment of contributions Grounds 4 and 7: The trial Judge had no evidence about the form, nature and characteristics of the husband’s superannuation entitlement – Neither party sought a splitting order and respective superannuation entitlements were agreed – Orders of the trial Judge were to be realised from the proceeds of sale of the matrimonial home – No appealable error demonstrated in the circumstances – The trial Judge’s assessment of the parties’ respective contributions and factors pursuant to s 75(2) of the Family Law Act 1975 (Cth) was the proper exercise of a broad discretion Appeal dismissed with costs. |
| Family Law Act 1975 (Cth): s 75(2), s 79(1), s 79(2), s 79(4) Family Law Rules 2004:… |
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- Benjamin & Bardot [2010] FamCAFC 252
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- [2010] FamCAFC 252
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CaseChat Overview and Summary
The court found that there was no requirement for the trial Judge to attribute a percentage assessment to each individual contribution. Instead, the Judge was required to undertake an overall assessment of the respective contributions of the parties, which was done appropriately. The court concluded that the trial Judge did not err in his approach to the parties' respective contributions. Regarding the superannuation interest, the trial Judge was required to have regard to evidence properly adduced about the nature of the superannuation interest. However, there was no evidence before the trial Judge that would have enabled an adjustment pursuant to s 75(2) of the Family Law Act 1975 (Cth) to have been made as urged by the husband.
The appeal was dismissed with costs. The court held that the husband’s argument regarding the wife's debt to her step-father and its inclusion in the property pool was not a ground for appeal as it was not raised before the trial Judge. The court emphasised that issues not raised before the trial Judge cannot be pursued on appeal. The appeal EA 4 of 2009 was dismissed, and the appellant, Mr Benjamin, was ordered to pay the costs of and incidental to the appeal as agreed or in accordance with Chapter 19 of the Family Law Rules 2004.
Orders
Orders of the court
1.
The appeal EA 4 of 2009 is dismissed.
2.
The appellant, Mr Benjamin, pay the costs of and incidental to the appeal, as agreed and failing agreement in accordance with Chapter 19 of the Family Law Rules 2004.
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
In the written summary of argument, counsel for the husband submitted that the wife’s counsel at trial had conceded that the husband had made an indirect contribution to the wife post-separation if the liability were to be included in the property pool. Counsel referred us to the transcript of proceedings before his Honour of 5 November 2008 (at 199), where Mr Campton (counsel for the wife at trial) stated:MR CAMPTON: The next issue in contention in the balance sheet is the wife’s debt to [her step-father]. You heard [her step-father] give his evidence. He’s, in effect, been subsidising the wife by way of a loan; he was very clear in that he wanted it back. There doesn’t appear to be a submission to the effect that he’ll forgive the loan or otherwise will make it available to my client, those moneys. True it is, if it’s included as a debt of the parties post separation, that there is an indirect contribution made to it by the husband, because it’s in the pool. But your Honour also has to take into account the capacity of the husband, subsequent to separation, to make that contribution be reference to his income or his property. (Emphasis added) We note that Mr Kearney conceded, as did Mr Campton at trial before O’Ryan J, that there may be an indirect financial contribution made by the husband in relation to the loan for rent as included in the property pool, but that to take account of this contribution in isolation would be erroneous. The transcript of proceedings of 5 November 2008 (at 176) also reveals that counsel for the husband at trial made the following final submission to the trial Judge:MR SCHONELL: If you Honour is to bring to account as a liability, the debt to [her step-father], then it’s a contribution on the husband’s part as well. HIS HONOUR: And why, briefly?MR SCHONELL: Briefly why, because the debt reduces the pool of assets. The debt is directly referable to the payment of the wife’s rent, in an indirect way, he is in effect, contributing to her rent. HIS HONOUR: Yes. I understand that… Ms De Vere conceded that the amount the wife incurred in respect of indebtedness for the purpose of meeting the costs of rental accommodation was neither unreasonable or extravagant (Transcript of proceedings, 15 April 2010, 6 – 7). However, it was submitted that the wife could have alternatively serviced her rental accommodation costs from her income rather than borrowings. It could not, however, be demonstrated that the husband had made such a submission about the wife’s capacity to meet the rental accommodation costs from her own income before the trial Judge. Ms De Vere did submit that it was incumbent upon the trial Judge to consider all of the available evidence about the wife’s circumstances in determining whether the expenditure was reasonable or not. We are not persuaded that his Honour did not undertake this assessment. On this point, we agree with counsel for the wife that the husband now seeks to pursue issues not previously raised at trial, and it is now impermissible to raise them before us on appeal: see generally Water Board v Moustakas (1988) 180 CLR 491, 497 – 498 per Mason CJ, Wilson, Brennan and Dawson JJ.