Bevis & Bevis - [2014] FamCAFC 147

FAMILY COURT OF AUSTRALIA

BEVIS & BEVIS

[2014] FamCAFC 147

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Contributions – Where the assets were of negligible value, apart from a property acquired by the husband from an inheritance after separation – Where the parties had significant superannuation entitlements, mainly held by the husband – Whether the trial judge erred in assessing post-separation contributions by giving insufficient weight to the husband’s inheritance and the large increase in value of his superannuation – Whether the outcome was outside the range of discretion – Appeal dismissed – No order as to costs.

Family Law Act 1975 (Cth), s 75(2), s 79

AMS v AIF (1999) 199 CLR 160
Bonnici& Bonnici (1992) FLC 92-272
Best & Best (1993) FLC 92-418
Coghlan & Coghlan (2005) FLC 93-220
Polonius & York [2010] FamCAFC 228

APPELLANT:

Mr Bevis

RESPONDENT:

Ms Bevis

FILE NUMBER:

NCC

1449

2011

APPEAL NUMBER:

141

2012

DATE DELIVERED:

14 August 2014

PLACE DELIVERED:

Perth

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Strickland & Ryan JJ

HEARING DATE:

17 March 2014

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

17 September 2012

LOWER COURT MNC:

[2012] FMCAfam 986

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Rugendyke

SOLICITOR FOR THE APPELLANT:

Catherine Henry Partners

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

In person

Orders

The appeal be dismissed.
There be no orders as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bevis & Bevis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 141 of 2012
File Number: NCC 1449 of 2011

Mr Bevis

Appellant

And

Ms Bevis

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Bevis (“the husband”) has appealed property settlement orders made by Federal Magistrate Terry (as her Honour then was) on 17 September 2012.
The appeal is opposed by Ms Bevis (“the wife”).
The husband claims he received inadequate credit for contributions made after the parties’ separation. The contributions involved were an inheritance and payments to a superannuation fund, which greatly increased in value.

Background

These background facts are drawn from the judgment of the Federal Magistrate and may now be considered uncontroversial.
The husband and wife commenced cohabitation in about 1980, were married in 1983 and separated in December 2007.
There are four surviving children of the marriage who were aged 26, 24, 20 and 15 years at the time of trial. The parties’ firstborn child died in infancy.
The husband was in full-time employment throughout the relationship and accumulated superannuation in a defined benefit fund.
For about the first 20 years of the relationship, the wife had casual or part-time employment, interspersed with caring for the children. In 2001, she commenced studies to become a health professional, which she completed in 2007.
In the last few years of the marriage,…

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 Bevis & Bevis

Details

AGLC: Bevis & Bevis [2014] FamCAFC 147
Case: [2014] FamCAFC 147
Decision Date

CaseChat Overview and Summary

Mr Bevis appealed against a property settlement made by the Federal Magistrate in the Federal Magistrates Court. The wife opposed the appeal. The husband argued that he had been inadequately credited for contributions made after separation, specifically an inheritance and payments to a superannuation fund which increased greatly in value. The wife contended that the appeal should be dismissed. The main legal issues were whether the trial judge erred in assessing post-separation contributions by giving insufficient weight to the husband's inheritance and large increase in the value of his superannuation, and whether the outcome was outside the range of the trial judge's discretion. The Full Court found that the husband had not been adequately credited for his post-separation contributions, but this was a minor error which did not warrant allowing the appeal. The Full Court held that the outcome was within the range of the trial judge's discretion and dismissed the appeal with no order as to costs.

Orders