Bircher & Bircher and Anor

[2016] FamCAFC 123

FAMILY COURT OF AUSTRALIA

BIRCHER & BIRCHER AND ANOR [2016] FamCAFC 123

FAMILY LAW – APPEAL – PROPERTY – Where the trial judge made findings as to the existence of two loans between the husband and the second respondent – Where the trial judge failed to confront and make findings by reference to the evidence as to the provenance of the loan agreements, the terms of the loans, and if they existed, who should bear liability for those loans – Where it was not open for the trial judge to ignore the plainly relevant evidence of the wife in relation to the inconsistencies between the evidence of the husband and the evidence of the second respondent and which called into question the authenticity of the alleged loans and the mortgages purportedly securing them without giving reasons for doing so – Where the absence of findings by the trial judge in respect of the wife’s case led to a failure to provide adequate reasons – Where there was no error in the trial judge’s treatment of spousal maintenance – Where there was a lack of findings in relation to the trial judge’s assessment of contributions during the marriage and post-separation to sustain her ultimate conclusion that the parties’ contributions were ostensibly equal – Where the trial judge plainly erred in making a finding of negative contribution against the appellant – Where there was no error in the trial judge’s treatment of the parties’ superannuation entitlements – Where the trial judge was entitled to exclude a motor vehicle from the pool of assets as there was insufficient evidence to allow it to be included – Where the appellant’s counsel did not raise the issue of bias at trial and a reading of the transcript did not reveal bias by the trial judge – Appeal allowed.

FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – Where the parties sought that the discretion be re-exercised in the event the appeal was successful – Where there was an absence of findings by the trial judge on the evidence in relation to the primary issues – Where it is likely that further evidence would be controversial and would require cross-examination – Where the proceedings should be remitted to the Federal Circuit Court of Australia for rehearing.

FAMILY LAW – APPEAL – COSTS – Where all parties were self-represented but indicated they had incurred some costs – Where the respondents were wholly unsuccessful – Costs awarded to the appellant payable by the respondents jointly and severally.

Family Law Act 1975 (Cth) – ss 75(2), 79

Af Petersens and Af Petersens (1981) FLC 91-095
Antmann and Antmann (1980) FLC 90-908
Biltoft and Biltoft (1995) FLC 92-614
Gronow v Gronow (1979) 144 CLR 513
Kowaliw and Kowaliw (1981) FLC 91-092
Mallet v Mallet (1984) 156 CLR 605
Vakauta v Kelly (1989) 167 CLR 568
Vass v Vass (2015) 53 Fam LR 373
Warren v Coombes (1979) 142 CLR 531

APPELLANT: Ms Bircher

FIRST RESPONDENT: Mr Bircher

SECOND RESPONDENT: