Blake & Blake

Case [2007] FamCA 10

FAMILY COURT OF AUSTRALIA

BLAKE & BLAKE [2006] FamCA 10

FAMILY LAW – APPEAL – FROM DECISION OF A FAMILY COURT JUDGE – PROPERTY SETTLEMENT – Contributions – Long marriage – Section 79(4) factors – Whether an offer to purchase a property by the sitting tenant affects or provides a valuation – Whether the trial Judge erred in treating as a present liability the CGT that would be payable on the sale of real estate – Whether decision of the trial Judge was just and equitable – Appeal allowed.

FAMILY LAW – CROSS-APPEAL – PROPERTY SETTLEMENT – Assessment of contributions made by the husband post-separation – Section 72(2) factors – Assumption of significant liabilities by the husband - Cross-appeal dismissed.

FAMILY LAW – APPEAL AND CROSS-APPEAL - COSTS – By way of written submissions.

Family Law Act1975 (Cth)

AJW & MJW (2002) FLC 93-103
IRBH & HRBH (2006) FamCA 379
Cordelia Holdings Pty Ltd v Newky Holdings (2004) FCAFC 48
Federal Commissioner of Taxation v St Helen’s Farm (ACT) Pty Ltd (1980) 146 CLR 336
G & G (2001) FamCA 1453
Goold v Commonwealth of Australia (1993) 114 ALR 135
G and G [2004] FamCA 1179
Henderson & Amadio [1995] FCA 1029
JEL v DDF (2001) FLC 93-095
McDonald v Deputy Federal Commissioner of Land Tax (NSW) (1915) 20 CLR 231
Ramsay v Ramsay (1997) FLC 92-742

Rosati & Rosati (1998) FLC 92-804
Smith & Smith (1991) FLC 92-261

T & T (2003) FamCA 1066

Weatherall and Weatherall and Others (2006) FLC 93-261
APPELLANT: BLAKE
RESPONDENT: BLAKE
FILE NUMBER: BRF 4991 of 2000
APPEAL NUMBER: NA 65 of 2005
DATE DELIVERED: 19 January 2007
PLACE DELIVERED: Brisbane
JUDGMENT OF: Finn, Coleman & May JJ
HEARING DATE: 27 February 2006
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 5 August 2005
LOWER COURT MNC: [2005] FamCA 719

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Kirk of Senior Counsel
SOLICITOR FOR THE APPELLANT: Neumann & Turnour Lawyers
COUNSEL FOR THE RESPONDENT: Mr Page of Senior Counsel
SOLICITOR FOR THE RESPONDENT: Butler McDermott & Egan Solicitors

Orders

  1. That the appeal be allowed.

  2. That in substitution for Order 1 of the Orders made on 5 August 2005 the husband pay to the wife the balance of $491 185.15 not yet paid within three (3) months together with interest on any amount unpaid after three (3) months of today.

  3. That the cross appeal be dismissed.

  4. That each party be at liberty to file and serve any written submissions in relation to the appeal against the costs of the trial, costs of the appeal and the costs of the cross appeal within 28 days of the date hereof.

  5. That each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.

  6. That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

FAMILY COURT OF AUSTRALIA…

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Blake & Blake [2007] FamCA 10
Case
[2007] FamCA 10
Decision Date

CaseChat Overview and Summary

This case involved an appeal and cross-appeal concerning property settlement orders made by a Family Court judge. The primary appeal was brought by Blake & Blake, while a cross-appeal was filed by the husband. The dispute centred on the division of assets following a long marriage, with specific issues arising regarding the valuation of a property, the treatment of potential capital gains tax, and the assessment of post-separation contributions.

The court was required to determine whether the trial judge erred in their assessment of the parties' contributions, particularly in light of the length of the marriage and the factors outlined in section 79(4) of the *Family Law Act 1975* (Cth). Further, the appeal raised questions about whether an offer to purchase a property by a sitting tenant should influence its valuation and whether the trial judge had incorrectly treated a prospective capital gains tax liability as a present one. The cross-appeal focused on the husband's post-separation contributions and the assumption of significant liabilities, as contemplated by section 72(2) of the Act.

The Full Court of the Family Court of Australia, comprising Finn, Coleman, and May JJ, allowed the appeal. The Court reiterated the well-established principles governing appeals from discretionary judgments, emphasising the broad ambit within which reasonable disagreement is possible and the caution appellate courts must exercise. The Court found that the trial judge had erred in treating the capital gains tax as a present liability, which had the effect of undervaluing the asset. This error, in the context of the overall assessment, led the Full Court to conclude that the original decision was not just and equitable. The cross-appeal was dismissed, with the Court finding no error in the trial judge's assessment of the husband's post-separation contributions and liabilities.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In G and G [2004] FamCA 1179, Warnick J discussed a number of cases with regard to the breadth of the trial Judge’s discretion in circumstances such as the instant case as follows:“82. The statements of principle applicable to appeals from discretionary judgments are familiar. Revisiting those statements, one is struck by the regularity with which the width of discretion of the trial court and the caution that the appeal court should exercise, are stressed. This is demonstrated by adding emphasis within some of the often quoted statements of principle. In Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All,ER 343 at 345, Asquith LJ stated the rationale of an appellate court’s approach:“…We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.” (emphasis added)83. In Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178 Brennan J stated:“The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.” (emphasis added)84. Kitto J in Australian Coal & Shale Employees Federation v. The Commonwealth (1953) 94 CLR 621 at 627 said:“…there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.”85. In Gronow & Gronow (1979) 144 CLR 513 at 520, Stephen J said:“…an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.”86. Finally, in CDJ & VAJ (1998) 197 CLR 172 at 231, touching upon the features applicable to the exercise of discretion in the Family Court, Kirby J said:“1.…The reference to ‘plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.2.Such reasons for appellate restraint…have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficulty and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions.” (emphasis added)87. While I think one must be careful not to lose the ordinary sense of a passage by focussing excessively on one or two words, I note that the passages refer to the ambit being wide enough, at a minimum, to contain reasonable disagreement. In other words, something more even than actual disagreement is required before interference is justified. Attention is then drawn to the strength of disagreement, to determine whether the appellate court may interfere or not.88. It seems reasonable to imagine that, along the continuum of levels of disagreement, before a conclusion is reached that the result below was plainly wrong or manifestly excessive, the appellate Judge may pass through a stage of uncomfortable uncertainty about the result below, of which uncertainty that result is entitled to the “benefit of the doubt”.89. Reinforcing the proper reluctance of an appellate court to interfere, is the observation that a trial Judge, in exercising a discretion, may have an advantage over the appellate court in reviewing that exercise. We are, of course, familiar with discussion of the advantage of a trial Judge, particularly in relation to conclusions about the credibility of witnesses. But there are other reasons for such advantages beyond the opportunity to observe witnesses.90. In Fox v Percy [2003] HCA 22, the High Court considered a decision of the Court of Appeal of the Supreme Court of New South Wales, reversing a judgment of the District Court of that State, following a review by the Court of Appeal of findings of fact based on the trial Judge’s assessment of the credibility of witnesses, but which findings were inconsistent with other incontrovertibly established facts.91. In discussing the powers and functions of the Court of Appeal, Gleeson CJ, Gummow and Kirby JJ said: [para 23]“[the appellate court] …must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.” (emphasis added)”

Ratio Decidendi

Legal Principle Established

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