Blandford & Esmore

Case [2022] FedCFamC1A 67

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Blandford & Esmore [2022] FedCFamC1A 67

Appeal from: Esmore & Blandford [2021] FedCFamC1F 195
Appeal number(s): NAA 69 of 2021
File number(s): ADC 1455 of 2016
Judgment of: ALDRIDGE, HARPER & RIETHMULLER JJ
Date of judgment: 31 May 2022
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Property and maintenance of parties – Alteration of property interests – Assessing contributions of the parties – Matters for court’s consideration – Appeal against percentage outcome reached by the primary judge – Whether the primary judge provided inadequate reasons as to the percentage outcome reached – Whether the outcome determined by the primary judge was unreasonable or plainly unjust – Appeal dismissed.
Legislation: Family Law Act 1975 (Cth) ss 90SF(3)(r), 90SM(4)(a)–(c)
Cases cited:

Antmann and Antmann (1980) FLC 90-908; [1980] FamCA 64

Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148

Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303

Bolger & Headon (2014) FLC 93-575; [2014] FamCAFC 27

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Cobb & Simons [2011] FamCAFC 78

Coghlan and Coghlan (2005) FLC 93-220; [2005] FamCA 429

Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Field & Basson [2013] FamCAFC 32

Gorman & Huffman [2016] FamCAFC 174

Horrigan & Horrigan [2020] FamCAFC 25

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27

Layton & Layton [2014] FamCAFC 126

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Roverati & Roverati (2021) FLC 94-027; [2021] FamCAFC 89

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 45
Date of hearing: 4 May 2022
Place: Adelaide (via video link), delivered in Melbourne
Counsel for the Appellant: Mr Tredrea
Solicitor for the Appellant: Carmen Wood & Associates
Counsel for the Respondent: Mr Anderson
Solicitor for the Respondent: Adelaide Family Law

ORDERS

NAA 69 of 2021
ADC 1455 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS BLANDFORD

Appellant
AND:

MR ESMORE

Respondent

ORDER MADE BY:

ALDRIDGE, HARPER & RIETHMULLER JJ

DATE OF ORDER:

31 MAY 2022

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs fixed in the sum of $2,000.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

REASONS…

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AGLC
Blandford & Esmore [2022] FedCFamC1A 67
Case
[2022] FedCFamC1A 67
Decision Date

CaseChat Overview and Summary

The appellant, Ms Blandford, appeals against the property settlement orders made by the primary judge in a family law matter, which divided the parties' property and superannuation at a ratio of 70 per cent to Ms Blandford and 30 per cent to Mr Esmore. The appeal raises two issues: whether the primary judge provided adequate reasons for the percentage outcome reached and whether the outcome was unreasonable or plainly unjust. Ms Blandford also argued that the primary judge erred in assessing the contributions of the parties, but this ground was not pursued in the appeal.

The primary judge found that both parties made significant contributions to the relationship, but the appellant's contributions were over double those of the respondent. The primary judge assessed the contributions of the parties and considered various factors, such as the length of the relationship, the financial and non-financial contributions of the parties, and the impact of the appellant's mental health issues on the relationship. The primary judge concluded that the outcome reached was fair and reasonable, taking into account all of the matters identified and discussed.

The court considered the arguments of counsel for the appellant and found that the primary judge had provided adequate reasons for the percentage outcome reached. The court was not persuaded that the outcome was unreasonable or plainly unjust, given the significant differences between the contributions of the parties. The court dismissed the appeal and ordered that the appellant pay the respondent's costs fixed in the sum of $2,000.

Orders

Orders of the court

NAA 69 of 2021

ADC 1455 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BLANDFORD

Appellant

AND:

MR ESMORE

Respondent

ORDER MADE BY:

ALDRIDGE, HARPER & RIETHMULLER JJ

DATE OF ORDER:

31 MAY 2022

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs fixed in the sum of $2,000.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

On 15 November 2021, property settlement orders were made dividing the property and superannuation of the parties 70 per cent to the wife, Ms Blandford (“the appellant”), and 30 per cent to the husband, Mr Esmore (“the respondent”). The appellant appeals on two grounds: first, that the primary judge failed to give adequate reasons, and secondly, that the primary judge erred in assessing the contributions of the parties. The third ground set out in the Notice of Appeal filed 26 November 2021, was not pursued by the appellant.BACKGROUND The parties cohabited for over 18 years from early 1997 (when the appellant was 19 years old and the respondent 24 years old) until January 2016. During their relationship, they had four children, the eldest two of which are now adults. The youngest two children (twins) are now 15 years of age, live with the appellant, and spend time with the respondent each alternate week for a period of five nights and on special occasions in accordance with their wishes. At the time of the trial, the parties had assets of $284,502.83 (nearly $256,000 of which was the proceeds of sale from the home where they had been living together). The parties also had superannuation of $340,523.78 (the appellant $247,613.78 and the respondent $92,910). The total combined value of their assets and superannuation was around $625,000. The appellant brought $118,000 to the relationship (from a personal injuries compensation payment), which was used in 2000 to purchase the home where the parties lived and raised their children. The home was purchased by the appellant’s father (“the grandfather”), partly with the funds from the appellant’s compensation payment, partly with funds of the grandfather, and partly with funds borrowed by the grandfather. The parties made no repayments to the grandfather, nor did they meet the outgoings with respect to the property. When the home was sold, the parties reached a settlement with the grandfather, which the primary judge found “recompensed” the grandfather “to his satisfaction” with respect to his assistance (at [260]). Both parties were homemakers and earned income during the relationship. The primary judge found that the parties earned modest incomes and lived “fortnight to fortnight” (at [72]), although at the time of trial, the appellant had a greater earning capacity than the respondent. The parties confronted many difficulties during their relationship. The appellant suffered mental health issues, including spending four weeks in CC Hospital in 2005 following a psychotic episode when she was diagnosed with schizophrenia, and towards the end of the relationship, she was diagnosed with borderline personality disorder. During the relationship, the parties spent considerable funds on alcohol despite their straightened financial circumstances. Their relationship involved arguments and abuse. The primary judge concluded that:257.There is little doubt that both parties made it difficult for the other of them to function well individually and as parents in an atmosphere of:• regular heavy drinking;• regular heated arguments, and on occasions verbal abuse and violent arguments; and• serious levels of dysfunction overall,impacted, on occasion, by the [appellant’s] serious mental health challenges.258. There is little doubt that on many occasions the [appellant] felt overwhelmed by her parenting responsibilities in particular, coupled with what I am satisfied was less than optimal support by the [respondent] in that regard. Likewise the [appellant’s] mental health issues would have, from my observations of him in the witness box, stretched the coping capacities of the [respondent]. Unfortunately both parties used alcohol to excess which would have exacerbated the situation overall.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

We have considered all of the matters identified and discussed by the primary judge and the detailed arguments of counsel for the appellant on the appeal. The appellant received 70 per cent of the property and superannuation of the parties, compared to 30 per cent received by the respondent. The primary judge assessed the appellant’s contributions at well over double those of the respondent. The assessment of contributions reflected the significant differences between the contributions of the parties. We are not persuaded that the outcome reached by the primary judge was either unreasonable or plainly unjust.CONCLUSION As the appellant has not succeeded on either of the grounds argued, the appeal must be dismissed. It was agreed at the hearing of the appeal that if the appellant was unsuccessful, the respondent should have his costs fixed at $2,000. We therefore order that the appeal be dismissed, and that the appellant pay the respondent’s costs fixed in the sum of $2,000.

Ratio Decidendi

Legal Principle Established

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