Bonacci & Bonacci

Case [2012] FamCAFC 15

FAMILY COURT OF AUSTRALIA

BONACCI & BONACCI [2012] FamCAFC 15

FAMILY LAW – APPEAL – PROPERTY – where it is claimed that the trial judge gave too little weight to the wife’s “contributions” to her two children of her previous marriage – where it is claimed that the trial judge erred in his assessment of the s 75(2) factors – where the trial judge erred in double counting the amount of $52,000 – where the error is not de minimis – appeal allowed in part.

FAMILY LAW – APPEAL – COSTS – where the wife seeks a costs order in the event that the appeal succeeds on Ground 5, or in the event that there is no order for costs, that a costs certificate under the Federal Proceeedings (Costs) Act 1981 (Cth) issue – where the husband opposes a costs order given that the error of the trial judge was conceded in the written submissions – where neither a costs order nor a costs certificate are warranted – no order as to costs.
Family Law Act 1975 (Cth) s 75(2)(o)
Federal Proceedings (Costs) Act 1981 (Cth)
De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513
Norbis v Norbis (1986) 161 CLR 513
Norman & Norman [2010] FamCAFC 66
Robb and Robb (1995) FLC 92-555
Teal & Teal [2010] FamCAFC 120
APPELLANT: Ms Bonacci
RESPONDENT: Mr Bonacci
FILE NUMBER: NCC 487 of 2008
APPEAL NUMBER: EA 63 of 2010
DATE DELIVERED: 9 February 2012
PLACE DELIVERED: Adelaide
PLACE HEARD: Sydney
JUDGMENT OF: Finn, Strickland and Cleary JJ
HEARING DATE: 14 July 2011
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 30 April 2010
LOWER COURT MNC: [2010] FamCA 331

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Friedlander
SOLICITOR FOR THE APPELLANT: Aubrey Brown Partners
COUNSEL FOR THE RESPONDENT: Ms Gillies
SOLICITOR FOR THE RESPONDENT: M.G. O’Callaghan & Associates

Orders

  1. The appeal be allowed in part.

  2. Order 1 of the orders made by Rose J on 30 April 2010 be varied by deleting the sum of $90,165 and substituting the sum of $123,955.

  3. The appeal otherwise be dismissed.

  4. There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bonacci & Bonacci 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 63 of 2010
File Number: NCC 487 of 2008

Ms Bonacci

Appellant

And

Mr Bonacci

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This is an appeal by the wife against property settlement orders made by Rose J on 30 April 2010.  Save and except in respect of one discrete aspect, the husband opposes the appeal.  We will elaborate on this when addressing Ground 5 of the Notice of Appeal.

  2. The orders appealed against provide, inter alia, that the husband pay to the wife the sum of $90,165 and that each party…

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AGLC
Bonacci & Bonacci [2012] FamCAFC 15
Case
[2012] FamCAFC 15
Decision Date

CaseChat Overview and Summary

The case of Bonacci & Bonacci involved an appeal against a decision regarding the distribution of property following the dissolution of a marriage. The wife appealed against the orders made by Rose J in the Family Court of Australia, asserting that the trial judge had inadequately considered her contributions to her two children from a previous marriage. Additionally, the wife argued that the trial judge had miscalculated the application of certain statutory factors under section 75(2) of the Family Law Act 1975 (Cth) and had made an error by double counting a $52,000 amount, which was not trivial. The husband conceded the error but opposed any costs order on the basis that the mistake was acknowledged in the written submissions.

The court had to determine whether the trial judge appropriately assessed the wife's contributions and the application of the s 75(2) factors. It also needed to decide if the trial judge's double counting of the $52,000 was a material error that warranted altering the final order. The court considered the nature and impact of the errors on the overall property settlement and whether they were significant enough to affect the fairness of the outcome. The court concluded that while the errors were not negligible, they did not fundamentally undermine the trial judge's assessment of the overall property distribution.

The appeal was allowed in part, and the sum awarded to the wife was adjusted from $90,165 to $123,955. The court held that the error in double counting did not warrant a complete rehearing but necessitated a correction in the financial orders. The appeal was otherwise dismissed, and the court found that no costs order or certificate was warranted, given the husband's concession of the error in the written submissions. The final orders included a partial allowance of the appeal with a specific variation to the financial settlement and a dismissal of the appeal on other grounds, with no order for costs.

Orders

Orders of the court

1.

The appeal be allowed in part.

2.

Order 1 of the orders made by Rose J on 30 April 2010 be varied by deleting the sum of $90,165 and substituting the sum of $123,955.

3.

The appeal otherwise be dismissed.

4.

There be no order as to costs.

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

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