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Brodie v Brodie

Brodie v Brodie

Case [2009] FamCAFC 6 22 January 2009

Appeal

Property

Assessment of Contribution

Spousal Maintenance

Re-Exercise of Discretion

Costs

Family Law

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FAMILY COURT OF AUSTRALIA

BRODIE & BRODIE

[2009] FamCAFC 6

FAMILY LAW - APPEAL - PROPERTY - Where trial Judge made errors in recording agreed values of assets and liabilities. Whether error in pool vitiated exercise of discretion by trial Judge in his contribution and s 75(2) assessment. Where trial Judge identified as an issue to be determined losses in a discretionary trust, but failed to deal with the trust losses. Error in pool of assets was not minimal and constituted appealable error. Failure to deal with trust losses also constituted appealable error.

Whether trial Judge’s treatment of losses incurred by wife in running a restaurant purchased shortly prior to separation was erroneous. Wife’s conduct in operating business did not fall within the exceptions recognised in Kowaliw & Kowaliw (1981) FLC 91-092. No error of principle demonstrated. Trial Judge’s determination not attribute losses solely to wife within the reasonable exercise of discretion.

FAMILY LAW - APPEAL - PROPERTY - Assessment of contribution. Whether trial Judge’s assessment of contribution entitlements “plainly wrong” being outside reasonable ambit of discretion. Appealable error established.

FAMILY LAW - SPOUSAL MAINTENANCE - Whether order for payment of lump sum maintenance made in accordance with established principles. Where trial Judge failed to have regard to property adjustment to be made in wife’s favour - appealable error established.

FAMILY LAW - RE-EXERCISE OF DISCRETION - Whether sufficient adequate findings to enable Full Court to re-exercise the discretion - absence of appropriate findings - matter remitted for rehearing.

FAMILY LAW - COSTS OF APPEAL - Parties afforded the opportunity to file submissions in respect of costs of the appeal.

Family Law Act 1975 (Cth) s 74, s 75(2), s 75(3), s 79, s 79(2), s 79(4)(a),(b), (c), (d), (e), s 80, s 83, s 83(2), s 94(2)
Federal Proceedings (Costs) Act 1981 (Cth)

Allesch v Maunz (2000) 203 CLR 172; (2000) FLC 93-033
Anast & Anastopoulos (1982) FLC 91-201
Bevan v Bevan (1995) FLC 92-600
Browne & Green (1999) FLC 92-873
Clauson & Clauson (1995) FLC 92-595
D & D (2006) FLC 93-300
GBT & BJT [2005] FamCA 683
King & Kemp (1996) FLC 92-673
Kowaliw & Kowaliw (1981) FLC 91-092
Kuru v New South Wales (2008) 246 ALR 260; 82 ALJR 1021
Little & Little (1990) FLC 91-147
Mallet and Mallet (1984) 156 CLR 605
Norbis and Norbis (1986) 161 CLR 513
Pastrikos & Pastrikos (1980) FLC 90-897
Pierce & Pierce (1999) FLC 92-844
Steinbrenner & Steinbrenner [2008] FamCAFC 193
W & W (1997) FLC 92-723

APPELLANT:

Mr Brodie

RESPONDENT:

Mrs Brodie

FILE NUMBER:

BRF

953

2006

APPEAL NUMBER:

2008

DATE DELIVERED:

22 January 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Boland, Thackray & Watts JJ

HEARING DATE:

15 August 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

25 January 2008

LOWER COURT MNC:

[2008] FamCA 26

REPRESENTATION

COUNSEL FOR THE APPELLANT:

T L Kirk SC with S Williams

SOLICITOR FOR THE APPELLANT:

Hopgood Ganim…

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 Brodie v Brodie

Details

AGLC: Brodie v Brodie [2009] FamCAFC 6
Case: [2009] FamCAFC 6
Decision Date: 22 January 2009

CaseChat Overview and Summary

The appeal in Brodie v Brodie was brought by the respondent, the wife, against the decision of a primary judge in the Family Court of Australia. The primary judge had made an order for property settlement between the parties following their separation. The wife argued that the primary judge had erred in his assessment of the pool of assets, in his assessment of her contribution to the marriage, and in his failure to consider certain losses incurred by the wife in relation to a restaurant business. The wife also argued that the primary judge erred in failing to take into account certain property adjustments when making a lump sum maintenance order.

The court had to determine whether the primary judge's errors in assessing the pool of assets and in failing to consider certain trust losses amounted to appealable errors. The court also had to consider whether the primary judge's assessment of the wife's contribution was "plainly wrong" and whether his failure to consider certain property adjustments when making a lump sum maintenance order constituted an error. Finally, the court had to determine whether there were sufficient findings to enable the Full Court to re-exercise the discretion in relation to property settlement and maintenance.

The court found that the primary judge's error in assessing the pool of assets was not minimal and constituted an appealable error. The court also found that the primary judge's failure to consider certain trust losses also constituted an appealable error. However, the court found that the primary judge's assessment of the wife's contribution was not "plainly wrong" and that his failure to consider certain property adjustments when making a lump sum maintenance order did not constitute an error. The court also found that there were not sufficient findings to enable the Full Court to re-exercise the discretion in relation to property settlement and maintenance.

The appeal was allowed and the matter was remitted for hearing by a Judge in the Brisbane Registry. The parties were given the opportunity to file submissions in respect of the costs of the appeal.

Orders

Orders of the court

The appeal is allowed.

The matter is remitted for hearing by a Judge in the Brisbane Registry.

That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Northern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 21 days of the date hereof.

That the other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Northern Region Appeal Registry of the Family Court of Australia and serving them on the other party.

That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Northern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further 7 days.

That each party endorse on the cover sheet of any submissions filed pursuant to Orders 3, 4 and 5, the date upon which a copy of that submission was served on the other party.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Brodie v Brodie [2009] FamCAFC 6

Most Recent Citation

Kane and Kane [2009] FMCAfam 1236

Cases citing this decision · 20 of 20 shown

Bunting & Stanzler
[2024] FedCFamC1A 67

…i and Ors [2015] FamCAFC 71 Beck and Beck (No 2) (1983) FLC 91-318; [1983] FamCA 7 Brodie & Brodie (2009) 41 Fam LR 18; [2009] FamCAFC 6 CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67 Clives and Clives (2008) FLC 93-385; [2008] FamCAFC 172 De Winter and De Winter (1979) FLC 90-605 Dickons v Dickons (2012) 50 Fa…
Gadhavi & Gadhavi
[2023] FedCFamC1A 117

…& Esmore [2022] FedCFamC1A 67 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 Brodie v Brodie (2009) 41 Fam LR 18; [2009] FamCAFC 6 Cabbell & Cabbell [2009] FamCAFC 205 de Winter v de Winter (1979) FLC 90-605 Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 DL v The Queen (2018) 266 CLR 1; [2018] HCA 2…
Medvitz & Baginski
[2022] FedCFamC1F 632

…4; [2017] QCA 236 Biltoft and Biltoft (1995) 19 Fam LR 82; (1995) FLC 92-614 Brodie v Brodie (2009) 41 Fam LR 18; [2009] FamCAFC 6 Brown & Brown (2007) FLC 93-316; [2007] FamCA 151 Coghlan and Coghlan (2005) FLC 93-220; [2005] FamCA 429 Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 Dovgan & Dovgan [202…
Jia & Yong
[2022] FedCFamC1F 591 Para 19

…t only from a percentage basis, but also from the dollar value the percentage represents to assess whether it is just and equitable ( Brodie & Brodie [2009] FamCAFC 6 at [90]; Lovine & Connor (2012) FLC 93-515 at [81]; Varnham & Moses [2021] FLC 94-007 at [60]). It is evident from the table of assets and liabilitie…
SELBY & ROBILLIARD
[2018] FamCA 214 Para 3

…Focussing on some of the cases considered as authorities, is illuminating. In Brodie & Brodie [2009] FamCAFC 6 there was a pool of $4.6 million. When the parties began their 10 year relationship, the husband owned the home valued at between $300,000 and $350,000 and at the conclusion of the relationship, it had inc…
ANISON & ANISON
[2018] FamCA 113 Para 1

…of the wife’s entitlement to property consequent upon the determination of her application pursuant to s 79 of the Act.[70] [70] See, for example: Brodie v Brodie (2009) 41 Fam LR 18.…
RANKIN & RANKIN
[2016] FamCA 250

…Bevan & Bevan [2013] FamCAFC 116 Brodie & Brodie [2009] FamCAFC 6; 41 Fam LR 18 Chorn & Hopkins [2004] FamCA 633; (2004) FLC 93-204 Clauson & Clauson (1995) FLC 92-595 Gyselman & Gyselman (1992) FLC 92-279 Harrington & Harrington [2007] FamCA 451; (2007) FLC 93-317 Stanford v Stanford (2012) 247 CLR 108 Watson & Li…
Forrest and Forrest and Ors
[2013] FCWA 6

…Brodie and Brodie [2009] FamCAFC 6 Bulleen & Bulleen [2010] FamCA 187 Hickey & Hickey and the Attorney-General for the Commonwealth (Intervener) (2003) FLC 93-143 Mallett v Mallett (1984) 156 CLR 605 Norbis v Norbis (1986) 161 CLR 513 SL v ELH [2005] FamCA 132 Stanford v Stanford [2012] HCA 52 Steinbrenner and Stei…
Lovine & Connor and Anor
[2012] FamCAFC 168 Para 4

…In Brodie & Brodie [2009] FamCAFC 6, the Full Court (Boland, Thackray and Watts JJ), in a joint judgment quoted with approval (at paragraph 90) the statement of Coleman J referred to. As the Full Court there observed, assessing contributions involves, “…considering the transposition from evaluation of actual contri…
STEWARDSON & STEWARDSON
[2012] FamCA 109 Para 1

…e’s claim for spousal maintenance must be considered in light of the adjustment of property interests accomplished pursuant to s 79 of the Act (see Brodie v Brodie (2009) 41 Fam LR 18 at 37-38).…
NEIL & NEIL
[2011] FamCA 492 Para 5

…e’s claim for spousal maintenance must be considered in light of the adjustment of property interests accomplished pursuant to s 79 of the Act (see Brodie v Brodie (2009) 41 Fam LR 18 at 37-38).…
Agius & Agius
[2010] FamCAFC 143 Para 1

…It was submitted on behalf of the Husband that in Brodie v Brodie (2009) 41 Fam LR 18 the “trial judge made significant errors in the calculation of the pool of assets available for division, which led the Full Court to the conclusion that the percentage assessments of both contribution and s.75(2) factors were unsafe –…
Teal & Teal
[2010] FamCAFC 120 Para 4

…J in Farmer & Bramley (2000) FLC 93-060 at 49.It has also been subject of discussion in Steinbrenner & Steinbrenner [2008] FamCAFC 193 at 234, and in Brodie v Brodie (2009) 41 Fam LR 18.…
Wotton and Wotton and Anor
[2010] FamCA 194 Para 2

…e’s claim for spousal maintenance must be considered in light of the adjustment of property interests accomplished pursuant to s 79 of the Act (see Brodie v Brodie (2009) 41 Fam LR 18 at 37-38)…
Vesser and Sabean
[2009] FMCAfam 1287 Para 3

…operty proceedings. [4] See, for example, the Full Court’s recent discussion of the import of the accurate determination of the asset pool in Brodie v Brodie (2009) 41 Fam LR 18.…
Kane and Kane
[2009] FMCAfam 1236 Para 7

…tual matrix over many years but also basic statements of principle in relation to such matters, such as the Full Court’s recent observations in Brodie v Brodie (2009) 41 Fam LR 18 at [83] - [86], and the cases to which the Court (Boland, Thackray & Watts JJ) refers.…
Syme & Wroe
[2009] FamCAFC 89 Para 1

…ets in percentage terms to 52 per cent to the husband and 48 per cent to the wife, it is apposite that I refer to the discussion in Brodie & Brodie [2009] FamCAFC 6 a recent decision of the Full Court (Boland, Thackray and Watts JJ). At paragraph 90, the Full Court discussed, and cited with approval, the decision o…
Loude & Loude
[2009] FamCAFC 52 Para 3

…In the recent Full Court decision in Brodie & Brodie [2009] FamCAFC 6 the Full Court (Boland, Thackray and Watts JJ), at paragraph 90 of their reasons, referred to the decision of Coleman J in Steinbrenner & Steinbrenner [2008] FamCAFC 193 where it was asserted a Federal Magistrate had fallen into appealable error…
Walton v The Queen
[1989] HCA 9

…10. Statements by a person about his intentions or state of mind are often admitted into evidence, whether described as an exception to the hearsay rule or as original evidence: see Peipman v. Turner (1961) NSWR 252; Nash v. Commissioner for Railways (1963) SR(NSW) 357, at p 360; Dobson v. Morris (1…
CASEY & CASEY
[2012] FamCA 736 Para 1

…e’s claim for spousal maintenance must be considered in light of the adjustment of property interests accomplished pursuant to s 79 of the Act (see Brodie v Brodie (2009) 41 Fam LR 18 at 37-38).…

View all 20 citing cases →

Cases cited in this decision · 8 of 8 shown

Bevan v Bevan
[2016] WASC 7 Para 2

…for spousal maintenance include a requirement that the Court have regard to the terms of a property order made or proposed to be made under s 79 (see Bevan v Bevan (1995) FLC 92-600; Pastrikos & Pastrikos (1980) FLC 90-897; Anast & Anastopoulos (1982) FLC 91-201 and Little & Little (1990) FLC 91-147). Different approac…
Steinbrenner & Steinbrenner
[2008] FamCAFC 193 Para 16

…In Steinbrenner & Steinbrenner [2008] FamCAFC 193 Coleman J, on hearing an appeal from a Federal Magistrate as a single Judge, dealt with an appeal ground which asserted the Federal Magistrate had erred in his contribution based assessment and awarded the wife a sum which was unjust. In considering the transposition…
Kuru v State of New South Wales
[2008] HCA 26 Para 8

…n of the parties’ net assets and liabilities, that it is also necessary we examine the balance of the grounds of appeal (see Kuru v New South Wales (2008) 246 ALR 260; 82 ALJR 1021). In this respect, we note senior counsel for the husband referred to the fact there was no cross-appeal by the wife on the issue of the…
Brodie and Brodie
[2008] FamCA 26

…[2008] FamCA 26…
GBT & BJT
[2005] FamCA 683 Para 8

…to note at paragraph 193 of his reasons the trial Judge’s apparent rejection of the Full Court authorities of D & D (2006) FLC 93-300 and GBT & BJT [2005] FamCA 683. At paragraph 193 his Honour said: 193.The results in D and D and DBT and BJT [sic] are comparable and arguably consistent with a strict evaluative app…
Allesch v Maunz
[2000] HCA 40 Para 9

…orders) then we reject that submission as it represents a misunderstanding of the role of an intermediate appellate court (see Allesch v Maunz (2000) 203 CLR 172 at pp 180-181, paras 22 – 23; (2000) FLC 93-033 at 87,515, paras 22 – 23).…
Norbis v Norbis
[1986] HCA 17 Para 9

…Shortly after the decision in Mallet , the High Court in Norbis and Norbis (1986) 161 CLR 513 discussed whether or not the assessment of contribution should be on a global or asset by asset basis. In the course of that discussion Mason & Deane JJ (referring to the global approach) at 523 said: It follows that the Ful…
Mallet v Mallet
[1984] HCA 21 Para 1

…cussion of this ground by reference to the role of an intermediate appellate court hearing an appeal from a judgment under s 79. In Mallet and Mallet (1984) 156 CLR 605 at 621-622 Mason J said: It has been accepted, at least since the judgment of Gibbs J. in De Winter v. De Winter , that a judgment of the Family Cour…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
74 2 mentions (from Para 1)
Federal Proceedings (Costs) Act 1981 (Cth)
1 mention (from Para 1)