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 | of | 2006 |
| APPEAL NUMBER: | NA | 14 | of | 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… |
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- AGLC
- Brodie v Brodie [2009] FamCAFC 6
- Case
- [2009] FamCAFC 6
- Decision Date
CaseChat Overview and Summary
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
1.
The appeal is allowed.
2.
The matter is remitted for hearing by a Judge in the Brisbane Registry.
3.
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.
4.
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.
5.
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.
6.
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
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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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