FAMILY LAW - APPEAL – PROPERTY – ASSESSMENT OF CONTRIBUTION – INITIAL CONTRIBUTION – Where the Federal Magistrate did not adequately analyse and give weight to the husband’s initial contributions – Where the Federal Magistrate did not sufficiently trace the use of the parties’ initial assets – Where the Federal Magistrate’s reasons for finding equality of contribution not discernible – Where assessment of equal contribution not open on the evidence and plainly wrong – Appealable error established – Appeal allowed.
FAMILY LAW - APPEAL – PROPERTY – ASSESSMENT OF CONTRIBUTION – Whether Federal Magistrate erred in assessment of the parties’ contributions during the marriage – Where not in dispute that husband worked very hard and for long hours – Where no serious dispute about wife’s role – Where Federal Magistrate properly afforded significant weight to wife’s role – Where findings made by Federal Magistrate open to him – No merit to challenge.
FAMILY LAW - APPEAL- PROPERTY – SECTION 75(2) ADJUSTMENT – Whether Federal Magistrate erred in failing to take into account difference in parties’ ages, state of health and earning capacity – Whether Federal Magistrate erred in finding the husband had superior capacity to manage investments – Where it was not suggested that the Federal Magistrate overlooked any relevant factor – Where no evidence before the Federal Magistrate in relation to future expenditure of the husband as a result of his ill health – Where the failure to make an adjustment was not plainly wrong – No appealable error established.
FAMILY LAW - APPEAL – PROPERTY – RE-EXERCISE OF DISCRETION – Where no stay of Federal Magistrate’s orders – Where Federal Magistrate’s orders put into effect – Where neither party sought to adduce further evidence – Where parties sought any adjustment be made by way of adjustment to the percentage split of superannuation – Consideration of contributions – Contributions assessed as to 55 per cent by the husband and 45 per cent by the wife – Consideration of s 75(2) factors – No adjustment made under s 75(2) – Orders made.
FAMILY LAW - COSTS – Where husband sought an order for costs on a party and party basis – Where husband self-represented at the appeal – Where appeal successful – Where it is appropriate that the wife pay the husband’s costs.
[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.
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AGLC
Cabbell & Cabbell [2009] FamCAFC 205
Case
[2009] FamCAFC 205
Decision Date
CaseChat Overview and Summary
The appeal in Cabbell & Cabbell involved a dispute over the assessment of property contributions between the parties during their marriage. The case was heard in the Family Court of Australia, with the appeal subsequently being heard by the Full Court. The central issue was whether the Federal Magistrate had erred in the assessment of the contributions made by the husband and wife during their marriage, particularly with respect to the husband’s initial contributions and the tracing of the parties’ assets. The husband argued that the Federal Magistrate failed to adequately consider his initial contributions and did not sufficiently trace the use of the parties’ initial assets. The wife, on the other hand, contended that the assessment of contributions was correct and that the Federal Magistrate had appropriately considered her role in the marriage.
The court found that the Federal Magistrate did not adequately analyse and give weight to the husband’s initial contributions, and the reasons for finding equality of contribution were not discernible. The assessment of equal contribution was not open on the evidence and was plainly wrong, thus constituting an appealable error. The court held that the Federal Magistrate should have afforded greater weight to the husband’s significant initial contributions and properly traced the use of the parties’ initial assets. The court also found no merit in the challenge regarding the wife's role, as the Federal Magistrate had appropriately afforded her significant weight.
The court did not find any appealable error in the Federal Magistrate’s failure to consider differences in the parties’ ages, state of health, and earning capacity, or in the finding that the husband had a superior capacity to manage investments. The court noted that no evidence was presented before the Federal Magistrate regarding the husband’s future health-related expenditures, and the failure to make an adjustment was not plainly wrong. Consequently, the orders made by the Federal Magistrate were varied to reflect a more accurate percentage split of superannuation. The wife was ordered to pay the husband’s costs of and incidental to the appeal.
The appeal was allowed, and the orders made by the Federal Magistrate were varied to reflect the correct percentage split of superannuation. The wife was ordered to pay the husband’s costs of and incidental to the appeal.
Orders
Orders of the court
1.
The appeal be allowed.
2.
The Order 19 of the orders made by Federal Magistrate Baumann on 26 November 2008 as varied under the slip rule on 15 January 2009 be varied by deleting the percentage “44.83%” and substituting in lieu “32.71%”.
3.
The wife pay the husband’s costs of and incidental to the appeal as agreed and failing agreement as assessed.