CARROLL & CARROLL - [2014] FamCAFC 118

FAMILY COURT OF AUSTRALIA

CARROLL & CARROLL

[2014] FamCAFC 118

FAMILY LAW – APPEAL – NOTICE OF APPEAL – PROPERTY – where the husband appeals final property settlement orders – where the appeal is opposed by the wife – where as a result of findings on contribution the Federal Magistrate determined that the property of the parties be divided as to 75 per cent to the wife and 25 per cent to the husband – where the husband asserts that the Federal Magistrate’s assessment of his contributions was manifestly inadequate – where the principal challenge appears to be that the Federal Magistrate’s reasons for her finding on contributions were inadequate – where there is a wide discretion reposed in the court pursuant to s 79 of the Family Law Act 1975 (Cth) – where the wife says the complaint can only be as to weight – where it is not apparent from the findings how the Federal Magistrate arrived at the percentage division that she did – where the Federal Magistrate erred – appeal allowed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – REMIT OR RE-EXERCISE DISCRETION – where there is a need for further evidence which may be controversial – where the Appeal Court is not equipped to hear cross-examination and to determine disputed issues of fact – where if the Appeal Court re-exercised the discretion the only avenue of appeal open to the parties would be to seek special leave to appeal to the High Court of Australia – where the appropriate course is to remit the proceedings to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Baker – proceedings remitted for rehearing.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where both parties seeks costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – where the appeal has been allowed on a question of law and there is no order for costs – costs certificates granted to the parties as sought.

Family Law Act 1975 (Cth)- s 75(2) (b) and (o)
Federal Proceedings (Costs) Act 1981 (Cth) – ss 6, 8 and 9

Bennett & Bennett (1991) FLC 92-191
Farmer & Bramley (2000) FLC 93-060
House v The King (1936) 55 CLR 499
Kowaliw & Kowaliw (1981) FLC 91-092
Kuru v NSW (2008) 236 CLR 1
Norbis v Norbis (1986) 161 CLR 513
Steinbrenner & Steinbrenner [2008] FamCAFC 193

APPELLANT:

Mr Carroll

RESPONDENT:

Ms Carroll

FILE NUMBER:

DGC

2391

2008

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

8 July 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide by video link to Hobart

JUDGMENT OF:

Strickland J

HEARING DATE:

29 August 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

11 October 2012

LOWER COURT MNC:

[2012] FMCAfam 1100

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Ayliffe

SOLICITORS FOR THE APPELLANT:

Ogilvie Jennings

COUNSEL FOR THE RESPONDENT:

Mr Foster

SOLICITORS FOR THE RESPONDENT:

Murdoch Clarke

Orders

The appeal be allowed.
Orders…

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 CARROLL & CARROLL

Details

AGLC: CARROLL & CARROLL [2014] FamCAFC 118
Case: [2014] FamCAFC 118
Decision Date

CaseChat Overview and Summary

This appeal was brought by Mr Carroll against final property orders made by Federal Magistrate Baker. The appeal is opposed by Ms Carroll. The only order challenged in the appeal is that the wife pay the husband the sum of $91,531. The husband contends that the Federal Magistrate’s assessment of his contributions was manifestly inadequate and that she failed to provide adequate reasons for her findings. The husband’s counsel also contends that the Federal Magistrate erred in taking into account certain factors in assessing the parties’ respective contributions. The husband’s counsel further contends that the Federal Magistrate erred in taking into account twice the fact that the husband had received repayments of vendor finance on the sale of the business. The husband’s counsel also contends that the Federal Magistrate failed to take into account the husband’s substantial contribution of a lump sum termination payment and superannuation payment towards the purchase of the business. The husband’s counsel further contends that the Federal Magistrate erred in failing to find that the wife was a director of the company that operated the business. The husband’s counsel also contends that the Federal Magistrate erred in failing to take into account the fact that the wife was a director and therefore had control and access to the company records when she applied an inference against the husband. The husband’s counsel further contends that the Federal Magistrate erred in making the finding she did as to receipt of a vendor payment. The husband’s counsel finally contends that the Federal Magistrate erred in failing to make an adjustment in favour of the husband pursuant to s 75(2) on the basis of the disparity in income, property and financial resources of the parties, and the age and employment status of the husband. The husband abandoned Grounds 4, 7, 8 and 9 of his appeal. The husband seeks the following order: THAT Paragraph 1 of the Final Order dated 12 October 2012 be varied by deleting the figure of $93,531.00 and replacing it with the figure of $188,461.50. Strickland J found merit in Grounds 1, 2, 3 and 6. The Court found that the appeal must be allowed. The next question was whether the discretion should be re-exercised or the proceedings remitted for rehearing. The Court found that the appropriate course was to remit the proceedings to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Baker. Strickland J set aside Orders 1 to 4 made on 11 October 2012. The Court remitted the proceedings to the Federal Circuit Court of Australia to be reheard by a judge other than Judge Baker. The Court granted to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). The Court granted to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). The Court granted to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth).

Orders