FAMILY COURT OF AUSTRALIA
| CARRON & LANIGA | [2019] FamCAFC 115 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the trial judge made orders providing for final entitlements of 55 per cent to the wife and 45 per cent to the husband – Where the trial judge allowed for a 10 per cent adjustment in favour of the wife based on factors under s 75(2) of the Family Law Act 1975 (Cth) – Where the trial judge correctly took into account the wife’s contributions pursuant to ss 79(4)(d), 79(4)(g), 75(2)(d)(ii), 75(2)(e) and 75(2)(na) of the Family Law Act 1975 (Cth) – Where a denial of procedural fairness was not established – Where the appellant husband’s complaints of the trial judge providing inadequate reasons were unsubstantiated – Where an amount notionally added-back by the trial judge was wrongly allocated to the appellant husband – Where appealable error is established – Where both parties are adversely affected by errors of law – Appeal allowed – Where the orders made by the trial judge are set aside and the matter remitted for rehearing. FAMILY LAW – APPEAL – SUPERANNUATION – Value and treatment of superannuation – Military Superannuation Benefits Scheme – Where one part of the wife’s superannuation was in the growth phase and the other in the payment phase – Where grounds of appeal challenge the trial judge’s failure to distinguish between the two separate components and determine the value of the payment phase – Where the primary appeal point was whether the trial judge’s discretion miscarried by failing to consider the superannuation in the growth phase as an asset of the parties – Where the trial judge did not need to ascertain the capitalised value of a superannuation interest unless superannuation splitting order was sought – Where it was open for the trial judge to find the payment phase should not be taken into account as an asset – Where no error is established. FAMILY LAW – APPEAL – COSTS – Where the appeal is successful and the matter remitted for rehearing – Where the appellant husband is self-represented – Where the appellant husband’s application for costs is dismissed – Where only two grounds of appeal had merit – Where no order as to costs – Where costs certificates are granted pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for both parties for the appeal and rehearing. |
| Child Support (Assessment) Act 1989 (Cth) Family Law (Superannuation) Regulations 2001 (Cth) regs 38, 43A |
| Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2 Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633 De Winter v De Winter (1979) FLC 90-605 King v Kemp (1996) FLC… |
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- AGLC
- Carron & Laniga [2019] FamCAFC 115
- Case
- [2019] FamCAFC 115
- Decision Date
CaseChat Overview and Summary
In addressing the issues, the court found that while the trial judge had correctly taken into account various factors in determining the final entitlements of the parties, an error had been made in the allocation of a notional amount that had been added back. This error was deemed to be appealable, as it adversely affected both parties. The court also considered the husband's complaints regarding procedural fairness and the adequacy of the reasons provided by the trial judge, finding these complaints to be unsubstantiated. Regarding the treatment of the wife's superannuation, the court determined that the trial judge did not err in failing to distinguish between the growth and payment phases, as it was not necessary to ascertain the capitalised value of the superannuation interest unless a superannuation splitting order was sought. The court concluded that no error was established in this aspect of the case.
As a result of the appeal, the court allowed the appeal, set aside the orders made by the trial judge, and remitted the matter for rehearing. The appellant's application for costs was dismissed, as only two grounds of appeal had merit. However, costs certificates were granted to both parties under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and any subsequent rehearing, to ensure that the parties could seek reimbursement for their legal costs. The form of the orders is subject to their entry in the Court’s records.
Orders
Orders of the court
1.
The appeal is allowed.
2.
The orders made by the trial judge on 18 September 2018 are set aside.
3.
The parties’ respective applications for relief under Part VIII of the Family Law Act 1975 (Cth) are remitted for rehearing.
4.
The appellant is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
5.
The respondent is granted a costs certificate pursuant to the provisions of
s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
6.
Both the appellant and the respondent are granted costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the appellant and the respondent in respect of the costs incurred by them in relation to the rehearing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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