Carson & Hillman - [2019] FamCAFC 42

FAMILY COURT OF AUSTRALIA

CARSON & HILLMAN

[2019] FamCAFC 42

FAMILY LAW – APPEAL – PROPERTY – Where the trial judge made an order which provided for the splitting of the appellant’s superannuation pension such that the respondent was to receive 30 per cent of that entitlement – Where the trial judge made an erroneous finding about how the appellant’s superannuation entitlement was accumulated but that finding was of no material significance – Whether the trial judge made other erroneous findings and failed to have regard to relevant considerations – Where the trial judge had not done so – Appeal dismissed.

FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Where the trial judge dismissed the appellant’s spousal maintenance application – Where the appellant had not established that she was unable to support herself adequately – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent seeks an order for costs – Where the appellant opposes such order – Where there are circumstances which justify an order for costs being made – Where the appellant has been wholly unsuccessful in the appeal – Where the appellant’s Summary of Argument failed to comply with r 22.22 of the Family Law Rules 2004 (Cth) and Practice Direction No. 1 of 2017 – Where an Application in an Appeal to adduce further evidence was dismissed when the appellant conceded the evidence was inadmissible - Costs ordered in the sum sought by the respondent.

Evidence Act 1995 (Cth) s 91
Family Law Act 1975 (Cth) ss 90SF, 90SM, 117

Family Law Rules 2004 (Cth)

De Winter and De Winter (1979) FLC 90-605
Lovine & Connor (2012) FLC 93-515; [2012] FamCAFC 168
Stein v Stein (2000) FLC 93-004; [2000] FamCA 102

APPELLANT:

Ms Carson

RESPONDENT:

Mr Hillman

FILE NUMBER:

BRC

7935

2017

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

8 March 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Kent & Watts JJ

HEARING DATE:

12 February 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 June 2018

LOWER COURT MNC:

[2018] FamCA 477

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr G Page QC

SOLICITOR FOR THE APPELLANT:

Michael Dwyer Solicitor

COUNSEL FOR THE RESPONDENT:

Mr M Alexander

SOLICITOR FOR THE RESPONDENT:

Evans & Company Family Lawyers

Orders

The appeal be dismissed.
The appellant pay the costs of the respondent of and incidental to the appeal and the Application in an Appeal filed on 21 December 2018 fixed in the sum of $15,483.83.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carson & Hillman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)),…

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 Carson & Hillman

Details

AGLC: Carson & Hillman [2019] FamCAFC 42
Case: [2019] FamCAFC 42
Decision Date: 8 March 2019

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Carson & Hillman was heard and determined. The appellant, Carson, sought to appeal a decision made by the trial judge that involved the division of property, spousal maintenance, and costs. The respondent, Hillman, opposed the appeal and sought an order for costs. The primary issues before the court were whether the trial judge made erroneous findings in relation to the division of the appellant's superannuation pension, the appellant's application for spousal maintenance, and the appropriateness of an order for costs against the appellant.

The court found that although the trial judge had made an incorrect finding regarding the accumulation of the appellant's superannuation, the error was not material to the overall outcome. Additionally, the court determined that the trial judge had not made other erroneous findings or failed to consider relevant matters. Consequently, the appeal in relation to the division of property was dismissed. Regarding the spousal maintenance application, the court held that the appellant had not demonstrated that she was unable to support herself adequately, leading to the dismissal of the appeal on this point as well.

The court further considered the issue of costs, finding that there were circumstances that justified an order for costs being made against the appellant. The appellant had been wholly unsuccessful in the appeal and had failed to comply with procedural rules and practice directions. The court also noted that an application to adduce further evidence was dismissed when the appellant conceded that the evidence was inadmissible. As a result, the court ordered the appellant to pay the respondent's costs of and incidental to the appeal and the Application in an Appeal in the sum of $15,483.83. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The appeal be dismissed.

The appellant pay the costs of the respondent of and incidental to the appeal and the Application in an Appeal filed on 21 December 2018 fixed in the sum of $15,483.83.

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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