FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where the appellant wife contends the trial judge “conflated” s 79(2) and s 79(4) of the Family Law Act 1975 (Cth) – consideration of Bevan & Bevan (2013) FLC 93-545 – where there is no requirement to consider the s 79(4) factors when making a determination as to whether any order is just and equitable (per s 79(2)) – whether the trial judge erred by conflating the two sections – where this was one of the “many cases” in which the s 79(2) requirement is easily met – where no error demonstrated.
FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – CONTRIBUTIONS – where the appellant wife relies upon a number of grounds to challenge the trial judge’s decision to distribute the parties’ property in the proportion 65:35 per cent in favour of the respondent husband – where the appellant contends the trial judge erred in failing to consider certain relevant facts – whether the trial judge erred in the manner alleged – whether the trial judge’s assessment of contributions was “plainly wrong” – where no error demonstrated – where the appellant contends the trial judge erred by failing to make a splitting order – whether the trial judge’s decision not to make a superannuation splitting order was “plainly wrong” – no error demonstrated – where the appellant further contends the trial judge erred in her treatment by the husband of certain funds received following the sale of a property – where no error demonstrated – where the appellant challenged credit findings made by the trial judge – where no error demonstrated – appeal dismissed – appellant ordered to pay the respondent’s costs of the 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 Chapman & Chapman
Sign in free to access the full text
Details
AGLC
Chapman & Chapman [2014] FamCAFC 91
Case
[2014] FamCAFC 91
Decision Date
CaseChat Overview and Summary
In the Full Court of the Family Court of Australia at Sydney, the appellant, Ms Chapman, appealed against the orders of Stevenson J, made on 4 April 2012, which divided the property and superannuation interests of the parties to the marriage in the proportion of 65 per cent to the husband and 35 per cent to the wife. The husband opposed the appeal. The wife argued that the trial judge made a fundamental error of law and principle, failed to take into account and give sufficient weight to relevant material, made material errors of fact, took into account irrelevant material, made an error of law, ignored relevant material, and failed to make a superannuation splitting order. The husband argued that the appeal should be dismissed, and he sought to maintain the orders of the trial judge. The Court held that the appeal should be dismissed and there be no order as to costs. The wife's arguments were rejected, and no error was demonstrated in respect of the application of s 79(2). The wife's challenge on grounds 1 and 6 was not made out. The wife's contention that her Honour ought to have "added back" money which, it is contended, her Honour mistakenly found was expended by the husband on renovations to the former matrimonial home was also rejected. The Court found no merit in the wife's challenge that her Honour ought to have made a superannuation splitting order. The Court also rejected the wife's challenge to her Honour's credit findings. The appeal should be dismissed.