FAMILY COURT OF AUSTRALIA
| CHARLES & CHARLES | [2017] FamCAFC 3 |
| FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge erred her determination of wastage arguments advanced by the wife – Whether the primary judge erred by including and/or not including certain items in the non-superannuation asset pool – Whether the primary judge erred in her overall assessment of contributions and in making an adjustment of only 15 per cent in favour of the wife pursuant to s 75(2) – Where no appealable error established – Appeal dismissed – Wife to pay husband’s costs of and incidental to the appeal. |
| Family Law Act 1975 (Cth) |
| Browne & Greene (1999) FLC 92-873 CDJ v VAJ (1998) 197 CLR 172 Chorn and Hopkins (2004) FLC 93-204 Edwards v Noble (1971) 125 CLR 296 Elford & Elford (2016) FLC 93-695 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Nolan and Ingram (1984) FLC 91-585 Kowaliw and Kowaliw (1981) FLC 91-092 Mallet v Mallet (1984) 156 CLR 605 Omacini and Omacini (2005) FLC 93-218 Sharman v Evans (1977) 138 CLR 563 Stanford v Stanford (2012) 247 CLR 108 Townsend and Townsend (1995) FLC 92-569 Vass & Vass (2015) 53 Fam LR 373 Watson v Ling (2013) FLC 93-527 |
| APPELLANT: | Ms Charles |
| RESPONDENT: | Mr Charles |
| FILE NUMBER: | MLC | 4327 | of | 2013 |
| APPEAL NUMBER: | SOA | 21 | of | 2015 |
| DATE DELIVERED: | 12 January 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Thackray and Bennett JJ |
| HEARING DATE: | 15 October 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 February 2015 |
| LOWER COURT MNC: | [2015] FCCA 365 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hutchings |
| SOLICITOR FOR THE APPELLANT: | Robinson Gill |
| COUNSEL FOR THE RESPONDENT: | Mr O’Shannessy |
| SOLICITOR FOR THE RESPONDENT: | CE Family Lawyers |
Orders
The appeal be dismissed.
The wife is to pay the husband’s costs of and incidental to the appeal, such costs to be agreed or assessed and to be paid within twenty-eight (28) days of such agreement or assessment.
By consent Order 3 of the orders made 20 February 2015 by Judge Stewart be discharged and the following order made in lieu:
(3)The husband advise the wife a date upon which she is required to vacate the O Street property, such date not to be earlier than six (6) weeks after the date of this order (“the date”).
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 Charles & Charles 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)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE… |
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- AGLC
- Charles & Charles [2017] FamCAFC 3
- Case
- [2017] FamCAFC 3
- Decision Date
CaseChat Overview and Summary
The court was required to decide several legal issues, including whether the primary judge erred in making certain findings of fact, and if those findings led to an unjust outcome in the property settlement and spousal maintenance orders. The appellant argued that the primary judge misunderstood the nature of certain investments and the extent of the husband’s contributions to the family home. The court also had to consider whether the spousal maintenance order was appropriate, given the findings of fact and the overall financial position of the parties.
The Full Court found that the primary judge did not err in making the contested findings of fact, and therefore the resulting property settlement and spousal maintenance orders were correct. The court held that the primary judge had appropriately considered the contributions of both parties and the overall financial circumstances, including the husband's income and the wife's financial needs. The appeal was dismissed, and the wife was ordered to pay the husband's costs of the appeal. The court also modified the orders regarding the wife's requirement to vacate the family home, extending the timeframe for her to do so.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
The wife is to pay the husband’s costs of and incidental to the appeal, such costs to be agreed or assessed and to be paid within twenty-eight (28) days of such agreement or assessment.
3.
By consent Order 3 of the orders made 20 February 2015 by Judge Stewart be discharged and the following order made in lieu:
(3) The husband advise the wife a date upon which she is required to vacate the O Street property, such date not to be earlier than six (6) weeks after the date of this order (“the date”).
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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