CLAUGHTON & NORTHEY - [2015] FamCAFC 213

FAMILY COURT OF AUSTRALIA

CLAUGHTON & NORTHEY

[2015] FamCAFC 213

FAMILY LAW – APPEAL – PROPERTY – Where the trial judge assessed the overall entitlement of the parties as at 65 per cent to the appellant and 35 per cent to the respondent – Where the appellant complains that the trial judge erred in the approach taken to reach that result, or failed to provide adequate reasons for that exercise of discretion – Where the appellant does not challenge the established facts but does take issue with the trial judge’s discretionary conclusion reached as a result of consideration of those established facts – Where the appellant asserts that the evidence does not support the trial judge’s findings as to the contributions of the parties and the relevant s 75(2) factors – Where there is no error by the trial judge – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks to adduce further evidence – Where the evidence is not to demonstrate error by the trial judge but is evidence to be before the court in the event that the discretion is re-exercised – Where the appeal is dismissed and there is no need to receive the further evidence – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent sought an order for costs in the event that the appeal was dismissed – Where the appellant’s senior counsel conceded that if the appeal was dismissed there should be an order for costs – Costs ordered in favour of the respondent to be assessed on a party/party basis in default of agreement.

Family Law Act 1975 (Cth) – s 75(2)

Bennett and Bennett (1991) FLC 92-191
Chapman & Chapman (2014) FLC 93-592
Dickons & Dickons (2012) 50 Fam LR 244
Fields & Smith (2015) FLC 93-638
Gronow v Gronow (1979) 144 CLR 513
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Mallett v Mallett (1984) 156 CLR 605
Petruski & Balewa (2013) 49 Fam LR 116
Singerson & Joans [2014] FamCAFC 238
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193

APPELLANT:

Mr Claughton

RESPONDENT:

Ms Northey

FILE NUMBER:

MLC

8359

2012

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

12 November 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

27 February 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

17 July 2014

LOWER COURT MNC:

[2014] FCCA 1260
[2014] FCCA 1832

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Crutchfield QC with Ms Tulloch
SOLICITOR FOR THE RESPONDENT:	J A Middlemis

COUNSEL FOR THE RESPONDENT:

Mr R Smith

SOLICITOR FOR THE RESPONDENT:

O’Farrell Robertson McMahon

Orders

The appeal be dismissed.
The application in an appeal filed on 23 January 2015 be dismissed.
The husband pay the costs of…

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 CLAUGHTON & NORTHEY

Details

AGLC: CLAUGHTON & NORTHEY [2015] FamCAFC 213
Case: [2015] FamCAFC 213
Decision Date: 12 November 2015

CaseChat Overview and Summary

The appeal in this matter arose from a family law property settlement between CLAUGHTON and NORTHEY. The trial judge had determined the overall entitlement of the parties to be 65 per cent to the appellant and 35 per cent to the respondent. The appellant contested the trial judge's assessment, asserting that the trial judge had erred in their approach or failed to provide sufficient reasons for the exercise of their discretion. The appellant did not challenge the established facts but rather took issue with the discretionary conclusion reached by the trial judge based on those facts. The appellant also argued that the evidence did not support the trial judge's findings regarding the parties' contributions and the relevant factors under s 75(2). However, the court found no error in the trial judge's assessment and determined that there was no merit in any of the grounds of appeal.

The appellant sought to adduce further evidence in the appeal, which was not intended to demonstrate error by the trial judge but rather to be considered if the discretion was re-exercised. However, as the appeal was dismissed, there was no need to receive the additional evidence. Consequently, the application in the appeal was dismissed. The respondent had sought an order for costs in the event that the appeal was dismissed, and the appellant's senior counsel conceded that if the appeal was dismissed, there should be an order for costs. Therefore, the court ordered the husband to pay the wife's costs of the appeal, to be assessed on a party/party basis in default of agreement.

In summary, the appeal was dismissed, the application in the appeal was dismissed, and the husband was ordered to pay the wife's costs of the appeal. The costs were to be assessed on a party/party basis in default of agreement.

Orders

Orders of the court

The appeal be dismissed.

The application in an appeal filed on 23 January 2015 be dismissed.

The husband pay the costs of the wife of the appeal with such costs to be assessed on a party/party basis in default of agreement.

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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