Clives & Clives

The appeal involved the husband, the appellant, and the wife, the respondent, who had been married for over 25 years. The husband sought to appeal the trial Judge's property settlement and related orders, arguing that the trial Judge had failed to properly consider the contributions made by each party and had misapplied certain sections of the Family Law Act 1975 (Cth). The husband also argued that the trial Judge had not considered whether the orders made were just and equitable. The appeal was heard by the Family Court of Australia.

The legal issues the court had to decide included whether the trial Judge's assessment of the contributions made by each party, including the superannuation pool, was outside the reasonable ambit of his discretion. The court also had to determine whether the trial Judge's failure to consider whether the orders made were just and equitable constituted an appealable error. The court also had to decide whether the appeal was successful, and if so, whether the discretion should be re-exercised with respect to both pools.

The court found that the trial Judge's assessment of the non-superannuation pool was not vitiated, but his assessment of the superannuation pool was outside the reasonable ambit of his discretion. The court also found that the trial Judge's failure to consider whether the orders made were just and equitable constituted an appealable error. The court found that both parties had submitted that a re-exercise of discretion was appropriate, and since the error demonstrated was in only one of the two pools, the discretion ought be re-exercised with respect to both pools. The appeal was successful, and both parties were awarded costs certificates in respect of the costs of the appeal.

The orders made by the court included allowing the appeal, varying the orders made by the trial Judge with respect to the superannuation pool, and granting both parties a costs certificate. The husband was awarded $244,538.00 instead of $212,160.00, and the wife was awarded $81,010.00 instead of $93,514.00. Both parties were granted a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).