Mr Lethbridge of Senior Counsel with Ms Winfield of Counsel (instructed by White Barnes Solicitors) appeared on behalf of the appellant husband.
Mr Stewart of Counsel (instructed by Flynn Conn Solicitors) appeared on behalf of the respondent.

APPEAL SUMMARY

MATTER:W and W
APPEAL NUMBER: EA 35 of 2004
(SYF 3350 of 2002)

CORAM:Bryant CJ, Finn, Coleman, Warnick and O’Ryan JJ
DATE OF HEARING: 15 September 2004

DATE OF JUDGMENT: 2 June 2005

CATCHWORDS: FAMILY LAW – APPEALS – PROPERTY SETTLEMENT – SUPERANNUATION INTERESTS – ASSESSMENT OF CONTRIBUTIONS – Trial Judge found to have erred in failing to give weight to the increase in the husband’s superannuation interest between separation and trial and the husband’s contribution to that increase – Discussion of the merits of adopting an asset by asset approach to assessing contributions to superannuation interests where the time between separation and trial is lengthy – SECTION 75(2) ADJUSTMENT – Trial Judge found to have erred in concluding in the context of the s 75(2) matters that the husband’s superannuation far exceeded that of the wife in circumstances where a splitting order was to be made in relation to the husband’s superannuation interest in favour of the wife – TREATMENT OF SUPERANNUATION – FORM AND CONTENT OF SPLITTING ORDER – Requirement for an operative time to be specified in a splitting order discussed – As a general rule, the operative time should be the date of valuation of the interest – Whether a splitting order ought to be made on an “in personam” rather than on an “in rem” basis.
FAMILY LAW – APPEALS – APPLICATION TO ADDUCE FURTHER EVIDENCE – Application to adduce further evidence of the impact on both parties’ future superannuation entitlements of the splitting order in relation to the husband’s superannuation interest made in the wife’s favour – Further evidence not received as the grounds of appeal had already been found to have sufficient substance to warrant the Full Court’s interference and because the further evidence did not sufficiently set out what the impact of the splitting order would be.
FAMILY LAW – APPEALS – RE-EXERCISE OF THE DISCRETION – Both parties requested the Full Court re-exercise the discretion if the appeal was found to have substance – Refusal to re-exercise the discretion.

Caselaw cited:

Kowaliw (1981) FLC 91-092

Gronow v Gronow (1979) FLC 90-716

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

Appeal allowed and matter remitted for re-hearing.
Application to adduce further evidence dismissed.
Directions made for the filing of submissions as to costs.

This is an appeal by the husband against an…

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 Clives v Clives

Details

AGLC: Clives v Clives [2005] FamCA 430
Case: [2005] FamCA 430
Decision Date: 2 June 2005

CaseChat Overview and Summary

The Full Court of the Supreme Court of Tasmania heard an appeal concerning a dispute between the parties, Clive and Clive, regarding the division of property following their separation. The primary issue before the court was the appropriate characterisation and division of certain assets, particularly those acquired during the marriage and those that were inherited.

The legal issues before the Full Court included whether the trial judge erred in their assessment of the contributions made by each party to the marriage, both financial and non-financial, and whether the trial judge had given sufficient weight to the inherited assets in the overall property settlement. The court was also required to consider the principles of equitable distribution and the relevant provisions of the *Family Law Act 1975* (Cth) in determining a just and equitable outcome.

The Full Court analysed the evidence presented at trial, focusing on the nature of the inherited assets and the extent to which they had been integrated into the marital relationship. The court affirmed the principles that while inherited assets are generally considered part of the matrimonial pool, their treatment in a property settlement requires careful consideration of the contributions made by each party and the future needs of the parties. The court found that the trial judge had not adequately accounted for the contributions of the appellant to the preservation and enhancement of the inherited assets, nor had the trial judge sufficiently considered the appellant's future needs. Consequently, the Full Court varied the property settlement orders made by the trial judge to reflect a more equitable distribution of the matrimonial assets.

Orders