Cohen & Cohen - [2008] FamCAFC 54

FAMILY COURT OF AUSTRALIA

COHEN & COHEN

[2008] FamCAFC 54

FAMILY LAW – APPEAL – APPEAL FROM FEDERAL MAGISTRATES COURT – SUPERANNUATION – CONTRIBUTIONS – Not established that Federal Magistrate erred in the exercise of discretion by failing to have appropriate regard to non-financial contributions of the wife to the superannuation interest of the husband, that being in the payment phase when the parties met. House v The King (1936) 55 CLR 499; Norbis v Norbis (1986) 161 CLR 513 and Gronow v Gronow (1979) 144 CLR 513 cited. Circumstances of this case differed from those in Farmer & Bramley (2000) FLC 93-060 and contributions post-separation were appropriately considered by Federal Magistrate. Federal Magistrate held not to have treated the superannuation interests inconsistently to non-superannuation assets.

FAMILY LAW – PROPERTY SETTLEMENT - NON-SUPERANNUATION ASSETS – CONTRIBUTIONS – Assertion that Federal Magistrate erred in the exercise of discretion in evaluating the wife’s contributions to the non-superannuation assets not established.

FAMILY LAW – PROPERTY SETTLEMENT - SECTION 75(2) – Not established that Federal Magistrate was in error in his assessment of section 75(2) factors. Federal Magistrate did not fail to have regard to relevant factors, nor had regard to irrelevant factors. Refusal to make a section 75(2) adjustment was within a reasonable ambit of discretion.

FAMILY LAW – PROPERTY SETTLEMENT - JUST AND EQUITABLE – Complaint that Federal Magistrate’s decision was not just and equitable not established.

FAMILY LAW – JUDGMENTS - ADEQUACY OF REASONS – Assertion that Federal Magistrate’s reasons were inadequate not established. Housing Commission of NSW v Tatmar PastoralCo Pty Ltd [1983] 3 NSWLR 378; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Bennett & Bennett (1991) FLC 92-191 cited.

House v The King (1936) 55 CLR 499
Norbis v Norbis (1986) 161 CLR 513
Gronow v Gronow (1979) 144 CLR 513
Housing Commission of NSW v Tatmar PastoralCo Pty Ltd [1983] 3 NSWLR 378
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Bennett & Bennett (1991) FLC 92-191
Coghlan & Coghlan (2005) FLC 93-220
Farmer & Bramley (2000) FLC 93-060
Figgins & Figgins (2002) FLC 93-122

APPELLANT:

Mrs Cohen

RESPONDENT:

Mr Cohen

FILE NUMBER:

CAM

948

2005

APPEAL NUMBER:

EAA

107

2007

DATE DELIVERED:

5 May 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Canberra

JUDGMENT OF:

Finn, Coleman & Thackray JJ

HEARING DATE:

18 March 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

21 August 2007

LOWER COURT MNC:

[2007] FMCAfam 604

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Tonkin

SOLICITOR FOR THE APPELLANT:

Legal Aid Commission (ACT)

COUNSEL FOR THE RESPONDENT:

Mr Brzostowski, SC

SOLICITOR FOR THE RESPONDENT:

Dobinson Davey Clifford Simpson

Orders

That the appeal be dismissed.
That within twenty-one (21) days the respondent husband file and serve submissions in support of any application for costs.
That within twenty-one (21) days thereafter the appellant wife file and serve submissions in response to the submissions on behalf of the respondent husband in relation to…

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 Cohen & Cohen

Details

AGLC: Cohen & Cohen [2008] FamCAFC 54
Case: [2008] FamCAFC 54
Decision Date: 5 May 2008

CaseChat Overview and Summary

The appeal in Cohen & Cohen was brought against a decision made by the Federal Magistrates Court in relation to a property settlement between the parties. The wife, the appellant, contested various aspects of the decision, including the treatment of superannuation contributions, non-superannuation assets, the application of section 75(2) factors, the overall fairness of the decision, and the adequacy of the reasons provided by the Federal Magistrate. The husband, the respondent, defended the decision and sought costs associated with the appeal.

The central legal issues before the court were whether the Federal Magistrate had erred in their exercise of discretion regarding the contributions made by the wife to the husband's superannuation, the evaluation of the wife’s contributions to non-superannuation assets, the assessment of section 75(2) factors, the overall fairness of the decision, and the adequacy of the reasons provided. The wife argued that the Federal Magistrate failed to adequately consider her non-financial contributions to the husband’s superannuation, misevaluated her contributions to non-superannuation assets, improperly applied section 75(2) factors, and did not reach a just and equitable outcome. She further contended that the reasons provided by the Federal Magistrate were inadequate.

The court found that the Federal Magistrate had not erred in their consideration of the wife’s contributions to the husband’s superannuation, nor in their evaluation of her contributions to non-superannuation assets. The court held that the Federal Magistrate appropriately considered the contributions made post-separation and had not treated the superannuation interests inconsistently to non-superannuation assets. The court also found that the Federal Magistrate had not erred in their assessment of section 75(2) factors, and their refusal to make a section 75(2) adjustment was within a reasonable ambit of discretion. The court further found that the decision reached by the Federal Magistrate was just and equitable and that the reasons provided were adequate.

The appeal was dismissed, and the respondent was directed to file and serve submissions in support of any application for costs within twenty-one days. The appellant was then directed to file and serve submissions in response to the submissions on behalf of the respondent in relation to costs within twenty-one days thereafter.

Orders

Orders of the court

That the appeal be dismissed.

That within twenty-one (21) days the respondent husband file and serve submissions in support of any application for costs.

That within twenty-one (21) days thereafter the appellant wife file and serve submissions in response to the submissions on behalf of the respondent husband in relation to costs.

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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