Cook & Langford - [2008] FamCAFC 84

FAMILY COURT OF AUSTRALIA

COOK & LANGFORD

[2008] FamCAFC 84

FAMILY LAW - APPEAL – PROPERTY – CONTRIBUTIONS – REASONS - Where husband appealed against orders the wife pay $2 million to the husband and release him from any debt owing to any company controlled by the wife - Where total property pool was over $66 million – Where asserted contribution assessment manifestly unjust – Where parties' cohabitation was of 5 years duration - Where husband bankrupt at commencement of cohabitation - where wife had assets (and interest in a discretionary trust) of approximately $14.5 million at commencement of cohabitation - Whether trial Judge erred in assessing husband’s contribution based entitlement at $1 million – Whether trial Judge failed to give adequate weight to husband’s contributions – Whether adequate reasons given for contribution finding – Where husband’s asserted financial contribution came from employment on the wife’s rural property and to commercial business enterprise - Where trial Judge evaluated the parties’ respective contributions pre-cohabitation, during cohabitation and post-separation – No error in trial Judge’s assessment of husband’s contributions - Whether trial Judge erred in calculating contribution entitlement as a lump sum rather than as a percentage of the total property pool – Trial Judge gave adequate reasons. No error in contribution assessment.

FAMILY LAW - APPEAL – PROPERTY – s 75(2) ADJUSTMENT – Whether trial Judge’s s 75(2) adjustment was adequate - Whether trial Judge failed to give sufficient weight to the disparity in the parties’ financial positions, the husband’s uncontested medical evidence, asserted restricted future earning capacity and the parties’ standard of living during cohabitation and marriage – Where trial Judge’s reasons disclose careful examination of all of the relevant factors.

FAMILY LAW - APPEAL – ASSERTION ORDERS WERE NOT JUST AND EQUITABLE - Where husband asserted that adjustment of assets received was manifestly unjust and inequitable - Where trial Judge considered and rejected wife’s position that no adjustment should be made in husband’s favour - Where no error found in trial Judge’s assessment of contribution and s75(2) factors - No merit in this ground.

FAMILY LAW - APPEAL - NOTICE OF CONTENTION – Where wife sought to rely on Notice of Contention filed in accordance with High Court Rules 2004 - As appeal dismissed unnecessary to consider matters raised in Notice of Contention.

FAMILY LAW - COSTS – Where wife sought costs - Where husband wholly unsuccessful - Time-table set for the filing of written submissions in respect of the costs of the appeal.

Family Law Act 1975 (Cth) - s 75(2), s 79, s 79(4)(c)
High Court Rules 2004 - r 42.08.5

Browne v Dunn (1894) 6 R 67

Bushby & Bushby (1988) FLC 91-919

House v The King (1936) 55 CLR 499

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378

Farmer & Bramley (2000) FLC 93-060

Figgins & Figgins (2002) FLC 93-122

McLay & McLay (1996) FLC 92-667

Norbis v Norbis (1985-1986) 161 CLR 513

Wade v Allsop (1976) 10 ALR…

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.

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Details

AGLC: Cook & Langford [2008] FamCAFC 84
Case: [2008] FamCAFC 84
Decision Date: 20 June 2008

CaseChat Overview and Summary

In the case of Cook & Langford, the husband sought to appeal against the orders of the trial judge that the wife pay him $2 million and release him from any debt owing to any company controlled by the wife. The total property pool was over $66 million, and the husband argued that the contribution assessment was manifestly unjust, particularly as he had been bankrupt at the commencement of their cohabitation, and the wife had assets of approximately $14.5 million at that time. The husband also argued that the trial judge failed to give adequate weight to his contributions and the reasons given for the contribution finding were inadequate.

The court considered whether the trial judge erred in assessing the husband's contribution-based entitlement at $1 million and in calculating his contribution entitlement as a lump sum rather than as a percentage of the total property pool. The court held that the trial judge gave adequate reasons and there was no error in the assessment of the husband's contributions. The trial judge evaluated the parties' respective contributions pre-cohabitation, during cohabitation and post-separation. The court found that there was no error in the trial judge's assessment of the husband's contributions. The court also found that the trial judge gave adequate reasons for the contribution assessment and there was no error in calculating the contribution entitlement as a lump sum.

The court further considered whether the trial judge erred in the s 75(2) adjustment, whether the trial judge failed to give sufficient weight to the disparity in the parties' financial positions, the husband's uncontested medical evidence, asserted restricted future earning capacity and the parties' standard of living during cohabitation and marriage. The court held that the trial judge's reasons disclosed a careful examination of all of the relevant factors and there was no error in the trial judge's assessment of the s 75(2) factors. The court also found that there was no merit in the husband's argument that the adjustment of assets received was manifestly unjust and inequitable.

Lastly, the court considered the wife's application for costs, which was dismissed as the husband was wholly unsuccessful in his appeal. The court set a timetable for the filing of written submissions in respect of the costs of the appeal. The court dismissed the husband's appeal and the wife's Notice of Contention. The court also granted the parties liberty to make an application for costs incurred by them in relation to the appeal.

Orders

Orders of the court

That the appeal be dismissed.

That the wife’s Notice of Contention be dismissed.

That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 21 days of the date hereof.

That the other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the other party.

That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Eastern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further 7 days.

That each party endorse on the cover sheet of any submissions filed pursuant to Orders 3, 4 and 5, the date upon which a copy of that submission was served on the other party.

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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