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Cross v Beaumont

Cross v Beaumont

Case [2007] FamCA 123 2 March 2007

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FAMILY COURT OF AUSTRALIA

CROSS & BEAUMONT

[2007] FamCA 123

APPEAL – PROPERTY - Where husband had interest in farming property subject to life tenancy – Conceded husband’s interest in farming property was vested interest notwithstanding husband did not have immediate ability to realise asset - Whether trial Judge erred in treatment of husband’s interest in farming property including assessment of contributions and relevant s 75(2) factors – No matter which trial Judge said to have failed to take into account and no extraneous matter taken into account – No appealable error in contributions assessment – Whether trial Judge failed to give sufficient weight to nature of husband’s interest in farming property - Discount inbuilt into valuation of husband’s interest in farming property to take account of life expectancy of life tenant - No error in trial Judge’s exercise of discretion particularly having regard to inbuilt discount in valuation which trial Judge took into account in making s 75(2) adjustment – No merit in this ground.

Whether trial Judge erred in providing for payment of interest under Family Law Rules 2004 when husband unable to realise interest in farming property – Whether trial Judge failed to give adequate reasons for departure from s 117B(1) of the Family Law Act 1975 (Cth).

RE-EXERCISE OF DISCRETION – SECTION 117B – Husband does not have present ability to realise interest in farming property or independently borrow against interest in that property – Imposition of interest at rate prescribed under rules not appropriate – Appropriate under s 117B(2)(a) to substitute interest at rate of 5 per cent per annum in lieu of rate prescribed by rules – Payment of interest due to be deferred until payment of balance due under trial Judge’s orders.

COSTS – Appeal successful in respect of interest ground – Each party to receive certificate under Federal Proceedings (Costs) Act 1981 (Cth).

Family Law Act1975 (Cth), ss 75(2), 117B
Federal Proceedings (Costs) Act1981 (Cth), ss 6 and 9
Settled Land Act 1884 (Tas), s 32
Family Law Rules 2004

Bonnici and Bonnici (1992) FLC 92-272
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716
House v The King (1936) 55 CLR 499
JEL and DDF (No 2) (2001) FLC 93-083
McDonnell and McDonnell (unreported, judgment delivered 13 December 1990: Baker, Simpson and Nygh JJ, Full Court of the Family Court of Australia)
Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712
Sorensen and Sorensen (unreported, judgment delivered 11 December 1991: Baker, Lindenmayer and Rourke JJ, Full Court of the Family Court of Australia)

APPELLANT:

Cross

RESPONDENT:

Beaumont

INTERVENERS:

JE, JC and MC

FILE NUMBER:

HBF

1168

2004

APPEAL NUMBER:

2006

DATE DELIVERED:

2 March 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Kay, Boland and Benjamin JJ

HEARING DATE:

8 February 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

10 May 2006

LOWER COURT MNC:

[2006] FamCA 704

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Ayliffe

SOLICITOR FOR THE APPELLANT:

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 Cross v Beaumont

Details

AGLC: Cross v Beaumont [2007] FamCA 123
Case: [2007] FamCA 123
Decision Date: 2 March 2007

CaseChat Overview and Summary

The appeal concerned a dispute between a husband and wife regarding the division of their property. The husband held a vested interest in a farming property, which was subject to a life tenancy. The primary dispute on appeal related to the trial judge's treatment of the husband's interest in this farming property, specifically concerning the assessment of contributions and the application of relevant factors under section 75(2) of the *Family Law Act 1975* (Cth). A further issue was whether the trial judge erred in ordering the payment of interest on a sum due to the wife, given the husband's inability to immediately realise his interest in the farming property.

The Full Court of the Family Court of Australia was required to determine whether the trial judge had erred in assessing the husband's contributions and in considering the section 75(2) factors. Specifically, the court had to consider whether sufficient weight was given to the nature of the husband's interest in the farming property, which was encumbered by a life tenancy. Additionally, the court needed to decide whether the trial judge erred in ordering the payment of interest under the *Family Law Rules 2004* when the husband lacked the present ability to realise his interest, and whether adequate reasons were provided for departing from section 117B(1) of the *Family Law Act*.

The Full Court found no appealable error in the trial judge's assessment of contributions or in the consideration of section 75(2) factors. The court noted that a discount had been incorporated into the valuation of the husband's interest to account for the life tenancy, and this discount was taken into account by the trial judge. However, the Full Court determined that the imposition of interest at the rate prescribed by the *Family Law Rules* was inappropriate given the husband's inability to realise his interest or borrow against it. Applying section 117B(2)(a) of the *Family Law Act*, the court substituted an interest rate of 5 per cent per annum and deferred the payment of interest until the principal sum was paid.

As the appeal was successful on the ground relating to interest, each party was granted a certificate under the *Federal Proceedings (Costs) Act 1981* (Cth).

Orders