DANH & LOI - [2019] FamCAFC 190

FAMILY COURT OF AUSTRALIA

DANH & LOI

[2019] FamCAFC 190

FAMILY LAW – APPEAL – PROPERTY – Where the primary judge failed to address the splitting order sought by appellant whereby she sought to receive 70 per cent of respondent’s superannuation entitlement – Where the error identified does not affect any other order made by the primary judge – Appeal allowed in part – The assessment and determination of what if any order should be made in relation to the respondent’s superannuation entitlements be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge – Appeal otherwise dismissed.

FAMILY LAW – COSTS – COSTS CERTIFICATES – Where both parties sought their costs – Where in the circumstances of this matter s 117(1) of the Family Law Act 1975 (Cth) should prevail and each party should bear their own costs – No order as to costs – Oral applications for costs certificates dismissed.

Family Law Act 1975 (Cth) ss 75(2) and 117(1)

Allesch v Maunz (2000) 203 CLR 172
Bolger & Headon (2014) FLC 93-575
Brown v Brown (1905) 3 CLR 373
Ferguson and Ferguson (1978) FLC 90-500
Gronow & Gronow (1979) 144 CLR 513
Kennon v Kennon (1997) FLC 92-757
In the marriage of Lawrie and Lawrie (1981) FLC 91-102
Lovine & Connor & Anor (2012) FLC 93-515
Petruski & Balewa [2013] FamCAFC 15
Sheedy and Sheedy (1979) 90-719
Stead v State Government Insurance Commission (1986) 161 CLR 141
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Tomasetti & Tomasetti (2000) FLC 93-023

APPELLANT:

Ms Danh

RESPONDENT:

Mr Loi

FILE NUMBER:

SOA

100

2018

APPEAL NUMBER:

DGC

1274

2017

DATE DELIVERED:

31 October 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

1 May 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT ORDER DATE:

30 November 2018

LOWER COURT MNC:

[2018] FCCA 3660

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Nehmy

SOLICITOR FOR THE APPELLANT:

Mathews Family Law

COUNSEL FOR THE RESPONDENT:

Mr Hutchings

SOLICITOR FOR THE RESPONDENT:

Wheeler Family Law

Orders

The appeal be allowed in part.
Order 6. b. be set aside insofar as it applies to the superannuation benefits of the respondent husband.
The assessment and determination of what, if any, order should be made in relation to the respondent husband’s superannuation entitlements be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Small.
Otherwise, the appeal be dismissed.
There be no order as to costs and the oral applications for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Danh & Loi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment…

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: DANH & LOI [2019] FamCAFC 190
Case: [2019] FamCAFC 190
Decision Date: 31 October 2019

CaseChat Overview and Summary

The appeal before the court involved Danh, the appellant, and Loi, the respondent, in a family law matter concerning the distribution of property. Danh sought a 70 per cent allocation of Loi's superannuation entitlement, but the primary judge did not address this request. The appeal was heard by the Family Court of Australia, which had jurisdiction over the matter as it pertained to family law.

The court had to determine whether the primary judge's failure to address the splitting order concerning Loi's superannuation entitlement constituted a legal error and if this error warranted a rehearing. Additionally, the court needed to decide on the appropriate costs order, given both parties sought their costs.

The court found that the primary judge's omission to address the splitting order concerning Loi's superannuation constituted a legal error, but this did not affect any other orders made by the judge. The appeal was allowed in part, and the court set aside the order that applied to Loi's superannuation benefits. The court remitted the assessment and determination of what, if any, order should be made in relation to Loi's superannuation entitlements to the Federal Circuit Court of Australia for rehearing by a different judge. The appeal was otherwise dismissed, and no order was made regarding costs, as the circumstances of the matter warranted each party to bear their own costs. The oral applications for costs certificates were also dismissed.

Orders

Orders of the court

The appeal be allowed in part.

Order 6. b. be set aside insofar as it applies to the superannuation benefits of the respondent husband.

The assessment and determination of what, if any, order should be made in relation to the respondent husband’s superannuation entitlements be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Small.

Otherwise, the appeal be dismissed.

There be no order as to costs and the oral applications for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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