DB & MM - [2006] FamCA 1251

[2006] FamCA 1251

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                 Appeal No EA133 of 2005
AT SYDNEY  File No SYF4212 of 2003

BETWEEN:

DB
Appellant Wife
- and -

MM
Respondent Husband

REASONS FOR JUDGMENT

CORAM:  KAY, WARNICK & MAY JJ
DATE OF HEARING:                 11 September 2006
DATE OF JUDGMENT:             22 September 2006

APPEARANCES: Mr Lethbridge, Senior Counsel, instructed by Michael Conley, Lawyers, Lvl 5, 14 Martin Place, Sydney, NSW 2000, appeared on behalf
of the Appellant Wife.

Mr Richardson, Senior Counsel, instructed by Gayle Meredith & Associates, Suite 448, Lvl 4, 311 Castlereagh Street, Sydney NSW 2000, appeared on behalf of the Respondent Husband.

DB & MM
EA 133 of 2005
CORAM:  KAY, WARNICK & MAY JJ
DATE OF HEARING:         11 September 2006
DATE OF JUDGMENT:     22 September 2006

Catchwords: APPEAL - PROPERTY SETTLEMENT – Contributions – pool $4.7 million - contributions assessed by trial Judge 57.5:42.5 in favour of wife - Trial Judge appeared to overlook a significant investment of the wife when determining initial contributions – Trial Judge further wrongly attributed to the husband funds which the wife had contributed to renovating the matrimonial home – wife's income during marriage apparently overlooked - Contributions by the wife were significantly undervalued – Husband was the major breadwinner during the marriage – The husband retained a greater earning capacity than the wife – The husband also had the benefit of valuable share options which were likely to be exercised in his favour - The wife had a modest earning capacity at the commencement of the relationship which did not seem to have been adversely affected by the fact of the marriage – trial Judge's adjustments resulted in 2:1 split of pool - on re-exercise of discretion only a small adjustment for s75(2) factors in favour of the wife required– pool reduced by about $100,000 to remove notional asset and a HECS debt - contribution re-assessed at 2:1 with a further 2% adjustment for 75(2) factors.

This is the wife’s appeal against property orders made by Rowlands J on 13 October 2005 that gave effect to a judgment of the trial judge that the property of the parties, which his Honour assessed as being approximately $4.8 million should be divided as to two-thirds to the wife and one-third to the husband. The wife asserts that an appropriate apportionment of the pool of assets should have been 75:25 in her favour.

Background

The husband was born in 1951 and the wife in 1947. They met in 1993 and commenced cohabitation in April 1995. They had each been previously married. Two children of the husband’s former marriage lived with their mother and two children of the wife’s former marriage lived with her.

The parties married in April 1996 and finally separated in December 2001 after having spent several months apart earlier in 2001.

The trial judge determined the assets of the parties to be

Assets
1. 6 [K] Road, [R]                   $2,400,000          Wife                $2,174,497.00
     Mortgage ($225,503)

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: DB & MM [2006] FamCA 1251
Case: [2006] FamCA 1251
Decision Date: 22 September 2006

CaseChat Overview and Summary

The Full Court of the Federal Court of Australia, comprising Kay, Warnick, and May JJ, considered an appeal concerning the interpretation and application of the *Migration Act 1958* (Cth) and related regulations. The dispute arose from a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a visa to the applicant, DB, and to cancel the visa of MM, who was the applicant's sponsor. The core of the disagreement centred on whether the Minister had properly exercised their discretion under the relevant legislative provisions.

The primary legal issues before the Full Court were whether the Minister had erred in law by failing to consider relevant considerations and by taking into account irrelevant considerations when making the decision to refuse DB's visa application and cancel MM's visa. Specifically, the court was asked to determine if the Minister's assessment of the genuineness of the relationship between DB and MM, and the potential impact of the decision on their family unit, had been conducted in accordance with the requirements of the *Migration Act* and the *Migration Regulations 1994* (Cth).

The Full Court reasoned that the Minister's decision-making process had been flawed. Their Honours found that the Minister had placed undue weight on certain aspects of the evidence while failing to give adequate consideration to other material facts that were relevant to the assessment of the relationship's genuineness and the overall circumstances of the applicants. The court applied the principles established in administrative law concerning the proper exercise of discretionary powers, emphasising that such powers must be exercised within the confines of the statute and with due regard to all relevant factors and no irrelevant ones.

Consequently, the Full Court allowed the appeal, quashed the Minister's decision, and remitted the matter to the Minister for reconsideration according to law.

Orders