DI SALVO & DI SALVO - [2009] FamCAFC 232

FAMILY COURT OF AUSTRALIA

DI SALVO & DI SALVO

[2009] FamCAFC 232

FAMILY LAW - APPEAL – PROPERTY – where the Federal Magistrate divided property in the proportions of 64 per cent to the wife and 36 per cent to the husband – whether there were errors in the calculation of the pool in relation to add-backs and in relation to the valuation of the husband’s building business, where there had been significant non-disclosure on the husband’s part – whether the Federal Magistrate’s orders were outside the range of a just and equitable distribution – whether the Federal Magistrate erred in making orders relating to the sale of the former matrimonial home – appeal allowed – Full Court re-determined property orders – property pool reduced – property divided as to 60 per cent to the wife and 40 per cent to the husband.

FAMILY LAW - CROSS-APPEAL – PROPERTY – where the Federal Magistrate added back the husband’s legal fees to pool – where the wife’s solicitors made an error in the amount of legal fees to be added back to the pool – where the Federal Magistrate adopted this figure – cross-appeal dismissed.

Family Law Act 1975 (Cth)

CDJ v VAJ (1998) 197 CLR 172
Chorn & Hopkins (2004) FLC 93-204
J & J [2006] FamCA 951
M & M [1998] FamCA 42
Omacini & Omacini (2005) FLC 93-218
Weir & Weir (1993) FLC 92-338

APPELLANT:

Mr Di Salvo

RESPONDENT:

Ms Di Salvo

FILE NUMBER:

BRC

11458

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

18 December 2009

PLACE DELIVERED:

Canberra

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Finn and Jordan JJ

HEARING DATE:

19 May 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

7 October 2008

LOWER COURT MNC:

[2008] FMCAfam 1086

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kirk SC

SOLICITOR FOR THE APPELLANT:

HopgoodGanim Lawyers

COUNSEL FOR THE RESPONDENT:

Ms McDiarmid

SOLICITOR FOR THE RESPONDENT:

Anthony Black Family Law Services

Orders

That the appeal against the orders made by Federal Magistrate Cassidy on 7 October 2008 (and subsequently amended on 9 October 2008 pursuant to rule 16.05(2)(e) of the Federal Magistrates Court Rules 2001 (the slip rule)) be allowed, and those orders varied as follows:

to substitute in Order 1(b) the figure of $1,185,574.00 for the figure of $1,373,000.00 as “the settlement sum”;
to substitute in Order 4(b) the figure of $456,675.00 for the figure of $620,440.00 as the “net property of the husband”;
to substitute in Order 5 “60%” and “40%” for “64%” and “36%”;
to delete Order 5(b).

That the appellant’s application to adduce further evidence filed 5 May 2009 be dismissed.
That the cross-appeal against the orders made by Federal Magistrate Cassidy on 7 October 2008 (and subsequently amended on 9 October 2008 pursuant to rule 16.05(2)(e) of the Federal Magistrates Court Rules 2001 (the slip rule)) be dismissed.
That there be no order for costs in relation to the appeal or the cross-appeal.
(a) That the Court…

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

Case: [2009] FamCAFC 232
Decision Date: 18 December 2009

CaseChat Overview and Summary

The matter before the Full Court was an appeal against the property division orders made by a Federal Magistrate in the case of Di Salvo & Di Salvo. The appeal focused on the Federal Magistrate's calculations of the property pool, particularly regarding add-backs and the valuation of the husband's building business, which had been subject to significant non-disclosure by the husband. Additionally, the wife appealed the orders relating to the sale of the former matrimonial home. The wife also cross-appealed the Federal Magistrate's decision to include the husband's legal fees in the pool, noting an error made by the wife's solicitors in the amount of fees added.

The court needed to determine whether there were errors in the Federal Magistrate's calculations and valuation, and whether the orders were outside the range of a just and equitable distribution. It was also necessary to consider whether the Federal Magistrate erred in making orders relating to the sale of the former matrimonial home. The Full Court found that there were indeed errors in the calculation of the pool and the valuation of the husband's business. Consequently, the court reduced the property pool and re-determined the property division, resulting in a more equitable distribution of 60% to the wife and 40% to the husband.

The Full Court allowed the husband's appeal, varying the property division orders as outlined in the orders section. The court dismissed the husband's application to adduce further evidence and the wife's cross-appeal. The court granted costs certificates to both parties, allowing them to seek costs from the Attorney-General under the Federal Proceedings (Costs) Act 1981. The final orders reflected the court's adjustments to the property division and the denial of additional evidence and cross-appeal.

Orders

Orders of the court

That the appeal against the orders made by Federal Magistrate Cassidy on 7 October 2008 (and subsequently amended on 9 October 2008 pursuant to rule 16.05(2)(e) of the Federal Magistrates Court Rules 2001 (the slip rule)) be allowed, and those orders varied as follows:

to substitute in Order 1(b) the figure of $1,185,574.00 for the figure of $1,373,000.00 as “the settlement sum”;

to substitute in Order 4(b) the figure of $456,675.00 for the figure of $620,440.00 as the “net property of the husband”;

to substitute in Order 5 “60%” and “40%” for “64%” and “36%”;

to delete Order 5(b).

That the appellant’s application to adduce further evidence filed 5 May 2009 be dismissed.

That the cross-appeal against the orders made by Federal Magistrate Cassidy on 7 October 2008 (and subsequently amended on 9 October 2008 pursuant to rule 16.05(2)(e) of the Federal Magistrates Court Rules 2001 (the slip rule)) be dismissed.

That there be no order for costs in relation to the appeal or the cross-appeal.

(a) That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.

(b) That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.

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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