DIGGELEN & DIGGELEN - [2014] FamCAFC 160

FAMILY COURT OF AUSTRALIA

DIGGELEN & DIGGELEN

[2014] FamCAFC 160

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the appellant was entitled to a hearing of her appeal notwithstanding the respondent’s application for an adjournment and non-appearance on the day – Where the husband was made redundant and given an Employment Termination Payment – Where the trial judge assumed the payment was subject to tax and therefore declined to add the whole amount back into the property pool – Where there was no evidentiary basis for his Honour to conclude that tax had not been paid on that amount – Where the wife was not given the opportunity to address the issue as to the tax consequences of the redundancy payment – Where the husband had shares and share options that were to vest at a future date – Where there was evidence from a forensic accountant in relation to the value of the shares and share options – Where the trial judge failed to take into account certain unvested options –– Appeal allowed.

Evidence Act1995 (Cth) s 144
Taxation Administration Act 1953 (Cth) ss 12-85 of Schedule 1

CDJ v VAJ (1998) 197 CLR 172
De Winter & De Winter (1979) FLC 90-605
Zanatta v McCleary [1976] 1 NSWLR 230

APPELLANT:

Ms Diggelen

RESPONDENT:

Mr Diggelen

FILE NUMBER:

SYC

3222

2009

APPEAL NUMBER:

159

2012

DATE DELIVERED:

1 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Ainslie-Wallace & Ryan JJ

HEARING DATE:

1 May 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

9 November 2012

LOWER COURT MNC:

[2012] FamCA 940

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Batey

SOLICITOR FOR THE APPELLANT:

Broun Abrahams Burreket

THE RESPONDENT:

No appearance

Orders

The application in an appeal filed by the wife on 13 January 2014 be dismissed.
The appeal be allowed.
Orders 1 to 8 inclusive of the Orders made on 9 November 2012 be set aside.
The proceedings for property settlement be remitted to the Family Court of Australia for rehearing.
There be no order as to the costs of the appeal.
The Court grants to the appellant 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 appellant wife in respect of the costs incurred by her in relation to the appeal.
The Court grants to the appellant wife a costs certificate pursuant to the provisions of s 8 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 wife in respect of the costs incurred by her in relation to the rehearing of the proceedings for property settlement.

IT IS NOTED that publication of this 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: DIGGELEN & DIGGELEN [2014] FamCAFC 160
Case: [2014] FamCAFC 160
Decision Date

CaseChat Overview and Summary

This appeal concerns the property settlement between the parties following their separation. The wife appealed certain orders made by the primary judge. The husband did not appear at the hearing and his application for an adjournment was refused. The appeal concerned the primary judge’s treatment of the husband’s redundancy payment and the inclusion of certain shares and share options in the property pool. The Full Court found that the primary judge erred in reducing the redundancy payment on the basis of taxation implications when there was no evidence to support that conclusion. The Full Court also found that the primary judge failed to include certain unvested shares and share options in the property pool. The appeal was allowed, the orders of the primary judge were set aside and the matter was remitted for rehearing. The wife was granted a costs certificate.

Orders