DOBBS & DOBBS - [2018] FamCAFC 174

FAMILY COURT OF AUSTRALIA

DOBBS & DOBBS

[2018] FamCAFC 174

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the s 75(2) adjustment of five per cent in the wife’s favour was allegedly “not open” due to factual error – Where the husband claimed that the trial judge made a mistake of fact by assuming the wife would bear the burden of the child’s private school fees – Where it was probable the wife would have greater financial responsibility for the child in the future – Where the trial judge effectively identified the factors which justified the adjustment under s 75(2) in the wife’s favour – Where the findings of the trial judge were open on the evidence – Where there was no error on part of the trial judge demonstrated – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs of appeal – Where the appeal has been wholly unsuccessful – Appellant to pay respondent’s costs of a specific sum calculated on a party/party basis.

Family Law Act 1975 (Cth) ss 75(2), 117(2A)

House v The King (1936) 55 CLR 499; [1936] HCA 40
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

APPELLANT:

Mr Dobbs

RESPONDENT:

Ms Dobbs

FILE NUMBER:

MLC

8793

2015

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

10 September 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Melbourne

JUDGMENT OF:

Alstergren DCJ, Watts & Austin JJ

HEARING DATE:

28 August 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 February 2018

LOWER COURT MNC:

[2018] FamCA 66

REPRESENTATION

THE APPELLANT:

In person

SOLICITOR FOR THE APPELLANT:

Techcomm Legal

COUNSEL FOR THE RESPONDENT:

Mr Devries

SOLICITOR FOR THE RESPONDENT:

Costanzo Lawyers

Orders

The appeal is dismissed.
The appellant shall pay the respondent’s costs of appeal, assessed in the sum of $15,000.

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 Dobbs & Dobbs 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 may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 18 of 2018
File Number: MLC 8793 of 2015

Mr Dobbs

Appellant

And

Ms Dobbs

Respondent

REASONS FOR JUDGMENT

On 15 February 2018, Cronin J made orders between the appellant husband and respondent wife adjusting their property interests under Part VIII of the Family Law Act 1975 (Cth) (“the Act”). The husband appealed those orders.
At trial, the parties agreed to treat their superannuation interests separately from and differently to their assets and liabilities. The trial judge split…

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: DOBBS & DOBBS [2018] FamCAFC 174
Case: [2018] FamCAFC 174
Decision Date: 10 September 2018

CaseChat Overview and Summary

Dobbs & Dobbs involved an appeal against a property settlement order made in the context of a divorce. The wife appealed, arguing that the trial judge's application of section 75(2) of the Family Law Act 1975 (Cth) was flawed because the judge had incorrectly assumed that she would bear the burden of the child's private school fees. The husband countered that the trial judge had correctly identified the factors justifying a five per cent adjustment in the wife's favour, and that the wife was likely to have greater financial responsibility for the child in the future.

The court examined whether the trial judge had erred in fact or law by making the adjustment. The judge had considered the future financial responsibilities of the wife and concluded that the factors justifying the adjustment were present. The court found that the trial judge's findings were open on the evidence and that no factual error had been demonstrated. The wife's argument that the trial judge had made a mistake of fact did not succeed because the judge's assessment was based on a reasonable interpretation of the evidence.

In conclusion, the appeal was dismissed as there was no demonstrated error on the part of the trial judge. Additionally, the appellant was ordered to pay the respondent's costs of appeal, which were assessed at $15,000. This decision underscored the importance of the trial judge's discretion in considering the unique circumstances of each case when applying section 75(2).

Orders

Orders of the court

The appeal is dismissed.

The appellant shall pay the respondent’s costs of appeal, assessed in the sum of $15,000.

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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