DUKE & DUKE - [2009] FamCAFC 174

FAMILY COURT OF AUSTRALIA

DUKE & DUKE

[2009] FamCAFC 174

FAMILY LAW - APPEAL AND CROSS-APPEAL – PROPERTY – where the Federal Magistrate ordered the parties’ superannuation and non-superannuation assets be divided in the proportion of 57.5 per cent to the wife and 42.5 per cent to the husband – where the husband and the wife challenged his Honour’s calculation of the value of the non-superannuation assets – where the husband challenged the award of 57.5 per cent of his superannuation to the wife – found that the appeals of both the husband and the wife in relation to property have substance – appeal allowed – orders set aside – Full Court unable to re-determine the property matter because of inadequate reasons about certain matters and the husband’s application to adduce controversial fresh evidence regarding his changed financial position – matter remitted for re-hearing.

FAMILY LAW - APPEAL AND CROSS-APPEAL – SPOUSAL MAINTENANCE – where the husband challenged his Honour’s finding that he had the capacity to pay spousal maintenance – where the wife argued that there was an inconsistency between his Honour’s reasons and orders as to when the spousal maintenance order would commence – found that the appeals of both the husband and the wife in relation to spousal maintenance have substance – appeal allowed – order set aside – matter remitted for re-hearing.

FAMILY LAW - COSTS – Costs certificates granted under the Federal Proceedings (Costs) Act 1981 (Cth) to both parties in respect of the appeal and the new trial.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Bennett & Bennett (1991) FLC 92-191

APPELLANT:

Mr Duke

RESPONDENT:

Ms Duke

FILE NUMBER:

CAM

1440

2006

APPEAL NUMBER:

107

2008

DATE DELIVERED:

21 September 2009

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Finn, Coleman and Cronin JJ

HEARING DATE:

27 January 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

14 August 2008

LOWER COURT MNC:

[2008] FMCAfam 848

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Brzostowski SC

SOLICITOR FOR THE APPELLANT:

Dobinson Davey Clifford Simpson

COUNSEL FOR THE RESPONDENT:

Ms Tonkin

SOLICITOR FOR THE RESPONDENT:

Phelps Reid Lawyers

Orders

That the appeal and the cross-appeal against the orders of 14 August 2008 be allowed.
That the orders be set aside.
That the parties’ cross-applications for property settlement and the wife’s application for spousal maintenance be remitted for hearing by a Federal Magistrate other than Federal Magistrate Brewster.
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 him in relation to the appeal.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s…

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: DUKE & DUKE [2009] FamCAFC 174
Case: [2009] FamCAFC 174
Decision Date: 21 September 2009

CaseChat Overview and Summary

The appeal and cross-appeal arose from a decision by a Federal Magistrate concerning the property settlement and spousal maintenance between the husband and wife. The husband and wife had challenged the Federal Magistrate's calculation of the value of the non-superannuation assets, as well as the award of a portion of the husband's superannuation to the wife. Additionally, the husband disputed his capacity to pay spousal maintenance, while the wife raised concerns about the timing of the spousal maintenance order.

The legal issues before the court were the valuation of non-superannuation assets, the division of superannuation, the husband's capacity to pay spousal maintenance, and the timing of the commencement of spousal maintenance. The court found that both the husband's and the wife's appeals had merit regarding the property settlement and spousal maintenance. However, the Full Court could not re-determine the property matter due to inadequate reasons regarding certain matters and the husband's application to present fresh evidence about his financial circumstances. Consequently, the matter was remitted for re-hearing.

The court allowed both the husband's and wife's appeals, set aside the orders, and remitted the cross-applications for property settlement and the wife's application for spousal maintenance to be heard by a different Federal Magistrate. Costs certificates were granted to both parties under the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the appeal and the new trial.

The final orders included allowing the appeal and cross-appeal, setting aside the orders, remitting the property settlement and spousal maintenance applications for re-hearing, and granting costs certificates to both parties for the appeal and the new trial.

Orders

Orders of the court

That the appeal and the cross-appeal against the orders of 14 August 2008 be allowed.

That the orders be set aside.

That the parties’ cross-applications for property settlement and the wife’s application for spousal maintenance be remitted for hearing by a Federal Magistrate other than Federal Magistrate Brewster.

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 him in relation to the appeal.

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 her in relation to the appeal.

That the Court grants to each party 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

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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