Dulton & Dulton (No 2)
[2020] FamCAFC 288
•18 November 2020
FAMILY COURT OF AUSTRALIA
| DULTON & DULTON (NO. 2) | [2020] FamCAFC 288 |
| FAMILY LAW – APPEAL – PROPERTY – SLIP RULE AMENDMENT – Where the parties jointly request alteration of the figure of $163,359 in the amended order made as a result of the re-exercise of discretion and the recalculation of net assets of the parties pursuant to findings made in a previous judgment – Where it was not apparent from the reasons of the primary judge how that figure had been arrived at – Where the figure was not the direct subject of any of the grounds of appeal nor the subject of any written or oral submissions made to this Court during the earlier hearing – Where as a result of submissions made the figure should be changed – Order amended pursuant to r 17.02 of the Family Law Rules 2004 (Cth). |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 17.02 |
| Dulton & Dulton [2020] FamCAFC 209 |
| APPELLANT: | Ms Dulton |
| RESPONDENT: | Mr Dulton |
| FILE NUMBER: | ADC | 4612 | of | 2016 |
| APPEAL NUMBER: | SOA | 47 | of | 2019 |
| DATE DELIVERED: | 18 November 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide by telephone-link |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 18 November 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 August 2019 |
| LOWER COURT MNC: | [2019] FCCA 2264 |
REPRESENTATION
| SOLICITOR-ADVOCATE FOR THE APPELLANT: | Ms Wood |
| SOLICITORS FOR THE APPELLANT: | Carmen Wood & Associates |
| SOLICITOR-ADVOCATEFOR THE RESPONDENT: | Mr Childs |
SOLICITORS FOR THE RESPONDENT: | Paul Kirk Legal |
Order by consent
Pursuant to r 17.02 of the Family Law Rules 2004 (Cth) paragraph (3) of the order made by this Court on 26 August 2020 be varied such that paragraph (4)(e)(v) of the order made on 19 August 2019 be varied by substituting the figure $104,449 for the figure $163,359.
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 Dulton & Dulton (No 2) 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 47 of 2019
File Number: ADC 4612 of 2016
| Ms Dulton |
Appellant
And
| Mr Dulton |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
On 26 August 2020 I made orders and delivered reasons for judgment in relation to the Amended Notice of Appeal filed this matter by Ms Dulton (“the wife”) on 6 March 2020 (see Dulton & Dulton [2020] FamCAFC 209).
As a result of the findings I made in those reasons for judgment, and in re-exercising the discretion, I needed to remove from the net asset pool certain add-backs which were the subject of Grounds 1 and 2, and then apply the same percentage division as the primary judge did, to that amended net asset pool, but allowing for the assets, superannuation and liabilities each party retained.
The net asset pool including superannuation as found by her Honour was $365,561. By removing the add-backs that amount became $306,651.54. It was then necessary to apply the percentage division of 60 per cent to the wife and 40 percent to the husband, and I refer to the calculations I made in that regard in [51]-[53] inclusive of my reasons for judgment.
In terms of the assessment of the net assets retained by the parties, the calculation I adopted was that the wife retained assets to the value of $17,466 and Mr Dulton (“the husband”) retained assets to the value of $86,983.
One of the orders I needed to vary as a result of my re-exercise of discretion and the recalculation I undertook, was to subparagraph (4)(e)(v) of the orders made by her Honour. Paragraph (4)(e) was an order that provided for the distribution of the proceeds of sale in the event that a property was to be sold, and subparagraph (v) provided for the net proceeds of sale remaining, in addition to $163,359, to be divided as to 60 per centum to the wife less the assets in her possession, and 40 per centum to the husband less the assets in his possession.
In the order I made, I retained the figure of $163,359, but it has now been brought to my attention that, as a result of the recalculation of the net assets retained by each of the parties, that figure also needs to be changed. And that is the matter before me today, namely a joint request by the parties to alter that figure appropriately.
I indicated to the solicitors for the parties today that initially I was not prepared to make any change to that figure because first, it was not apparent from her Honour’s reasons how her Honour had arrived at that figure, and secondly, that particular figure was not the direct subject of any of the grounds of appeal, nor the subject of any written or oral submissions made to me. That said though, as a result of the submissions made today, I am satisfied that that figure also needs to be changed consequent upon my findings as referred to above.
In simple terms what that figure is, is the total of the net assets retained respectively by the wife and the husband. Given that in re-exercising the discretion I have recalculated those figures, I accept that it is now necessary to change the figure from $163,359 to $104,449.
The appropriate way to apply that correction is to enliven the slip rule found in r 17.02 of the Family Law Rules 2004 (Cth), and that is what I propose to do with the consent of the parties.
I certify that the preceding nine (9) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 18 November 2020.
Associate:
Date: 25 November 2020
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