Elder v Elder

In Elder v Elder, the wife appealed against the orders of the Family Court of Australia made by Justice Mullane on 23 September 2008, which related to property settlement, child support and spousal maintenance. The wife argued that the trial judge erred in his calculations and schedules of assets and liabilities, failed to give adequate reasons for his orders, and misapplied the law in dismissing her application for spousal maintenance. The husband cross-appealed against the order that he pay child support until 30 June 2009 in a lump sum. The Court of Appeal found that the trial judge had failed to properly explain the effect of his orders and give adequate reasons for them. The Court found that there were significant difficulties with the trial judge's calculations and schedules of assets and liabilities. The Court found that the trial judge may have erred in dismissing the wife's application for spousal maintenance by relying on the wife's receipt of a pension in finding that she was able to adequately support herself. The Court found that the trial judge had failed to give adequate reasons for ordering the husband to pay child support until 30 June 2009 in a lump sum, when the wife had sought a payment of lump sum child support until 30 June 2010.

The Court of Appeal allowed the wife's appeal and the husband's cross-appeal. The Court set aside the orders made by the trial judge and remitted the wife's applications in relation to property settlement, spousal maintenance and child support to a Judge of the Family Court for rehearing. The Court dismissed the wife's application to adduce further evidence on the appeal. The Court granted costs certificates to both parties in relation to the appeal and the new trial. The Court found that it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the wife in respect of the costs incurred by her in relation to the appeal, to the husband in respect of the costs incurred by him in relation to the appeal, and 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 the Court.