Elgin & Elgin

Case [2015] FamCAFC 155


FAMILY COURT OF AUSTRALIA

ELGIN & ELGIN [2015] FamCAFC 155

FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – Where primary judge refused application for adjournment – Where expert report was received one day prior to final hearing – Where the refusal to grant the adjournment was a decision within the discretion of the primary judge – No appellable error established – Application dismissed.

FAMILY LAW – APPEAL – PROPERTY – Taxation – Primary judge determined that the parties’ property should be divided equally – Where husband ordered to pay wife a fixed amount – Where substantial assets in corporate and investment structures – Where no evidence about amount of tax payable – Where husband ordered to assume responsibility for all the taxation consequences associated with the implementation of the orders – Evidence admitted on the appeal that $4.7 million taxation liability accrued – Where primary judge could not be satisfied orders were just and equitable – Appellate intervention warranted – Whether the delay in determination of the proceedings caused the primary judge to err in the calculation of the net value of the property pool and the parties’ financial position at the time of determining the proceeding – No merit in this ground of appeal – per THACKRAY & RYAN JJ Appeal allowed in part – Re-exercise of discretion relating to taxation – Where taxation consequences should be borne in the same proportion as the assets are to be divided – Proposed orders circulated for further submissions – per MAY J IN DISSENT – Appeal should be allowed and matter remitted for re-hearing.      

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Where applications to adduce further evidence were made by both parties – Application of CDJ v VAJ (1998) 197 CLR 172 – Only one application allowed and remaining applications dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal was successful in part – Where parties at liberty to apply for costs – Orders made for filing of costs submissions.

Family Law Act 1975 (Cth) s 75(2), 93A(2), 94(2), 94AA(1)
Family Law Regulations 1985 (Cth) reg 15A(1)
Federal Proceedings (Costs) Act 1981(Cth)

Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175
Bloch v Bloch (1981) 180 CLR 390
Bolger & Headon (2014) FLC 93-575
Brett-Hall and Brett-Hall (2006) FLC 93-276
CDJ v VAJ (1998) 197 CLR 172
CSR Ltd v Della Maddalena (2006) 80 ALJR 458
Grieves v Grieves (2012) 49 Fam LR 442
Hartnett & Sampson (Scope of rehearing) (2009) FLC 93-391
Jarrott & Jarrott [2012] FamCAFC 29
John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291
Maxwell v Keun [1928] 1 KB 645
Pateman v Higgin (1957) 97 CLR 521
Ruscoe and Walker (2002) FLC 93-093
Sali v SPC Limited (1993) 67 ALJR 841
Stanford v Stanford (2012) 247 CLR 108
Walker v Ruscoe S115/2001 [2002] HCATrans 101 (5 March 2002)

APPELLANT: Mr Elgin
RESPONDENT: Ms Elgin
FILE NUMBER: BRC 2909 of 2010
FIRST APPEAL…

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AGLC
Elgin & Elgin [2015] FamCAFC 155
Case
[2015] FamCAFC 155
Decision Date

CaseChat Overview and Summary

Elgin & Elgin was a family law appeal heard in the Federal Circuit and Family Court of Australia. The primary judge had made orders regarding the division of property between the parties and the taxation consequences of those orders. The husband appealed the orders, and the wife applied for leave to appeal the refusal of an adjournment by the primary judge. The husband also sought to adduce further evidence in the appeal, which the wife opposed. The court had to decide whether the primary judge had erred in his exercise of discretion in refusing the adjournment, whether the primary judge had properly considered the taxation consequences of the orders, and whether the husband's applications to adduce further evidence should be allowed.

The court found that the primary judge's refusal of the adjournment was within his discretion, and the husband had not established any appellable error. The court also found that the primary judge could not be satisfied that the orders were just and equitable due to the substantial taxation liability that had accrued. The court held that the taxation consequences should be borne in the same proportion as the assets were to be divided and proposed orders circulated for further submissions. The court dismissed the wife's application for leave to appeal and allowed only one of the husband's applications to adduce further evidence.

The appeal was allowed in part, and the application for leave to appeal was dismissed. The court allowed the wife's application to receive an affidavit as further evidence but dismissed the husband's applications to receive other affidavits as further evidence. The parties were at liberty to apply for costs and make written submissions in respect of the form of the proposed orders. The court endorsed that each party must endorse the cover sheet with the date on which a copy of any submission filed pursuant to these orders was served on the other party.

Orders

Orders of the court

1.

Appeal NA 6 of 2014 be allowed in part.

2.

The application for leave to appeal in NA 24 of 2014 be dismissed.

3.

The application of the wife filed 18 July 2014 to receive the affidavit of Ms CCC filed 18 July 2014 as further evidence in Appeal NA 6 of 2014 be allowed.

4.

The application of the husband filed 27 May 2014 to receive the affidavit of the husband filed 27 May 2014 as further evidence in Appeal NA 6 of 2014 be dismissed.

5.

The application of the husband filed 27 May 2014 to receive the affidavit of Mr ZY filed 27 May 2014 as further evidence in Appeal NA 6 of 2014 be dismissed.

6.

The application of the husband filed 27 May 2014 to receive the affidavit of Mr HY filed 27 May 2014 as further evidence in Appeal NA 6 of 2014 be allowed insofar as the affidavit deals with taxation issues, but the application otherwise be dismissed.

7.

The application of the husband filed 23 July 2014 to receive the affidavit of Mr HY filed 23 July 2014 as further evidence in Appeal NA 6 of 2014 be dismissed.

8.

Each party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal or in respect to costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) by filing such submissions and serving them on the other party within 28 days of the date hereof.

9.

The other party have a further 14 days in which to make written submissions in answer thereto by filing and serving such submissions.

10.

Either party be at liberty to reply to an answer by way of written submissions by filing such reply and serving it on the other party within a further 7 days.

11.

Each party be at liberty to make written submissions in respect of the form of the proposed orders by filing such submissions and serving them on the other party within 28 days of the date hereof.

12.

Any submissions in answer to those filed pursuant to Order 11 shall be made in writing and by filing and serving it on the other party within a further 21 days.

13.

Each party endorse on the cover sheet the date on which a copy of any submission filed pursuant to these orders was served on the other party.

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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