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) |
| Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 |
| 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
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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