Elmanu & Elmanu

Case [2022] FedCFamC1A 186

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Elmanu & Elmanu [2022] FedCFamC1A 186  

Appeal from: Elmanu & Elmanu [2022] FedCFamC2F 630
Appeal number(s): NAA 144 of 2022
File number(s): MLC 13816 of 2018
Judgment of: TREE J
Date of judgment: 16 November 2022
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals from final property settlement orders – Whether the primary judge erred in considering the Kennon argument independent of the other contributions of the parties – Where the primary judge did not holistically assess contributions – Error established – Notice of Contention – Where the wife concedes the error but contends there is no miscarriage of justice – Where the primary judge’s findings were open on the evidence – Where the error had no influence upon the result – Appeal dismissed – Costs ordered in a fixed sum.   
Legislation:

Family Law Act 1975 (Cth) s 75

Federal Circuit and Family Court of Australia Act2021 (Cth) s 36
Cases cited:

Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27

Singerson & Joans [2014] FamCA 238
Number of paragraphs: 30
Date of last submission/s: 10 November 2022
Date of hearing: 3 November 2022
Place: Cairns (via video link)
Counsel for the Appellant: Dr Smith
Solicitor for the Appellant: Adrian Abrahams Family Lawyers
Solicitor for the First Respondent: Swiftly Legal
The Second Respondent: Did not participate

ORDERS

NAA 144 of 2022
MLC 13816 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR ELMANU

Appellant
AND:

MS ELMANU

First Respondent

MS ALAGNA

Second Respondent

order made by:

TREE J

DATE OF ORDER:

16 November 2022

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the respondent's costs in the sum of $12,059.68 within 28 days.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Elmanu & Elmanu has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

introduction

  1. By Amended Notice of Appeal filed 26 September 2022, Mr Elmanu (“the husband”) challenges orders made…

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AGLC
Elmanu & Elmanu [2022] FedCFamC1A 186
Case
[2022] FedCFamC1A 186
Decision Date

CaseChat Overview and Summary

The appeal in Elmanu & Elmanu arose from a property settlement dispute between the parties following their separation after a 32-year marriage. The wife appealed the primary judge's assessment of the parties' contributions and the resulting property settlement, arguing that the primary judge erred in considering the husband's family violence separately from other contributions and in making a 5% adjustment in her favour. The husband conceded the error in Ground 1, but the appeal court had to determine if this error was sufficient to overturn the primary judge's decision.

The legal issues before the court were whether the primary judge erred in considering the husband's family violence independently of other contributions and whether the 5% adjustment in the wife's favour was justified. The court had to consider whether these errors were substantial enough to affect the overall property settlement decision. The court noted that contributions should be assessed holistically, and individual aspects should not be separately evaluated.

The appeal court found that while there was an error in the primary judge's assessment, it did not affect the overall outcome of the property settlement. The court was satisfied that the primary judge had considered all relevant factors in making the adjustment and that the error did not lead to an unreasonable or unjust result. Consequently, the appeal was dismissed, and the husband was ordered to pay the wife's costs of $12,059.68 within 28 days.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, the appeal will be dismissed.background After a 32 year marriage to which three now adult children were born, the parties separated in 2017. Six years into their marriage, the parties established a business, which the husband still operates. The wife also worked in that business, as well as providing the bulk of the homemaker and parenting contributions (at [13]). As found by the primary judge, the net pool of assets of the parties had a value of $3,890,169, together with a small amount of superannuation. The primary judge determined the parties' respective contribution based entitlements at 55/45 in the wife's favour, and assessed the factors listed in s 75(2) of the Family Law Act 1975 (Cth) as favouring the wife, with an adjustment of 6 per cent reflective of that.THE APPEAL GENERALLY At the outset, it is useful to restate the well-known principles applicable to appeals from such discretionary judgments such as the one under appeal here. In House v The King (1936) 55 CLR 499 at 504-505, it was said:The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.Ground 1 This ground provides:1. When assessing the contributions of the parties and the Kennon Argument:1.1The learned trial judge erred in considering the Kennon argument independent of the other contributions of the parties;1.2the learned trial judge gave inadequate reasons as to why it was just and equitable to make an adjustment of 5% in favour of the wife. The wife concedes Ground 1.1 has merit, however that does not absolve me from needing to be satisfied of that error for myself. The wife contended that the husband's family violence made her contributions more onerous, and thereby called in aid of her case the principles espoused in the decision of Kennon v Kennon (1997) FLC 92-757 (“Kennon”). Many authorities have now stated that individual aspects of contributions should not be separately assessed, as the task is a holistic one (see Jabour & Jabour (2019) FLC 93-898; Singerson & Joans [2014] FamCA 238; Dickons v Dickons (2012) 50 Fam LR 244).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

A decision is presumed to be correct unless the appellate court is persuaded it is affected by error. I am not so persuaded in the way Ground 2 contends.CONCLUSION Although there was error as contended in Ground 1, the appeal nonetheless fails, and will be dismissed.COSTS In the event the appeal failed, the husband conceded he could not resist an order that he pay the wife’s costs claimed in the sum of $12,059.68. Those costs should be paid within 28 days.

Ratio Decidendi

Legal Principle Established

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