Esposito & Coster

Esposito and Coster involved an appeal by the wife against a decision of the trial Judge in financial proceedings between the wife and the husband. The wife challenged the trial Judge’s determination of the property pool and the division of the parties’ net assets, and the trial Judge’s refusal to make an adjustment pursuant to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”). The Full Court dismissed the wife’s appeal in relation to the trial Judge’s determination of the property pool, and the wife’s appeal in relation to the trial Judge’s refusal to make an adjustment pursuant to s 75(2) of the Act. The wife’s appeal in relation to the division of the parties’ net assets was upheld, and the matter was remitted for re-hearing. The Full Court also ordered costs certificates for both parties with respect to the appeal and the re-hearing.The wife’s appeal in relation to the trial Judge’s determination of the property pool was unsuccessful. The Full Court was satisfied that the trial Judge’s conclusion with respect to the wife’s asserted indebtedness to the Family Trust was not erroneous.The wife’s appeal in relation to the trial Judge’s refusal to make an adjustment pursuant to s 75(2) of the Act was successful. The Full Court held that the trial Judge erred in principle in his approach to the “discounting” of property which the husband was to retain.The wife’s appeal in relation to the division of the parties’ net assets was successful. The Full Court held that the trial Judge’s reasons for his conclusion with respect to the parties’ contributions after separation was less than entirely clear. The Full Court was unable to discern the basis upon which the husband’s contribution based entitlement was concluded to exceed that of the wife.The Full Court was disinclined to re-exercise the trial Judge’s discretion. The nature and extent of the findings of the trial Judge which had not been controversial in the appeal to this Court made it probable that to do so would be a case of hope over experience. If the Full Court were to re-exercise the trial Judge’s discretion, if either party was dissatisfied with the Full Court’s determination, he or she could only seek to challenge that determination by way of application for special leave to appeal to the High Court. That would be regrettable.The Full Court ordered costs certificates for both parties with respect to the appeal and the re-hearing.