FAMILY COURT OF AUSTRALIA
| ESSEX & ESSEX | [2009] FamCAFC 236 |
| FAMILY LAW - APPEAL – PROPERTY – Whether the trial Judge erred in “adding back” into parties’ asset pool money withdrawn by the wife post-separation from the parties’ bank account – Whether the trial Judge erred in finding the wife acted wantonly and recklessly in post-separation spending – Whether the trial Judge denied the wife natural justice in rejecting evidence of post-separation expenditure – Where the trial Judge made adverse findings about the wife’s credit – Where the wife unilaterally removed funds – Where the wife failed to provide appropriate corroboration for expenditure – Where trial Judge carefully assessed the parties’ assets and liabilities – Where issue of lack of corroborative evidence raised at trial – No appealable error. FAMILY LAW - APPEAL – PROPERTY – Contributions – Whether the trial Judge erred in weight given to contributions by husband and husband’s family – Whether the trial Judge erred in failing to provide adequate reasons for contribution assessment – Where the trial Judge carefully considered the parties’ initial contributions – Where the contributions of the husband’s family were significant – The contribution assessment by the trial Judge took into account the contribution by the husband’s family and gave full weight to the contributions of the wife – No error in assessment of parties’ contributions – The trial Judge’s reasoning discernible – No appealable error. FAMILY LAW - APPEAL – PROPERTY – SECTION 75(2) ADJUSTMENT – Whether the trial Judge erred in his assessment of the wife’s earning capacity – Whether trial Judge’s discretion vitiated by factual error in relation to the wife’s employment in 2006 –Where trial Judge mistaken in finding wife had undertaken full-time work in 2006 – Where finding not of magnitude that discretion miscarried – Whether the trial Judge erred in rejecting the evidence of the wife’s medical expert – Where findings in relation to the wife’s earning capacity open to the trial Judge – No appealable error. FAMILY LAW - APPEAL – PROPERTY – SECTION 75(2) ADJUSTMENT – FINANCIAL RESOURCE – Family trust – Whether the finding that husband did not have a financial resource in the trusts was against the weight of the evidence – Whether the trial Judge’s discretion miscarried (per Bryant CJ and Boland J, Faulks DCJ dissenting) Where the evidence before the trial Judge about the two trusts was limited – Where the husband an income beneficiary but not capital beneficiary of one trust – Where the attempt to remove the husband as a beneficiary was ineffective – Where the husband did not seek to remove himself as a beneficiary of trust – Where the settling of two trust was not necessary for the purposes for which it was asserted the trust were settled – Where the husband had effective operation of the trusts for 18 months – Where husband’s evidence inconsistent with that of his brother – No onus on the wife to call trusts’ accountant as a witness –… |
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- Case
- [2009] FamCAFC 236
- Decision Date
CaseChat Overview and Summary
The court addressed several legal issues, including whether the trial judge erred in "adding back" certain withdrawals by the wife into the asset pool, in assessing the contributions of both parties, and in his Section 75(2) adjustment for the wife's earning capacity. The Full Court found no appealable error in the trial judge's assessment of the asset pool and contributions, noting that the trial judge had carefully considered the evidence and provided adequate reasons for his findings. However, the court identified an error in the trial judge's assessment of the husband’s financial resources in relation to the family trusts, finding that the trial judge's conclusion that the husband did not have a financial resource in the trusts was against the weight of the evidence. This error was considered significant enough to result in the appeal being allowed.
Based on the re-determination of the asset pool and contributions, and considering the wife's health and care responsibilities, the Full Court ordered a 17.5 per cent adjustment in the wife's favour. The wife’s application to adduce further medical evidence was refused as it would not demonstrate appealable error by the trial judge. The court also ordered the husband to pay the wife's costs of the appeal.
Orders
Orders of the court
1.
That the appeal is allowed.
2.
That Order 3 of the trial Judge be varied by deleting where appearing therein “the sum of one hundred and eight thousand eight hundred and eighty six dollars ($108,886.00)” and inserting in lieu “In payment to the wife of such sum as is necessary to ensure the wife receives 57.5 per cent of the parties’ net assets and liabilities as set out in paragraph 185 of reasons of the Full Court, save and except the value of the matrimonial home and the [J] Property which values shall be the actual sale price of the properties less sale costs, and the liabilities shall be adjusted to delete any liability discharged from the proceeds of sale of either party”.
3.
That the husband pay the wife’s costs of and incidental to the appeal as agreed and failing agreement as assessed.
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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