F v F

[1996] FamCA 13

[1996] FamCA 13

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE

Appeal No. SA17 of 1995

File No. ML399 of 1986

IN THE MARRIAGE OF:

MR F

Appellant/Husband

AND

MS F

Respondent/Wife

REASONS FOR JUDGMENT

BEFORE:        Ellis, Baker and Warnick JJ.

HEARD:         19th day of February 1996

JUDGMENT:       23rd day of February 1996

APPEARANCES:     Ms Bryant of counsel (instructed by Madgwicks, Solicitors, 535 Bourke Street, Melbourne VIC 3000), appeared on behalf of the appellant husband.

Mr Holzer of counsel (instructed by A. I. F. Lucas & Co, Solicitors, 963 Ferntree Gully Road, Wheelers Hill VIC 3250), appeared on behalf of the respondent wife.

Catchwords:    PROPERTY SETTLEMENT -variation of orders - miscarriage of justice pursuant to s.79A(1) (c) - re-exercise of discretion - categorisation of lump sum - whether discretion miscarried.

This is an appeal by the husband against orders made on 25 January 1995. The facts appear in the judgment of the trial Judge reported at (1995) FLC 92-576.

The approach of the trial Judge in 1995 was to make findings as to the property of the parties as at August 1990, the value of the property, the liabilities of the parties and then to consider the nature and form of the orders to be made and then to categorise them.

Submitted that, in adopting that approach, the trial Judge erred.

Held: -

1.That the approach adopted was not open to the trial Judge and was such as to call for intervention.  He should have identified the property of the parties as at the date of hearing, valued the property, as best he could, at that date, assessed the parties' respective contributions, considered the relevant s.75 (2)matters and taken into account s.79 (4) (d), (f) and (g).

2.It was beyond power for the trial Judge to categorise an order for a lump sum payment as an order for maintenance.

3.The approach adopted in relation to spousal maintenance wa not open to the trial Judge.  Observation in Clauson and Clauson (1995) FLC 92-595 as to the distinction between the s.75 (2) component of a s.79 order and a claim for maintenance and as to the steps to be taken before making an order for lump sum maintenance adopted.

Appeal allowed.

Application and cross-application remitted for rehearing.

Reportable.

This is an appeal by the husband against the following orders made by the trial judge on 25 January 1995, namely:

“(1) That I set aside paragraph 5 of my order made 8^th August 1990, and order in lieu thereof:

(a)That the husband forthwith pay to the wife by way of alteration of property interests the sum of $725,250.00.

(b)That the husband forthwith pay to the wife lump sum spousal maintenance of $1,000,000.00. I order that this order be retrospective to, operative from, and deemed to have been made on, 8 of August 1990, and take effect accordingly.

(2) That I vary paragraph 9 of my said order by substituting for the words “$2,000,000.00”,…