FARLEY & MANOLY - [2013] FamCAFC 93

FAMILY COURT OF AUSTRALIA

FARLEY & MANOLY

[2013] FamCAFC 93

FAMILY LAW – APPEAL – NOTICE OF APPEAL – PROPERTY – where the appellant appeals property settlement orders made by a Federal Magistrate on 24 January 2012 – where the appellant says the Federal Magistrate did not give enough weight to her contributions and gave too much weight to the respondent’s contributions – where the appellant says that the Federal Magistrate was in error in taking into account contributions made by the respondent to the appellant’s three children from a previous relationship – where the appellant says the Federal Magistrate erred in determining that the inheritances introduced by the respondent “attracted” a loading of 5 per cent but then gave the respondent an additional 10 per cent of the net asset pool rather than 5 per cent – where there is no merit in any of the grounds of appeal – appeal dismissed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the respondent sought costs in the event that the appeal was dismissed – where the appellant opposed any order for costs being made on the basis of her financial circumstances – where the appeal was wholly unsuccessful and thus there are circumstances which justify an order for costs – appellant to pay the respondent’s costs of and incidental to the appeal as agreed or in default of agreement as assessed.

Family Law Act 1975 (Cth) – s 117, s 90SM(4)(c)

Gronow v Gronow (1979) 144 CLR 513
Norbis v Norbis (1986) 161 CLR 513
Steinbrenner & Steinbrenner [2008] FamCAFC 193

APPELLANT:

Ms Farley

RESPONDENT:

Mr Manoly

FILE NUMBER:

LNC

348

2010

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

13 June 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Adelaide by video link to Launceston

JUDGMENT OF:

Strickland J

HEARING DATE:

12 November 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

24 January 2012

LOWER COURT MNC:

[2012] FMCAfam 41

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Ayliffe

SOLICITORS FOR THE APPELLANT:	Bishops Barristers & Solicitors
COUNSEL FOR THE RESPONDENT:	Mr Lewis
SOLICITORS FOR THE RESPONDENT:	Levis Stace & Cooper

Orders

The appeal be dismissed.
The appellant pay the costs of the respondent of and incidental to the appeal, such costs to be assessed in default of agreement.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 11 of 2012
File Number: LNC 348 of 2010

Ms Farley

Appellant

And

Mr Manoly

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed on 16 February 2012 Ms Farley (“the appellant”) appeals against property settlement orders made in these proceedings by Federal Magistrate Roberts, as he then was, on 24 January 2012. The respondent in the appeal is Mr Manoly (“the respondent”). He opposes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading FARLEY & MANOLY

Details

AGLC: FARLEY & MANOLY [2013] FamCAFC 93
Case: [2013] FamCAFC 93
Decision Date

CaseChat Overview and Summary

The appeal in Farley & Manoly was brought by Ms Farley against property settlement orders made by a Federal Magistrate on 24 January 2012. Ms Farley claimed the Federal Magistrate did not give enough weight to her contributions, gave too much weight to the respondent's contributions, and made several other errors in his determination. The primary judge found no merit in any of the grounds of appeal and dismissed the appeal. The court found that the Federal Magistrate's assessment of the contributions of the parties was reasonable and just, and that there was no error in his consideration of the contributions of the parties. The court also found that the Federal Magistrate did not err in taking into account the contributions made by the respondent to the appellant's three children from a previous relationship, as this was an aside and not taken into account in the respondent's favour. The court found no merit in the appellant's challenge to the loading applied to the respondent's inheritances. The appeal was wholly unsuccessful and the appellant was ordered to pay the respondent's costs of and incidental to the appeal.

Orders