Ferraro v Ferraro

Case [1993] HCATrans 158


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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M75 of 1992

B e t w e e n -

RUGGERO FERRARO

Applicant

and

RENATA FERRARO

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Ferraro 1 17/6/93

AT MELBOURNE ON THURSDAY, 17 JUNE 1993, AT 2.10 PM

Copyright in-the High Court of Australia

MR J.D. MERRALLS, QC: If it please the Court, I appear with

my learned friend, MR P.M. GUEST, OC, for the

applicant. (instructed by Maddock Lonie &

Chisholm)

MR M.D. BROUN, QC:  I appear with MR P.C. YOUNG for the

respondent. (instructed by Devenish & Co)

MR MERRALLS: 

If it please the Court, this is an application

for special leave to appeal from a decision of the
Full Court of the Family Court varying an order

made by a single judge of that court.

It is submitted that the case raises important

questions of principle concerning the subsection to a common factual situation, that is, the division of the property of a self-made
interpretation of section 79(4) of the Family Law

businessman and a home maker.mother wife in

proceedings under the Act.

The subsection was considered in its previous

form by this Court in Mallet v Mallet in 1983. The

subsection was amended in 1983 materially, in our

submission. The amendment was made after argument

in Mallet v Mallet but before judgment was

delivered so that there is a brief reference in one

or two judgments - I remember Chief Justice Gibbs'

judgment to the amended form, but no consideration

of it because it was simply not relevant to the

case.

The judgment in this case reveals clear

differences of approach amongst members of the by the differences between the appellate court and

the trial judge. Although it might be said that

section 79(4) involves matters of discretionary

judgment, the appellate court quite clearly

intervened because it considered that the trial

judge had erred in principle, and it said so in a

passage which appears at page 188 of the appeal

book at the foot of the page:

The conclusion we reach is that

his Honour's ultimate analysis, concluding

with the Sissinghurst analogy,.·represents an

approach which significantly denigrates the

wife's contributions over three

decades ..... those passages represent

his Honour's final summation of the matter

before his ultimate conclusion of 70/30. We
conclude that his Honour approached the
exercise of discretion in a way which was
Ferraro 17/6/93

contrary to principle and that the discretion

miscarried.

Elsewhere Their Honours referred to the errors of

principle which they considered had vitiated

His Honour's judgment. They referred in particular

to two things: legislative changes since Mallet's

case, that is, the 1983 amendments which are

referred to at page 170 of the booklet, and what

they called societal changes since 1938. I wish to

direct Your Honours' attention to a passage in the

middle of page 170 which epitomizes their approach:

Whilst it is legitimate still…

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Ferraro v Ferraro [1993] HCATrans 158
Case
[1993] HCATrans 158
Decision Date

CaseChat Overview and Summary

The applicant, Mr. Ferraro, sought special leave to appeal to the High Court of Australia from a decision of the Full Court of the Family Court. The Full Court had varied an order made by a single judge of that court concerning the division of property between Mr. Ferraro and his wife, the respondent. The case involved the interpretation of section 79(4) of the *Family Law Act 1975* (Cth) in the context of a self-made businessman and a homemaker wife.

The central legal issue before the High Court was whether the Full Court of the Family Court had erred in principle when it intervened to vary the property division order. The applicant argued that the Full Court's decision revealed significant differences in approach compared to the trial judge, particularly concerning the application of section 79(4) of the *Family Law Act*. The Full Court had found that the trial judge's approach, including his ultimate analysis and analogy, "significantly denigrates the wife's contributions" and that the judge had erred in principle by approaching the exercise of discretion contrary to principle.

The Full Court's reasoning, as presented by the applicant, focused on legislative changes to section 79(4) made in 1983, after the High Court's decision in *Mallett v Mallett* (1983), and on what they termed "societal changes" since 1938. The appellate court considered that these changes, particularly the 1983 amendments and contemporary social views, strengthened the concept of marriage as a social and economic unit between equals, giving greater recognition to the contributions of a homemaker and parent compared to direct financial contributions. The Full Court indicated that the legislative history and case law consistently aimed to set aside questions of "fault" and that the concept of the "economic consequences of divorce" had been reinforced.

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