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…
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 Ferraro v Ferraro
Sign in free to access the full text
Details
AGLC
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.