G & G

[2004] FamCA 1179

[2004] FamCA 1179

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT MELBOURNE  Appeal No. SA11 of 2004

File No. ADF2373 of 2002

IN THE MATTER OF:  G

Appellant/Wife

AND:  G

Respondent/Husband

CORAM:  KAY, WARNICK, O’RYAN JJ

DATE OF HEARING:  23 JUNE 2004

DATE OF JUDGMENT:  22 DECEMBER 2004

JUDGMENT OF THE COURT

Appearances:             Ms Pyke of Counsel instructed by John G McGinn, Solicitors, Level 4, 22 Grenfell Street, Adelaide, South Australia, 5000 appeared on behalf of the Appellant

Mr Berman of Counsel instructed by Howe Martin & Associates, Solicitors, Level 20, 74 Pirie Street, Adelaide, South Australia, 5000 appeared for the Respondent

Name of Appeal	G and G
Appeal Number	SA11 of 2004
Date of Appeal Hearing	23 June 2004
Date of Judgment	22 December 2004
Coram	Kay, Warnick and O’Ryan JJ

Catchwords:        PROPERTY SETTLEMENT – Marriage spanned 30 years - Trial Judge determined that a 60/40 division in the husband’s favour was appropriate – APPEALS – Majority decision – Essentially the appeal was a challenge to the weight that the trial Judge gave or failed to give to particular factors, it being asserted that his decision fell outside “the reasonably generous ambit of discretion” – APPEALS – PROPERTY SETTLEMENT – The trial Judge identified a number of imbalances in financial contributions including what was introduced by each party at the outset of cohabitation -–Adjustment to husband represented virtually a full “re-imbursement” to the husband of what he introduced (other than superannuation and long leave) – The trial Judge was careful in identifying all the non-financial contributions of each party – Once the trial Judge reached an assessment his Honour “stood back” and considered the justice and equity of the result – His Honour took each and every step the law asked of him – Full Court (Warnick and O’Ryan JJ – Kay J dissenting) – While a 20% differential between the parties is at the edge of the ambit, it cannot be said to be manifestly excessive (Warnick J) – In all the circumstances of this case the outcome was within “the generous ambit” of discretion (O’Ryan J) – Appeal dismissed

Appeal Dismissed.  Appellant Wife to pay the Respondent Husband’s costs of and incidental to the appeal as agreed, and in default of agreement, as taxed.

KAY J:

1. In this matter I have had the opportunity to read the proposed reasons for judgment of Warnick J.  I am in general agreement with all of the matters canvassed by Warnick J up to and including paragraph 99 of his Honour's reasons for judgment.  Unlike his Honour, however, I am of the view that the assessment by the trial Judge of the contributions of the parties that evaluated the husband’s contributions as being one and a half times greater than the wife’s (6/10ths v 4/10ths) was manifestly outside the generous range of discretion afforded to the trial Judge. 

2. This is a marriage that spanned 30 years.  The wife was the primary caregiver…