G & G

This case concerned an appeal from the Federal Magistrates Court regarding property settlement orders made between a husband and wife. The trial was conducted in Brisbane, with the husband appearing via video link from Parramatta. The Federal Magistrate made findings of credit against the husband based on his demeanour outside the witness box while the wife was giving evidence. The appellate court found that it was incumbent on the Federal Magistrate to draw such impressions of the husband’s demeanour to the attention of his counsel for submission. While other bases existed for adverse inferences regarding the husband's credit, the court could not be certain that the conclusion would have been the same had this behaviour not been relied upon.

The legal issues before the court included the proper assessment of contributions in property settlement proceedings, particularly in light of domestic violence, and the procedural fairness of making adverse credit findings based on a party's demeanour without affording them an opportunity to address it. The court was required to determine whether the Federal Magistrate erred in her assessment of the parties' contributions, including the weight given to initial contributions and the impact of domestic violence, and whether the findings regarding the husband's credit were made fairly.

The court reasoned that the Federal Magistrate's adjustment of the wife's contributions based on domestic violence was not supported by her reasons and failed to follow the approach set out in *Kennon*, leading to a distorted and illogical result. The Magistrate's finding that the husband's conduct had a discernible impact on the wife's ability to make contributions was not adequately explained. Furthermore, the court found that the increase in the wife's share by a further 6.5% was excessive and unexplained, particularly given the short duration of the marriage and the husband's substantial initial contribution of the unencumbered matrimonial home. The court also noted that the Federal Magistrate's consideration of section 75(2) factors, particularly in relation to the husband's circumstances, appeared to be insufficient or misunderstood.

The appeal was allowed, and the matter was remitted to the Federal Circuit Court for redetermination.