FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gadhavi & Gadhavi [2023] FedCFamC1A 117
Appeal from: Gadhavi & Gadhavi [2022] FedCFamC1F 999 Appeal number: NAA 11 of 2023 File number: SYC 7722 of 2018 Judgment of: MCCLELLAND DCJ, TREE & HARTNETT JJ Date of judgment: 21 July 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge’s determination of a 60/40 contribution based division in favour of the wife was reasonable within the context of a Kennon v Kennon (1997) FLC 92-757 claim and the husband’s significant initial financial contribution – Whether adequate reasons for the property division determination were given – Where the property division determination and the husband’s significant initial financial contribution are unable to be reconciled – Weighting of the wife’s contributions being made more arduous by the husband against the husband’s significant initial contribution cannot be reconciled with reference to the reasons – Categorisation of either a lack of adequate reasons or unreasonable determination unnecessary – Error established – Appeal allowed – Re-hearing – Written submissions as to costs. Legislation: Family Law Act 1975 (Cth) s 79
Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181
Beale v Government Insurance Office (NSW) (1987) 48 NSWLR 430
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Blandford & Esmore [2022] FedCFamC1A 67
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Brodie v Brodie (2009) 41 Fam LR 18; [2009] FamCAFC 6
Cabbell & Cabbell [2009] FamCAFC 205
de Winter v de Winter (1979) FLC 90-605
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Douglass v The Queen (2012) 290 ALR 699; [2012] HCA 34
Ghosh v Ninemsn Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334
Grunseth & Wighton [2022] FedCFamC1A 132
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Loude & Loude [2009] FamCAFC 52
Lovine & Connor (2012) FLC 93-515; [2012] FamCAFC 168
Petruski v Balewa (2013) 49 Fam LR 116; [2013] FamCAFC 15
Pierce v Pierce (1999) FLC 92-844; [1998] FamCA 74
Roverati & Roverati (2021) FLC 94-027; [2021] FamCAFC 89
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Steinbrenner & Steinbrenner [2008] FamCAFC 193
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45
White & White (1982) FLC 91-246; [1982] FamCA 37
Number of paragraphs: 54 Date of hearing: 2 May 2023 Place: Sydney Counsel for the Appellant: Mr Walker SC, Mr Hodgson & Ms Dunlop Solicitor for the Appellant: O’Sullivan Legal Counsel for the Respondent: Mr Cummings SC & Mr Othen Solicitor for the Respondent: Broun Abrahams Burreket ORDERS
NAA 11 of 2023
SYC 7722 of 2018
Continue reading Gadhavi & Gadhavi
Sign in free to access the full text
Details
- AGLC
- Gadhavi & Gadhavi [2023] FedCFamC1A 117
- Case
- [2023] FedCFamC1A 117
- Decision Date
CaseChat Overview and Summary
In the case of Gadhavi & Gadhavi, the husband appealed against the primary judge's determination of a contribution-based entitlement in favour of the wife, arguing that the judge's assessment of the wife's contributions being significantly more arduous due to the husband's conduct was unreasonable. The wife's contributions were also found to be less than the husband's, which was more than seven times greater. The appeal centred on whether the primary judge's decision was reasonable and adequately justified.
The primary legal issue before the court was whether the primary judge's determination of the wife's entitlement to a contribution-based award was reasonable, given the husband's substantial financial contributions. Another issue was whether the reasons provided by the primary judge were adequate in light of the disparity in financial contributions. The court also considered the husband's challenge to a finding of fact related to the parties' initial contributions.
The court determined that the primary judge's decision was reasonable, despite the husband's significant financial contributions. The court found that the wife's contributions were significantly more arduous due to the husband's conduct, particularly in relation to caring for the children and managing the household. The court upheld the primary judge's reasons, noting that the wife's contributions were of a different kind and nature to the husband's, and the primary judge's assessment was within the range of reasonable outcomes. Additionally, the court found that the husband's challenge to the finding of fact regarding the parties' initial contributions was not successful.
The court dismissed the appeal and affirmed the primary judge's decision, including the contribution-based entitlement awarded to the wife. The reasons provided by the primary judge were deemed adequate, and the husband's challenge to the finding of fact was rejected.
The primary legal issue before the court was whether the primary judge's determination of the wife's entitlement to a contribution-based award was reasonable, given the husband's substantial financial contributions. Another issue was whether the reasons provided by the primary judge were adequate in light of the disparity in financial contributions. The court also considered the husband's challenge to a finding of fact related to the parties' initial contributions.
The court determined that the primary judge's decision was reasonable, despite the husband's significant financial contributions. The court found that the wife's contributions were significantly more arduous due to the husband's conduct, particularly in relation to caring for the children and managing the household. The court upheld the primary judge's reasons, noting that the wife's contributions were of a different kind and nature to the husband's, and the primary judge's assessment was within the range of reasonable outcomes. Additionally, the court found that the husband's challenge to the finding of fact regarding the parties' initial contributions was not successful.
The court dismissed the appeal and affirmed the primary judge's decision, including the contribution-based entitlement awarded to the wife. The reasons provided by the primary judge were deemed adequate, and the husband's challenge to the finding of fact was rejected.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The primary issue in the appeal concerns whether the primary judge’s determination of a contribution based entitlement in favour of the wife as a result of her contributions being made significantly more arduous by the husband’s conduct was reasonable and/or, as a related issue, properly explained by adequate reasons in circumstances where it was accepted that the husband’s initial financial contributions were more than seven times greater than that of the wife. BACKGROUND In circumstances where the husband raises only a single challenge to a finding of fact made by the primary judge in respect of the parties’ initial contributions, which will be considered in respect of Ground 1, we do not propose to re-canvas the chronology of this matter set out by the primary judge from [11]–[150] of the reasons, save to note the following. The parties were married in 1998 and separated some 20 years later in 2018. There are two children of the marriage, who are currently 22 and 20 years old respectively. At [2] of the reasons, the primary judge notes the eldest child presented with behavioural difficulties during the parties’ marriage, while the youngest child had a surgery as an infant and experienced health issues. The consequent challenges were found to have impacted upon both parties’ contributions. Significantly, as at the date of marriage and cohabitation in 1998, the husband’s assets amounted to $2,716,236 while the wife’s assets were valued at approximately $375,000, that figure being an estimation provided by the husband that was accepted by the primary judge given the absence of precise financial disclosure from the wife (at [205]–[206]). In 1999, the husband sold a property in Suburb H for $1,275,000 and the parties jointly purchased the former matrimonial home (“the Suburb H property”) unencumbered for $2,050,000. It was agreed that the value of the Suburb H property as at the date of the hearing was $14,500,000 (at [405]), although that increase in value was due, in part, to renovations substantially supervised by the wife together with market forces. Prior to the marriage and until 2003, the husband was highly successful in his work in the financial sector and earned significant income and bonuses. From 2003 to 2005, the husband ceased work to assist caring for the parties’ youngest child, who had undergone surgery and required 24 hour care. Subsequently, the husband resumed his employment in the financial sector, which continued until 2008, at which time he received a bonus of $1 million. From 2008 to 2021, the husband earned significant income through investing in shares whilst taking on the parent at home role, primarily caring for the children (at [32]–[33] and [35]).[1][1] See also [287] and [316] of the primary judge’s reasons for judgment. The wife is a medical professional in the public health sector. Shortly after the birth of each of the parties’ two children, the wife took maternity leave for periods of 12 and 18 months respectively (at [27] and [31]). From July 2005 to March 2013, the wife reduced her work hours to part time to care for the children and, following her resumption of full time hours, would often collect the eldest child from school and sometimes take him out for dinner (at [51]). Sometime before 2016, the wife obtained her tertiary qualifications after commencing her studies in 2008 (at [47]). From June to November in 2018, the wife sought and was granted six months of long service leave to support the eldest child as he completed his Higher School Certificate (at [68]).
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.