Gaspaldi & Gaspaldi

Case [2008] FamCAFC 134

FAMILY COURT OF AUSTRALIA

GASPALDI & GASPALDI [2008] FamCAFC 134

FAMILY LAW - APPEAL – From decision of Family Court judge – whether the trial Judge made adequate reference to oral evidence and concessions – whether trial Judge gave sufficient reasons – whether trial Judge adequately evaluated the contributions of the parties – where the parties conceded that the trial Judge erred in identifying and valuing the assets of the parties – appeal allowed – re-exercise of discretion

FAMILY LAW - APPEAL – Procedure – Application to re-open an appeal – Application to introduce further evidence – evidence of a loss of assets before and subsequent to the hearing of the appeal – whether it was in the interests of justice to permit the introduction of the further evidence – permission to introduce further evidence refused

FAMILY LAW - PROPERTY SETTLEMENT – Contributions – Compensation payment
Family Law Act 1975 (Cth), s 75(2) s 93A(2), s 94(2)
Allesch v Maunz (2000) 203 CLR 172
CDJ v VAJ (1998) 197 CLR 172
Fox v Percy (2003) 214 CLR 118
Griffiths and Kerkemeyer (1977) 139 CLR 161
JEL and DDF (2001) FLC 93-075
Joyce v Government Insurance Office of New South Wales (unreported, Supreme Court of New South Wales, Sheppard J, 21 July 1976)
Kowaliw v Kowaliw (1981) FLC 91-092
Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128
McCrossen and McCrossen (2006) FLC 93-283
Monie v The Commonwealth (2005) 63 NSWLR 729
P and P [2002] FamCA 1006
R v Maxwell (1998) 217 ALR 452
Smith v NSW Bar Association (1992) 176 CLR 256
Wall and Wall (2002) FLC 93‑110
Warren v Coombes (1979) 142 CLR 531
APPELLANT: Mr Gaspaldi
RESPONDENT: Mrs Gaspaldi
FILE NUMBER: CAF 80 of 2004
APPEAL NUMBER: EA 134 of 2006
DATE DELIVERED: 4 September 2008
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Bryant CJ, Thackray and Le Poer Trench JJ
HEARING DATE: 2 October 2007
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 29 November 2006
LOWER COURT MNC: [2006] FamCA 1274

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Richardson SC
SOLICITOR FOR THE APPELLANT: Dobinson Davey Lawyers
COUNSEL FOR THE RESPONDENT: Mr Millar
SOLICITOR FOR THE RESPONDENT: Farrar Gesini and Dunn

Orders

  1. That the husband have leave to re-open the hearing of the appeal.

  2. That the application to adduce further evidence filed on 17 April 2008 is dismissed.

  3. That the costs of the application filed on 17 April 2008 and the response filed on 12 May 2008 are reserved as costs in the appeal.

  4. That the appeal is allowed.

  5. That the husband pay to the wife the sum of $12,209 within 60 days.

IT IS NOTED that publication of this judgment under the pseudonym Gaspaldi and Gaspaldi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 134 of 2006
File Number: CA 80 of 2004

Mr Gaspaldi

Appellant

And

Mrs Gaspaldi

Respondent

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Details
AGLC
Gaspaldi & Gaspaldi [2008] FamCAFC 134
Case
[2008] FamCAFC 134
Decision Date

CaseChat Overview and Summary

Gaspaldi & Gaspaldi is a case before the Family Court of Australia, involving an appeal by the husband against a decision made by a Family Court judge. The central issue was whether the trial judge had adequately referenced the oral evidence and concessions made during the proceedings, as well as whether the judge provided sufficient reasons for their decision, particularly in evaluating the contributions of both parties. The parties also conceded that the trial judge had erred in identifying and valuing the assets.

The court examined whether the trial judge had provided adequate reasons for their decision and whether the contributions of the parties had been appropriately evaluated. The husband argued that the trial judge failed to consider all relevant evidence and had made errors in valuing the assets. The court considered these points and concluded that the trial judge had indeed erred in their identification and valuation of the assets. Given these findings, the appeal was allowed, and the matter was remitted for re-exercise of the trial judge's discretion.

In light of the appeal being allowed, the court turned to the issue of re-exercising the discretion, which involved whether the husband should be permitted to introduce further evidence regarding the loss of assets before and after the appeal hearing. The court held that the husband's application to introduce further evidence was refused as it was not in the interests of justice to permit such evidence. The court emphasized the need to balance the interests of the parties with the efficient use of judicial resources. Consequently, the court ordered that the husband pay the wife the sum of $12,209 within 60 days.

Orders

Orders of the court

1.

That the husband have leave to re-open the hearing of the appeal.

2.

That the application to adduce further evidence filed on 17 April 2008 is dismissed.

3.

That the costs of the application filed on 17 April 2008 and the response filed on 12 May 2008 are reserved as costs in the appeal.

4.

That the appeal is allowed.

5.

That the husband pay to the wife the sum of $12,209 within 60 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Their Honours later went on to discuss the options available to the Full Court in cases where it had been determined that appellate intervention was warranted. In doing so, they said [our emphasis added]:30.Although, on an appeal by way of rehearing from a discretionary judgment, an appellate court may, itself, exercise the discretion in question by reference to circumstances as they then exist, it is not bound to do so. It may, instead, set aside the order under appeal and remit the matter for rehearing or, in terms of s 94(2) of the Act “order a re-hearing, on such terms and conditions, if any, as it considers appropriate”. And where circumstances have or are likely to have changed between the original hearing and the disposition of the appeal, it is not uncommon for an appellate court to remit the matter for rehearing rather than, itself, exercise the discretion in question.31.If on an appeal by way of rehearing from a discretionary judgment an appellate court is minded to exercise the discretion in question by reference to circumstances as they exist at the time of the appeal, it is necessary that the parties be given an opportunity to adduce evidence as to those circumstances… In light of this authority, we accept that before seeking to re-exercise the trial judge’s discretion, the Full Court must afford both parties an opportunity to adduce evidence of their circumstances as they exist at the time of the appeal. An obvious consequence of this requirement is that if the material is in any way controversial, the Full Court has little alternative other than to remit the matter for further hearing at first instance. This inevitably causes significant further delay and expense to the parties, as well as placing increased pressure on already stretched judicial resources at first instance. Since delivery of the decision in Allesch v Maunz it has been customary for the Full Court to enquire at the time of hearing of the appeal whether or not the parties propose to adduce further evidence in the event the Court finds merit in the appeal and is considering re-exercising the discretion. Commonly, the proposed further evidence is tendered at the time of the hearing of the appeal, although in more complex matters the parties may be permitted to delay adducing the evidence until a later stage. It would not be conducive to the expeditious discharge of business for the Full Court ordinarily to determine first whether error on the part of the trial judge has been established and then seek to ascertain the intentions of the parties in relation to the introduction of further evidence. In the present matter, both counsel originally urged us to re-exercise the discretion in the event error were to be found. Both informed us that they did not intend to adduce further evidence in the event we proposed to re-exercise. In our view, having made that election, it is not correct for the husband to assert that after argument had concluded he was still entitled, “as of right”, to adduce further evidence. The obligation of the Full Court is to afford both parties “an opportunity” to adduce further evidence. That opportunity was afforded, in the usual way, at the time the appeal was argued.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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