Gerber & Bradley (Formerly Gerber) & Ors - [2012] FamCAFC 211

FAMILY COURT OF AUSTRALIA

GERBER & BRADLEY (FORMERLY GERBER) AND ORS

[2012] FamCAFC 211

FAMILY LAW – APPEAL – PROPERTY– where the trial Judge divided identifiable property found to have a net value of $1,541,792 together with an amount of $500,000 being his assessment of the value of the husband’s beneficial half interest in a company, in which all shares were held by the husband’s brother, as to 56 per cent to the husband and 44 per cent to the wife – where the Full Court found there was no substance in the challenges by the husband to the trial Judge’s findings that there had been non disclosure by the husband, particularly in relation to the husband’s interest in the company owned by his brother and to the value of that interest, and that the husband had wasted funds by permitting himself to be declared bankrupt and in pursuing proceedings in the District Court against the wife in relation to a debt owed by her to a company in which both the husband and the wife were shareholders – where the Full Court found error in the trial Judge’s calculation of the amount of the funds wasted by the husband in pursuing the District Court proceedings against the wife and recalculated the parties’ entitlements to correct that error –appeal allowed –orders amended – no order for costs – certificates issued to both parties.

Corporations Act 2001 (Cth)
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Black v Kellner (l992) FLC 92-287
Browne v Green (1999) FLC 92-873
Kowaliw and Kowaliw (1981) FLC 91-092
Oriolo v Oriolo (1985) FLC 91-653
Townsend and Townsend (1995) FLC 92-569

Weir v Weir (1993) FLC 92-338

APPELLANT:

Mr Gerber

1^ST RESPONDENT:

Ms Bradley (formerly Gerber)

2^ND RESPONDENT:

A Pty Ltd

3^RD RESPONDENT:

B Pty Ltd

4^TH RESPONDENT:

R Gerber

FILE NUMBER:

(P) PAF

2087

2004

APPEAL NUMBER:

145

2010

DATE DELIVERED:

12 December 2012

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, May and Thackray JJ

HEARING DATE:

1 May 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

24 September 2010

LOWER COURT MNC:

[2010] FamCA 861

REPRESENTATION

APPELLANT:

In person

COUNSEL FOR 1^ST RESPONDENT:

Mr Othen

SOLICITOR FOR 1^ST RESPONDENT:

Champion Legal

2^ND RESPONDENT:

No appearance

3^RD RESPONDENT:

No appearance

4^TH RESPONDENT:

No appearance

Orders

The appeal be allowed.
Order 3 of the orders made on 24 September 2010 (as amended pursuant to “the slip rule” on 17 November 2010) be amended by the substitution of the figure “53” for the figure “63” and the substitution of the figure “47” for the figure “37” in that order.
There be no order for costs in relation to the appeal.
The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court,…

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 Gerber & Bradley (Formerly Gerber) & Ors

Details

AGLC: GERBER & BRADLEY (FORMERLY GERBER) AND ORS [2012] FamCAFC 211
Case: [2012] FamCAFC 211
Decision Date: 12 December 2012

CaseChat Overview and Summary

Gerber & Bradley (Formerly Gerber) & Ors involved a dispute between a former husband and wife regarding the distribution of assets following their divorce. The case was heard in the Family Court of Australia. The former husband appealed the original decision of the Family Court, arguing that the distribution of the assets should be revised. The central legal issue was whether the original distribution of the assets between the parties was equitable.

The court found that the original decision contained errors in the calculation of the distribution of the assets. Specifically, the court identified that the original order should have allocated 53% of the assets to the former husband and 47% to the former wife, rather than the 63% and 37% allocation that had been made. The court found that these errors resulted in an inequitable distribution of the assets. As a result of this finding, the court allowed the appeal, amended the original order, and directed that the sum of $10,000.00 held as security for the wife’s costs in the appeal be discharged.

In its judgment, the court emphasised the importance of accurate calculations in asset distribution, particularly in divorce cases where the division of assets can have significant consequences for both parties. The court also noted that it was appropriate for the Attorney-General to authorise payments under the Federal Proceedings (Costs) Act 1981 (Cth) to both parties for the costs incurred in relation to the appeal.

Orders

Orders of the court

The appeal be allowed.

Order 3 of the orders made on 24 September 2010 (as amended pursuant to “the slip rule” on 17 November 2010) be amended by the substitution of the figure “53” for the figure “63” and the substitution of the figure “47” for the figure “37” in that order.

There be no order for costs in relation to the appeal.

The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.

The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.

The order made by the Full Court on 21 October 2011 which required that the sum of $10,000.00 in the “controlled money account” (being Commonwealth Bank Account Number…) be held as security for the wife’s costs in the appeal pending further order of the Full Court, be discharged.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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