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Gibbons & Gibbons

Gibbons & Gibbons

Case [2007] FamCA 26 31 January 2007

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FAMILY COURT OF AUSTRALIA

GIBBONS & GIBBONS

[2007] FamCA 26

APPEALS – Property settlement – property pool of $1,688,555 was found to be contributed 55-45 percent in favour of the husband – adjustment of 7.5 percent to the wife for s 75(2) factors - divided 52.5 per cent to the wife and 47.5 per cent to the husband – no error in determining contributions and s 75(2) factors as he did – they were within the range - no error by trial Judge in adding-back $14,100 of the appellant wife’s savings to the property pool after determining that money to be an amount retained by the appellant – the trial Judge also failed to add-back $24,000 received by the wife since separation as well - trial Judge did err in determining a percentage split of the property pool and then allocating to the husband in the Orders a particular monetary payment which might not accord with the percentage split – appeal upheld and discretion re-exercised.

Family Law Act 1975 (Cth)

Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
Gronow v Gronow (1979) 144 CLR 513

House v The King (1936) 55 CLR 499

AMS v AIF (1999) 199 CLR 160

CDJ v VAJ (1998) 197 CLR 172

De Winter v De Winter (1979) FLC ¶90-605

Norbis v Norbis (1986) FLC ¶91-712

Bennett v Bennett (1991) FLC ¶92-191

Pettitt v Dunkley [1971] 1 NSWLR 376

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor [1983] 3 NSWLR 378

Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247

Suttor v Gundowna Pty Ltd (1950) 81 CLR 418

Metwally v University of Wollongong (No. 2) (1985) 60 ALR 68

Coulton v Holcombe (1986) 162 CLR 1

Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279

Townsend and Townsend (1995) FLC ¶92-569
Chorn and Hopkins (2004) FLC ¶93-204

M v M [1998] FamCA 42

C v C [1998] FamCA 143

S and S [2000] FamCA 262

Waters v Waters (1981) FLC ¶91-019

Pierce and Pierce (1999) FLC ¶92-844

Coghan and Coghan (2005) FLC ¶93-220

Crampton v Crampton (2006) FLC ¶93-269
In the Marriage of Bevan (1995) FLC ¶92-600
Wv W (2005) FLC ¶93-222

APPELLANT:

Ms GIBBONS

RESPONDENT:

Mr GIBBONS

FILE NUMBER:

SY 2753 of 2003

APPEAL NUMBER:

EA127 of 2004

DATE DELIVERED:

31 January 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Faulks DCJ, Coleman and Boland JJ

HEARING DATE:

29 July 2005

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 November 2004

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Connor

SOLICITOR FOR THE APPELLANT:

Bayside Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Stewart

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Gibbons v Gibbons.

Orders

That the Full Court allows the appeal.
That Order 7 of the orders of…

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.

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Details

AGLC: Gibbons & Gibbons [2007] FamCA 26
Case: [2007] FamCA 26
Decision Date: 31 January 2007

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal concerning property settlement orders made in favour of the husband. The dispute centred on the division of a property pool valued at $1,688,555. The trial judge had initially found contributions to be 55-45 percent in favour of the husband, with a subsequent adjustment of 7.5 percent for section 75(2) factors, resulting in a final division of 52.5 percent to the wife and 47.5 percent to the husband.

The legal issues before the Full Court included whether the trial judge erred in determining the respective contributions of the parties and in considering the section 75(2) factors. The court was also required to consider whether the trial judge made an error in adding back $14,100 of the wife's savings to the property pool, and whether the trial judge erred by failing to add back $24,000 received by the wife since separation. Finally, the court had to determine if the trial judge erred in specifying a monetary payment to the husband in the final orders that might not align with the determined percentage split of the property pool.

The Full Court found no error in the trial judge's determination of contributions and section 75(2) factors, concluding that these findings were within an acceptable range. However, the court held that the trial judge did err in failing to add back the $24,000 received by the wife since separation to the property pool. Furthermore, the court found an error in the trial judge's approach of determining a percentage split and then allocating a specific monetary sum to the husband, which could potentially deviate from that percentage.

Consequently, the appeal was upheld. The Full Court re-exercised its discretion to determine the property settlement orders.

Orders