Gipps & Ning - [2023] FedCFamC1A 141

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gipps & Ning [2023] FedCFamC1A 141

Appeal from: Gipps & Ning [2023] FedCFamC2F 325

Appeal number(s): NAA 75 of 2023

File number: CAC 2087 of 2018

Judgment of: CHRISTIE J

Date of judgment: 21 August 2023

Catchwords: FAMILY LAW – APPEAL – PROPERTY– PRACTICE & PROCEDURE – Where appellant asserts that the primary judge was biased – Where primary judge’s intervention is proper – Where appellant is mistaken that the primary judge encouraged the respondent’s counsel to advance a particular argument – Where errors of fact do not support allegation of bias nor warrant appellate intervention – Justice and equity – Where the exercise of discretion has not miscarried – Challenge to weight given to evidence by primary judge – Where primary judge’s assessment of weight was open – Whether error in finding in favour of an asserted loan – Where finding was open – Adequacy of reasons – Where adequate reasons provided as to a life insurance policy of the respondent and a joint bank account between the respondent and her sister not forming part of the matrimonial pool for adjustment – Whether failure to consider financial resources of the respondent amounts to error – Where ground is misconceived – No error established warranting appellate intervention – Appeal dismissed – Costs – Where appellant wholly unsuccessful – Order for costs in favour of the respondent.

Legislation:
Evidence Act 1995 (Cth) s 41

Family Law Act 1975 (Cth) s 75

Limitation Act 1985 (ACT)

Cases cited:
Af Petersens & Af Petersens (1981) FLC 91-095

Biltoft & Biltoft (1995) FLC 92-614

CDJ & VAJ (1998) 197 CLR 172; [1998] HCA 67

De Winter & De Winter (1979) FLC 90-605

Galea v Galea (1990) 19 NSWLR 263

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

House & The King (1936) 55 CLR 499; [1936] HCA 40

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

Strahan and Strahan (Disqualification) (2009) FLC 93-414; [2009] FamCAFC 204

Number of paragraphs: 77

Date of hearing: 31 July 2023

Place: Melbourne via Microsoft Teams

For the Appellant: Litigant in person

Counsel for the Respondent: Mr Haddock

Solicitor for the Respondent: Parker Coles Curtis

ORDERS

NAA 75 of 2023
CAC 2087 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR GIPPS
Appellant

AND:
MS NING
Respondent

order made by:

CHRISTIE J

DATE OF ORDER:

21 AUGUST 2023

THE COURT ORDERS THAT:
1.Appeal NAA 75 of 2023 is dismissed.
2.The appellant pay the respondent’s costs in the sum of $12,339.67.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)),…

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 Gipps & Ning

Details

AGLC: Gipps & Ning [2023] FedCFamC1A 141
Case: [2023] FedCFamC1A 141
Decision Date

CaseChat Overview and Summary

This appeal concerns orders made in relation to property adjustment between the parties at the conclusion of their relationship. The appellant, Mr Gipps, appeared in person at the trial while the respondent, Ms Ning, was legally represented. The primary judge found the relationship had lasted for at least eight years before separation in September 2015. The appellant owned two properties at the start of the relationship, one of which became the parties’ home. The respondent had a share portfolio in Country E at the commencement and conclusion of the parties’ relationship. The primary judge found that the appellant had made a “significant initial financial contribution.” The parties have two children, born in 2008 and 2011. Consent Orders for their care were made on 9 May 2016 dividing the children’s holidays equally between their parents and providing that during term time they live with the respondent and spend time with the appellant five nights per fortnight. The primary judge found the parties’ contribution-based entitlements favoured the appellant by seven per cent as a consequence of his initial contribution and made a 15 per cent adjustment in favour of the respondent in consideration of matters in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”). The resulting division was that the appellant receive 42 per cent of the parties’ net assets and the respondent 58 per cent.

The appellant appealed on several grounds. The first was that the primary judge was biased against him. The appellant asserted factual errors made by the primary judge demonstrated bias. The court found there was no evidence of bias. The second ground was that the primary judge’s orders were unjust and inequitable. The court found the primary judge had exercised her discretion properly and the appeal on this ground failed. The third ground was that the primary judge erred in her assessment of the contributions of the parties. The court found the primary judge’s assessment was open. The fourth ground was that the primary judge erred by deducting from the property pool a liability of $650,000 that was unreasonably incurred by the respondent and is unlikely to be enforced. The court found the primary judge’s characterisation of the advance as a loan was open. The fifth ground was that the primary judge failed to provide adequate reasons as to why the life insurance policy of the respondent was omitted from the property pool. The court found there was no error in the primary judge’s reasons. The final ground was that the primary judge erred by failing to consider substantial financial resources available to the respondent from her sister including $722,000 post separation. The court found this ground was misconceived.

As none of the grounds have been established, the appeal will be dismissed. The respondent should receive her costs at scale. No submissions were made about the quantum which the schedule fixed at $12,339.67.

Orders