GOULD & GOULD

Case [2010] FamCAFC 197

FAMILY COURT OF AUSTRALIA

GOULD & GOULD [2010] FamCAFC 197

FAMILY LAW - APPEAL - PROPERTY SETTLEMENT - Adequacy of reasons - Contributions - Whether trial Judge gave adequate reasons for concluding contributions during the relationship were equal

FAMILY LAW - DISCRETION - Contributions - Section 75(2) adjustment - Whether trial Judge properly considered post separation contributions - Where the trial Judge recognised the husband had solely contributed to the farming property since separation - Whether the trial Judge had erred in making an adjustment in the wife's favour based on the husband's "use and control" of the parties' assets over five years post separation - Whether the trial Judge had "double counted" when taking this into account in considering contributions and the section 75(2) adjustment - Where the trial Judge had not ultimately taken this factor into account when assessing contributions - The outcome would have been the same regardless of where the trial Judge had considered this factor

FAMILY LAW - JUST AND EQUITABLE - Whether the trial Judge properly considered the effect of the orders on the husband's earning capacity - Whether the trial Judge properly considered the husband's desire to remain a farmer - Where the husband had retained the farm and his needs were basic

FAMILY LAW - COSTS - Order for lump sum costs to be paid - Whether the trial Judge had adequate evidence on which to determine the quantum of costs - Trial Judge had sufficient information

FAMILY LAW - COSTS - Of first trial - Where the trial judge had taken into account the costs of the first trial - Where the Full Court in ordering a retrial had not fettered the trial Judge's discretion to determine the costs of the entire proceedings - Costs of the first trial were properly taken into account 

FAMILY LAW - COSTS - Of previous appeal - Where the trial Judge had taken into account the costs of the previous appeal - Costs issues associated with an appeal are for the Full Court to determine - The trial Judge did not have jurisdiction to make a costs order in relation to the previous appeal - Appeal allowed in part - Quantum of costs redetermined
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Bennett and Bennett (1991) FLC 92-191
Braithwaite & Braithwaite [2007] FamCA 468
Brookvista Pty Ltd v Meloni [2009] WASCA 180
House v The King (1936) 55 CLR 499
Gronow v Gronow(1979) 144 CLR 513
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
White and Tulloch v White (1995) FLC 92-640
APPELLANT: Mr Gould
RESPONDENT: Ms Gould
FILE NUMBER: PTW 4767 of 2002
APPEAL NUMBER: WA 31 of 2008
DATE DELIVERED:

8 October 2010

PLACE DELIVERED: Perth
PLACE HEARD: Perth
JUDGMENT OF: Boland, Thackray & Crisford JJ
HEARING DATE: 22 March 2010
LOWER COURT JURISDICTION: Family Court of Western Australia
LOWER COURT JUDGMENT DATE: 18 July 2008; 7 November 2008
LOWER COURT MNC: [2008] FCWA 87; [2008] FCWA…

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AGLC
GOULD & GOULD [2010] FamCAFC 197
Case
[2010] FamCAFC 197
Decision Date

CaseChat Overview and Summary

In the matter of Gould & Gould, the appeal involved a dispute regarding the adequacy of property settlement orders made in the Family Court of Australia. The husband and wife contested the trial judge's determination of their respective contributions during the relationship and post-separation, as well as the appropriateness of certain adjustments and the impact of the orders on the husband's earning capacity. The court was tasked with determining whether the trial judge had provided sufficient reasons for her conclusions, properly considered post-separation contributions, and correctly assessed the effect of the orders on the husband's earning capacity.

The legal issues before the court included whether the trial judge had given adequate reasons for concluding that the contributions during the relationship were equal, whether the trial judge properly considered post-separation contributions when making adjustments under section 75(2), and whether the trial judge had properly assessed the effect of the orders on the husband's earning capacity. The court had to determine if the trial judge had erred in her consideration of the husband's "use and control" of the parties' assets over five years post-separation and if she had "double counted" when taking this into account in considering contributions and the section 75(2) adjustment. Additionally, the court had to consider whether the trial judge had adequately considered the husband's desire to remain a farmer and his basic needs.

The court found that the trial judge had adequately reasoned her conclusions on the contributions during the relationship, noting that both parties had worked hard and their contributions should be regarded as equal if the inherited properties were excluded. However, the court found that the trial judge had not properly considered the husband's post-separation contributions when making adjustments under section 75(2). The court found that the trial judge had not erred in her consideration of the husband's "use and control" of the parties' assets, as the outcome would have been the same regardless of where the trial judge had considered this factor. The court also found that the trial judge had properly considered the husband's desire to remain a farmer and his basic needs.

The court allowed the appeal in part and varied the orders made by the trial judge. The court found that the trial judge had sufficient information to determine the quantum of costs and that the trial judge had properly considered the costs of the first trial and the previous appeal. The court ordered that the husband pay 75% of the wife's costs of the appeal, to be assessed if not agreed.

Orders

Orders of the court

1.

The appeal against the orders made by the Honourable Justice Martin on 7 November 2008 be allowed in part.

2.

Order 5 of the said orders be varied by deleting “$45,000” and substituting in lieu “$40,500”.

3.

The husband pay 75% of the wife’s costs of the appeal, to be assessed if not agreed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The trial Judge completed her treatment of the contribution issues under a new heading, “Conclusion – contributions”. Given the challenge made to her Honour’s reasons it is also important we set out those paragraphs in full.90The wife’s position was that, although the husband had some equity in the properties at the outset, having regard to the length of the marriage, if the land inherited by the husband is excluded from consideration, then contributions to the reduced pool should be seen as at least equal.91The husband’s position is that he brought the [farm] property into the marriage, and it was the springboard from which the adjoining Lot [A] was purchased. Not only was he the person primarily responsible for working on conserving and improving the farming property during cohabitation, and the only party responsible for this since separation, he was also responsible for the parties’ entering into the profit a prendre deal. As well as the properties inherited from his mother, he had also contributed $80,000 in cash from her estate, which was used to meet debts.92I accept that during the relationship, both parties have worked hard, and the parties’ contributions should be regarded as being equal, if the inherited properties are excluded. The wife’s income eased the parties’ financial situation considerably. However, it is the case that the husband’s original equity in the farming property of $12,000 (a significant sum in the early 1970’s) was the springboard from which the parties’ main assets grew. The husband received an additional contribution from his mother’s estate of $80,000, but the wife also received $21,000.93I accept the husband should be given some credit for this, and that, even excluding the two inherited properties from the pool, he should be regarded as, overall, having contributed 55%, and the wife, 45%. The trial Judge turned next to the s 75(2) factors. The husband’s position was there should be no adjustment for those factors. The wife’s position was that if contributions were assessed as being equal (excluding the inherited properties) and if the husband was ordered to pay lump sum maintenance, there would probably be no need for any adjustment. However, if she was not successful in achieving these outcomes, the wife sought an adjustment in her favour because of her need for rehousing and a reasonable lifestyle in retirement. Having recorded the parties’ ages, the trial Judge noted that whilst the husband and wife both had “some health problems”, there was no evidence these had any impact on their life expectancy. Her Honour noted that the wife had estimated her earning capacity was about $30,000 per annum and that whilst she had become eligible for a pension in December 2006, and would have liked to retire, she had kept working, as she needed the income. The wife’s intention was to stop work during 2008. The trial Judge recorded that the husband was still farming and claimed he was earning $294 per week (in addition to the plantation income). Her Honour also observed that whilst the taxable income from the farm was “very modest”, there were “many tax advantages from the farming operation”. The husband would become eligible for a pension in 2009. Like the wife, he had only “modest superannuation”.

Ratio Decidendi

Legal Principle Established

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