Greer & Mackintosh - [2013] FamCAFC 16

FAMILY COURT OF AUSTRALIA

GREER & MACKINTOSH

[2013] FamCAFC 16

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the trial Judge adopted a global approach – The trial Judge’s consideration of relevant factors and the use of the global approach were not appealable errors – Where the trial Judge recorded the parties’ assertions but made no findings – Where the trial Judge found the parties’ initial contributions were “significant” but did not state which figures she adopted – In the absence of findings it is unclear on what basis the discretion was exercised – Appeal allowed.

Family Law Act 1975 (Cth)

House v The King (1936) 55 CLR 499
Kardos v Sarbutt (2006) 34 Fam LR 550
Norbisv Norbis (1986) 161 CLR 513

APPELLANT:

Mr Greer

RESPONDENT:

Ms Mackintosh

FILE NUMBER:

ADC

2242

2009

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

20 February 2013

PLACE DELIVERED:

Perth

PLACE HEARD:

Adelaide

JUDGMENT OF:

Finn, Thackray and Strickland JJ

HEARING DATE:

9 October 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 February 2012

LOWER COURT MNC:

[2012] FamCA 55

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr North SC with Dr Ingleby

SOLICITOR FOR THE APPELLANT:

Howe Martin & Associates

COUNSEL FOR THE RESPONDENT:

Mr Whitington QC with Mr McGinn

SOLICITOR FOR THE RESPONDENT:

Jamison & Associates

Orders

The appeal be allowed.
The orders made by the Honourable Justice Dawe on 15 February 2012 be set aside.
The matter be remitted for hearing before a Judge other than the Honourable Justice Dawe.
There be no order as to the costs of the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (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 each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Greer & Mackintosh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 20 of 2012
File Number: ADC 2242 of 2009

Mr Greer

Appellant

And

Ms Mackintosh

Respondent

REASONS FOR JUDGMENT

This is the husband’s appeal against orders made by Dawe J on 15 February 2012 dividing property in proportions 75 per cent to the husband and 25 per cent to the wife.

Brief background

The husband was born in Australia and was aged 70 years at the time of trial.
The wife was born in Scotland and was aged 56 years at the time of trial.
The husband and wife commenced cohabitation late in 2000. They were married in May 2001 and separated in May 2008.
There are no…

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 Greer & Mackintosh

Details

AGLC: Greer & Mackintosh [2013] FamCAFC 16
Case: [2013] FamCAFC 16
Decision Date

CaseChat Overview and Summary

This appeal concerns a property settlement between Mr Greer and Ms Mackintosh. Mr Greer appeals against the orders made by Dawe J on 15 February 2012, which divided the property in proportions 75 per cent to Mr Greer and 25 per cent to Ms Mackintosh. The appeal was heard before Finn, Thackray and Strickland JJ. The three grounds of appeal were whether the trial judge erred in: (1) rejecting the asset-by-asset approach; (2) failing to make findings; and (3) concluding that the contributions of the parties should be assessed as 25 per cent to Ms Mackintosh and 75 per cent to Mr Greer, and that the adjustment was just and equitable. The Full Court found no merit in the first ground of appeal and only partial merit in the third ground of appeal. The appeal was allowed and the matter was remitted for hearing before a different judge. Both parties were granted a costs certificate for the rehearing.

Orders