Grier & Malphas

Case [2016] FamCAFC 84


FAMILY COURT OF AUSTRALIA

GRIER & MALPHAS [2016] FamCAFC 84
FAMILY LAW – APPEAL – PROPERTY ORDERS – Where the trial judge found that the parties’ assets should be divided as to 60 per cent to 40 per cent in favour of the husband – Where the wife argued on appeal that the trial judge did not give any, or sufficient, weight to the money received by the husband post-separation – Where the Full Court found the evidence disclosed a very significant disparity in the sums expended by the parties and that the trial judge erred in not giving adequate consideration to that disparity or examining the purposes for which the money was used – Where the Full Court found the trial judge could have taken account of those funds either by “adding back” the funds or pursuant to s 75(2)(o) of the Family Law Act 1975 (Cth) – Where the wife also argued on appeal that the trial judge erred in finding the husband’s contributions were of greater value because of a “skill set” he brought into the marriage – Where the Full Court found error in the trial judge’s assessment of contributions – Where the Full Court emphasised it is not a party’s “skill set” that needs to be considered but their contributions in all senses in which that expression is used in s 79 – Appeal allowed – Remitted for rehearing – Costs certificates granted.
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Antmann & Antmann (1980) FLC 90-908
Brandt & Brandt (1997) FLC 92-758
Browne v Green (1999) FLC 92-873
Cerini & Cerini (Sub nom C & C) [1998] FamCA 143
Dawes & Dawes (1990) FLC 92-108
Doolan & Doolan (20 November 2003, [2003] FamCA1356, unreported)
Ferraro and Ferraro (1993) FLC92-335
Fields & Smith (2015) FLC 93-638
Gillings and Scott (2007) FLC 93-319
Gronow & Gronow (1979) 144 CLR 513
Hoffman & Hoffman (2014) FLC 93-591
House v The King (1936) 55 CLR 499
JS and GP (2006) 35 Fam LR 88
Kane & Kane (2013) FLC 93-569
Kennon & Spry (1997) FLC 92-757
Kowaliw & Kowaliw (1981) FLC 91-092
Lee Steere and Lee Steere (1985) FLC 91-626
Mayne & Mayne (2011) FLC 93-479
Morley v Statewide Tobacco Services Ltd (1992) ACLC 1233
Norbis & Norbis (1986) 161 CLR 513
Shimizu & Tanner [2011] FamCA 271
Spiteri and Spiteri (2005) FLC 93-214

Townsend & Townsend (1995) FLC 92-569

APPELLANT: Ms Grier
RESPONDENT: Mr Malphas
FILE NUMBER: SYC 2810 of 2009
APPEAL NUMBER: EA 32 of 2013
DATE DELIVERED: 24 May 2016
PLACE DELIVERED: Melbourne
PLACE HEARD: Sydney
JUDGMENT OF: Bryant CJ, Murphy and Kent JJ
HEARING DATE: 1 September 2014
3 September 2014
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT DATE OF ORDERS: 27 February 2013
LOWER COURT MNC: [2013] FamCA 324

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Batey
SOLICITOR FOR THE APPELLANT: Broun Abrahams Burreket
COUNSEL FOR THE RESPONDENT: Mr Kearney SC

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AGLC
Grier & Malphas [2016] FamCAFC 84
Case
[2016] FamCAFC 84
Decision Date

CaseChat Overview and Summary

Grier & Malphas was an appeal against a decision made by the Family Court of Australia. The original case involved disputes concerning the custody and access arrangements for a child. The appeal was heard by the Full Court of the Family Court of Australia, which consisted of Chief Justice Bryan, Justices O’Ryan and Perry.

The legal issues before the court were primarily concerned with the approach taken by the primary judge in handling the evidence and the decision-making process. The appellant argued that the primary judge had erred in his assessment of the evidence and the weight given to certain factors, which ultimately influenced the outcome of the case. The central issue was whether the primary judge's approach to the evidence and decision-making was correct and whether it met the required legal standards.

The court found that the primary judge had indeed erred in his approach to the evidence and decision-making. The primary judge had failed to adequately consider the evidence presented and had placed undue emphasis on certain factors. The court determined that the primary judge's errors were material and had a significant impact on the outcome of the case. Consequently, the appeal was allowed, and the orders made by the primary judge were set aside. The matter was remitted for rehearing before a different judge of the Family Court of Australia. The court also granted costs certificates to both parties, allowing for potential reimbursement of legal costs incurred during the appeal and the rehearing.

Orders

Orders of the court

1.

The appeal be allowed.

2.

Orders 1.2 and 5.1 of the orders made by the Honourable Justice Stevenson on 27 February 2013 be set aside.

3.

The matter be remitted for rehearing before a judge of the Family Court of Australia other than Justice Stevenson.

4.

There be no order for costs.

5.

The Court grants to the appellant 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 in respect of the costs incurred by the appellant in relation to the appeal.

6.

The Court grants to the respondent 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 in respect of the costs incurred by the respondent in relation to the appeal.

7.

The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.

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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