GT & KW - [2006] FamCA 638

[2006] FamCA 638

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA      Appeal No EA87 & 123 of 2005
AT SYDNEY  File No PAF3655 of 2003

BETWEEN:

GT
Appellant Husband
- and -

KW
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  KAY, COLEMAN & BOLAND JJ
DATE OF HEARING:                 29 June 2006
DATE OF JUDGMENT:             29 June 2006

APPEARANCES: Mr Givney of Counsel, instructed by Cynthia Kardell, 94 Copeland Road, Beecroft NSW 2119, appeared on behalf of the Appellant Husband.
Mr Sansom of Counsel, instructed by Watts McCray, Level 4, 17-21 Macquarie Street, Parramatta NSW 2150, appeared on behalf of the Respondent Wife.

GT & KW
EA87 & 123 of 2005
CORAM:  Kay, Coleman & Boland JJ
DATE OF HEARING:         29 June 2006
DATE OF JUDGMENT:     29 June 2006

Catchwords: PROPERTY SETTLEMENT – Contributions – Future needs – husband’s initial capital balanced by the wife’s greater post-separation contributions – Early in the marriage the parties moved to Canada to advance wife’s career – Husband had difficulty obtaining secure work upon return to Australia and for a period the wife was the only breadwinner – Wife has a greater earning capacity than the husband – Contributions during the marriage assessed as equal - further 5 per cent adjustment in favour of the husband by way of s75(2)(a) and (j) of the Family Law Act 1975 (Cth) appropriate.
COSTS – Circumstances justifying order – Trial judge found that husband had increased the costs of both parties by conducting a detailed “accounting exercise” rather that using best estimates of property values and contributions – Trial judge ordered husband pay 15% of wife’s costs – Nothing to show this exercise of discretion was inappropriate – Wife’s cross-appeal seeking husband pay a greater proportion of her costs similarly dismissed.

KAY J:

This is an appeal against orders made by Purdy J on 4 July 2005 in property proceedings between the parties of the marriage, who I will continue to call “the husband” and “the wife” although the marriage has now been dissolved.

The orders that are the subject matter of the appeal divided up a pool of assets found by the trial judge to have a value of $1,537,982 on an even basis after an evaluation of contributions and an adjustment then made for what are known as s 75(2) factors. The end result was the requirement of a payment to the wife of $293,575 to effect the equal division of assets.

The husband challenges the equal division of assets suggesting by his amended Notice of Appeal that the assets should have been divided in his favour in a manner that would require only the payment of $72,428. The wife resists the appeal.

There is also an appeal, and a cross appeal in respect of some costs orders made by Purdy J on 15 September 2005 when it was ordered that the husband pay 15 per cent of the wife’s costs incurred between 16 December 2002 and 4 July 2005. The…

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: GT & KW [2006] FamCA 638
Case: [2006] FamCA 638
Decision Date: 29 June 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, comprising Kay, Coleman, and Boland JJ, considered an appeal concerning property settlement orders made in the Federal Circuit Court. The dispute involved a married couple, identified as GT and KW, who sought to divide their assets following the breakdown of their marriage.

The primary legal issues before the Full Court were whether the primary judge erred in their assessment of the parties' contributions, both financial and non-financial, to the marriage and the acquisition, conservation, and improvement of the matrimonial property. Specifically, the appeal questioned the weight given to certain contributions and whether the resulting property division was just and equitable.

The Full Court analysed the evidence presented at the trial and the reasons of the primary judge. Their Honours applied established principles of property settlement under the *Family Law Act 1975* (Cth), including the consideration of section 75(2) factors. The Court found that the primary judge had adequately considered all relevant contributions and had made appropriate findings of fact. The appeal was dismissed.

Orders