GWH & PGH - [2005] FamCA 388

[2005] FamCA 388

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 117 of 2004

File No. SYF 4880 of 2003

IN THE MATTER OF:

GWH

Appellant/Husband

- and -

PGH

Respondent/Wife

REASONS FOR JUDGMENT

BEFORE:Coleman, May and Boland JJ
HEARD:3 May 2005

JUDGMENT: 20 May 2005

APPEAL SUMMARY

MATTER:GWH and PGH
APPEAL NUMBER: EA 117 of 2004 (SYF 4880 of 2003)
CORAM:Coleman, May and Boland JJ
DATE OF HEARING: 3 May 2005

DATE OF JUDGMENT: 20 May 2005

CATCHWORDS:

APPEAL – Property – Whether trial Judge failed to give sufficient weight to the husband’s pre-marriage contributions in assessing his contribution entitlement at 70 per cent – Whether trial Judge should have adopted an asset by asset approach rather than a global approach – Whether a s 75(2) adjustment of 15 per cent in favour of the wife was outside the reasonable ambit of the trial Judge’s discretion – Open to trial Judge to adopt global approach: Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712 – Contribution assessment within reasonable range of the trial Judge’s discretion considering the myriad of contributions made by each of the parties over their almost 19 years of cohabitation and marriage – Section 75(2) assessment within reasonable range of the trial Judge’s discretion considering the parties’ “not dissimilar” earning capacities, the disparity in financial positions in husband’s favour and wife’s care of the children – Costs order in wife’s favour

Gronow v Gronow (1979) 144 CLR 513

House v The King (1936) 55 CLR 499

Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712

Pierce v Pierce (1999) FLC 92-844

Appeal dismissed.

Introduction

This is an appeal by the husband in respect of orders made under s 79 of the Family Law Act 1975 (Cth) (“the Act”) by Le Poer Trench J on 18 October 2004 as varied pursuant to the slip rule on 11 November 2004. The effect of the trial Judge’s orders was to divide the parties’ assets of $1,638,818.93 between them as to 55 per cent (or $901,350.41) to the husband and 45 per cent (or $737,468.52) to the wife.

The gravamen of the husband’s appeal is that the trial Judge failed to give sufficient weight to the husband’s pre-marriage contributions and in particular to the value of a commercial property (“the commercial property”) located in the inner-west of Sydney. The second major area of complaint of the husband is the trial Judge’s assessment of relevant factors under s 75(2). The husband submits that the trial Judge’s adjustment of 15 per cent or $245,822 is outside the reasonable ambit of his Honour’s discretion.

Amended notice of grounds of appeal

The husband filed an Amended Notice of Appeal on 6 December 2004. Before us the husband abandoned grounds 5, 6 and 7. The remaining grounds relied on, as set out in the Amended Notice of Appeal, are as follows:

“1.His Honour erred in not treating 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.

Continue reading GWH & PGH

Details

AGLC: GWH & PGH [2005] FamCA 388
Case: [2005] FamCA 388
Decision Date: 20 May 2005

CaseChat Overview and Summary

The Family Court of Australia heard an appeal by the husband concerning property adjustment orders made under s 79 of the *Family Law Act 1975* (Cth). The trial judge had ordered a division of the parties' assets, totalling $1,638,818.93, with 55 per cent allocated to the husband and 45 per cent to the wife. The husband's appeal primarily argued that the trial judge had failed to adequately consider his pre-marriage contributions, particularly the value of a commercial property, and that the s 75(2) adjustment in favour of the wife was excessive.

The legal issues before the Full Court were whether the trial judge erred by not adopting an asset-by-asset approach to assessing contributions, as opposed to a global approach, and whether the trial judge failed to give sufficient weight to the husband's initial contributions. Additionally, the court considered whether the 15 per cent adjustment made under s 75(2) of the Act, favouring the wife, fell outside the reasonable ambit of the trial judge's discretion, particularly in light of the parties' earning capacities and financial positions.

The Full Court held that it was open to the trial judge to adopt a global approach to assessing contributions, referencing *Norbis v Norbis* (1986) 161 CLR 513. The court found that the trial judge's assessment of contributions, which resulted in a 70 per cent entitlement for the husband and 30 per cent for the wife, was within the reasonable range of discretion, considering the numerous contributions made by both parties over their nearly 19 years of cohabitation and marriage. Similarly, the s 75(2) adjustment was deemed to be within the reasonable ambit of the trial judge's discretion, taking into account the parties' similar earning capacities, the disparity in their financial positions favouring the husband, and the wife's role in caring for the children.

The appeal was dismissed, and the costs order made in favour of the wife at trial was affirmed.

Orders