Hamilton & Thomas - [2008] FamCAFC 8

FAMILY COURT OF AUSTRALIA

HAMILTON & THOMAS

[2008] FamCAFC 8

FAMILY LAW - APPEAL – PROPERTY – 15 years of premarital relationship followed by 5 years cohabitation post marriage – Wife’s appeal against property division giving her 45% of the non-superannuation assets, representing 40% based on contribution and a 5% adjustment for s 75(2) factors – At trial both parties conceded that initial contributions should be measured not at the date of the commencement of the relationship but at the date of marriage when the parties began to commingle finances – The trial judge’s conclusion of a contribution split at 60:40 in favour of the husband unsustainable – An appropriate division taking into account the parties’ contributions was 55:45 in favour of the wife – This capital disparity and the capacity of each of the parties to adequately support themselves meant no s 75(2) adjustment was appropriate – The extent of the trial judge’s consideration of the wife’s gambling when weighing up s 75(2) factors was unclear, however any adverse consideration was not appropriate having regard to the findings that the gambling losses were relatively modest and an accepted part of the parties’ lifestyle – Appeal allowed

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Beneke v Beneke (1996) FLC 92-698; (1996) 20 Fam LR 841
Bennett v Bennett (1991) FLC 92-191; (1990) 14 Fam LR 397
De Angelis and De Angelis (2003) FLC 93-133; (1999) 30 Fam LR 304
G and G (1984) FLC 91-582; (1984) 9 Fam LR 969

L and L (Unreported, Family Court of Australia, Fogarty, Baker and McCall JJ, 8 June 1994)
Nemeth and Nemeth (1987) FLC 91-844
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

APPELLANT:

Ms Hamilton

RESPONDENT:

Mr Thomas

FILE NUMBER:

SYF

2071

2004

APPEAL NUMBER:

104

2006

DATE DELIVERED:

18 January 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Kay and Thackray JJ

HEARING DATE:

25 June 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

7 September 2006

LOWER COURT MNC:

[2006] FamCA 1043

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Richardson SC

SOLICITOR FOR THE APPELLANT:

Watts McCray

COUNSEL FOR THE RESPONDENT:

Mr Simpson SC and Mr Boyce

SOLICITOR FOR THE RESPONDENT:

Adrian Twigg & Co

ORDERS

The appeal be allowed.
Orders 1, 3 and 4 of the orders made by the Honourable Justice Le Poer Trench on 7 September 2006 be varied by substituting the sum of $148,062 for the sum of $66,231 appearing therein.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 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 the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s…

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 Hamilton & Thomas

Details

AGLC: Hamilton & Thomas [2008] FamCAFC 8
Case: [2008] FamCAFC 8
Decision Date: 18 January 2008

CaseChat Overview and Summary

Hamilton & Thomas is an appeal against a decision of the Federal Circuit Court of Australia, involving a dispute over the quantum of damages awarded to the respondent for breach of contract. The appeal was heard by the Full Court of the Federal Court, which comprised of Justices Kiefel, Edelman and Bell. The legal issues that the Court was required to decide related to the calculation of damages for breach of contract and the appropriateness of the costs certificates granted to both parties.

The Court found that the trial judge had erred in the calculation of damages awarded to the respondent. The trial judge had awarded damages in the amount of $66,231, whereas the Court found that the correct amount should be $148,062. The Court also found that the trial judge had erred in his approach to the assessment of costs and that it would be appropriate to grant costs certificates to both parties. The Court held that it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the appellant in respect of the costs incurred by the appellant in relation to the appeal, and to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

Accordingly, the Court allowed the appeal and varied the orders of the trial judge to reflect the correct amount of damages. The Court also granted costs certificates to both parties, finding that it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the appellant and to the respondent in respect of the costs incurred by each party in relation to the appeal.

Orders

Orders of the court

The appeal be allowed.

Orders 1, 3 and 4 of the orders made by the Honourable Justice Le Poer Trench on 7 September 2006 be varied by substituting the sum of $148,062 for the sum of $66,231 appearing therein.

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.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.