HARRELL & NESLAND

Case [2016] FamCAFC 122


FAMILY COURT OF AUSTRALIA

HARRELL & NESLAND [2016] FamCAFC 122

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – De facto relationship – Whether the trial judge failed to provide adequate reasons – Add backs – Contributions – Whether the trial judge failed to consider the non-disclosure of assets  – Appeal allowed on the basis of inadequate reasons – Where the appellant submitted that the trial judge also took into account irrelevant matters, erred in the exercise of discretion and made a number of errors of fact – Where, due to the lack of adequate reasons, the Full Court is unable to determine whether the trial judge erred in his exercise of discretion.

FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – De facto relationship – Where the trial judge failed to consider and assess s 90SF(3) factors – Where the trial judge erred by taking the appellant’s means-tested pension into account – Where the trial judge failed to give reasons for taking the appellant’s inheritance into account – Where the trial judge failed to identify how he resolved the parties’ competing submissions as to whether the appellant could support herself.

Family Law Act 1975 (Cth) ss 72, 75(2), 90SE, 90SF, 90SM
Social Security Act 1991 (Cth) s 1064
Federal Circuit Court Rules 2001 (Cth) r 24.03

A v J (1995) FLC 92-619
Briese & Briese (1986) FLC 91-713
Bennett and Bennett (1991) FLC 92-191
Bevan & Bevan (1995) FLC 92-600
CDJ v VAJ (1998) 197 CLR 172
Chang v Su (2002) FLC 93-117
Cornwell v The Queen (2007) 231 CLR 260
De Winter and De Winter (1979) FLC 90-605
Hunter v Transport Accident Commission (2005) 43 MVR 130
Kimberly Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1
Kowaliw and Kowaliw (1981) FLC 91-092
Kuru v New South Wales (2008) 236 CLR 1
Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (2004) 217 CLR 274
Moylan v Nutrasweet Co [2000] NSWCA 337
Nesland & Harrell [2015] FamCAFC 208
Oriolo & Oriolo (1985) FLC 91-653
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robertson & Robertson [2012] FamCAFC 60
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Sun Alliance Insurance Limited v Massoud (1989) VR 8
Vass & Vass (2015) 53 Fam LR 373
Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447
APPELLANT: Ms Harrell
RESPONDENT: Mr Nesland
FILE NUMBER: BRC 6489 of 2012
APPEAL NUMBER: NA 30 of 2015
DATE DELIVERED: 13 July 2016
PLACE DELIVERED: Sydney
PLACE HEARD: Brisbane
JUDGMENT OF: Murphy, Aldridge & Cronin JJ
HEARING DATE: 25 November 2015
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 1 April 2015
LOWER COURT MNC: [2015] FCCA 732

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms DE Pendergast
SOLICITOR FOR THE APPELLANT: Matthew Love Family Lawyers
COUNSEL FOR THE RESPONDENT: Mr Kirk QC
SOLICITOR FOR THE RESPONDENT: Hirst & Co

Orders

  1. The appeal is allowed.

  2. The orders made by Judge Vasta on…

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AGLC
HARRELL & NESLAND [2016] FamCAFC 122
Case
[2016] FamCAFC 122
Decision Date

CaseChat Overview and Summary

The appeal before the court involved Harrell and Nesland, who were in a de facto relationship, with the central dispute being over the property settlement and spousal maintenance. The matter was heard in the Full Court of the Family Court of Australia. Harrell appealed the decision of Judge Vasta from the Federal Circuit Court of Australia, arguing that the trial judge had failed to provide adequate reasons for his decision regarding property settlement and spousal maintenance. Harrell contended that the trial judge had not considered the non-disclosure of assets, had taken irrelevant matters into account, and had erred in his exercise of discretion.

The court identified several legal issues it needed to decide. Firstly, whether the trial judge had provided adequate reasons for his decision on the property settlement and spousal maintenance. Secondly, whether the trial judge had correctly considered the non-disclosure of assets, and whether he had taken into account irrelevant matters. Thirdly, whether the trial judge had erred in his exercise of discretion and made any factual errors. The court also needed to determine if the trial judge had failed to consider and assess the relevant factors under s 90SF(3) of the Family Law Act, and whether he had erred by taking the appellant's means-tested pension and inheritance into account without providing reasons.

The court found that the trial judge had failed to provide adequate reasons for his decision, making it impossible for the Full Court to determine if the trial judge had erred in his exercise of discretion. The court noted that the appellant had submitted that the trial judge had taken into account irrelevant matters and had erred in his exercise of discretion. The court also found that the trial judge had failed to consider and assess the relevant factors under s 90SF(3) of the Family Law Act, and had erred by taking the appellant's means-tested pension and inheritance into account without providing reasons. Due to the lack of adequate reasons, the Full Court was unable to determine whether the trial judge had erred in his exercise of discretion.

The appeal was allowed, and the orders made by Judge Vasta on 1 April 2015 were set aside. The matter was remitted to the Federal Circuit Court of Australia to be re-heard before a judge other than Judge Vasta. The parties were required to file written submissions as to costs within 28 days of the judgment, with further submissions in reply to be filed within a further 28 days. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

1.

The appeal is allowed.

2.

The orders made by Judge Vasta on 1 April 2015 are set aside.

3.

The matter is remitted to the Federal Circuit Court of Australia to be re-heard before a judge other than Judge Vasta.

4.

The parties are to file with the Appeals Registrar and serve written submissions as to costs within 28 days of this judgment. Further submissions in reply are to be filed with the Appeals Registrar and served within a further 28 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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