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 |
| 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
The appeal is allowed.
The orders made by Judge Vasta on…
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- HARRELL & NESLAND [2016] FamCAFC 122
- Case
- [2016] FamCAFC 122
- Decision Date
CaseChat Overview and Summary
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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