HARRIS & HARRIS - [2011] FamCAFC 245

FAMILY COURT OF AUSTRALIA

HARRIS & HARRIS

[2011] FamCAFC 245

FAMILY LAW – APPEAL – PROPERTY – Family discretionary trust – Where the trial Judge found the assets of the trust to be assets of the husband – Whether the trial Judge erred in so finding – Where the Full Court relying on the observations of French CJ in Kennon v Spry (2008) 238 CLR 366 concluded that the husband did not as a matter of law directly control the trust and that the trial Judge’s findings did not support a conclusion of indirect control.

FAMILY LAW – APPEAL – PROPERTY – Calculation of property pool – Whether certain property of the wife should have been “added-back” in the calculation of the value of the parties’ property – Where the Full Court found that in the absence of the trial Judge providing sufficient reasons for certain of these determinations, the relevant grounds of appeal had substance.

FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Whether the trial Judge erred in dealing with the wife’s application under s 44(3) to institute spousal maintenance proceedings out of time at the same time as he determined the final property settlement – No substance in this complaint – But substance found in the complaint about the trial Judge’s decision to award maintenance made prior to determination of property division.

FAMILY LAW – APPEAL – Appeal allowed – Orders set aside – Wife’s application for orders with respect to property settlement and for leave under s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings for spousal maintenance be remitted for rehearing.

FAMILY LAW – APPEAL – COSTS – Costs of the appeal – No order for costs – Costs certificates awarded to both parties under s 9, s 6 and s 8 of the Federal Proceedings (Costs) Act 1981 (Cth).

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

Anast and Anastopoulos (1982) FLC 91-201
Ascot Investment Pty Ltd v Harper (1981) 148 CLR 337
Clauson and Clauson (1995) FLC 92-595
Kennon v Spry (2008) 238 CLR 366
Omacini & Omacini (2005) FLC 93-218

APPELLANT:

Mr Harris

RESPONDENT:

Ms Harris

FILE NUMBER:

BRF

3592

2005

APPEAL NUMBER:

2010

DATE DELIVERED:

22 December 2011

PLACE DELIVERED:

Canberra

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, Thackray and Strickland JJ

HEARING DATE:

14 February 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 December 2009

LOWER COURT ORDERS DATE:

18 May 2010

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Carrigan

SOLICITOR FOR THE APPELLANT:

Stockley Furlong Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Hogan

SOLICITOR FOR THE RESPONDENT:

Schultz Toomey O’Brien

Orders

The appeal against the orders made on 18 May 2010 (as amended on 26 May 2010) by the Honourable Justice Bell be allowed.
The orders be set aside.
The wife’s application for orders with respect to property settlement and for leave under s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings for…

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: HARRIS & HARRIS [2011] FamCAFC 245
Case: [2011] FamCAFC 245
Decision Date: 22 December 2011

CaseChat Overview and Summary

The appeal in Harris & Harris involved a dispute between the husband and wife over property division and spousal maintenance. The appeal was heard in the Family Court of Australia. The husband contested the trial Judge's findings that the assets of a family discretionary trust belonged to him and that certain properties of the wife should have been included in the calculation of the parties' property pool. Additionally, the husband argued that the trial Judge erred in awarding spousal maintenance before determining the property division. The wife sought to institute spousal maintenance proceedings out of time.

The legal issues before the court included whether the trial Judge was correct in finding that the husband directly or indirectly controlled the trust assets, the correctness of the trial Judge's inclusion or exclusion of certain properties in the property pool calculation, and the procedural fairness of the trial Judge's decision to award maintenance prior to finalising the property division. The Full Court found that the trial Judge had erred in concluding that the husband directly controlled the trust assets. The court also found that the trial Judge's reasons for certain determinations regarding the property pool were insufficient, giving substance to the grounds of appeal. However, the Full Court found no substance in the husband's complaint regarding the timing of the spousal maintenance application.

The Full Court allowed the appeal, set aside the orders made by the trial Judge, and remitted the wife's application for property settlement and leave to institute spousal maintenance proceedings for rehearing by another Judge. The court found no merit in the husband's complaint about the timing of the spousal maintenance application but did find substance in the complaint regarding the timing of the maintenance award. The court made no order for costs in relation to the appeal but issued costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth). These certificates allowed for potential payments by the Attorney-General to each party for the costs incurred in relation to the appeal and the new trial.

Orders

Orders of the court

The appeal against the orders made on 18 May 2010 (as amended on 26 May 2010) by the Honourable Justice Bell be allowed.

The orders be set aside.

The wife’s application for orders with respect to property settlement and for leave under s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings for spousal maintenance, be remitted for rehearing by a Judge other than the Honourable Justice Bell.

There be no order for costs in relation to the appeal.

The Court grants to the appellant husband 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 husband in respect of the costs incurred by him in relation to the appeal.

The Court grants to the respondent wife 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 wife in respect of the costs incurred by her in relation to the appeal.

The Court grants to each party a costs certificate pursuant to the provisions of s 8 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 the Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

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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