HARRISON & HARRISON - [2006] FamCA 1437

FAMILY COURT OF AUSTRALIA

HARRISON & HARRISON

[2006] FamCA 1437

APPEAL – From decision of Federal Magistrate – Husband appealed against orders dividing property 60% to the wife – Federal Magistrate found the contributions of the parties to be equal and gave the wife a 10% loading for her future needs – Appeal allowed – Incorrect calculation of the asset pool – Finding of equal contribution not really open – Slightly greater capital contribution made by husband during course of marriage and greater post-separation contribution – 55% to the husband for contributions appropriate – Wife’s income earning capacity lower than that of husband – 5% adjustment in her favour appropriate – A 50-50 division of the recalculated property pool is just and equitable in the circumstances.

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

APPELLANT:

HARRISON

RESPONDENT:

HARRISON

FILE NUMBER:

MLM

7984

2005

APPEAL NUMBER:

2006

DATE DELIVERED:

19 DECEMBER 2006

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE KAY

HEARING DATE:

19 DECEMBER 2006

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

22 JUNE 2006

LOWER COURT MNC:

[2006] FMCAfam 379

REPRESENTATION

COUNSEL FOR THE APPELLANT:

MS JOHNSON

SOLICITORS FOR THE APPELLANT:

MADDENS LAWYERS

COUNSEL FOR THE RESPONDENT:

MS BEN SIMON

SOLICITORS FOR THE RESPONDENT:

CLARKE & BARWOOD

Orders

That the appeal be allowed.
That Order 1 of the orders made by Federal Magistrate Hughes on 22 June 2006 be varied by discharging paragraphs (c) and (d) thereof and in lieu thereof substituting
(c)thirdly, the sum of $94,000 to be paid to the wife, plus or minus one half of the sum by which the proceeds of sale after payment of the sums referred to in paragraph (a) and (b) above are greater or less than the sum of $242,000; and
(d)the balance is to be paid to the husband.
That the wife indemnify the husband against all liability in respect of the debt owed by the parties or either of them to the wife’s father in the sum of $19,000.
That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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.
That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 52 of 2006
File Number: MLM 7984 of 2005

HARRISON

Appellant

And

HARRISON

Respondent

REASONS…

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

Case: [2006] FamCA 1437
Decision Date: 19 DECEMBER 2006

CaseChat Overview and Summary

The appeal concerned property division orders made by a Federal Magistrate, where the husband appealed against a 60% to 40% split in favour of the wife. The Federal Magistrate had initially found the parties' contributions to be equal, awarding the wife an additional 10% for her future needs.

The primary legal issues before the court were whether the Federal Magistrate had erred in calculating the asset pool, in finding the parties' contributions to be equal, and in the ultimate division of property. The court was required to determine if a revised assessment of contributions and future needs would lead to a different, just and equitable outcome.

Justice Kay found that the Federal Magistrate's calculation of the asset pool was incorrect. Furthermore, the finding of equal contributions was not supported by the evidence, as the husband had made a slightly greater capital contribution during the marriage and a greater post-separation contribution. Consequently, the court determined that a 55% to 45% division in favour of the husband for contributions was more appropriate. However, acknowledging the wife's lower income-earning capacity, a 5% adjustment in her favour was deemed appropriate, resulting in a final division of 50% to 50% of the recalculated property pool as just and equitable in the circumstances.

Orders