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Hearne & Hearne

Hearne & Hearne

Case [2015] FamCAFC 178 16 September 2015

Appeal

Abuse of Process

Admissibility of Evidence

Costs

Family Law

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FAMILY COURT OF AUSTRALIA

HEARNE & HEARNE

[2015] FamCAFC 178

FAMILY LAW – APPEAL – PROPERTY – Where s 79(2) of the Family Law Act 1975 (Cth) does not require an express finding that it is just and equitable to make orders for property settlement, but such a finding can be found by implication, or inferred, from the totality of the trial judge’s reasons – Where taking into account the trial judge’s reasons as a whole the trial judge was satisfied that the orders were just and equitable – Where in any event the husband was bound on appeal by the case argued at first instance – Where the husband’s attempt to raise this issue was also an abuse of process – Where the trial judge’s failure to consider capital gains tax did not warrant appellate interference – Where accumulated service can be taken into account as an initial contribution – Where it was open to the trial judge to find that the wife’s initial contributions were significant and justified an adjustment in the wife’s favour – Where the trial judge did not fail to provide adequate reasons as to the overall contributions of the parties – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADJOURNMENT – Where the court treated the wife’s presentation of a medical certificate as an application to adjourn – Where the court is satisfied that the wife was aware of the listing of the appeal for hearing, and what she was required to do to prepare for the hearing – Where the court was not satisfied that the wife was unable to file her summary of argument and list of authorities – Where the court was not satisfied that the wife’s non-specific medical certificate provided a basis for the wife not attending the hearing of the appeal – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the wife did not appear at the hearing – Where there is no costs application on the wife’s behalf – No costs order made.

Family Law Act 1975 (Cth) – ss 75(2) and 79

Family Law Rules 2004 (Cth) – 22.53

AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256
Bevan & Bevan (2013) FLC 93-545
Chapman & Chapman (2014) FLC 93-592
Clives and Clives (2008) FLC 93-385
Crawford & Crawford (1979) FLC 90-647
Lee Steere & Lee Steere (1985) FLC 91-626
Metwally v University of Wollongong (No. 2) (1985) 60 ALR 68
Pierce & Pierce (1999) FLC 92-844
Rogers v The Queen (1994) 181 CLR 251
Stanford v Stanford (2012) 247 CLR 108
Stead v State Government Insurance Commission (1986) 161 CLR 141
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Waterboard v Moustakas (1988) 180 CLR 491
White & White (1982) FLC 91-246
Williams v Spautz (1992) 174 CLR 509
Zalewski and Zalewski (2005) FLC 93-241

APPELLANT:

Mr…

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: Hearne & Hearne [2015] FamCAFC 178
Case: [2015] FamCAFC 178
Decision Date: 16 September 2015

CaseChat Overview and Summary

The matter before the court was an appeal against a decision concerning a property settlement made in the Family Court. The husband contested the orders made by the trial judge, arguing that the judge had not explicitly stated that the orders were just and equitable, as required under section 79(2) of the Family Law Act 1975. Additionally, the husband argued that the trial judge failed to consider capital gains tax and that the wife's initial contributions were not adequately accounted for in the property settlement. The wife, who did not appear at the hearing of the appeal, argued that the trial judge's reasons as a whole demonstrated that the orders were just and equitable and that the husband was bound by the case he had argued at first instance.

The court considered the husband's arguments and found that the trial judge's reasons as a whole demonstrated that the orders were just and equitable. The court held that section 79(2) of the Family Law Act 1975 did not require an express finding that the orders were just and equitable, but rather that such a finding could be found by implication or inferred from the totality of the trial judge's reasons. The court also found that the husband was bound by the case he had argued at first instance, and that his attempt to raise new issues on appeal was an abuse of process. The court held that the trial judge's failure to consider capital gains tax did not warrant appellate interference, and that it was open to the trial judge to find that the wife's initial contributions were significant and justified an adjustment in her favour.

The court dismissed the husband's appeal and held that the trial judge's reasons were adequate as to the overall contributions of the parties. The court also dismissed the wife's application to adjourn the hearing of the appeal, finding that she was aware of the listing of the appeal for hearing and what she was required to do to prepare for the hearing. The court found that the wife's non-specific medical certificate did not provide a basis for her not attending the hearing of the appeal. Finally, the court made no order as to costs, as there was no costs application on the wife's behalf and she did not appear at the hearing.

The appeal was dismissed and no orders were made as to costs.

Orders