HIGGINS & HIGGINS - [2016] FamCAFC 32

FAMILY COURT OF AUSTRALIA

HIGGINS & HIGGINS

[2016] FamCAFC 32

FAMILY LAW – PROPERTY SETTLEMENT – APPEAL – Valuation of a business – where there were two competing valuation methodologies leading to significantly different valuations – where one valuation was on the basis of a sale on an open market and the other was on the basis of the capitalisation of maintainable profits – where the trial judge found the latter was appropriate – no error found.

FAMILY LAW – PROPERTY SETTLEMENT – APPEAL – “Addbacks” including money taken at separation by the husband to repay a loan to his mother and also the funding of the husband’s legal fees – where there was a concession by the husband’s counsel that the husband unilaterally paid money to his mother after separation from a line of credit – money added back to the list of assets – no error found – where the husband asserted his mother had then repaid him the money he had given her for him to pay his legal fees – no evidence to corroborate such assertion – legal fees added back by the trial judge – no error found.

FAMILY LAW – PROPERTY SETTLEMENT – APPEAL – Section 75(2) factors – matter of weight – whether the trial intended the percentage to be added to the wife’s entitlement or to reflect the difference between the parties’ ultimate entitlements – decision of the trial judge unequivocal – no error found.

FAMILY LAW – APPEAL – COSTS – circumstances justifying order – where the appeal had been abandoned and subsequently reinstated – where necessity for application to reinstate appeal arose partly due to issues of the appellant’s solicitor ceasing to act without informing him – no order made.

FAMILY LAW – APPEAL – COSTS – where appellant wholly unsuccessful – consideration of s 117(2A) – costs ordered against the appellant.

Family Law Act 1975 (Cth)

Bennett & Bennett (1991) FLC 92-191
Gronow v Gronow (1979) 144 CLR 513
D & D (Costs) (No. 2) (2010) FLC 93-435

APPELLANT:

Mr Higgins

RESPONDENT:

Ms Higgins

FILE NUMBER:

SYC

5083

2010

APPEAL NUMBER:

106

2013

DATE DELIVERED::

4 March 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Aldridge & Cronin JJ

HEARING DATE:

11 November 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 June 2013

LOWER COURT MNC:

[2013] FCCA 549

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Livingstone

SOLICITOR FOR THE RESPONDENT:

Marsdens Law Group

Orders

The appeal be dismissed.
The husband pay the costs of the wife of and incidental to the appeal as agreed between the parties, or in default of agreement, as assessed.
The wife’s application for costs of the husband’s Application in an Appeal filed on 13 March 2014 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Higgins & Higgins has been approved by the Chief Justice pursuant to s 121(9)(g) of…

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: HIGGINS & HIGGINS [2016] FamCAFC 32
Case: [2016] FamCAFC 32
Decision Date: 4 March 2016

CaseChat Overview and Summary

In Higgins & Higgins, the Full Court of the Family Court of Australia was tasked with determining an appeal arising from a property settlement following the divorce of the parties. The primary dispute centred on the valuation of a business owned by the husband, the appropriate "addbacks" to be included in the property pool, and the interpretation of certain percentage adjustments under section 75(2) of the Family Law Act 1975. The wife contested the valuation of the husband's business, arguing for an open market sale approach rather than the capitalisation of maintainable profits used by the trial judge. Additionally, she sought to include certain payments made by the husband post-separation as addbacks, while the husband argued for the inclusion of certain repayments made by his mother. The court also considered the interpretation of a percentage adjustment intended to reflect the difference between the parties' entitlements.

The legal issues before the court were whether the trial judge erred in selecting the capitalisation of maintainable profits methodology for valuing the business, whether the trial judge erred in including certain addbacks, and whether the trial judge properly interpreted a percentage adjustment. The court found no error in the trial judge's decisions, affirming that the chosen valuation method was appropriate given the circumstances. The court also upheld the inclusion of certain addbacks, rejecting the husband's claims regarding repayments by his mother, and clarified the purpose of the percentage adjustment. The court's decision was based on a detailed examination of the evidence and arguments presented at trial, and it concluded that the trial judge's findings were supported by the material before the court.

The court dismissed the appeal, finding no errors in the trial judge's decisions. It ordered that the husband pay the wife's costs of the appeal as agreed between the parties or, failing agreement, as assessed. The court also dismissed the wife's application for costs relating to the husband's application in an appeal. This outcome reflects the court's view that the appeal lacked merit and that the costs should be borne by the appellant, consistent with the provisions of the Family Law Act.

Orders

Orders of the court

1. The appeal be dismissed.

2. The husband pay the costs of the wife of and incidental to the appeal as agreed between the parties, or in default of agreement, as assessed.

3. The wife’s application for costs of the husband’s Application in an Appeal filed on 13 March 2014 be dismissed.

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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