HINKLEY & MORGAN - [2009] FamCAFC 135

FAMILY COURT OF AUSTRALIA

HINKLEY & MORGAN

[2009] FamCAFC 135

FAMILY LAW - APPEAL – PROPERTY – Whether the orders of the Federal Magistrate were just and equitable – Where the Federal Magistrate did not explain how the husband’s contribution entitlement was determined – Where the Federal Magistrate did not explain how apportionment of net proceeds of sale was just and equitable – Where the figure used by the Federal Magistrate to calculated parties’ entitlements did not properly reflect the actual contributions of the parties –Whether the Federal Magistrate fell into appealable error in determination of the husband’s percentage entitlement – Whether the Federal Magistrate fell into appealable error by not providing adequate reasons – Where analysis was limited by the material provided by the parties – Where difference between sum awarded by the Federal Magistrate and sum which should have been awarded requires appeal should be dismissed.

FAMILY LAW - APPEAL – Appeal dismissed.

FAMILY LAW - COSTS – Wife to pay the husband’s cost of and incidental to the appeal as agreed.

Family Law Act 1975 (Cth) – s 75(2)

Bennett & Bennett (1991) FLC 92-191
Hickey & Hickey & the Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
House v The King (1936) 55 CLR 499
Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378
JEL & DDF (2001) FLC 93-075
Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712
Pettitt v Dunkley (1971) 1 NSWLR 376
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Russell & Russell (1999) FLC 92-877

APPELLANT:

Ms Hinkley

RESPONDENT:

Mr Morgan

FILE NUMBER:

SYC

4561

2007

APPEAL NUMBER:

145

2008

DATE DELIVERED:

31 July 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

16 March 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

5 December 2008

LOWER COURT MNC:

[2008] FMCAfam1290

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Anderson

SOLICITOR FOR THE APPELLANT:

McLaughlin & Riordan

COUNSEL FOR THE RESPONDENT:

Mr Foster

SOLICITOR FOR THE RESPONDENT:

McDonell Milne Toltz

Orders

That the appeal against Order 1 of the orders of Federal Magistrate Dunkley of 5 December 2008 is dismissed.
That the wife pay the husband’s costs of and incidental to the appeal as agreed and failing agreement as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Hinkley & Morgan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 145 of 2008
File Number: SYC 4561 of 2007

Ms Hinkley

Appellant

And

Mr Morgan

Respondent

REASONS FOR JUDGMENT

Introduction

At the end of their short term marriage Mr Morgan (“the husband”) and Ms Hinkley (“the wife”) were unable to resolve matters relating to property adjustment. While they agreed each should retain assets they owned prior to their marriage, they remained in dispute over their respective interests in two…

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.

Continue reading HINKLEY & MORGAN

Details

AGLC: HINKLEY & MORGAN [2009] FamCAFC 135
Case: [2009] FamCAFC 135
Decision Date: 31 July 2009

CaseChat Overview and Summary

The appeal in this matter involves a dispute between the husband and wife concerning the division of property following their divorce. The case was initially heard by Federal Magistrate Dunkley, whose orders were subsequently appealed. The husband contested the Federal Magistrate's determination of his entitlement to a share of the net proceeds of sale of the matrimonial home and argued that the Magistrate's decision lacked adequate reasoning and was not just and equitable. The husband contended that the calculation of his percentage entitlement did not accurately reflect the contributions made by both parties, and the Magistrate failed to adequately explain the basis for the apportionment.

The court was required to determine whether the Federal Magistrate erred in the calculation of the husband's percentage entitlement and whether the Magistrate's failure to provide adequate reasons constituted an appealable error. Additionally, the court considered whether the difference between the sum awarded by the Federal Magistrate and the sum which should have been awarded was significant enough to warrant a dismissal of the appeal. The court also examined the material provided by the parties to assess whether it limited the analysis and whether the appeal should be dismissed due to the minor nature of the discrepancies.

The court found that while the Federal Magistrate's reasons were not as detailed as they could have been, the error in the calculation of the husband's percentage entitlement was not substantial enough to warrant the dismissal of the appeal. The court also noted that the difference between the sum awarded by the Federal Magistrate and the sum which should have been awarded was not significant. Therefore, the appeal was dismissed, and the wife was ordered to pay the husband's costs of and incidental to the appeal as agreed, or, failing agreement, as assessed.

Orders

Orders of the court

That the appeal against Order 1 of the orders of Federal Magistrate Dunkley of 5 December 2008 is dismissed.

That the wife pay the husband’s costs of and incidental to the appeal as agreed and failing agreement as assessed.

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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