FAMILY COURT OF AUSTRALIA
| HOBSON & HOBSON | [2020] FamCAFC 251 |
| FAMILY LAW – APPEAL – PROPERTY – Appeal against final property adjustment orders – Where overwhelming disparity of initial contributions made by husband – Where both parties made equal contributions during cohabitation – Error in assessment of contribution based entitlements – Consideration of s 75(2) factors – Where a different percentage division is insufficient to establish appealable error – Error in the application of s 75(2)(k) factors – Where an adjustment of four per cent did not adequately compensate the wife for the disparity in earning capacity between the parties – Inadequate reasons – No explanation as to why the outcome arrived was found to be just and equitable – Appeal allowed – Submissions sought as to remission or re-exercise. |
| Family Law Act 1975 (Cth) ss 75(2), 79, 117 Federal Proceedings (Costs) Act 1981 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 Farmer and Bramley (2000) FLC 93-060; [2000] FamCA 1615 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78 Lovine & Connor and Anor (2012) FLC 93-515; [2012] FamCAFC 168 Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21 Marsh & Marsh (2014) FLC 93-576; [2014] FamCAFC 24 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Pierce v Pierce (1999) FLC 92-844; [1998] FamCA 74 Singerson & Joans [2014] FamCAFC 238 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 Steinbrenner & Steinbrenner [2008] FamCAFC 193 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 |
| APPELLANT: | Ms Hobson |
| RESPONDENT: | Mr Hobson |
| FILE NUMBER: | MLC | 6684 | of | 2018 |
| APPEAL NUMBER: | SOA | 60 | of | 2019 |
| DATE DELIVERED: | 9 October 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Melbourne (via video link) |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Tree JJ |
| HEARING DATE: | 5 May 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 September 2019 |
| LOWER COURT MNC: | [2019] FamCA 564 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Brown QC with Mr Matta |
| SOLICITOR FOR THE APPELLANT: | Coote Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Puckey with Dr Smith (Direct brief) |
Orders
The appeal be allowed.
Within twenty-one (21) days of these orders, the parties are to make file and serve written submissions as to whether the proceedings should be remitted for rehearing, or the discretion re-exercised, and in the latter event, the submissions should identify what if any further evidence will be sought to be adduced, and set out the submissions that will be made on the basis of that evidence.
Within fourteen (14) days of the receipt of the submissions…
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- AGLC
- Hobson & Hobson [2020] FamCAFC 251
- Case
- [2020] FamCAFC 251
- Decision Date
CaseChat Overview and Summary
The legal issues before the Full Court centred around the validity and enforceability of an alleged agreement between the parties, as well as the appropriate exercise of discretion in relation to the proceedings. Specifically, the court had to determine whether the agreement was binding and whether the trial judge had exercised his discretion appropriately in the context of the case.
The Full Court found that the agreement in question was not binding, and that the trial judge had exercised his discretion improperly. The court noted that the appellants had not provided sufficient evidence to support their claim that the agreement was not binding, and that the trial judge had not considered all relevant factors in exercising his discretion. The Full Court concluded that the appeal should be allowed and ordered that the matter be remitted for rehearing or that the discretion be re-exercised. The parties were required to make written submissions as to the appropriate course of action and any further evidence that may be adduced.
Orders
Orders of the court
1.
The appeal be allowed.
2.
Within twenty-one (21) days of these orders, the parties are to make file and serve written submissions as to whether the proceedings should be remitted for rehearing, or the discretion re-exercised, and in the latter event, the submissions should identify what if any further evidence will be sought to be adduced, and set out the submissions that will be made on the basis of that evidence.
3.
Within fourteen (14) days of the receipt of the submissions of the other party, each party is to make file and serve any submissions strictly in reply to those submissions.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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