Hourd & Hourd

[2011] FamCAFC 177

FAMILY COURT OF AUSTRALIA

HOURD & HOURD [2011] FamCAFC 177

FAMILY LAW  – APPEAL – Property – The wife sought an order that she receive 70 per cent of the net proceeds of the sale of the former matrimonial home instead of the 40.62 per cent as provided by the orders – Where issue was taken with the form of the order and whether the orders reflected the intention of the trial judge – Where consent orders were made after the final orders were delivered to account for the wife’s retention of the wine collection – Where the former matrimonial home was sold for an amount greater than expected – Where it was submitted that the sale of the former matrimonial home at a higher price was not properly considered by the trial judge – Where it was said that the wife should receive an additional $35,647 to give effect to the intention of the trial judge’s orders.

FAMILY LAW – APPEAL – Property – Where the concession made at the trial as to the contributions of the parties being 60:40 in favour of the husband is of some significance and difficult to challenge on appeal – Where his Honour’s approach to the contribution of the parties was appropriate in all of the circumstances – Where an adjustment of 15 per cent was made given the income disparity between the parties and the wife’s capacity to earn income and fulfil her role as the children’s primary carer – Where the financial circumstances of the husband’s partner were also considered – Where there was found to be no double dipping of the husband’s income – Where his Honour was aware of the bonuses received by the husband and the likelihood of receiving bonuses in the future –Where no appealable error has been demonstrated.

FAMILY LAW – APPEAL – Property – Where there was an error in the machinery orders made to achieve the substance of his Honour’s judgment – Where should the error not be corrected the just and equitable order intended would not be achieved – Where there is agreement about the correct figures – Appeal dismissed – Orders adjusted and provision for an additional payment to the wife made.

FAMILY LAW – COSTS – Where costs certificates are not available as the appeal is dismissed – Where the husband seeks an order that the wife pay costs on an indemnity basis, or on a party/party basis – Where the discretion of the trial judge was not re-exercised –Where the orders were amended in the interests of justice to reflect the intention of the trial judge – Where although the wife has had limited success the financial circumstances of the parties would not justify an order for costs being made against the wife – No order as to costs.

Family Law Act 1975 (Cth) s 28(1); s 28(2A); s 75(2); s 79; s 94(2)

DJL v The Central Authority (2000) 201 CLR 226
Johnson v Johnson (2000) FLC 93-051
L.