FAMILY COURT OF AUSTRALIA
| HURST & HURST | [2018] FamCAFC 146 |
| FAMILY LAW – APPEAL – PROPERTY – where the husband’s financial contributions far exceeded the wife’s – where the husband received inheritances throughout a 38 year marriage which were used for the benefit of the family – where the husband inherited a property 13 years before separation – where that inherited property was unencumbered – where that inherited property was an asset of the parties at the time of trial – where the value of that property had significantly increased by the time of separation due to market forces and town planning changes – where the trial judge assessed the husband’s contributions as being 45 per cent greater than the wife’s contributions – where the trial judge made an adjustment in favour of the wife of 12.5 per cent pursuant to s 79(4)(e) – where the trial judge failed to take into account relevant considerations – where the trial judge isolated the indirect contributions made to the inherited property – where each of the parties’ contributions reflected their roles within their respective spheres – where the trial judge’s assessment of contributions was outside the bounds within which reasonable disagreement is possible – where the trial judge failed to take into account matters relevant to a consideration of s 79(4)(e) – appeal allowed. |
| Family Law Act 1975 (Cth) ss 75(2), 79, 79(4)(e) |
| Aleksovski v Aleksovski (1996) FLC 92-705; [1996] FamCA 111 Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Carter and Carter (1981) FLC 91-061; [1981] FamCA 18 Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10 Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462; [1995] QCA 187 Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 G and G (1984) FLC 91-582; [1984] FamCA 60 Kowalski and Kowalski (1993) FLC 92-342; [1992] FamCA 54 Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Rodgers & Rodgers (No 2) (2016) FLC 93-712; [2016] FamCAFC 104 Shaw and Shaw (1989) FLC 92-010; [1989] FamCA 5 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 VG v OM [2005] QCA 183 Wallis & Manning (2017) FLC 93-759; [2017] FamCAFC 14 Way and Way (1996) FLC 92-702; [1995] FamCA 28 Wells and Wells (1977) FLC 90-285; [1977] FamCA 62 Zappacosta and Zappacosta (1976) FLC 90-089; [1976] FamCA 56 |
| APPELLANT: | Ms Hurst |
| RESPONDENT: | Mr Hurst |
| FILE NUMBER: | BRC | 6748 | of | 2016 |
| APPEAL NUMBER: | NOA | 34 | of | 2017 |
| DATE DELIVERED: | 8 August 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Ainslie-Wallace & Murphy JJ |
| HEARING DATE: | 7 February 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 July 2017 |
| LOWER COURT MNC: | [2017] FamCA 579 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Conrick |
| SOLICITOR FOR THE APPELLANT: | D. M. Wright & Associates Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Matthews QC with Mr Sorensen |
| SOLICITOR… |
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- AGLC
- Hurst & Hurst [2018] FamCAFC 146
- Case
- [2018] FamCAFC 146
- Decision Date
CaseChat Overview and Summary
The legal issues centred on whether the trial judge correctly assessed the husband's financial contributions and whether the subsequent adjustment made by the trial judge in favour of the wife was appropriate under section 79(4)(e) of the relevant legislation. The court needed to determine whether the trial judge's assessment of contributions was within the bounds of reasonable disagreement and if the judge had appropriately considered all relevant factors in making the adjustment.
The court found that the trial judge had erred in assessing the husband's contributions, isolating his indirect contributions to the inherited property and not fully considering the roles and contributions of each party within their respective spheres. The court held that the trial judge's assessment of contributions was outside the bounds within which reasonable disagreement is possible and that the judge failed to take into account relevant considerations when making the adjustment under section 79(4)(e). Consequently, the appeal was allowed, and the proceedings were remitted to the Family Court of Australia for rehearing by a different judge. If the parties reached an agreement regarding the alteration of their property interests and the costs of the appeal, they could file consent orders; otherwise, further submissions and costs applications would be made to the Full Court in chambers.
Orders
Orders of the court
1.
The Application in an Appeal filed on 24 January 2018 be dismissed.
2.
The appeal be allowed.
3.
Paragraphs (1); (9)(f) and (11) of the orders made by the Honourable Justice Carew on 7 July 2017 be set aside.
4.
The proceedings be remitted to the Family Court of Australia for rehearing by a Judge other than the Honourable Justice Carew.
5.
In the event that the parties reach agreement as to the alteration of their interests in property consequent upon this appeal being allowed and/or as to the costs of this appeal:
(a) They shall, within twenty-eight (28) days of the date of this order, file by email with the Appeals Registrar signed minutes of consent in which event the Appeals Registrar shall forward the minutes to one of the members of this appeal bench for consideration of the making of consent orders in Chambers giving effect to their agreement; and
(b) Paragraph (4) of these orders shall be discharged.
6.
In the event that the parties do not reach the agreement contemplated by paragraph (5) of these orders:
(a) Each of the appellant and respondent shall, within fourteen (14) days of the expiration of the twenty-eight (28) days provided for in paragraph 5(a) of these orders, file by email with the Appeals Registrar and serve upon the other party, written submission in respect of the costs of and incidental to this appeal confined to three typed pages;
(b) Each of the appellant and respondent shall, within seven (7) days of the service of the written submissions as to costs, file by email with the Appeals Registrar and serve on the other party any reply confined to two typed pages; and
(c) Any such applications for costs shall be determined by the Full Court in chambers with reasons delivered thereafter without the necessity of further appearance by either party.
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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