FAMILY COURT OF AUSTRALIA
| HURST & WEBER | [2009] FamCAFC 137 |
| FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – PROPERTY SETTLEMENT – Short marriage – Wife’s application for property settlement was dismissed at trial – The wife’s litigation and other debts left her in a negative asset position – The husband’s net assets exceeded two million dollars in value – Federal Magistrate stated that the order left the wife in substantially the same position as when cohabitation commenced – Debt for litigation loan meant that the Federal Magistrate erred in so concluding – Mere absence of percentage apportionment on the basis of contributions is not an error of approach FAMILY LAW - COSTS – certificates in relation to the appeal granted to each party |
| Family Law Act 1975 (Cth) s 4; s 75(2); s 75(2)(b); s 79(4)(e) |
| Coghlan and Coghlan (2005) FLC 79,635 Cook and Langford (2008) FLC 93-374 Dickson and Dickson (1999) FLC 92-843 G and G (2000) FLC 93-043 Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93,143 Kennon and Kennon (1997) FLC 92-751 Kennon v Spry (2008) FLC 93-388 Milankov and Milankov (2002) FLC 93-095 Whitely and Whitely (1996) FLC 92-684 |
| APPELLANT: | Ms HURST |
| RESPONDENT: | Mr WEBER |
| FILE NUMBER: | SYC | 1991 | of | 2007 |
| APPEAL NUMBER: | EA | 83 | of | 2008 |
| DATE DELIVERED: | 28 July 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Warnick, Boland and O'Ryan JJ |
| HEARING DATE: | 30 March 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 20 June 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 643 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Maurice with Mr Sara |
| SOLICITOR FOR THE APPELLANT: | Doolan Wagner & Callaghan |
| COUNSEL FOR THE RESPONDENT: | Ms Rees |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray |
Orders
That the appeal be allowed.
That, in lieu of Order 2, the following order be substituted:
2.That the husband pay the wife, within 30 days of 30 June 2008, the sum of $100,000.00
That the husband cause his solicitors, Watts McCray Lawyers, to refund the sum of $5,000 paid as security for costs pursuant to…
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- Hurst & Weber [2009] FamCAFC 137
- Case
- [2009] FamCAFC 137
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around whether the Federal Magistrate had erred in concluding that the wife was left in substantially the same position as when cohabitation commenced, and whether the treatment of the husband's share options as a financial resource rather than property constituted an error. The court examined the distinction between property and financial resources and whether the absence of percentage apportionment on the basis of contributions was an error of approach. The Federal Magistrate's approach was scrutinised to determine if there was any error in the treatment of the husband's share options, and if the inclusion of the options as property would have made a difference to the outcome.
The Full Court of the Family Court found that the Federal Magistrate had erred in concluding that the wife was left in substantially the same position as when cohabitation commenced due to the litigation loan debt. The court also determined that while the Federal Magistrate had not explicitly found that the share options were not property, treating them as a financial resource was not an error of approach. However, the court held that the share options were indeed property, and thus it was not open to the Federal Magistrate to treat them as a financial resource. The Full Court allowed the appeal and exercised its discretion to order the husband to pay the wife $100,000 and to refund $5,000 paid as security for costs to the wife. Additionally, the court granted costs certificates to both parties.
Orders
Orders of the court
1.
That the appeal be allowed.
2.
That, in lieu of Order 2, the following order be substituted:
2. That the husband pay the wife, within 30 days of 30 June 2008, the sum of $100,000.00
3.
That the husband cause his solicitors, Watts McCray Lawyers, to refund the sum of $5,000 paid as security for costs pursuant to orders made 1 December 2008 to the wife within 14 days of these orders
4.
That the court grants to the appellant a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
5.
That the court grants to the respondent a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
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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