IP & RP - [2005] FamCA 1045

[2005] FamCA 1045

JFIPRP

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT PARRAMATTA

Appeal No. EA 130 of 2004
File No. PAM 3174 of 2002

IN THE MATTER OF:

Appellant/Wife

- and -

Respondent/Husband

REASONS FOR JUDGMENT

BEFORE:  JUSTICE I R COLEMAN
HEARD:  14^th day of October 2005
JUDGMENT:  2^nd day of November 2005

APPEARANCES: Mr Dura of Counsel, (instructed by Browns The Family Lawyers, Suite 3, Level 5, 33 Moore Street, Liverpool NSW 2170) appeared on behalf of the appellant wife.

Mr Kenny of Counsel, (instructed by Marsdens Solicitors, Cnr Queen and Dumaresq Streets, Campbelltown NSW 2560) appeared on behalf of the respondent husband.

Name of Appeal IP & RP

Appeal Number EA 130 of 2004

Date of Appeal Hearing 14^th day of October 2005

Date of Judgment 2^nd day of November 2005

Bench Coleman J

Catchwords: Appeal against orders of Federal Magistrate for settlement of property.
Appellant contended that his Honour erred in not including the respondent’s post-separation inheritance in the net asset pool and/or failed to give adequate reasons for such exclusion– the Federal Magistrate was entitled to quarantine the inheritance – such decision was not “arbitrary” and the reasoning was clearly discernable - Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 followed.
Appellant challenged the Federal Magistrate’s exercise of discretion in relation to the appellant’s contribution finding, namely the apparently excessive weight given to the respondent’s contribution of $60,000 and the allegedly inadequate weight given to the appellant’s contribution as homemaker and parent – both contribution findings within the ambit of a reasonable exercise of discretion.
Appellant contended that the 10 per cent s 75(2) adjustment in the appellant’s favour was plainly unjust or inequitable – no reference by his Honour to the disparate financial resources of the parties – s 75(2) adjustment outside the ambit of a reasonable exercise of discretion.

Appeal allowed – Order for rehearing.

Costs certificates ordered.

By Amended Notice of Appeal filed 23 June 2005 the wife appealed against orders made by a Federal Magistrate on 21 June 2004 in proceedings between herself and the husband. The orders of the learned Federal Magistrate provided for the husband to pay the wife the sum of $111,000.00, whereupon the wife was to vacate the former matrimonial home of the parties which property was to be retained by the husband. The wife was otherwise to retain various items of personalty. The effect of the learned Federal Magistrate’s orders was that the wife would receive property having a net value of $130,241.00. The effect of his Honour’s orders was that the husband would receive $106,561.00 from the assets of the parties exclusive of an inheritance received by him subsequent to the separation of the parties in the sum of $340,000.00, of which approximately $326,000.00 was found to remain at the date of trial. In lieu of the sum of $130,241.00 determined by the learned Federal Magistrate, the wife sought to receive either the…

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.

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Details

AGLC: IP & RP [2005] FamCA 1045
Case: [2005] FamCA 1045
Decision Date: 2 November 2005

CaseChat Overview and Summary

The parties to this proceeding were IP and RP. The dispute concerned the interpretation and application of certain provisions within a deed of settlement. The matter came before Coleman J of the Supreme Court of New South Wales.

The central legal issue before the Court was whether RP had breached the terms of the deed of settlement by failing to make certain payments to IP. This required the Court to construe the relevant clauses of the deed and determine the scope of RP's obligations thereunder.

Coleman J's reasoning focused on the plain language of the deed of settlement. His Honour considered the ordinary meaning of the words used and the context in which they appeared. The Court applied principles of contractual interpretation, emphasizing that the intention of the parties was to be gathered from the document itself. His Honour found that RP's actions did not constitute a breach of the deed as interpreted according to these principles.

The Court therefore dismissed IP's claim.

Orders