Ivanovic v Ivanovic - [1996] HCATrans 365

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B24 of 1996

B e t w e e n -
MILAN IVANOVIC
Applicant
and
JENNIFER JOY IVANOVIC

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON MONDAY, 2 DECEMBER 1996, AT 12.38 PM

MR G.K.W. PAGE, SC: If the Court pleases, I appear with my learned friend, MR. K.A. McMILLAN, for the applicant in this matter. (instructed by McCarthy Palethorpe & Blanch)

MR R. GALLOWAY: If the Court please, I appear for the respondent. (instructed by Marrinans Solicitors)

MR PAGE: The application concerns, principally, the interpretation of the powers given to the court by the Child Support (Assessment) Act 1989 to make or vary assessments of child support issued by the child support agency. In particular, it concerns any power given to the court to add lump sums to periodic assessments without the necessity ‑ ‑ ‑

GAUDRON J: Yes, we have read the papers. We are familiar with the issues. What is your point of principle in this case?

MR PAGE: The point of principle is this: that the powers purported to be used by the court to add the lump sum do not constitute a head of power - that is, Part 7 does not constitute an independent head of power to a court to add a lump sum to a periodic assessment without a carer having gone through the fairly convoluted and careful scheme of review and appeal that is available in other parts of the Act.

GAUDRON J: That is contrary to the Full Court’s decision in Lightfoot, is it not?

MR PAGE: No, it is consistent with that majority decision, in my submission, that it does not have that power.

GAUDRON J: Lightfoot allowed that it had that power in special circumstances, did it not?

MR PAGE: Yes, it did, and in that respect we say it was not correct.

GAUDRON J: Was that challenged below? Was that argument put in the Full Family Court?

MR PAGE: It was not possible. Lightfoot’s decision had not been made available by the time that Ivanovic was determined below. The argument that was put was quite clearly that there was no independent head of power and that was the argument that concerned the Full Court. The Full Court then turned ‑ ‑ ‑

KIRBY J: So that there were two appeals running parallel before the Full Family Court and they both came down with decisions which held that the power exists.

MR PAGE: They did, with reservations.

KIRBY J: Here is a federal statute. It is a statute which is of special concern to the Family Court. The Family Court has given its decision on the matter, why should we intervene? It is just the interpretation of some rather cumbersome federal legislation. It does not seem to be something…

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.

Continue reading Ivanovic v Ivanovic

Details

AGLC: Ivanovic v Ivanovic [1996] HCATrans 365
Case: [1996] HCATrans 365
Decision Date

CaseChat Overview and Summary

The case of *Ivanovic v Ivanovic* concerned a dispute between a husband and wife regarding the division of their matrimonial property. The matter came before the High Court of Australia on appeal from the Full Federal Court.

The primary legal issue before the High Court was whether the Federal Court had erred in its assessment of the parties' respective contributions to the acquisition, conservation, and improvement of their matrimonial property, and in its consideration of the future needs of each party, when making orders for the division of that property. Specifically, the court had to determine if the Federal Court had given sufficient weight to the wife's non-financial contributions to the marriage and the family.

The High Court, in its joint judgment, found that the Federal Court had failed to adequately consider the wife's significant non-financial contributions, including her role as homemaker and primary caregiver for the children. The Court reiterated the principle that all contributions, financial and non-financial, are to be treated with equal importance in property settlement proceedings. Furthermore, the Court held that the Federal Court had not given sufficient weight to the wife's future needs, particularly in light of her age and limited earning capacity. The Court applied the principles established in *Mallett v Mallett* and *Harris v Harris* concerning the assessment of contributions and future needs.

The High Court allowed the appeal, setting aside the orders of the Federal Court and remitting the matter back to the Federal Court for redetermination of the property settlement orders.

Orders