J & J - [2006] FamCA 951

FAMILY COURT OF AUSTRALIA

J & J

[2006] FamCA 951

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Whether the trial Judge erred in refusing the husband’s application for an adjournment and proceeding with the hearing on an undefended basis

FAMILY LAW – APPEAL - EVIDENCE – ADMISSIBILITY - Whether the trial Judge erred in admitting into evidence medical reports relating to the wife’s health and future earning capacity where those reports were not supported by affidavits – Whether the trial Judge erred in admitting evidence tendered on behalf of the wife relating to the estimated value of the husband’s tools of trade

FAMILY LAW – APPEAL – PROPERTY – Whether the trial Judge erred in determining the assets available for distribution between the parties – Whether the trial Judge erred in failing to make allowance for the Capital Gains Tax for which each party may be liable upon sale of the parties’ investment properties– Whether the property settlement orders made by the trial Judge were just and equitable

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Application by the husband to adduce further evidence relating to his possible Capital Gains Tax liability

FAMILY LAW – APPEAL – COSTS OF APPEAL

Evidence Act 1995
Family Law Act 1975

Squire v Rogers (1979) 27 ALR 330

APPELLANT: J

RESPONDENT: J

FILE NUMBER: TVF1325 of 2003

APPEAL NUMBER: NA43 of 2005

DATE DELIVERED: 28 September 2006

PLACE DELIVERED: Canberra

JUDGMENT OF: Bryant CJ, Finn and Coleman JJ

HEARING DATE: 4 August 2005

LOWER COURT JURISDICTION:  Family Court of Australia
LOWER COURT JUDGMENT DATE:  24 May 2005
COUNSEL FOR THE APPELLANT:                  Mr Galloway
SOLICITOR FOR THE APPELLANT:               Chris Trevor & Associates
COUNSEL FOR THE RESPONDENT:               Mr Arnold
SOLICITOR FOR THE RESPONDENT:           Lyons O’Shea & Co

Orders

That the appeal be allowed.
That Order 4 of the orders made by the Honourable Justice Bell on 24 May 2005 be amended to read as follows:
4.That from the proceeds of sale of the assets in Paragraph 1, the following matrimonial liabilities be met:-
i.         ANZ loan on 24 [A Street]
ii.         ANZ loan on 1 [C Street]
iii.        ANZ loan on 1 [C Street]
iv.        CBA loan on [Gold Coast unit]
v.        Westpac car loan
vi.        Outstanding rates on all matrimonial properties
…
viii.      Joint Mastercard debt with Commonwealth Bank of Australia
ix.All costs (including agents’ fees and legal fees) associated with the sales in paragraph 1.
That Order 5 of the orders made by the Honourable Justice Bell on 24 May 2005 be amended to read as follows:
5.That the net proceeds of sale after payment of the debts be distributed between the husband and the wife so that the husband and wife received 25% and 75% of the nett matrimonial assets respectively where the husband and wife already hold the following:-
Wife  Husband
18 [A Street]               $192,500.00    Tools of Trade             $29,235.00
Bravo  $17,000.00     Nissan  $15,000.00
Superannuation $68,000.00
Household contents     $10,000
$287,500.00  $44,235.00
Provided that from the husband’s share…

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: J & J [2006] FamCA 951
Case: [2006] FamCA 951
Decision Date: 28 September 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal by the husband against orders made by a trial judge concerning property settlement. The central dispute revolved around the trial judge's decisions regarding the conduct of the hearing, the admissibility of certain evidence, and the ultimate division of the parties' assets.

The appeal raised several key legal issues. Firstly, the court examined whether the trial judge erred in refusing the husband's application for an adjournment and proceeding with the hearing on an undefended basis. Secondly, it considered the admissibility of medical reports concerning the wife's health and earning capacity, and evidence regarding the estimated value of the husband's tools of trade, particularly in the absence of supporting affidavits. Thirdly, the court reviewed the trial judge's determination of the assets available for distribution, including whether an allowance should have been made for potential Capital Gains Tax liabilities on investment properties, and whether the final property settlement orders were just and equitable. Finally, the court addressed the husband's application to adduce further evidence on appeal regarding his potential Capital Gains Tax liability and the costs of the appeal.

The Full Court applied principles derived from the *Family Law Act 1975* and the *Evidence Act 1995*, as well as relevant case law such as *Squire v Rogers*. The court reasoned that the trial judge's refusal of the adjournment was a matter of discretion, and that the admission of evidence, while potentially irregular in form, did not necessarily render it inadmissible if it was relevant and reliable. The court also considered the principles of fairness and the need to ensure that property settlement orders are just and equitable, which includes taking into account all relevant financial circumstances, including potential tax liabilities. The court ultimately allowed the husband's application to adduce further evidence relating to Capital Gains Tax and remitted the matter for redetermination.

Orders