FAMILY COURT OF AUSTRALIA
| JARROTT & JARROTT | [2012] FamCAFC 29 |
| FAMILY LAW ─ APPEAL ─ PROPERTY SETTLEMENT ─ Where it was established that having properly determined the overall entitlements of the parties in percentage terms, the trial Judge failed when making her orders, to express those orders in percentage terms ─ Where this was potentially to the detriment of the husband and contrary to the authorities ─ Where it was established that Her Honour was correct in finding that in complying with the orders she would make with respect to the wife’s entitlement “could” give rise to a Capital Gains Tax (“CGT”) liability of the husband arising from, or associated with the husband’s financing of a substantial part of the wife’s entitlement ─ Where the Full Court found that an “all or nothing” approach of either including CGT or not including it but trying to take it into account under s 75(2) had the potential to visit an injustice upon one of the parties ─ Where the appropriate course would have been that her Honour make a contingent order, which would operate if and when, a CGT liability arose ─ Where it was established that her Honour made a mathematical error in relation to the sum that the husband was to pay the wife in relation to her entitlement ─ Appellate intervention enlivened ─ Appeal allowed FAMILY LAW ─ APPEAL ─ CHILD SUPPORT ─ Not established that her Honour erred in ordering as she did with respect to the husband’s child support departure application FAMILY LAW ─ APPEAL ─ JUDGMENTS ─ Insufficient reasons ─ Established that the trial Judge inadequately revealed the reasoning process which led her to conclude as her Honour did in relation to the parties’ contributions made between the commencement and conclusion of cohabitation – Where the Court was unable to determine whether or not such a division fell within the ambit of a reasonable exercise of discretion ─ Appellate intervention enlivened ─ Full Court to re-exercise the trial Judge’s discretion. FAMILY LAW ─ APPEAL ─ COSTS ─ Where the circumstances justified an order for the parties to receive costs certificates with respect to the appeal to this Court |
| Child Support (Assessment) Act 1989 (Cth) s 116 Family Law Act 1975 (Cth) s 75(2) Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 |
| Brett-Hall & Brett-Hall (2006) FLC 93-276 Coghlan & Coghlan (2005) FLC 93-220 De Winter & De Winter (1979) FLC 90-605 Docters Van Leeuwen & Docters Van Leeuwen (1990) FLC 92-148 Kardos v Sarbutt (2006) 34 Fam LR 550 Norbis v Norbis (1986) 161 CLR 513 Pierce v Pierce (1999) FLC 92-844 Rosati & Rosati (1998) FLC 92-804 Smith & Smith (1991) FLC 92-261 Waters & Waters (1981) FLC 91-019 Wen & Thom [2010] FamCAFC 81 |
| APPELLANT: | Mr Jarrott |
| RESPONDENT: | Ms Jarrott |
| FILE NUMBER: | SYC | 1134 | of | 2009 |
| APPEAL NUMBER: | EAA | 104 | of | 2011 |
| DATE DELIVERED: | 2 March 2012 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May & Thackray JJ |
| HEARING DATE: |
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- AGLC
- Jarrott & Jarrott [2012] FamCAFC 29
- Case
- [2012] FamCAFC 29
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the trial judge erred in her orders regarding the property settlement, the child support, and the reasons provided for the division of contributions between the parties. The court had to determine if the trial judge’s failure to express the property settlement orders in percentage terms was an error, whether the court could appropriately consider Capital Gains Tax implications in the property settlement, and if the trial judge’s reasoning for the division of contributions was adequately explained. Additionally, the court needed to assess whether the trial judge made a mathematical error in the sums awarded.
The Full Court found that the trial judge’s failure to express the property settlement orders in percentage terms was indeed an error, potentially disadvantaging the husband. The court noted that the trial judge could have avoided any potential Capital Gains Tax issues by making a contingent order. Furthermore, the Full Court held that the trial judge’s reasoning for the division of contributions was insufficient and that the Full Court would need to re-exercise the trial judge’s discretion. The court also identified a mathematical error in the sums awarded to the wife regarding her entitlement. Despite these findings, the Full Court determined that there was no error in the child support orders. The Full Court thus allowed the appeal, set aside certain orders, and directed the re-exercise of the trial judge’s discretion on the division of contributions. The court also granted costs certificates to both parties.
Orders
Orders of the court
1.
That the appeal is allowed.
2.
That orders 13, 14, 15, 16 and 17 of the trial Judge dated 12 August 2011 are set aside.
3.
That within 21 days the appellant husband shall file and serve written submissions and a minute of the orders sought in relation to the re-exercise of the trial Judge’s discretion.
4.
That within 21 days thereafter the respondent wife shall file and serve written submissions and a minute of the orders sought in relation to the re-exercise of the trial Judge’s discretion.
5.
That within 14 days thereafter the appellant husband shall file and serve any submissions in response to the submissions on behalf of the respondent wife.
6.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 husband in respect of the costs incurred by the appellant husband in relation to the appeal.
7.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 wife in respect of the costs incurred by the respondent wife 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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