Johnson v Johnson

[1999] FamCA 369

[1999] FamCA 369

FAMILY LAW ACT 1975

IN THE FULL COURT  
OF THE FAMILY COURT OF AUSTRALIA  Appeal No WA15 of 1998
AT PERTH  File No PT2827 of 1995

BETWEEN:

MR JOHNSON
Appellant Husband
- and -

MS JOHNSON
Cross-Appellant Wife

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  ELLIS, KAY AND DESSAU JJ
DATE OF HEARING:  11, 12, 13, 14, 15, 18, 19 and 20 January 1999
DATE OF JUDGMENT:                  31 March 1999

APPEARANCES:  Mr Udorovic, one of Her Majesty’s Counsel, and Dr Ingleby of Counsel, instructed by Messrs Paterson & Dowding, 28 The Esplanade, Perth WA 6000, appeared on behalf of the Appellant

Husband.

Mr Kirk, Senior Counsel, and Mr Wilson of Counsel, instructed by Kim Wilson & Co., 123B Colin Street, West Perth WA 6005, appeared on behalf of the Cross-Appellant Wife.

JOHNSON and JOHNSON

WA15 of 1998
Coram:   Ellis, Kay and Dessau JJ
Date of appeal:      11 – 15, 18 – 20 January 1999
Date of judgment:  31 March 1999

APPEALS - From decision of Family Court Judge - Powers and discretion of Full Court - Insufficiency of reasons - Findings made on no or inadequate evidence - Re-exercise of discretion under Warren v Coombes principle.

PROPERTY – ADJUSTMENT in relation to marriage - Value of Property - Company shares - Expert Evidence - c$15m in overseas assets included in pool by trial Judge - Whether held beneficially for party - Contributions - Appeal ground not pursued - Parties' liability for tax losses and penalties.

COURTS AND JUDGES - Disqualification for bias - Apprehension of Bias - Before hearing from the husband the Judge said he would look principally to evidence of witnesses other than the parties to determine the facts - Statement clarified by its context - Bias not made out.

H and W commenced cohabitation in 1974 and married in 1979.  They each had adult children from their first marriages.  A decree nisi became absolute in mid-1996.  W brought property proceedings in the Family Court of Western Australia.  H was a successful business person, with significant business interests focused on the primary sector.  W worked in an administrative role with H during the marriage.

At trial The primary judge found an asset pool of c$30m.  This included Australian assets held in H and W’s names of c$15m, and offshore assets of a further c$15m.  His Honour apportioned the asset pool 60% in favour of H. 

H appealed against findings that he had a beneficial interest in certain assets and the inclusion of those assets in the pool.  H sought to rely on grounds summarised as insufficient reasons, bias, evidence wrongly admitted, wrong findings or findings made on insufficient evidence, errors in the asset pool, wrong credit findings, contribution (which was abandoned), and the form and effect of orders. 

W cross-appealed, claiming that the trial Judge undervalued shares in B Ltd ( a company which received concessional tax treatment under the Pooled Development Fund Act 1992 (Cth) and which held shares in other entities…