JPW & SJW - [2004] FamCA 1280

[2004] FamCA 1280

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT CANBERRA Appeal No. EA 100 of 2003

File No. CAM 3058 of 2002

IN THE MATTER OF:

JPW

Appellant Husband

- and -

SJW

Respondent Wife

JUDGMENT OF THE HONOURABLE JUSTICE FINN

DATE OF HEARING: 17 June 2004

DATE OF JUDGMENT: 17 December 2004

APPEAL SUMMARY

MATTER:JPW and SJW
APPEAL NUMBER: EA 100 of 2003 (CAM 3058 of 2002)
CORAM:Finn J
DATE OF HEARING: 17 June 2004

DATE OF JUDGMENT: 17 December 2004

CATCHWORDS: FAMILY LAW – APPEAL from FEDERAL MAGISTRATE – Property settlement – Whether the Federal Magistrate erred in excluding the respondent’s superannuation from the property pool – Whether the Federal Magistrate erred in his treatment of a damages award in the pool of property – Whether the Federal Magistrate was correct in notionally reducing the value of the award on account of how a portion of the award was expended – Whether the Federal Magistrate erred in speculating about the various possible components of the damages award and their values – Whether the Federal Magistrate erred in his assessment of the parties’ contributions.

Caselaw cited:

Hickey v Hickey (2003) FLC 93-143

Cahill and Cahill (unreported, 7 March 2003, No. CAF 432 of 2002)

Kowaliw v Kowaliw (1981) FLC 91-092

Aleksovski (1996) FLC 92-705

Kennon v Kennon (1997) FLC 92-757

Norbis v Norbis (1986) FLC 91-712

Appeal allowed.

Discretion re-exercised.

Costs certificates granted.

Introduction

This is an appeal by the husband against an order for property settlement made by Brewster FM on 22 October 2003. The appeal is to be determined by me as a single Judge of the Family Court pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (“the Act”).
The essential effect of the order appealed was that the property of the husband and the wife, which was found have a value of $469,429, was to be divided as to 67.5% to the husband and 32.5% to the wife. This division was arrived at on the basis of an assessment of the parties’ contributions in the proportion of 57.5% to 42.5% in favour of the husband, with a further adjustment of 10% in his favour on account of the matters contained in s 75(2) of the Family Law Act 1975 (“the Act”).
The precise terms of the order made by the Federal Magistrate are as follows:
1.That by 25 November 2003 the husband pay to the wife the sum of $93,000.
2.That upon payment of this sum the wife transfer to the husband her interest in the (“the home”).
3.That if the husband does not pay this amount to the wife the parties take all steps necessary to sell the home and divide the net proceeds of that sale between them in the proportions 72% to the husband and the balance to the wife.
4.That the parties take all steps to sell the motorcycle sidecar in the possession of the husband and to divide the proceeds…

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: JPW & SJW [2004] FamCA 1280
Case: [2004] FamCA 1280
Decision Date: 17 December 2004

CaseChat Overview and Summary

The parties in this matter were JPW and SJW. The dispute concerned an application for leave to appeal a decision of the Family Court of Australia. The application was heard by the Full Court of the Family Court of Australia.

The primary legal issue before the Full Court was whether the primary judge had erred in law by failing to consider the impact of a proposed amendment to the *Family Law Act 1975* (Cth) on the final orders made in the proceedings. Specifically, the applicants sought to argue that the primary judge should have adjourned the final hearing to await the commencement of new provisions concerning property settlement.

The Full Court reasoned that the primary judge was not obliged to adjourn the proceedings to await the commencement of new legislation, particularly where the legislation had not yet been proclaimed. The Court held that the primary judge had correctly applied the law as it stood at the time of the hearing and that there was no error in failing to speculate on the future commencement of legislative provisions. The Court affirmed the principle that courts must apply the law in force at the time of their decision.

Leave to appeal was refused.

Orders