K & K - [2004] FamCA 360

[2004] FamCA 360

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA

AT SYDNEY Appeal No. EA61 of 2003

File No. PA 6764 of 1996

IN THE MATTER OF:

Appellant Wife

- and -

Respondent Husband

REASONS FOR JUDGMENT

BEFORE:                   Finn, Holden and Warnick JJ
HEARD:  10 December 2003
JUDGMENT:            27 April 2004

APPEARANCES: Mr Mater of Counsel (instructed by Browns the Family Lawyers, Solicitors) appeared on behalf of the appellant
Mr Broun of Queen’s Counsel (instructed by Goldrick Farrell Mullan, Solicitors) appeared on behalf of the respondent

APPEAL SUMMARY

MATTER:K & K
APPEAL NUMBER: EA61 of 2003 (PA 6764 of 1996)
CORAM:Finn, Holden and Warnick JJ
DATE OF HEARING: 10 December 2003

DATE OF JUDGMENT: 27 April 2004

CATCHWORDS: FAMILY LAW – APPEALS – Property settlement – Determining contributions in relation to a personal injuries damages award received by the husband – Whether trial Judge erred in finding that certain portions of a personal injuries damages award were contributions made exclusively by the husband – Whether the result was manifestly unjust to the wife.

Caselaw cited:

Aleksovski v Aleksovski (1996) FLC 92-705
Griffiths v Kerkemeyer (1977) 139 CLR 161
De Winter and De Winter (1979) FLC 90-605
Williams v Williams (1985) FLC 91-628
Farmer and Bramley (2000) FLC 93-060
Figgins and Figgins (2002) FLC 93-121
Bennett and Bennett (1991) FLC 92-191
Norbis v Norbis (1986) FLC 91-712
Williams and Williams (1984) FLC 91-541

Appeal allowed (Finn J dissenting)
Discretion re-exercised
Costs certificates granted

NOT REPORTABLE

FINN J: This is an appeal by the wife against an order for property settlement made by Coleman J on 27 June 2003 in proceedings between the husband and wife. His Honour’s orders gave effect to his decision that the parties’ property, which he found to have a value of just under $3.2 million, should be divided as to approximately $2.7 million to the husband and approximately $500,000 to the wife.
The greater part of the parties’ property which was available for division by his Honour could be sourced to a common law damages award of $3,900,000 received by the husband in 2001 for injuries sustained in an accident in 1988. (The figure of $3,900,000 was the figure arrived at by way of compromise of an appeal against the original verdict of the Supreme Court of New South Wales).
His Honour divided the property between the parties on the basis of their respective contributions only. That is, he made no adjustment to the contributions-based division on account of any other matter contained in s 79(4) of the Family Law Act 1975 (“the Act”).
After a detailed analysis of Coleman J’s reasons for judgment, Holden and Warnick JJ have concluded that his Honour appears to have regarded certain portions of the husband’s damages award “as being a contribution exclusively by the husband and against which the wife’s contributions were not measured with the result that the wife’s contributions have been devalued.”
Their Honours have also concluded…

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: K & K [2004] FamCA 360
Case: [2004] FamCA 360
Decision Date: 27 April 2004

CaseChat Overview and Summary

The appeal concerned a property settlement dispute between a husband and wife. The central issue revolved around the husband's personal injuries damages award, with the wife alleging that the trial judge had erred in classifying certain portions of this award as contributions made exclusively by the husband. The wife contended that the trial judge's findings led to a manifestly unjust outcome for her. The appeal was heard by Finn, Holden, and Warnick JJ.

The primary legal issues before the Full Court were whether the trial judge had correctly determined which components of the husband's personal injuries damages award constituted his exclusive contributions, and whether, in light of this determination, the overall property settlement was manifestly unjust to the wife.

The Court considered the nature of the personal injuries award and the principles governing the division of property in family law matters, particularly in relation to compensation for personal injuries. The judges analysed the evidence presented at trial to assess whether the trial judge's characterisation of the husband's contributions from the damages award was legally sound and whether the resulting property division was fair and equitable, having regard to the contributions of both parties and other relevant factors.

Orders