FAMILY LAW – APPEAL – PROPERTY – Where the parties’ liabilities exceed their assets – Where the husband has significant business assets and income – Where the business will continue to trade - Where the husband has significant director loans – Where both parties are held liable for a failed investment debt and subsequent reduction in the net assets – Failure of the primary judge to engage with the wife’s case – Inadequate reasons – Appeal allowed – Matter remitted for rehearing.
FAMILY LAW – APPEAL – PROPERTY – Family Violence – Where the wife sought an adjustment under the Kennon principles – Where the primary judge declined to make the adjustment sought – Discussion of Spagnardi & Spagnardi[2003] FamCA 905 – Approach to findings of fact - Consideration of discernible impact of the violence – Appeal allowed – Matter remitted for rehearing.
FAMILY LAW – APPEAL – No order as to costs – Costs certificates granted for appeal and rehearing.
(3)The matter be remitted for rehearing by a judge other than the primary judge.
(4)The Court grants to the appellant a costs certificate pursuant to ss 9 and 8 of the Federal Proceedings (Costs) Act1981 (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 in respect of the costs incurred by her in relation to the appeal and in relation to the new trial in the matter.
(5)The Court grants…
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
Keating & Keating [2019] FamCAFC 46
Case
[2019] FamCAFC 46
Decision Date
CaseChat Overview and Summary
The appeal before the court involved the parties, Keating and Keating, in a family law matter concerning the division of property. The wife sought adjustments to the property settlement based on the impact of family violence and the husband's significant business assets and income. The Family Court of Australia was tasked with determining the appeal. The legal issues centred on whether the primary judge appropriately considered the wife's arguments regarding the impact of family violence and the adequacy of the property settlement, particularly in light of the husband's substantial business assets and liabilities.
The court found that the primary judge had not adequately addressed the wife's case, particularly her claims related to family violence, and had provided insufficient reasons for the property division. The court noted that the failure to engage with the wife's arguments about the impact of family violence and the business's continued operation was a significant error. The court also highlighted that the primary judge's approach to the findings of fact did not sufficiently consider the discernible impact of the violence, as discussed in Spagnardi & Spagnardi. Consequently, the appeal was allowed, and the matter was remitted for rehearing by a different judge.
The court further directed that both parties receive costs certificates for the appeal and the rehearing, under sections 9 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth). This means that the Attorney-General may authorize payments to cover the costs incurred by both parties in relation to the appeal and the new trial. The appeal's outcome was that the original orders were set aside, and the matter was remitted for rehearing, ensuring a fair assessment of the wife's claims and the property division.
Orders
Orders of the court
(1) The appeal be allowed.
(2) The orders dated 10 January 2018 be set aside.
(3) The matter be remitted for rehearing by a judge other than the primary judge.
(4) The Court grants to the appellant a costs certificate pursuant to ss 9 and 8 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 in respect of the costs incurred by her in relation to the appeal and in relation to the new trial in the matter.
(5) The Court grants to the respondent a costs certificate pursuant to the provisions of ss 6 and 8 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 in respect of the costs incurred by him in relation to the appeal and in relation to the new trial in the matter.
Note: The form of the order is subject to the entry of the order in the Court’s records.