LACEY & LACEY - [2020] FamCAFC 73

FAMILY COURT OF AUSTRALIA

LACEY & LACEY

[2020] FamCAFC 73

FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge failed to give proper, genuine and realistic consideration to the merits of the case – Whether the primary judge failed to provide adequate reasons – Challenges to the primary judge’s findings as to the respective contributions of the parties and the relevant factors under s 75(2) of the Family Law Act 1975 (Cth) – Where the grounds of appeal lacked merit – Where comprehensive reasons are not required because of the success of the cross-appeal – Appeal dismissed.

FAMILY LAW – APPEAL – CROSS-APPEAL – Where the primary judge did not consider the taxation consequences of the order made – Where the taxation consequences would lessen the parties’ share in their property interests – Where the primary judge could not be satisfied that the order was just and equitable – Where the wife was not precluded from raising this critical issue in the appeal despite not raising the issue at trial – Cross-appeal allowed – Matter remitted for rehearing – Scope of remitter not confined.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where the error the subject of the cross-appeal is established without admitting the further evidence – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the parties sought costs certificates – Where the error was precipitated by the parties’ mutual failure to address at trial the critical issue in the cross-appeal – Applications dismissed.

Family Law Act 1975 (Cth) ss 75(2), 79, 90AE(2)(b), 90AE(3), 90AE(4), 93A(2), 94(2), 94AAA(6)
Federal Proceedings (Costs) Act 1981 (Cth)
Income Tax Assessment Act 1936 (Cth) Division 7A

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gallieni & Gallieni [2012] FamCAFC 205
Ruscoe and Walker (2002) FLC 93-093; [2001] FamCA 268
Singh v Minister for Immigration and Border Protection (2018) 261 FCR 556; [2018] FCAFC 52
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

APPELLANT/CROSS-RESPONDENT:

Mr Lacey

RESPONDENT/CROSS-APPELLANT:

Ms Lacey

FILE NUMBER:

NCC

1128

2011

APPEAL NUMBER:

EAA

139

2018

DATE DELIVERED:

3 April 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Ainslie-Wallace & Austin JJ

HEARING DATE:

2 July 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

5 October 2018

LOWER COURT MNC:

[2018] FCCA 1551

REPRESENTATION

COUNSEL FOR THE APPELLANT/

CROSS-RESPONDENT:

Mr Coleman SC

SOLICITOR FOR THE APPELLANT/

CROSS-RESPONDENT:

Palmers Solicitors

COUNSEL FOR THE RESPONDENT/

CROSS-APPELLANT:

Mr Page QC with Mr Boyd of counsel

SOLICITOR FOR THE RESPONDENT/

CROSS-APPELLANT:

Bell & Johnson Solicitors

Orders

The Application in an Appeal filed by the respondent/cross-appellant on 17 June 2019 and the Response thereto filed on 20 June 2019 be dismissed.
The appeal be dismissed.
The cross-appeal be allowed.
The orders made on 5 October 2018 be set aside.
The proceedings be remitted to the Federal Circuit Court of…

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: LACEY & LACEY [2020] FamCAFC 73
Case: [2020] FamCAFC 73
Decision Date: 3 April 2020

CaseChat Overview and Summary

Lacey and Lacey were the parties involved in a dispute that was heard by the Family Court of Australia. The primary issue was the distribution of property between the parties following their divorce. The wife appealed the decision, and the husband cross-appealed, challenging the findings of the primary judge regarding the contributions of the parties and the relevant factors under the Family Law Act 1975. The wife argued that the primary judge failed to consider the taxation consequences of the order, which would have lessened the parties' respective shares in their property interests. The husband argued that the appeal and cross-appeal lacked merit, and the wife was precluded from raising the taxation issue in the appeal.

The court considered whether the primary judge gave proper consideration to the merits of the case and provided adequate reasons. The court found that the primary judge did not consider the taxation consequences of the order, which was a critical issue. The court held that the wife was not precluded from raising this issue in the appeal despite not raising it at trial. The court also found that the appeal and cross-appeal lacked merit and that comprehensive reasons were not required because of the success of the cross-appeal. The court held that the taxation issue was significant enough to warrant a rehearing of the matter.

The court dismissed the wife's appeal, finding that it lacked merit. The court allowed the husband's cross-appeal, finding that the primary judge's failure to consider the taxation consequences of the order meant that he could not be satisfied that the order was just and equitable. The court set aside the orders made by the primary judge and remitted the matter to the Federal Circuit Court of Australia for rehearing by a different judge. The court also dismissed the wife's application to adduce further evidence and the parties' applications for costs certificates.

In summary, the court held that the primary judge failed to consider the taxation consequences of the order, which was a critical issue in the distribution of property between the parties. The court allowed the cross-appeal and remitted the matter for rehearing by a different judge. The court dismissed the wife's appeal and the parties' applications for costs certificates. The court found that the error was precipitated by the parties' mutual failure to address the critical issue at trial.

Orders

Orders of the court

The Application in an Appeal filed by the respondent/cross-appellant on 17 June 2019 and the Response thereto filed on 20 June 2019 be dismissed.

The appeal be dismissed.

The cross-appeal be allowed.

The orders made on 5 October 2018 be set aside.

The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.

There be no order as to costs.

The oral applications of the parties for costs certificates be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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