APPEAL – property – whether contribution based assessment gave insufficient weight to wife’s homemaker and parenting contributions – whether nil adjustment for s 75(2) factors appropriate – whether precise apportionment of husband’s workers’ compensation payment necessary in assessing s 75(2) factors – whether findings about wife’s future earnings as a solicitor were open on the evidence – whether appropriate weight given to wife’s responsibility for the daily care and control of the children – whether the orders were manifestly unjust – whether the sale of the matrimonial home pursuant to the orders resulted in a reduction of the amount available for distribution to the parties and an inability to give effect to trial Judge’s findings – effect of an “all monies” mortgage – practice and procedure – whether medical and other expert reports annexed to the husband’s affidavit should be admitted rather than those reports being subject of individual affidavits – whether evidence should be admitted where no notice given pursuant to s 67 of the Evidence Act 1995 (Cth) – whether evidence should be admitted pursuant to s 78 of the Evidence Act – whether further evidence and submissions permitted on appeal in light of Allesch v Maunz (2000) 203 CLR 172; (2000) FLC 93-300; (2000) 26 Fam LR 237

Mallet v Mallet (1984) 156 CLR 605

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621

Norbis v Norbis (1986) 161 CLR 513

Pierce v Pierce (1999) FLC 92-844

Ferraro and Ferraro (1993) FLC 92-335

Tsang Chi Ming v Uvanna Pty Ltd (t/a) North West Immigration Services (1996) 140 ALR 273

Clauson and Clauson (1995) FLC 92-595

C and C (2005) FLC 93-220

Allesch v Maunz (2000) 203 CLR 172; (2000) FLC 93-300; (2000) 26 Fam LR 237

G and G [2001] FamCA 1453

Ruscoe and Walker (2003) FLC 93-093

Appeal allowed.

Introduction

This is an appeal by the wife against orders made by Cohen J on 27 August 2004 under s 79 of the Family Law Act 1975 (Cth) (“the Act”) the effect of which was to divide the parties’ modest asset pool of $270,432 in the proportions of 65 per cent to the husband and 35 per cent to the wife. The trial Judge also made parenting orders in respect of contact arrangements for the parties’ two children, A and K, who were aged respectively 14 years and 8 years at the date of the trial. The parenting orders…

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: LAM & RAM [2005] FamCA 868
Case: [2005] FamCA 868
Decision Date: 13 September 2005

CaseChat Overview and Summary

The Family Court of Australia heard an appeal by the wife against property orders made by a single judge. The dispute concerned the division of the parties' modest asset pool of $270,432, which the trial judge ordered to be divided 65 per cent to the husband and 35 per cent to the wife. The appeal also touched upon parenting orders concerning the parties' two children, though these were not the subject of the appeal itself.

The wife’s appeal raised several legal issues. Primarily, she argued that the trial judge’s assessment of contributions was insufficient, particularly regarding her role as homemaker and primary caregiver. She also contended that the trial judge’s findings about her future earning capacity as a solicitor were not supported by the evidence and that insufficient weight was given to her ongoing responsibility for the daily care of the children. Furthermore, the wife argued that the trial judge’s failure to make an adjustment for relevant section 75(2) factors of the *Family Law Act 1975* (Cth) resulted in manifestly unjust orders. A further issue arose from new evidence presented on appeal concerning the sale of the matrimonial home and the impact of an "all monies" mortgage on the distributable asset pool.

The Full Court considered the wife's arguments regarding her contributions, noting the trial judge's finding that she made very substantial contributions as a homemaker and parent, particularly after the husband's industrial accident. However, the court also acknowledged the trial judge's findings regarding the husband's significant financial contributions, including lump sum payments from his injury and his initial contributions to the marriage. The court found that the trial judge had adequately considered the parties' respective contributions and financial circumstances, including the husband's future medical expenses and the wife's potential future earning capacity. The court also addressed the new evidence regarding the sale of the matrimonial home, noting that while it reduced the available funds, it did not fundamentally alter the overall assessment of the parties' entitlements. The court ultimately concluded that the trial judge's assessment of contributions and the decision not to make a section 75(2) adjustment were open to him on the evidence and did not result in a manifestly unjust outcome.

The appeal was dismissed.

Orders