Linch & Linch

Case [2014] FamCAFC 69


FAMILY COURT OF AUSTRALIA

LINCH & LINCH [2014] FamCAFC 69

FAMILY LAW – APPEAL – NOTICE OF APPEAL – PROPERTY – Where the husband appeals property settlement orders – Where the husband challenges the Federal Magistrate’s assessment of the respective contributions of the parties, before, during and after cohabitation – Where error is demonstrated in the assessment of the initial contributions of the parties – Lack of adequate reasons – Where the orders on appeal include a superannuation splitting order in relation to the husband’s Superannuation Scheme pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth) – Where the husband was receiving a pension – Where the Federal Magistrate assessed the wife’s contributions to the husband’s superannuation at 15 per cent – Where the Federal Magistrate did not provide adequate reasons for arriving at his assessment – Where the Federal Magistrate also failed to take into account under
s 75(2) of the Family Law Act 1975 (Cth) the permanent reduction of the husband’s future income as a result of awarding the wife 15 per cent of the husband’s superannuation interest – Appeal allowed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – Where the appeal is successful on a question of law – Where it is appropriate each party bear their own costs – Costs Certificates granted pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and rehearing.

Evidence Act 1995 (Cth) – s 69
Family Law Act 1975 (Cth) – s 75(2)

Federal Proceedings (Costs) Act 1981 (Cth) – ss 6, 8 and 9

AMS v AIF; AIF v AMS (1999) 199 CLR 160
Kessey & Kessey (1994) FLC 92-495
Norbis v Norbis (1986) 161 CLR 513
Schmidt & Schmidt [2009] FamCA 1386
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Whisprun Pty Ltd formerly Northeast Exports Pty Ltd v Dixon (2003) 200 ALR 447

APPELLANT: Mr Linch
RESPONDENT: Ms Linch
FILE NUMBER: SYC 4257 of 2010
APPEAL NUMBER: EA 66 of 2012
DATE DELIVERED:: 24 April 2014
PLACE DELIVERED: Adelaide
PLACE HEARD: Sydney
JUDGMENT OF: Finn, Strickland &
Le Poer Trench JJ
HEARING DATE: 5 September 2013
LOWER COURT JURISDICTION: Federal Magistrates Court of Australia
LOWER COURT JUDGMENT DATE: 2 May 2012
LOWER COURT MNC: [2012] FMCAfam 384

REPRESENTATION

THE APPELLANT: In person
COUNSEL FOR THE RESPONDENT: Mr Gould
SOLICITOR FOR THE RESPONDENT: Solari & Stock Lawyers

Orders

  1. The appeal be allowed.

  2. The orders made by Federal Magistrate Foster (as his Honour then was) on


    2 May 2012 be set aside.

  3. The proceedings be remitted to the Federal Circuit Court for rehearing.

  4. Each party bear their own costs.

  5. The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 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 husband in respect of the costs incurred by the appellant husband in relation…

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AGLC
Linch & Linch [2014] FamCAFC 69
Case
[2014] FamCAFC 69
Decision Date

CaseChat Overview and Summary

In the matter of Linch & Linch, the husband appealed property settlement orders made by the Federal Circuit Court. The central dispute revolved around the assessment of the respective contributions of the parties to the relationship, both before and during their cohabitation, as well as the division of superannuation interests. The husband contested the Federal Magistrate's evaluation of these contributions and argued that there was an error in the assessment of the initial contributions of the parties. The husband further contended that the Federal Magistrate did not provide adequate reasons for arriving at his assessment, and failed to consider the permanent reduction of his future income as a result of the award of 15 per cent of his superannuation interest to the wife.

The court was required to determine whether the Federal Magistrate had erred in assessing the contributions of the parties and in failing to provide adequate reasons for his assessment. The court also needed to consider whether the Federal Magistrate had appropriately accounted for the permanent reduction of the husband's future income due to the superannuation award. The court found that there was indeed an error in the assessment of the initial contributions, and that the Federal Magistrate's reasons were inadequate. Furthermore, the court determined that the Federal Magistrate had not considered the impact of the superannuation award on the husband's future income.

As a result, the court allowed the appeal, set aside the orders made by the Federal Magistrate, and remitted the proceedings to the Federal Circuit Court for rehearing. The court held that it would be appropriate for each party to bear their own costs for the appeal and rehearing. In addition, the court granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth), allowing the Attorney-General to authorise payment of costs incurred by the parties during the appeal and rehearing.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made by Federal Magistrate Foster (as his Honour then was) on

2 May 2012 be set aside.

3. The proceedings be remitted to the Federal Circuit Court for rehearing.

4. Each party bear their own costs.

5. The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 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 husband in respect of the costs incurred by the appellant husband in relation to the appeal.

6. The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 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 wife in respect of the costs incurred by the respondent wife in relation to the appeal.

7. The Court grants to each of the parties a costs certificate pursuant to the provisions of s 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 each of the parties in respect of the costs incurred by the appellant husband and the respondent wife in relation to the rehearing of the applications.

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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