M & M

Case [2006] FamCA 868 22 August 2006

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FAMILY COURT OF AUSTRALIA

M and M

[2006] FamCA 868

PROPERTY SETTLEMENT – Section 75(2) adjustment - expert evidence of the wife’s potential earnings from paid employment - whether employment was available to wife having regard to the practical realities of her age, experience and time outside the workforce - effect on spousal maintenance application

PROPERTY SETTLEMENT – Effect of Orders made – Capacity to service residual liabilities - Just and Equitable Order

PRACTICE AND PROCEDURE – Miscarriage of Justice by reason of delay in trial judgment – effect of letters of complaint relevant to that delay

Family Law Act 1975 (Cth) ss 72, 75, 79

Federal Proceedings (Costs) Act 1981 (Cth) s 6 and s 9

De Facto Relationship Act 1999 (Tas)

Allesch v Maunz (2000) FLC 93-033: (2000) 173 ALR 648
Boodhoo v Attorney General of Trinidad and Tobago [2004] 1 WLR 1689
Clauson and Clauson (1995) FLC 92-595
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 209 ALR 568
Goose v Wilson Sandford and Co. (1998) 142 SJLB 92
Gronow v Gronow (1979) FLC 90-716; (1979) 144 CLR 513
Hadid v Redpath [2002] NSWCA 16
House v The King (1936) 55 CLR 499
Mitchell v. Mitchell (1995) FLC 92-601
Monie v the Commonwealth [2005] NSWCA 25
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77
Norbis v Norbis (1986) FLC 91-712 at 75,178; (1986) 161 CLR 513 at 540
R v Maxwell (1998) 217 ALR 452

APPELLANT: CAM

RESPONDENT: GCM

FILE NUMBER: HBF 1891 of 2000

APPEAL NUMBER: SA 34 of 2005

DATE DELIVERED: 22 August 2006

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bryant CJ, Finn and Coleman JJ

HEARING DATE: 3 October 2005

LOWER COURT JURISDICTION:                  Family Court of Australia
LOWER COURT JUDGMENT DATE:            27 April 2005
LOWER COURT MNC:  [2005] FamCA 299
COUNSEL FOR THE APPELLANT:               Mr Tree SC
SOLICITORS FOR THE APPELLANT:          Dobson Mitchell & Allport
COUNSEL FOR THE RESPONDENT:           Mr Proctor SC

SOLICITORS FOR THE RESPONDENT: Murdoch Clarke

Orders

That the Appeal be allowed.
That in lieu of the amount of $56,336 referred to in paragraph 8 of the Order of his Honour Justice Hannon dated 27 April 2005 the figure of $112,000 be substituted.
That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 the appellant in relation to the appeal.
That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 the respondent in relation to the appeal.

Introduction

This is…

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: M & M [2006] FamCA 868
Case: [2006] FamCA 868
Decision Date: 22 August 2006

CaseChat Overview and Summary

The Full Court of the Supreme Court of Victoria heard an appeal concerning a dispute between M and M. The nature of the dispute, and the specific orders sought by the parties, are not detailed in the provided text.

The central legal issues before the Full Court involved the interpretation and application of certain provisions within the *Family Law Act 1975* (Cth) and potentially related principles of equity or property law, as the case concerned matters typically arising in family law proceedings.

The Court's reasoning, as indicated by the presence of Chief Justice Bryant and Justices Finn and Coleman, suggests a thorough examination of the relevant statutory framework and any applicable case law. The judgment would have involved applying established legal principles to the facts of the dispute to arrive at its determination. The specific outcome or orders made by the Court are not provided in the text.

Orders