MADDEN & MADDEN - [2006] FamCA 1391

FAMILY COURT OF AUSTRALIA

MADDEN & MADDEN

[2006] FamCA 1391

APPEAL – PROPERTY – PROCEDURAL FAIRNESS - Whether trial Judge erred in failing to afford procedural fairness to the husband in relation to sale of one of parties’ properties – Husband represented by senior counsel when wife sought order for sale of property - No denial of procedural fairness – Ground not established.

APPEAL – PROPERTY – EXCLUSION OF PROPERTY - Whether trial Judge erred in excluding certain property – Trial Judge adopted “two pools” or asset by asset approach - Whether trial Judge in error in including amount borrowed by wife against security of matrimonial home and applied by her to purchase of property with her father in the liabilities of the parties included in the first pool – Trial Judge did not include corresponding asset – Trial Judge did not reduce the liabilities to reflect his removal of the property from the pool – Trial Judge in error in including total liabilities as joint and disregarding benefit received by wife – Appealable error found.

APPEAL – PROPERTY – ADD BACKS – BORROWINGS – LEAVE ENTITLEMENTS – LEGAL FEES - Whether trial Judge erred in failing to add back $40,000 claimed by wife to have been borrowed from her parents – Whether trial Judge in error in including wife’s borrowings of $24,000 – Whether trial Judge in error in including husband’s long service and annual leave entitlements – Whether trial Judge in error in finding parties accepted liabilities for unpaid legal fees should be included as joint debts.

APPEAL – LEAVE TO AMEND GROUNDS OF APPEAL –During course of hearing of appeal senior counsel for husband sought leave to further amend grounds of appeal – Principles espoused in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 apposite – Application to amend grounds of appeal after commencement of appeal hearing must be regarded as an extraordinary circumstance – Discretion to be exercised in favour of an applicant only in the most limited circumstances where failure to do so would be contrary to interests of justice – Consideration of merits of proposed ground – No merit in proposed ground – Not appropriate to grant leave to further amend grounds of appeal.

APPEAL – RE-EXERCISE OF DISCRETION – Parties to provide agreed statement of facts to be taken into account in re-exercise of discretion – Parties afforded opportunity to file and serve any affidavit material relevant to re-exercise of discretion.

APPEAL – COSTS – COSTS OF APPEAL – Parties sought costs appeal and costs of appeal be determined on basis of written submissions – Appropriate orders to be made after re-exercise of discretion determined.

Family Law Act 1975 (Cth), ss 79, 94(1AA), 94(1), 94(2D)
Family Law Rules 2004, Chapter 22

Allesch v Maunz (2000) 203 CLR 172; (2000) FLC 93-033
Bennett and Bennett (1991) FLC 92-191
Bonnici and Bonnici (1992) FLC 92-272
Burke and Burke (1993) FLC 92-356
Farnell and Farnell (1996) FLC 92-681
Gronow v Gronow

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: MADDEN & MADDEN [2006] FamCA 1391
Case: [2006] FamCA 1391
Decision Date: 21 December 2006

CaseChat Overview and Summary

This appeal concerned property division between a husband and wife, heard by Coleman, Warnick, and Boland JJ of the Court of Appeal. The husband appealed a decision of the trial judge concerning the sale of a property and the overall division of matrimonial assets.

The legal issues before the Court of Appeal included whether the trial judge had erred by failing to afford the husband procedural fairness in relation to the sale of a property, whether certain properties were wrongly excluded from the asset pool, and whether the trial judge made errors in relation to "add backs" of alleged borrowings by the wife, inclusion of leave entitlements, and the treatment of legal fees. The court also considered an application by the husband to amend his grounds of appeal during the hearing.

The Court of Appeal found no denial of procedural fairness regarding the property sale. However, it identified an appealable error in the trial judge's approach to liabilities, specifically the inclusion of a loan secured against the matrimonial home by the wife for a separate investment without a corresponding asset being included or the liabilities being reduced. The court also found merit in the husband's arguments regarding the inclusion of certain borrowings and leave entitlements, and the treatment of legal fees. The application to amend the grounds of appeal was refused, as the proposed new ground lacked merit and the circumstances were not extraordinary enough to warrant amendment after the appeal hearing commenced.

The Court of Appeal ordered that the discretion be re-exercised, with parties to provide an agreed statement of facts and any relevant affidavit material. The costs of the appeal were to be determined after the re-exercise of discretion, based on written submissions.

Orders