Matrimonial Causes—Proceedings with respect to the property of the parties—Interests—Alteration—Judicail discretion—Principles—Whether equality of division to be presumed—Function of appellate court on appeal from exercise of discretion—Valuation of assets for division in matrimonial proceedings—Shares in proprietary company—Family Law Act 1975 (Cth),s. 79.
Decisions
GIBBS C.J. This appeal is brought by special leave from a judgment of the Full Court of the Family Court which varied an order made by a judge of that Court (Bell J.) on an application by a divorced wife under s.79 of the Family Law Act 1975 (Cth), as amended, for an order altering the interests of the parties to the marriage in the property which they owned either jointly or individually. The appeal raises for consideration the principles which govern the manner in which a judge at first instance should exercise his discretion in deciding upon an application under s.79, and the manner in which an appellate court should proceed in determining an appeal from a judgment made on such an application. The amendments made to the Family Law Act by the Family Law Amendment Act 1983 were not in force at any material time, although to say that is not to suggest that the result would have been different under the legislation as it now stands.
2. The Family Law Act was passed at a time when great changes had occurred, and were continuing to occur, in the attitudes of many members of society to marriage and divorce, but when it was (as it is now) difficult, if not impossible, to say that any one set of values or ideas is commonly accepted, or approved by a majority of the members of society. Conflicting opinions continue to be strongly held as to the nature of marriage, the economic consequences of divorce and the effect, if any, that should be given to the fault or misconduct of a party when a court is making the financial adjustments that divorce entails. It is not surprising that given this diversity of opinions the Parliament did not require the power conferred by s.79 to be exercised in accordance with fixed rules. On the contrary, it has conferred on the court a very wide discretion to make such order as it thinks fit when it is satisfied that it is just and equitable that an order should be made (see sub-ss.1 and 2 of s.79) although there are some broad principles to which the court is required to give effect, and some circumstances which it is required to take into account. A principle which the court is expressly required to apply, so far as practicable, is that it will make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them: s.81. A second principle, which is implicit in many of the sections contained in…
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.
Continue reading Mallet v Mallet
Sign in free to access the full text
Details
AGLC
Mallet v Mallet [1984] HCA 21
Case
[1984] HCA 21
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal concerning the division of property between Mr. and Mrs. Mallet. The dispute centred on the appropriate method for valuing and distributing assets, particularly shares in a proprietary company, in accordance with section 79 of the *Family Law Act 1975* (Cth).
The primary legal issues before the High Court were whether the Full Court of the Family Court had erred in its approach to the division of matrimonial property, specifically concerning the presumption of equality and the valuation of company shares. The Court also had to determine the proper function of an appellate court when reviewing the exercise of judicial discretion by a trial judge in such matters.
The High Court held that there is no presumption of equality in the division of matrimonial property under section 79 of the *Family Law Act*. Instead, the Court emphasised that the ultimate aim is to achieve a just and equitable outcome, considering all relevant circumstances. The Court found that the Full Court had misapplied the principles governing property division by imposing an undue emphasis on equality and had erred in its assessment of the valuation of the company shares. Consequently, the High Court allowed the appeal, setting aside the judgment of the Full Court and ordering that the appeal to that Court be dismissed, with no order as to costs.
Orders
Orders of the court
Appeal allowed.
Judgment of the Full Court of the Family Court set aside and in lieu thereof order that the appeal to that Court be dismissed.