Merriman v Merriman - [1993] FamCA 115

FAMILY COURT OF AUSTRALIA

IN THE MARRIAGE OF: RONALD JOHN MERRIMAN

APPELLANT/HUSBAND

AND ELIZABETH MAJELLA MERRIMAN

RESPONDENT/WIFE

Appeal No. NA14 of 1993 File No. BR9788 of 1991

Number of pages - 14

[1993] FamCA 115; (1993) FLC 92-422

[1993] FamCA 115; 17 Fam LR 22

Property settlement - Maintenance of spouse - Child Support

COURT

IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA

BARBLETT DCJ, ELLIS AND FINN JJ

CATCHWORDS

Property settlement - proper approach by trial Judge - adequacy of reasons for judgment assessment of relevant factors.

Maintenance of spouse - whether trial Judge proceeded on basis of mistaken concession assessment of relevant factors.

Child Support - assessment - departure from - whether appropriate. The parties commenced to cohabit in May 1986, married in July 1986 and separated on 17 May 1991. There are two children of the marriage born in 1987 and 1989 who resided, after separation, with the wife. Although unable to make specific findings, the trial Judge considered that neither party made a contribution at the commencement of cohabitation significantly greater than that of the other.

At trial, the assets of the parties were valued at $1,060,992 net mainly because of a lottery prize of about $1,292,000 won by the husband twelve months after separation.

The trial Judge assessed the contributions of the parties during their relationship as being equal in value, then referred to the significant ongoing contribution of the wife in relation to her care of the children, the enormous disparity in the financial circumstances, the extravagant expenditure of the husband since the lottery win and ordered that the wife receive 25 per cent of the net assets, namely $265,248.

The wife claimed spousal maintenance which the trial Judge assessed at $400 per week capitalised over 3.5 years to $69,672. She also sought a departure from the administrative assessment relating to child support. The trial Judge increased the assessment from nil to $330 per week having regard to the husband's assets.

The husband appealed against all three orders. He submitted that the trial Judge:-

1. erred in that he failed to approach the property settlement proceedings in accordance with the established approach referred
to in Ferraro [1992] FamCA 64; (1993) FLC 92-335 at 79,560 and/or failed to give any appropriate explanation for his failure to adopt that approach.
2.          2.        erred in that he failed to give sufficient reasons for his decision.
3.          3.        failed to take into account a number of factors including thehusband's post-separation contribution to the family, his age, state of health, capacity to earn income, etc. and the time the husband alleged the children spent with him (45 per cent of the time).
4.          4.        failed to properly consider the effect of his order and the effect of orders for spousal maintenance and child support. and that the award did not fall within the ambit of a proper exercise of the discretion.
Further, submitted that in relation to the claim for spousal maintenance,

the trial Judge mistakenly…

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

Case: [1993] FamCA 115
Decision Date: 7 October 1993

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal by the husband against property settlement, spousal maintenance, and child support orders made by the trial judge. The parties had cohabited from May 1986, married in July 1986, and separated on 17 May 1991. There were two young children of the marriage who resided with the wife. The primary dispute arose from the trial judge's property settlement order, which awarded the wife 25% of the parties' net assets, totalling $1,060,992. This substantial asset pool was largely due to a lottery prize of approximately $1,292,000 won by the husband twelve months after separation. The wife also sought and was awarded spousal maintenance of $400 per week, capitalised over 3.5 years, and a departure from the administrative child support assessment, resulting in an order for the husband to pay $330 per week for child support.

The husband appealed on multiple grounds, arguing that the trial judge failed to follow the proper approach to property settlement proceedings as outlined in established case law, and that the reasons for judgment were insufficient to allow an appellate court to assess the exercise of discretion. He also contended that the trial judge failed to adequately consider relevant factors, including his post-separation contributions, age, health, earning capacity, and the time the children spent with him. Furthermore, the husband submitted that the trial judge erred in relation to the spousal maintenance claim by proceeding on a mistaken concession regarding the wife's inability to support herself and by failing to properly consider the relevant capital sum and threshold test. The child support order was also challenged as excessive and unreasonable.

The Full Court allowed the husband's appeal in part. It found that the trial judge had not provided sufficient reasons for the property settlement order, making it impossible for the appellate court to determine if the decision fell within the proper exercise of discretion under section 79 of the Family Law Act. Consequently, a new trial was ordered for the property settlement. The Court did not consider the grounds relating to the established approach to property settlement proceedings, nor did it determine the spousal maintenance and child support matters, as these would need to be re-determined in light of the further property settlement proceedings. The matter was remitted for re-hearing, and costs certificates were granted to both parties.

Orders