FAMILY COURT OF AUSTRALIA
| MIMS & GREEN & GREEN | [2008] FamCAFC 13 |
| FAMILY LAW - APPEALS – FROM DECISION OF FAMILY COURT JUDGE – PROPERTY – The daughter of the husband appealed from a decision of the trial Judge about her characterisation of funds deposited into the daughter’s bank account in the sum of $355,506 by the husband while he was overseas, which the daughter then used to purchase her home, in which the husband briefly lived when he returned from being overseas – the daughter had claimed that the funds were gifted or advanced by the husband, and the husband asserted, amongst other claims, that the funds were a loan – central to the findings of the trial Judge in determining which of the two accounts of the transaction she found more credible was her findings of credit about the parties – the trial Judge found that while the husband was not ‘entirely frank about all of his financial affairs’ he was ‘closer to the truth’ – no error demonstrated on credit findings – adequate reasons were provided and no other error demonstrated – appeal dismissed and the daughter to pay the husband’s costs FAMILY LAW - CROSS-APPEAL – FROM DECISION OF FAMILY COURT JUDGE – PROPERTY – the husband cross-appealed from determinations by the trial Judge in property proceedings between himself and his former wife in which she divided the property of the parties 70 per cent to the wife and 30 per cent to the husband, on the basis of insufficient weight being given to the husband’s contribution, a failure to provide reasons or sufficient reasons, a failure to apply the law of initial contribution or to give the husband’s initial contribution sufficient weight, and in her assessment of s 75(2) factors, particularly in giving such factors favouring the husband insufficient weight – the process of reasoning of the trial Judge was clear and transparent and there was no lack of reasons or any sufficient reasons – the trial Judge acknowledged the husband’s greater financial contribution but assessed his contributions at 70 per cent, not 80 per cent as he had sought – the trial Judge’s s 75(2) adjustment only exceeded that conceded by the husband to be reasonable by 5 per cent and it was not so generous as to be outside the ambit of a reasonable exercise of discretion – appeal dismissed – each party to pay their own costs |
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- AGLC
- Mims & Green and Green [2008] FamCAFC 13
- Case
- [2008] FamCAFC 13
- Decision Date
CaseChat Overview and Summary
Mr Green cross-appealed from the trial Judge’s determinations in property proceedings between himself and his former wife, Ms Green. He contended that insufficient weight was given to his contributions, that there was a lack of reasons or insufficient reasons, that the law of initial contribution was not applied, and that his initial contribution was not given sufficient weight. Additionally, he argued that the assessment of section 75(2) factors did not sufficiently favour him. The trial Judge acknowledged Mr Green’s greater financial contribution but assessed it at 70 per cent, not 80 per cent as he had sought. The trial Judge’s exercise of discretion was found to be within the reasonable ambit, and the cross-appeal was dismissed with each party ordered to pay their own costs.
In summary, the court dismissed both the appeal and the cross-appeal, with the daughter ordered to pay the father’s appeal costs and each party ordered to bear their own cross-appeal costs. The trial Judge’s findings on credibility and the exercise of discretion in property division were upheld.
Orders
Orders of the court
1.
That the appeal of Ms Mims filed 1 August 2006 be dismissed.
2.
That the cross-appeal of Mr Green revived by leave granted on 24 January 2007 be dismissed.
3.
That the application for leave to adduce further evidence filed 12 February 2008 be dismissed
4.
That Ms Mims pay to Mr Green his costs of and incidental to her appeal.
5.
That both Mr Green and Ms Green pay their own costs of the cross-appeal.
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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