MYRTLE & MYRTLE - [2014] FamCAFC 31

FAMILY COURT OF AUSTRALIA

MYRTLE & MYRTLE

[2014] FamCAFC 31

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – PROPERTY – where the trial judge is said to have erred in his assessment of the respective contributions of the parties and in the adjustment made for the relevant s 75(2) factors – where there is no merit in any of the grounds of appeal – appeal dismissed.

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – where the respondent sought an order for costs – where the appeal was wholly unsuccessful – order for costs made.

Family Law Act 1975 (Cth) s 75(2)(o), s 117(2A)

Coulton v Holcombe (1986) 162 CLR 1
Gronow v Gronow (1979) 144 CLR 513
Metwally v University of Woollongong (1985) 60 ALR 68
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Water Board v Moustakas (1988) 180 CLR 491

APPELLANT:

Ms Myrtle

RESPONDENT:

Mr Myrtle

FILE NUMBER:

BRC

11689

2009

APPEAL NUMBER:

2012

DATE DELIVERED:

5 March 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Ainslie-Wallace & Murphy JJ

HEARING DATE:

7 August 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 June 2012

LOWER COURT MNC:

[2012] FamCA 460

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Page QC

SOLICITOR FOR THE APPELLANT:

Biggs Fitzgerald Pike

COUNSEL FOR THE RESPONDENT:

Mr Baston

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Orders

The appeal be dismissed.
The wife pay the costs of the husband of and incidental to the appeal, such costs to be assessed in default of agreement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Myrtle & Myrtle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 65 of 2012
File Number: BRC 11689 of 2009

Ms Myrtle

Appellant

And

Mr Myrtle

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 3 October 2012 Ms Myrtle (“the wife”) appeals against property settlement orders made by Kent J on 19 June 2012, Order 1 of which provided for a 50 per cent/50 per cent division of the parties’ net property pool, and the balance of which gave effect to that division. On appeal, the wife seeks that that order be set aside and in lieu thereof an order be made for the parties’ net property pool to be divided 60 per cent/40 per cent in favour of the wife.
The respondent in the appeal, Mr Myrtle (“the husband”) opposes the appeal.

Background

The wife was born in 1961 and the husband was born in 1962.
The parties commenced cohabitation in 1985, married on in 1990 and finally separated on 3 August 2009.
The parties have two children aged 20 and 18 years at the time of trial.
At the commencement of cohabitation the wife…

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 MYRTLE & MYRTLE

Details

AGLC: MYRTLE & MYRTLE [2014] FamCAFC 31
Case: [2014] FamCAFC 31
Decision Date

CaseChat Overview and Summary

- **Parties and Dispute**: The appeal involves Ms Myrtle (the wife) and Mr Myrtle (the husband) in a property settlement dispute following their separation. The wife appeals against the trial judge's orders regarding the division of their net property pool, seeking a 60 per cent/40 per cent division in her favor, while the husband opposes the appeal.

- **Legal Issues**: The key issues before the court are whether the trial judge erred in assessing the respective contributions of the parties and in the adjustment made for the relevant s 75(2) factors under the Family Law Act 1975 (Cth). Specifically, the wife argues that the trial judge's assessment of contributions and the adjustment made based on s 75(2) factors were outside a reasonable range.

- **Court's Reasoning and Outcome**: The Full Court found no merit in any of the grounds of appeal. The court held that despite a minor misquotation in the trial judge's reasons, the assessment of contributions and the adjustment based on s 75(2) factors were justified and reasonable. The court emphasized that the trial judge's discretion in making such assessments should not be lightly overturned and that the wife's appeal was wholly unsuccessful.

- **Final Orders**: The appeal was dismissed, and the wife was ordered to pay the husband's costs of and incidental to the appeal. The court noted that publication of the judgment under the pseudonym Myrtle & Myrtle was approved by the Chief Justice.

Orders