NETTLER & NETTLER - [2009] FamCAFC 185

FAMILY COURT OF AUSTRALIA

NETTLER & NETTLER

[2009] FamCAFC 185

FAMILY LAW – APPEAL – PROPERTY – Whether the trial Judge erred in his valuation of a business – Application of “highest and best use” principle – Where the trial Judge adopted one valuer’s methodology over another despite demonstrated errors made by that valuer – Adequate reasons provided by the trial Judge for preferring the valuer’s evidence

FAMILY LAW – APPEAL – STATUTORY PROVISIONS – Family Law Act 1975 (Cth) s 75(2) – Whether trial Judge properly considered the consequences of a possible sale of a substantial business asset on the wife’s earning capacity

FAMILY LAW – APPEAL – CONTRIBUTIONS – Whether the trial Judge adequately took into account the wife’s initial contribution – Whether the trial Judge erred in finding equal contributions to the business in circumstances where the wife made the greater direct contribution – trial Judge considered husband’s indirect contribution and greater income received by the wife for her post-separation contributions

FAMILY LAW – APPEAL DISMISSED – Costs submissions ordered

Family Law Act 1975 (Cth)

Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1980) 146 CLR 336
House v The King (1936) 55 CLR 499
Mehmet and Mehmet (No 2) (1987) FLC 91-801
Robb and Robb (1995) FLC 92-555
Spencer v Commonwealth (1907) 5 CLR 418

APPELLANT:

Ms Nettler

RESPONDENT:

Mr Nettler

FILE NUMBER:

PAF

1206

2005

APPEAL NUMBER:

151

2007

DATE DELIVERED:

13 October 2009

PLACE DELIVERED:

Perth

PLACE HEARD:

Sydney

JUDGMENT OF:

Faulks DCJ, Thackray & Ryan JJ

HEARING DATE:

4 February 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

23 November 2007

LOWER COURT MNC:

[2007] FamCA

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Gould

SOLICITOR FOR THE APPELLANT:

Aitken Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Judge

SOLICITOR FOR THE RESPONDENT:

Goldrick Farrell Mullan Solicitors

Orders

That the appeal be dismissed.
That the respondent be at liberty to make an application by way of written submissions in respect of costs incurred by him in relation to the appeal by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the appellant within 21 days of the date hereof.
That the appellant have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the respondent.
That the respondent be at liberty to reply to an answer by way of written submissions by filing such reply at the Eastern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further 7 days.
That each party endorse on the cover sheet the date on which a copy of that submission was served on the other party.

IT IS NOTED that publication of this judgment under the pseudonym Nettler & Nettler is approved pursuant to s 121(9)(g) of…

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: NETTLER & NETTLER [2009] FamCAFC 185
Case: [2009] FamCAFC 185
Decision Date: 13 October 2009

CaseChat Overview and Summary

The matter under consideration was an appeal against a decision concerning the division of property between the parties, Nettler and Nettler, within the context of a family law dispute. The Family Court of Australia was tasked with resolving the valuation of a business and other assets, which played a crucial role in determining the financial outcomes of the case. The appeal specifically questioned the trial judge's approach to the valuation of the business, the consideration of statutory provisions concerning the wife's earning capacity, and the adequacy of the trial judge's assessment of contributions made by both parties to the business.

The central legal issues addressed by the court included whether the trial judge correctly applied the "highest and best use" principle in valuing the business, and if the trial judge erred in preferring the evidence of one valuer over another despite evident mistakes in the latter's methodology. Additionally, the court considered whether the trial judge properly evaluated the consequences of a potential sale of the business on the wife's earning capacity, as required by section 75(2) of the Family Law Act 1975 (Cth). Furthermore, the appeal examined whether the trial judge had adequately taken into account the wife's initial contribution to the business and whether there was an error in finding equal contributions given the wife's greater direct contribution.

The court, upon reviewing the evidence and arguments, found that the trial judge had provided adequate reasons for preferring one valuer's evidence over another, despite the latter's demonstrated errors. The court was satisfied that the trial judge had correctly applied the "highest and best use" principle and had appropriately considered the statutory provisions concerning the wife's earning capacity. The court also found that the trial judge had not erred in considering the husband's indirect contributions and the greater income received by the wife for her post-separation contributions, which collectively balanced the overall contribution assessment. Consequently, the appeal was dismissed.

In accordance with the court's decision, the respondent was granted the liberty to make written submissions regarding the costs incurred in relation to the appeal. The appellant was given a period of 14 days to respond to these submissions, followed by a further 7 days for the respondent to reply. Each party was required to endorse the cover sheet with the date on which a copy of their submissions was served on the other party.

Orders

Orders of the court

That the appeal be dismissed.

That the respondent be at liberty to make an application by way of written submissions in respect of costs incurred by him in relation to the appeal by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the appellant within 21 days of the date hereof.

That the appellant have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the respondent.

That the respondent be at liberty to reply to an answer by way of written submissions by filing such reply at the Eastern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further 7 days.

That each party endorse on the cover sheet the date on which a copy of that submission was served on the other party.

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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