Family Law—Proceedings with respect to property of parties—Interests—Alteration—Assessment of entitlements—Judicial discretion—Asset-by-asset approach—Global approach—Function of appellate court on appeal from exercise of discretion—Family Law Act 1975 (Cth),s. 79.

Decisions

MASON and DEANE JJ.: The facts which have given rise to this appeal and the history of proceedings have been described in the joint judgment of Wilson and Dawson JJ. It is unnecessary for us to repeat them.

2. The reason for the variation by the Full Court of the Family Court of the orders made by the primary judge are to be found in two passages in the judgment of McGovern J., with whom Barblett S.J. and Strauss J. expressed their agreement. The first passage (reported at (1984) FLC 91-543, at p.79,402) is in these terms:

"With the greatest of respect to his Honour I am of the view that the approach he adopted in arriving at his decision was one which is inappropriate in the great majority of cases, and certainly the present case, to follow. It would seem to me to serve no good purpose, particularly in a marriage of long duration in which there have occurred countless changes of varying degrees in the family fortunes generally and of perhaps major assets in particular, to attempt to impart to individual assets different percentages in favour of the parties. At the most any such attempt can be only notional. The manner in which the particular assets have been acquired or contributed to may, of course, well be relevant in determining the overall distribution: see Aroney and Aroney (1979) FLC 90-709 at p.78,785. I think all one can do realistically in such circumstances is to take into account all of the matters to which one is referred in sec.79(4) of the Family Law Act and fix an overall proportion on a global view of the totality of the assets to be divided. See Tuck and Tuck (1981) FLC 91-021; Antmann and Antmann (1980) FLC 90-908."

The second passage, at pp.79,403 - 79,404, is as follows:

"Having considered the counter-arguments advanced by counsel for the wife on the subject of the weight to be given the evidence upon the respective contributions of the parties, I would not be prepared to disturb his Honour's findings short of the point at which they were made applicable to particular items of the property to be divided.

Accepting, as I do, his Honour's findings, and being of the view in the light of the same that the circumstances justify a departure from a position of equality of interests in the divisible assets in favour of the husband, I think, viewing the matter globally, that the division of assets which is just and equitable, taking into account the moneys the parties have already received from Tenzana Pty. Ltd., is that ordered by his Honour with respect to the various pieces of real…

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 Norbis v Norbis

Details

AGLC: Norbis v Norbis [1986] HCA 17
Case: [1986] HCA 17
Decision Date: 30 April 1986

CaseChat Overview and Summary

The Full Court of the High Court of Australia heard an appeal concerning a dispute between Mr. Norbis and Mrs. Norbis regarding the division of their matrimonial property. The primary issue before the court was the application of section 79 of the *Family Law Act 1975* (Cth) to the division of assets following the breakdown of the marriage.

The court was required to determine whether the trial judge had erred in his approach to the division of property, particularly in relation to the valuation and distribution of certain assets, and whether the principles of justice and equity had been adequately considered. A key legal question was the extent to which the court should have regard to the parties' contributions, both financial and non-financial, and their future needs when making orders for property adjustment.

The High Court, in its joint judgment, clarified that the court's task under section 79 is to make such orders as are just and equitable. This involves a two-step process: first, identifying and valuing the property of the parties, and second, considering the relevant factors under section 79(4) to determine what alteration of interests is just and equitable. The court emphasised that while contributions are important, they are not the sole determinant, and the court must also consider the future needs of each party. The court found that the trial judge had failed to give sufficient weight to the future needs of Mrs. Norbis and had not adequately explained the basis for his property division.

Consequently, the High Court allowed the appeal, set aside the orders made by the trial judge, and remitted the matter back to the Family Court for redetermination in accordance with the principles enunciated by the High Court.

Orders