FAMILY COURT OF AUSTRALIA
| NORMAN & NORMAN | [2010] FamCAFC 66 |
| FAMILY LAW - APPEAL – FROM A DECISION OF A FAMILY COURT JUDGE – PROPERTY – Wife appealed challenging the discretion exercised by the trial Judge in assessing initial contributions, the adjustment made for matters under s 79(4) and the overall justice of the orders – Elucidation of principles applicable to appeals from discretionary judgments – Appellant contended the initial contributions of the husband ought be ‘offset’ by the wife’s significant contributions throughout the relationship – Not a matter of offsetting or erosion but weight and balance of all contributions – Consideration of the overall justice and equity of the orders and the nature of the ‘fourth step’ – No merit in the grounds of appeal – Appeal dismissed FAMILY LAW - COSTS – orders for the receipt of written submissions |
| Family Law Act 1975 (Cth) Family Law Legislation Amendment (Superannuation) Act 2001 |
| Cabbell and Cabbell [2009] FamCAFC 205 CDJ v VAJ (1998) 197 CLR 172 Clauson and Clauson (1995) FLC 92-595 Coulton v Holcombe (1986) 162 CLR 1 Dowling and Molloy [2007] FamCA 68 G & G [2004] FamCA 1179 Gronow v Gronow (1979) 144 CLR 513 Harrington and Harrington (2007) FLC 93-317 Hickey& Hickey (2003) FLC 93-143 House v King (1936) 55 CLR 499 Mallet v Mallet (1984) 156 CLR 605 Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 Mims & Green & Green (2008) FLC 93-359 N and N (unreported, Family Court of Australia, Fogarty, Lindenmayer, McCall JJ, 10 June 1992) Napthali and Natpthali (1989) FLC 92-021 Norbis v Norbis (1986) 161 CLR 513 Pierce & Pierce (1999) FLC 92-844 Shaw and Shaw (1989) FLC 92-010 Woollams and Woollams (2004) FLC 93-195 |
| APPELLANT: | Ms Norman |
| RESPONDENT: | Mr Norman |
| FILE NUMBER: | CSC | 985 | of | 2007 |
| APPEAL NUMBER: | NA | 35 | of | 2009 |
| DATE DELIVERED: | 1 April 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, May, Murphy JJ |
| HEARING DATE: | 19 November 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 March 2009 |
| LOWER COURT MNC: | [2009] FamCA 239 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr George with Mr Pieterse |
| SOLICITOR FOR THE APPELLANT: | Bruce Kay Gillan Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Westbrook |
| SOLICITOR FOR THE RESPONDENT: | Williams Graham Carman Solicitors |
Orders
That the appeal be dismissed.
That each party file and serve within 21 days the orders sought, if any, in respect of the costs of the appeal and submissions in writing in support of same.
That any reply by either party to the submissions referred to in paragraph 2 of these orders be filed and served within 14 days after service of the submissions.
IT IS NOTED that publication of this judgment under the pseudonym Norman and Norman is approved 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: NA35 of 2009
File Number: CSC985/2007
| Ms Norman |
Appellant
And
| Mr Norman |
Respondent
REASONS…
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- Norman & Norman [2010] FamCAFC 66
- Case
- [2010] FamCAFC 66
- Decision Date
CaseChat Overview and Summary
In the case of Norman & Norman, the matter was heard by Warnick J in the Family Court of Australia. The dispute between the parties centred on the division of property following the dissolution of their marriage. The appeal was brought against a decision that had been made by a primary judge regarding the distribution of assets, and the appellant sought to challenge this decision on the grounds of perceived error. The respondent defended the original decision, arguing that it was within the ambit of reasonable disagreement and should not be overturned by the appellate court.
The legal issues before the court involved the standard of review applicable to discretionary decisions made by primary judges in the Family Court, particularly those concerning the division of property. The court was required to consider whether the primary judge's decision was so plainly wrong as to warrant interference by the appellate court. The central question was whether the primary judge had exercised their discretion in a manner that exceeded the generous bounds within which reasonable disagreement is possible, or if the decision was within the acceptable range of outcomes that could have been reached by a differently constituted tribunal.
Warnick J addressed these issues by referencing established principles of appellate review, emphasising the need for caution in overturning discretionary decisions made by primary judges. The court noted that the primary judge's decision was not plainly wrong and fell within the generous ambit of reasonable disagreement. Warnick J highlighted the wide scope of judicial discretion in such matters and the importance of respecting the difficult and evaluative decisions that the Family Court often has to make. The appellate court found that the primary judge's assessment of the evidence and the resulting decision were within the acceptable range of outcomes, and therefore the appeal was dismissed.
The orders of the court were that the appeal be dismissed, and the parties were directed to file and serve within 21 days the orders sought in respect of the costs of the appeal and submissions in writing in support of those orders. Any reply by either party to the submissions referred to in the orders was to be filed and served within 14 days after service of the submissions.
The legal issues before the court involved the standard of review applicable to discretionary decisions made by primary judges in the Family Court, particularly those concerning the division of property. The court was required to consider whether the primary judge's decision was so plainly wrong as to warrant interference by the appellate court. The central question was whether the primary judge had exercised their discretion in a manner that exceeded the generous bounds within which reasonable disagreement is possible, or if the decision was within the acceptable range of outcomes that could have been reached by a differently constituted tribunal.
Warnick J addressed these issues by referencing established principles of appellate review, emphasising the need for caution in overturning discretionary decisions made by primary judges. The court noted that the primary judge's decision was not plainly wrong and fell within the generous ambit of reasonable disagreement. Warnick J highlighted the wide scope of judicial discretion in such matters and the importance of respecting the difficult and evaluative decisions that the Family Court often has to make. The appellate court found that the primary judge's assessment of the evidence and the resulting decision were within the acceptable range of outcomes, and therefore the appeal was dismissed.
The orders of the court were that the appeal be dismissed, and the parties were directed to file and serve within 21 days the orders sought in respect of the costs of the appeal and submissions in writing in support of those orders. Any reply by either party to the submissions referred to in the orders was to be filed and served within 14 days after service of the submissions.
Orders
Orders of the court
1.
That the appeal be dismissed.
2.
That each party file and serve within 21 days the orders sought, if any, in respect of the costs of the appeal and submissions in writing in support of same.
3.
That any reply by either party to the submissions referred to in paragraph 2 of these orders be filed and served within 14 days after service of the submissions.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Warnick J said:82.…Revisiting those statements, one is struck by the regularity with which the width of discretion of the trial court and the caution that the appeal court should exercise, are stressed. This is demonstrated by adding emphasis within some of the often quoted statements of principle. In Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All ER 343 at 345, Asquith LJ stated the rationale of an appellate court’s approach:“…We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.” (emphasis added)83.In Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178 Brennan J stated:“The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.” (emphasis added)84.Kitto J in Australian Coal & Shale Employees Federation v. The Commonwealth (1953) 94 CLR 621 at 627 said:“…there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.”85.In Gronow & Gronow (1979) 144 CLR 513 at 520, Stephen J said:“…an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.”86.Finally, in CDJ & VAJ (1998) 197 CLR 172 at 231, touching upon the features applicable to the exercise of discretion in the Family Court, Kirby J said:“1.…The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.2.Such reasons for appellate restraint…have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficulty and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions.” (emphasis added)[emphasis markings as appearing in Warnick J’s judgment]
Ratio Decidendi
Legal Principle Established
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