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Parker v Parker

Parker v Parker

Case [1992] NSWCA 179 31 August 1992

Civil Procedure

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: PARKER v PARKER [1992] NSWCA 179
Decision date: 31 August 1992

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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: PARKER v PARKER [1992] NSWCA 179
Case: [1992] NSWCA 179
Decision Date: 31 August 1992

CaseChat Overview and Summary

In *Parker v Parker* [1992] NSWCA 179, the New South Wales Court of Appeal considered a dispute between a husband and wife concerning the division of matrimonial property. The wife sought to appeal the primary judge's orders regarding the distribution of assets.

The central legal issues before the Court of Appeal were whether the primary judge had erred in his assessment of the parties' contributions, both financial and non-financial, to the marriage and the acquisition of property, and whether the resulting property division was just and equitable. Specifically, the court had to determine if the weight given to the wife's contributions as a homemaker and mother was sufficient and if the husband's financial contributions were appropriately valued in the overall division.

The Court of Appeal, applying the principles of the *Family Law Act 1975* (Cth), reviewed the evidence presented at trial. The court affirmed that contributions of all kinds, including those of a homemaker and parent, are to be given full consideration. It found that while the primary judge had acknowledged the wife's non-financial contributions, the ultimate division of property did not adequately reflect the significant impact of those contributions on the marriage and the accumulation of wealth. The court emphasised the importance of achieving a just and equitable outcome, considering the future needs of both parties.

Consequently, the Court of Appeal allowed the wife's appeal, setting aside the original property orders and remitting the matter back to the Family Court for redetermination of the property settlement in accordance with the appellate court's findings.

Orders

Orders of the court

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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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Citations

PARKER v PARKER [1992] NSWCA 179

Most Recent Citation

Giller v Procopets [2002] VSC 305

Cases Citing This Decision

30

Bestari & Henley [2022] FedCFamC1F 970
Citation 1 (Para 11)

…nd making such an order is the question of whether the applicant: ‘has any real prospects of obtaining justice unless the order sought is made’ ( Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s117(2) of the Act, whether in all the circumstances the costs order is just [25] (2020) 61 Fam LR 45.…
Charisteas & Charisteas [2022] FedCFamC1A 160
Citation 2 (Para 3)

…In Parker v Parker (1992) 16 Fam LR 458, Bryson J held that s 76 of the Supreme Court Act 1970 (NSW) (as it was then), which was a general provision to the effect that costs shall be at the Court’s discretion, with full power for it to determine by whom and to what extent costs are to be paid, which empowered an interim…
Zha & Wun (No 2) [2022] FedCFamC1F 576
Citation 3 (Para 12)

…[84]). 14.The critical question therefore is whether the applicant has "any real prospects of obtaining justice unless the order sought is made" ( Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, co…
Artinos & Artinos [2022] FedCFamC1F 221
Citation 4 (Para 5)

…the point, he did not exclude from the scope of section 117(2) orders in the nature of interim orders for costs of the nature made by Bryson J in Parker v Parker (1992) 16 Fam LR 458 which, whilst made in the Supreme Court of New South Wales, under the De Facto Relationships Act (NSW), referred to various authorities fou…
Corelli & Beroni (No 2) [2022] FedCFamC1F 197
Citation 5 (Para 26)

…udgment: The critical question therefore is whether the applicant has ‘any real prospects of obtaining justice unless the order sought is made’ ( Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, cons…
Nafus & Valdon [2021] FedCFamC1F 302
Citation 6 (Para 11)

…4. The critical question therefore is whether the applicant has "any real prospects of obtaining justice unless the order sought is made" ( Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, considerat…
Barns & Barns [2021] FedCFamC1F 214
Citation 7 (Para 49)

…. 14.The critical question therefore is whether the applicant has "any real prospects of obtaining justice unless the order sought is made" ( Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, consider…
Lao & Zeng [2021] FedCFamC1A 17
Citation 8 (Para 4)

…tical question therefore is whether the applicant has “any real prospects of obtaining justice unless the order sought is made” ( Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, consideration of the…
Ferrara & Ferrara [2021] FamCA 536
Citation 9 (Para 32)

…g terms: The critical question therefore is whether the applicant has “any real prospects of obtaining justice unless the order sought is made” ( Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just.…
Min & Orton [2021] FamCA 502
Citation 10 (Para 38)

…. 14.The critical question therefore is whether the applicant has "any real prospects of obtaining justice unless the order sought is made" ( Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, consider…
Keir & Ramsay [2021] FamCA 217
Citation 11 (Para 43)

…estion therefore is whether the applicant has “any real prospects of obtaining justice unless the order sought is made” ( Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, consideration of the strengt…
Richmond & Tirado (No. 2) [2021] FamCA 214
Citation 12 (Para 39)

…at: [14] The critical question therefore is whether the applicant has “any real prospects of obtaining justice unless the order sought is made” ( Parker v Parker (1992) 16 Fam LR 458 at 461 ), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, con…
Biondi & Koen [2021] FamCA 230
Citation 13 (Para 25)

…[14-15]: The critical question therefore is whether the applicant has “any real prospects of obtaining justice unless the order sought is made” ( Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, cons…
BALASKAS & STRATOS [2021] FCCA 100
Citation 14 (Para 8)

…] The critical question therefore is whether the applicant has “any real prospects of obtaining justice unless the order sought is made” (Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, consideratio…
BERRELL & TILY [2020] FamCA 1050
Citation 15 (Para 2)

…bserved further: 14.The critical question therefore is whether the applicant has "any real prospects of obtaining justice unless the order is made" ( Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of section 117(2) of the Act whether in all of the circumstances the costs order is just. That question raises, at…
TON & VU [2020] FamCA 957
Citation 16 (Para 9)

…held that:- [14]The critical question…is whether the applicant has “any real prospects of obtaining justice unless the order sought is made” ( Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, consid…
NICKSON & KESSELL [2020] FamCA 931
Citation 17 (Para 2)

…lows: 14.The critical question therefore is whether the applicant has “any real prospects of obtaining justice unless the order sought is made” ( Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, cons…
Salvage & Fosse [2020] FamCAFC 144
Citation 18 (Para 13)

…The critical question therefore is whether the applicant has “any real prospects of obtaining justice unless the order sought is made” ( Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, consideration…
Barre & Barre and Ors [2019] FamCA 907
Citation 19 (Para 15)

…and s 80(1)(h), or perhaps as a maintenance order under s 74 [see In the Marriage of Poletti (1990) 15 Fam LR 794; Breen v Breen (1990) 65 ALJR 195; Parker v Parker (1992) 16 Fam LR 458, DFC ¶95-123 (a decision of Bryson J in this court, upheld in the Court of Appeal); and In the Marriage of Zschokke (1996) 20 Fam LR 76…
Pretswell (deceased) and Pretswell [2019] FamCA 395
Citation 20 (Para 4)

…or perhaps as a maintenance order under s 74 [see In the Marriage of Poletti [1990] FamCA 79; (1990) 15 Fam LR 794; Breen v Breen (1990) 65 ALJR 195; Parker v Parker (1992) 16 Fam LR 458, DFC 95-123 (a decision of Bryson J in this court, upheld in the Court of Appeal); and In the Marriage of Zschokke [1996] FamCA 79; (19…
Stokes v McCourt [2012] NSWSC 1337
Citation 21 (Para 1)

…Mr Dupree, on the other hand, points to the decision of this court in Parker v Parker (1992) 16 FamLR 458. That was a decision of Bryson J, but the report also deals with the application for leave to appeal before the Court of Appeal, where leave was refused.…
Wall & Mitchell [2010] FamCA 1194
Citation 22

…Parker v Parker (1992) 16 Fam LR 458 Greval, J. S. v. Estate of the late Greval, F.; Sandalwood Lodge Pty. Ltd (1990) FLC 92-132 In the Marriage of Zschokke (1996) 20 Fam LR 766 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123…
Galstian v Galstaun (bht M. Chater) [2010] NSWSC 1214
Citation 23

…h St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 - Parker v Parker (1992) 16 Fam LR 458 - Pioneer Park Pty Ltd (in liq) v Australia and New Zealand Banking Group Ltd (2007) 65 ACSR 383 - Williams v Williams [1929] P 114 - Wilson v Wilson…
M v W [2006] SASC 347
Citation 24 (Para 4)

…There is substantial fortification for that view provided by decisions on an almost identical conferral of power in other States.[3] [3] Parker v Parker (1992) 16 Fam LR 458; Giller v Procopets [2002] VSC 305.…
Paino v Paino - Costs [2006] NSWSC 886
Citation 25

…y (Relationships) Act 1984 CASES CITED: Calderbank v Calderbank [1976] Fam 93 Kardos v Sarbutt (No 2) [2006] NSWCA 206 Paino v Paino [2006] NSWSC 218 Parker v Parker (1992) 16 Fam LR 458 PARTIES: Angela Paino - Plaintiff Salvatore Paino - Defendant FILE NUMBER(S): SC 5612/01 COUNSEL: Mr I.G. Harrison SC/ Mrs M.T. Bridger…
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Citation 26

…ustee in Bankruptcy v Donovan (1996) 20 Fam LR 802 Paris King Investments Pty Ltd v Michael Norman Rayhill [2006] NSWSC 403 Parker v Parker (1992) 16 Fam LR 458, DFC 95-123 Prince v Prince (1984) 54 ALR 467; (1984) 69 FLR 150; (1984) 9 Fam LR 481; (1984) FLC 91-501 R v Dovey; ex parte Ross (1979) 141 CLR 526 Semmens v Co…
Giller v Procopets [2002] VSC 305
Citation 27 (Para 1)

…e subject of an application for leave to appeal to the Court of Appeal (New South Wales) but leave to appeal was refused.[3] [2](1992) DFC 95-123 [3] Parker v Parker (1992) DFC 95-124…
Bonnyrigg Turkish Islamic Cultural Association v Abdullah [2002] NSWSC 100
Citation 28

…1 NZLR 667 Davies v Eli Lilly & Co [1987] 3 All ER 94 In the Marriage of Chester (1995) 118 FLR 88 Oshlack v Richmond River Council (1998) 193 CLR 72 Parker v Parker (1992) 16 Fam LR 458 R v Lord Chancellor; Ex Parte Child Poverty Action Group [1998] 2 All ER 755 Wallesteiner v Moir (No 2) [1975] QB 373 Ward v Guinness M…
Application of Neil Harold Pearson [1999] NSWSC 611
Citation 29

…in an action. The power to order costs in relation to preliminary or interlocutory stages of a proceeding is established: Parker v Parker (1992) 16 Fam LR 458. 7 I am of the view that an application under S 474D of the Crimes Act 1900 comfortably fits within the legislative framework that permits costs orders to be made…
Re JJT; Ex Parte Victoria Legal Aid [1998] HCA 44
Citation 30 (Para 19)

…dron J. Her Honour so held on the basis that the power will not be exercised "arbitrarily or capriciously or to work oppression or abuse"; see also Parker v Parker (1992) 16 Fam LR 458 at 462; Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203; Caboolture Park Shopping Centre Pty Ltd (In Liq) v White Industries (Qld) Pty Ltd…

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