Pastern & Pastern

Case [2007] FamCA 620

FAMILY COURT OF AUSTRALIA

PASTERN & PASTERN [2007] FamCA 620

FAMILY LAW  - APPEAL AGAINST TRIAL JUDGE’S DETERMINATION OF THE DIVISION OF ASSETS

FAMILY LAW – APPEAL FROM FAMILY COURT OF AUSTRALIA – PROPERTY SETTLEMENT – CONTRIBUTIONS – Assertion that the trial Judge erred in the exercise of his discretion by failing to give due weight to the contributions of the wife not established.

FAMILY LAW - PROPERTY SETTLEMENT – STATUTORY ADJUSTMENT – Not established that the trial Judge erred in the exercise of his discretion by determining an inadequate s 75(2) Family Law Act 1975 adjustment in favour of the wife. Elsey v Elsey 1997 FLC 92-727 followed.

FAMILY LAW - PRACTICE AND PROCEDURE – ADEQUACY OF REASONS – Not established that the trial Judge failed to give adequate reasons for his determination of s 75(2) Family Law Act 1975 adjustment. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 and Bennett and Bennett (1991) FLC 92-191 cited.

FAMILY LAW - PRACTICE AND PROCEDURE – EVIDENCE – Assertion that the trial Judge accepted and utilised calculations of the husband which were not based on evidence not established.
Family Law Act 1975 s 75(2)

House v The King (1936) 55 CLR 499
Norbis v Norbis (1986) 161 CLR 513
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Metwally (No 2) v University of Wollongong (1985) 60 ALR 68
Coulton v Holcombe (1986) 162 CLR 1
Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990)169 CLR 279
De Winter v De Winter (1979) FLC ¶90-605
Elsey v Elsey (1997) FLC 92-727
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24

Bennett and Bennett (1991) FLC 92-191

APPELLANT: Ms Pastern
RESPONDENT: Mr Pastern
FILE NUMBER: NCF 1371 of 2001
APPEAL NUMBER: EA 84 of 2005
DATE DELIVERED: 27 June 2007
PLACE DELIVERED: Sydney
JUDGMENT OF: Finn, Coleman, May JJ
HEARING DATE: 5 December 2006
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 28 June 2005
LOWER COURT MNC: O'Ryan J

REPRESENTATION

COUNSEL FOR THE APPELLANT: The appellant wife appeared in person
SOLICITOR FOR THE APPELLANT: Rugendyke Lawyers
COUNSEL FOR THE RESPONDENT: Mr. Richardson SC and Mr. Batey
SOLICITOR FOR THE RESPONDENT: Attwaters

Orders

  1. That the wife’s appeal be dismissed.

  2. That the wife pay the husband’s costs as agreed or assessed on a party and party basis.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referrred to as Pastern & Pastern.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 84 of 2005
File Number: NCF 1371 of 2001

Ms Pastern

Appellant

And

Mr Pastern

Respondent

REASONS FOR JUDGMENT

  1. By Amended Notice of Appeal filed 26 September 2006 Ms Pastern (“the wife”) appealed against orders made by O’Ryan J on 28 June 2005 in proceedings between herself and Mr Pastern (“the husband”) pursuant…

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AGLC
Pastern & Pastern [2007] FamCA 620
Case
[2007] FamCA 620
Decision Date

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, comprising Finn, Coleman, and May JJ, heard an appeal by the wife against a trial judge's determination regarding the division of assets. The wife contended that the trial judge erred in his discretion by failing to give sufficient weight to her contributions and by making an inadequate adjustment under section 75(2) of the *Family Law Act 1975* in her favour. She also argued that the trial judge did not provide adequate reasons for his decision and that he accepted and utilised calculations from the husband that were not supported by evidence.

The primary legal issues before the Full Court were whether the trial judge had erred in his assessment of the parties' contributions, both financial and non-financial, and whether the statutory adjustment under section 75(2) of the *Family Law Act 1975* was inadequate. The court was also required to consider whether the trial judge's reasons for his determination were sufficient and whether he had improperly relied on unevidenced calculations presented by the husband.

The Full Court dismissed the wife's appeal, finding no error in the trial judge's exercise of discretion. Regarding the contributions, the court noted that the wife's assertion that the trial judge failed to give due weight to her contributions was not established. The court followed the principles in *Elsey v Elsey* (1997) FLC 92-727, holding that it was not established that the trial judge erred in determining an inadequate section 75(2) adjustment. Furthermore, the court found that the trial judge had provided adequate reasons for his determination, citing *Soulemezis v Dudley (Holdings) Pty Ltd* (1987) 10 NSWLR 24 and *Bennett and Bennett* (1991) FLC 92-191. The court also rejected the argument that the trial judge had accepted unevidenced calculations, finding that the wife's own "spreadsheet" was largely unsupported by evidence and that there was no challenge to the schedule of figures provided by the husband's counsel, which formed the basis of the trial judge's findings. The court was satisfied that both parties had made full and frank disclosure.

Consequently, the wife's appeal was dismissed, and she was ordered to pay the husband's costs.

Orders

Orders of the court

1.

That the wife’s appeal be dismissed.

2.

That the wife pay the husband’s costs as agreed or assessed on a party and party basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Ground 4.1 of the wife’s Amended Notice of Appeal provided: 4.1In using and accepting the calculations of the Husband’s Counsel which were not based on any evidence. See figures notated on paragraphs 366, 388, 391 and 393 of Judgment; The wife sought to advance this ground by reference to a “spreadsheet” prepared by her, the effect of which, if accepted, was that, in the post separation period, the indebtedness of the parties was reduced by the husband from $394,823.94 to $213,173.02 rather than, as the trial Judge found, (Appeal Book Vol 1, page 70, para 366) from “$545,480” to “approximately $200,000”. The wife’s “spreadsheet”, was largely unsupported by reference to evidence which was before the trial Judge. Moreover, as the submissions of Counsel then appearing on her behalf reveal, there was no challenge to the schedule of figures provided by Counsel for the husband to the trial Judge, whichever of the two documents referred to by the wife was actually tendered to his Honour. The schedule provided the figures found by his Honour in the passage of his judgment to which we have referred. Nothing to which the wife has referred the Court provides a foundation for concluding that the trial Judge erred in finding that the “comparison of the parties’ debt situation at separation, $545,480, to their joint current debt position of approximately $200,000, illustrates the application and effect of the husband’s control of the income stream from S Veterinary Hospital and the V trust. The whole of the reduction was made without any contribution by the wife” (Appeal Book Vol 1, page 70, para 366). His Honour subsequently recorded that “the evidence does not enable me to conclude on the balance of probabilities that the husband has failed to make a full and frank disclosure or to make the findings, which the wife urges upon me to make”, being “satisfied that both parties made a full and frank disclosure of their financial circumstances and were not seeking to mislead me” (Appeal Book Vol 1, page 71, paras 368-9). In the second paragraph upon which the wife sought to rely (Appeal Book Vol 1, page 74, par 388) the trial Judge said:388.I accept that the husband has continued to work as a veterinarian and as a result of his efforts considerable sums have been generated that were applied for a variety of purposes including debt reduction and maintenance to the wife and so on. This is relevant. On the other hand the wife has continued to work on and maintain “B” and although the income has not been nearly as significant as that which came from the husband’s efforts it should not be discounted because of that fact. I have no doubt that the wife’s efforts in attempting to conduct a grazing business and maintain a rural property were quite arduous and stressful. In the context of consideration of the earning capacities of the parties one matter relied upon by the husband was the ability of the wife to manage the grazing enterprise. In the result there remains the significant contribution by the wife of what she received from her parents.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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