FAMILY LAW – APPEAL – PROPERTY – Long lapse of time between separation and final hearing – Whether the trial judge’s assessment of the parties’ contributions was outside the permissible ambit of discretion – Whether the trial Judge erred by failing to notionally add-back certain amounts to the parties’ property interests – Sufficiency of reasons – Disclosure – Whether the trial judge erred in not making an adverse inference against the husband in line with Jones & Dunkel – No obligation on the husband to disclose all aspects of his current wife’s financial circumstances – Appeal dismissed.
FAMILY LAW – CROSS APPEAL – Whether the s 75 (2) adjustment in the wife’s favour was “not open” and “plainly wrong” – Character of the parties’ superannuation interests – No objection to wife’s submissions that the parties’ disparate superannuation interests warranted an adjustment in her favour – Findings of the trial judge open on the evidence – Cross-appeal dismissed.
FAMILY LAW – APPEAL – COSTS – Where both appeal and cross-appeal have been wholly unsuccessful – Respondent’s application for costs in respect of abandoned grounds of appeal granted.
[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 Pates & Pates
Sign in free to access the full text
Details
AGLC
Pates & Pates [2018] FamCAFC 171
Case
[2018] FamCAFC 171
Decision Date
CaseChat Overview and Summary
The appeal arose out of a family law matter where the primary judge had made orders regarding the division of property between the parties. The husband appealed against the trial judge’s assessment of the parties’ contributions and the sufficiency of the reasons provided. He also argued that the trial judge failed to notionally add-back certain amounts to the parties’ property interests and erred in not making an adverse inference against him due to a failure to disclose information. The wife cross-appealed, contending that the trial judge should have made an adjustment under section 75(2) of the Family Law Act in her favour, given the disparity in the parties' superannuation interests.
The court considered whether the trial judge's assessment of the parties' contributions was outside the permissible ambit of discretion. It also examined whether the trial judge erred by not notionally adding back certain amounts to the parties' property interests, and whether there was a failure to make an adverse inference against the husband in line with the principles established in Jones & Dunkel. Additionally, the court assessed whether there was an obligation on the husband to disclose all aspects of his current wife's financial circumstances. The court found that the trial judge's assessment of contributions and the sufficiency of reasons were within the permissible scope of judicial discretion. It further held that there was no obligation on the husband to disclose all aspects of his current wife's financial circumstances, and that the husband had not failed to make a disclosure that would have led to an adverse inference.
The appeal was dismissed as the arguments put forward by the husband were without merit. The cross-appeal was also dismissed as the findings of the trial judge were open on the evidence and the disparity in superannuation interests did not warrant a section 75(2) adjustment in favour of the wife. In relation to costs, the court granted the wife's application for costs thrown away in respect of the abandoned grounds of appeal, ordering the husband to pay $3,000. Both parties were to bear their own costs for the appeal and cross-appeal.
The final orders of the court granted the appellant leave to rely on the Further Amended Notice of Appeal. The appeal and cross-appeal were dismissed, and the appellant was ordered to pay the respondent's costs thrown away in respect of the abandoned grounds of appeal. Each party was to bear their own costs in relation to the appeal and cross-appeal. The form of the order was subject to its entry in the Court’s records.
Orders
Orders of the court
1.
The appellant is granted leave to rely upon the Further Amended Notice of Appeal dated 6 July 2018 and filed in Court on 10 July 2018.
2.
The appeal is dismissed.
3.
The cross appeal is dismissed.
4.
The appellant shall pay the respondent’s costs thrown away in respect of the abandoned grounds of appeal, assessed in the sum of $3,000, but otherwise the parties shall bear his and her own costs in respect of the appeal and cross appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.