Paul & Paul - [2012] FamCAFC 64

FAMILY COURT OF AUSTRALIA

PAUL & PAUL

[2012] FamCAFC 64

FAMILY LAW – APPEAL – PROPERTY – Appeal by the husband from property settlement and adult child maintenance orders – Whether the Family Law Magistrate erred by failing to separate the superannuation interests from the other property when identifying the assets of the parties – Whether his Honour erred by failing to specifically address the husband’s post-separation contributions to the superannuation funds – His Honour dealt appropriately with the parties’ superannuation interests – Whether his Honour erred in his assessment of s 79(2) factors – Whether his Honour erred by failing to give sufficient reasons as to why the orders made were, in all the circumstances, just and equitable – No appellable error found.

FAMILY LAW – APPEAL – ADULT CHILD MAINTENANCE – Whether his Honour erred in making an order pursuant to s 66L of the Family Law Act 1975 (Cth) for the husband to pay adult child maintenance – There was insufficient evidence to satisfy the legislative requirements of s 66L(1)(a) of the Family Law Act 1975 (Cth) – Appellable error found.

FAMILY LAW – APPEAL – Appeal allowed in part – Remitted for rehearing on the discrete issue of adult child maintenance – Costs submissions ordered.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343
Clausen & Clausen (1995) FLC 92-595
Coghlan & Coghlan (2005) FLC 93-220
House v The King (1936) 55 CLR 499
Woollams & Woollams (2004) FLC 93-195

APPELLANT:

Mr Paul

RESPONDENT:

Ms Paul

FILE NUMBER:

PTW

2735

2008

APPEAL NUMBER:

2011

DATE DELIVERED:

11 May 2012

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

May, Thackray & Crisford JJ

HEARING DATE:

15 November 2011

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

1 April 2011

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Smith

SOLICITOR FOR THE APPELLANT:

O'Sullivan Davies

COUNSEL FOR THE RESPONDENT:

Mr Berry

SOLICITOR FOR THE RESPONDENT:

Dwyer Durack

Orders

The appeal against the orders made by Family Law Magistrate Moroni on 1 April 2011 be allowed in part.
Paragraphs 10 and 11 of the orders made by Family Law Magistrate Moroni on 1 April 2011 be set aside.
The matter be remitted for rehearing in relation to the issue of adult child maintenance.
Either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal or in respect to costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) by filing such submissions and serving them on the other party within 21 days of the date hereof.
The other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions and serving them on the other party.
Either party be at liberty to reply to an answer by way of written submissions by filing such reply and…

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: Paul & Paul [2012] FamCAFC 64
Case: [2012] FamCAFC 64
Decision Date: 11 May 2012

CaseChat Overview and Summary

The appeal, Paul & Paul, involved the husband, the appellant, contesting the property settlement and adult child maintenance orders made by the Family Law Magistrate. The husband argued that the magistrate erred by not segregating his superannuation interests from other assets, failing to consider his post-separation contributions to superannuation, and not sufficiently addressing certain factors under section 79(2) of the Family Law Act 1975 (Cth). Additionally, he challenged the magistrate's decision to order adult child maintenance under section 66L of the Act. The court was required to determine whether the magistrate's decisions constituted errors warranting an appeal, particularly concerning the handling of superannuation interests and the assessment of relevant factors.

The court found that the Family Law Magistrate appropriately dealt with the parties' superannuation interests, considering them within the overall property settlement context. The court held that the magistrate did not err by failing to separately address the husband's post-separation contributions to superannuation, as these contributions were implicitly considered in the overall assessment. Regarding the factors under section 79(2) of the Act, the court determined that the magistrate's reasons were adequate and did not constitute an error. However, the court did find an error in the magistrate's assessment of the legislative requirements for adult child maintenance under section 66L(1)(a) of the Family Law Act 1975 (Cth). The evidence did not sufficiently support the making of such an order, leading to the conclusion that there was an appellable error in this aspect.

The appeal was allowed in part, with the orders concerning adult child maintenance being set aside. The matter was remitted for rehearing on the discrete issue of adult child maintenance. The court ordered that either party could submit written costs submissions within 21 days, with the other party having an additional 14 days to respond, and a further 7 days for a potential reply. Each party was also required to endorse the cover sheet with the date of service of their submissions on the other party.

Orders

Orders of the court

The appeal against the orders made by Family Law Magistrate Moroni on 1 April 2011 be allowed in part.

Paragraphs 10 and 11 of the orders made by Family Law Magistrate Moroni on 1 April 2011 be set aside.

The matter be remitted for rehearing in relation to the issue of adult child maintenance.

Either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal or in respect to costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) by filing such submissions and serving them on the other party within 21 days of the date hereof.

The other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions and serving them on the other party.

Either party be at liberty to reply to an answer by way of written submissions by filing such reply and serving it on the other party within a further 7 days.

Each party endorse on the cover sheet the date on which a copy of that submission was served on the other party.

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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