FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – INDIRECT CONTRIBUTIONS – Whether the primary judge considered the wife’s indirect contributions to the husband’s superannuation interest – Whether the primary judge considered the nature, form and characteristics of the interest – Where there was evidence of the wife’s non-financial contributions that should have at least been considered as possible indirect contributions to the husband’s superannuation interest – Appeal allowed.
FAMILY LAW – APPEAL – JUDGMENTS – Adequacy of Reasons – Where the appellant wife submits the primary judge’s reasons were inadequate – Where the primary judge’s reasons did not sufficiently indicate to the parties what evidence was considered or expose the basis for the findings and conclusions that were reached – Appeal allowed.
FAMILY LAW – APPEAL – COSTS – Where no order for costs made – Where the appeal has succeeded on a point of law – Costs certificates issued for appeal and re‑hearing.
[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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AGLC
Perrin & Perrin (No 2) [2018] FamCAFC 122
Case
[2018] FamCAFC 122
Decision Date
CaseChat Overview and Summary
In the appeal of Perrin & Perrin (No 2), the Full Court of the Family Court of Australia was tasked with reviewing a property settlement decision made by the primary judge. The dispute arose from the consideration of the wife’s indirect contributions to the husband’s superannuation interest and the adequacy of the primary judge’s reasons. The appeal was brought by the wife, who argued that the primary judge failed to consider her indirect contributions and that the reasons provided were insufficient.
The court identified two main issues for determination. Firstly, whether the primary judge adequately considered the wife’s indirect contributions to the husband’s superannuation interest, including her non-financial contributions. Secondly, whether the primary judge’s reasons for the decision were sufficient, particularly in failing to adequately indicate the evidence considered and the basis for the findings and conclusions. The court held that the primary judge did not properly consider the wife’s indirect contributions and that the reasons provided were inadequate. Consequently, the appeal was allowed.
In reaching its decision, the court noted that the primary judge did not address the wife’s non-financial contributions, which should have been considered as potential indirect contributions. The court further found that the reasons did not sufficiently outline the evidence considered or the reasoning behind the findings and conclusions, thereby failing to provide a clear basis for the decision. As a result, the appeal was allowed, and the original orders were set aside. The matter was remitted to the Federal Circuit Court of Australia for rehearing before a different judge.
The court also addressed the issue of costs. Given that the appeal succeeded on a point of law, the court issued costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and the rehearing, to be determined by the Attorney-General. This included certificates for the costs incurred by both parties during the appeal and any costs incurred during the new trial.
Orders
Orders of the court
1.
The appeal be allowed.
2.
The orders made in this proceeding on 15 February 2018 be set aside.
3.
The matter be remitted to the Federal Circuit Court of Australia for rehearing before a judge other than Judge Myers.
4.
The Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to this appeal.
5.
The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of the costs incurred by the respondent husband in relation to this appeal.
6.
The Court grants to each party a costs certificate pursuant to the provisions of
s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.