Mr Jarrett of Counsel (instructed by Butler McDermott & Egan Solicitors, P O Box 117, Nambour Qld 4560), appeared on behalf of the Appellant Wife.
Mr Galloway of Counsel (instructed by Boyce Garrick Lawyers, P O Box 9, Mooloolaba Qld 4557), appeared on behalf of the Respondent Husband.

APPEAL SUMMARY

MATTER:  Margaret Mary Phillips and Peter Robert Phillips
APPEAL NUMBER:               NA 26 of 2001 (BR 6728 of 2000)
CORAM:  Finn, Kay and O’Ryan JJ
DATES OF HEARING:  7 August 2001
DATE OF JUDGMENT:         29 May 2002

CATCHWORDS: PROPERTY – Value of property – whether trial Judge erred in failing to determine the value of the former matrimonial home – whether order for the sale of the former matrimonial home was “just and equitable” - s 79 Family Law Act 1975

CASES: Lenehan and Lenehan (1987) FLC 91-814; The Commonwealth v Milledge (1953) 90 CLR 157; Borriello and Borriello (1989) FLC 92-147; Norbis v Norbis (1986) FLC 91-712; JEL and DDF (2001) FLC 93-075.

This was an appeal by the wife against orders for settlement of property made by Jerrard J on 5 April 2001.

His Honour assessed the parties’ contributions as at the date of separation as 45 per cent by the wife and 55 per cent by the husband, and made an adjustment of 5 per cent in favour of the wife on account of post separation contributions. It was agreed between the parties that the children would reside with the wife and his Honour made a further adjustment of 20 per cent in the wife’s favour on account of this factor. His Honour considered the husband’s financial resources would adequately deal with any difficulties that the husband may face because of his health.

The wife sought to retain and remain living in the former matrimonial home. Jerrard J could not resolve differences between the views of the two valuers of the property and proposed orders for the division of the parties’ property which assumed the former matrimonial home was valued as the husband’s valuer contended. However, his Honour considered that as he was unable to fashion orders with which the wife was content (by transferring to the husband most of the parties’ assets other than the home), the former matrimonial home should be sold.

The wife’s grounds of appeal concerned two main issues, namely, the treatment by the trial Judge of the valuation of the parties’ former matrimonial home and his treatment of the s 75(2) factors.

HELD in allowing the appeal:

The Full Court found no error on the part of the trial Judge in relation to his inability to find a value…

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.

Continue reading Phillips & Phillips

Details

AGLC: Phillips & Phillips [2002] FamCA 350
Case: [2002] FamCA 350
Decision Date: 29 May 2002

CaseChat Overview and Summary

Phillips & Phillips concerned an appeal to the Full Court of the Family Court of Australia regarding property settlement orders made by a trial judge. The primary dispute between the parties revolved around the valuation of their former matrimonial home and whether the order for its sale was just and equitable under section 79 of the *Family Law Act 1975* (Cth).

The legal issues before the Full Court were whether the trial judge had erred in failing to determine the specific value of the former matrimonial home and, consequently, whether the order for its sale was a just and equitable outcome in the circumstances of the case.

The Full Court found that the trial judge had indeed erred by not making a finding as to the value of the former matrimonial home. This omission was significant because it meant that the court could not properly assess the overall property pool or determine a just and equitable distribution of assets. The Court reiterated the principle that a just and equitable division requires a proper understanding of the value of the assets being divided. Without a determined value for the home, the order for its sale, while potentially a valid mechanism for division, could not be confirmed as just and equitable.

Consequently, the Full Court set aside the property settlement orders made by the trial judge and remitted the matter back to the Family Court for redetermination, with directions that the value of the former matrimonial home be ascertained.

Orders