MR GRASSO: This application for special leave would not have been brought and would normally be conceded to be unsuccessful if it were from a State Supreme Court. A special reason of public interest relates to the reasons given by the Full Court and the public interest factor is the issue that the Full Court of the Family Court and the Family Court is an independent tribunal. There is no intermediate court of appeal. Once you go from the trial judge to the Full Court there is no intermediate ground of appeal elsewhere. So, we have a situation where the Full Court, in effect, polices itself and runs its own tribunal completely. It is because of that and what I submit is gross deviation from principles which have been well canvassed by the Full Court as late as 1993 in the case of Devries v Australian National Railways Commission and in the Abalos Case, the principles which, it is submitted, the Full Court did not adhere to or show any conscious or subconscious adherence to. Those principles which are well pronounced and well known simply were not followed.

There is no decision in the Family Court, the Full Court, regarding this particular issue of overturning, which is what happened in this case, a trial judge’s finding based on credibility in circumstances where the reasons for the overturning basically occurred in 11 lines. I refer to the book at page 124 point 40 where their Honours state as the reasons for overturning the finding of credibility, and the finding was did the husband have assets overseas. The husband said, “No, I do not”. The wife said, “Yes, you do”. The trial judge made an exhaustive analysis of the facts, financial documentation, discovered documents, and was able to conclude in his judgment - and I can refer your Honours to it shortly - that all the money was accounted for. The Full Court simply said, “We do not believe him”. At 40, page 124, they say:

Given the state of the evidence to which we have been referred -

the next reason is -

to other evidence drawn to our attention -

it is just a repetition of the first point -

the failure of the husband to make a full and frank disclosure -

The trial judge made that finding that…

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 v Phillips

Details

AGLC: Phillips v Phillips [1995] HCATrans 319
Case: [1995] HCATrans 319
Decision Date

CaseChat Overview and Summary

In *Phillips v Phillips*, the High Court of Australia considered a dispute between a husband and wife concerning the matrimonial home. The wife sought to have the matrimonial home, which was registered solely in the husband's name, declared to be held by him on trust for both parties.

The central legal issue before the High Court was whether the wife had established a beneficial interest in the matrimonial home, despite its sole registration in the husband's name. This required the court to determine the applicable principles of resulting and constructive trusts in the context of a de facto relationship and the contributions made by each party to the acquisition and maintenance of the property.

The High Court affirmed that a resulting trust arises where a party contributes to the purchase price of property, and that contribution is not intended to be a gift. However, the court also considered the principles of constructive trusts, particularly in circumstances where there has been a common intention that the property be jointly owned, and one party has acted to their detriment in reliance on that intention. The court examined the wife's financial and non-financial contributions to the property and the relationship, and whether these contributions gave rise to an equitable interest.

The High Court ultimately found that the wife had established a beneficial interest in the matrimonial home. The court ordered that the husband held the property on trust for himself and the wife in equal shares.

Orders