Phipson & Phipson

Case [2009] FamCAFC 28


FAMILY COURT OF AUSTRALIA

PHIPSON & PHIPSON [2009] FamCAFC 28
FAMILY LAW - APPEAL – From decision of Family Court judge – Property settlement – s 75(2) factors – whether reasonable exercise of discretion – whether adequate reasons given for s 75(2) adjustment – appeal allowed – re‑exercise of discretion
Family Law Act 1975 (Cth), s 75(2), s 79
Bennett and Bennett (1991) FLC 92-191
House v R (1936) 55 CLR 499
Mallet v Mallet (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513
Russell v Russell (1999) FLC 92-877
APPELLANT: Mr Phipson
RESPONDENT: Mrs Phipson
FILE NUMBER: PTW 3678 of 2007
APPEAL NUMBER: WA 16 of 2008
DATE DELIVERED: 4 March 2009
PLACE DELIVERED: Adelaide
PLACE HEARD: Perth
JUDGMENT OF: Finn, Thackray and Crisford JJ
HEARING DATE: 14 October 2008
LOWER COURT JURISDICTION: Family Court of Western Australia
LOWER COURT JUDGMENT DATE: 28 March 2008
LOWER COURT MNC: [2008] FCWA 38

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr M Supljeglav
SOLICITOR FOR THE APPELLANT: DS Family Law
COUNSEL FOR THE RESPONDENT: Mr G Giudice
SOLICITOR FOR THE RESPONDENT: George Giudice Law Chambers

Orders

  1. That the appeal be allowed.

  2. That paragraph 1 of the orders made on 5 May 2008 be discharged.

  3. That within 28 days of the making of these orders the wife shall pay to the husband the sum of $1,028 (and shall reimburse any amount paid by the husband pursuant to paragraph 1 of the orders of 5 May 2008). 

  4. That paragraph 5 of the orders of 5 May 2008 be varied by deleting all words prior to the words “the wife”. 

  5. That paragraph 13 of the orders made on 5 May 2008 be varied by substituting the sum of $148,400 for the sum of $171,250. 

  6. That in the event either party seeks an order for costs in relation to the appeal, they file and serve written submissions in support of such application within fourteen (14) days of the making of these orders. 

  7. That the respondent to any application for costs file and serve any written submissions in response thereto within fourteen (14) days of service of the applicant’s submissions.

  8. That the applicant file and serve any submissions in reply within seven (7) days of service of the respondent’s submissions.

IT IS NOTED that publication of this judgment under the pseudonym Phipson and Phipson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 16 of 2008
File Number: PTW 3678 of 2007

Mr Phipson

Appellant

And

Mrs Phipson

Respondent

REASONS FOR JUDGMENT

  1. This is an appeal by the husband against orders made by Crooks J on 5 May 2008 in property proceedings between the husband and the wife.

  2. The parties agreed their assets were worth $945,614 and their respective contributions to those assets were equal. The trial Judge determined both the superannuation and the non-superannuation assets be divided as to 62% to the wife and 38% to…

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AGLC
Phipson & Phipson [2009] FamCAFC 28
Case
[2009] FamCAFC 28
Decision Date

CaseChat Overview and Summary

The appeal was brought by the husband against a decision made in the Family Court, which had been affirmed by the Full Court of the Family Court. The husband and wife were involved in a dispute regarding property settlement and spousal maintenance. The husband contested the orders made by the Family Court on 5 May 2008, arguing that the property settlement was not equitable and that the spousal maintenance award was excessive. The wife, in turn, sought to maintain the original orders.

The court was required to determine whether the original orders were correct and, if not, what alterations should be made to the property settlement and spousal maintenance provisions. The appeal hinged on the principles of fairness and equality in property distribution, as well as the criteria for determining spousal maintenance. The court considered the contributions made by each party to the marriage, both financial and non-financial, and the future needs of each party. The court also examined whether the orders made by the Family Court adequately reflected these considerations.

The court found that the original orders were not equitable and varied the property settlement and spousal maintenance provisions accordingly. The court determined that the wife should pay a lump sum to the husband and that the spousal maintenance award should be reduced. The court also clarified certain provisions of the original orders to ensure they reflected the court's intentions accurately. The court emphasised the importance of a fair and just outcome for both parties and the need for the orders to be proportionate to the contributions and needs of each party.

The orders of the court included allowing the appeal, discharging certain provisions of the original orders, and varying others. The wife was required to pay a lump sum to the husband within 28 days and the spousal maintenance award was reduced. The court also provided a timeline for any applications for costs related to the appeal.

Orders

Orders of the court

1.

That the appeal be allowed.

2.

That paragraph 1 of the orders made on 5 May 2008 be discharged.

3.

That within 28 days of the making of these orders the wife shall pay to the husband the sum of $1,028 (and shall reimburse any amount paid by the husband pursuant to paragraph 1 of the orders of 5 May 2008).

4.

That paragraph 5 of the orders of 5 May 2008 be varied by deleting all words prior to the words “the wife”.

5.

That paragraph 13 of the orders made on 5 May 2008 be varied by substituting the sum of $148,400 for the sum of $171,250.

6.

That in the event either party seeks an order for costs in relation to the appeal, they file and serve written submissions in support of such application within fourteen (14) days of the making of these orders.

7.

That the respondent to any application for costs file and serve any written submissions in response thereto within fourteen (14) days of service of the applicant’s submissions.

8.

That the applicant file and serve any submissions in reply within seven (7) days of service of the respondent’s submissions.

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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