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
That the appeal be allowed.
That paragraph 1 of the orders made on 5 May 2008 be discharged.
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).
That paragraph 5 of the orders of 5 May 2008 be varied by deleting all words prior to the words “the wife”.
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.
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.
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.
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
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.
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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- Phipson & Phipson [2009] FamCAFC 28
- Case
- [2009] FamCAFC 28
- Decision Date
CaseChat Overview and Summary
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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