FAMILY COURT OF AUSTRALIA
| PITTMAN & PITTMAN | [2010] FamCAFC 30 |
| FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – Family trust - value of property - where the trial judge did not include the husband’s interest in a family trust in the property pool – whether the trial judge erred in her calculation of the value of the parties’ property – whether the trial judge erred in failing to treat the husband’s interest in the family trust as property – where the husband was found to have an irrevocable entitlement to both the income of the trust and to a share in the capital distribution on the vesting date – where it was found that the husband’s interest in the family trust was property capable of division between the parties – appeal allowed – orders set aside – matter remitted for rehearing by another judge. FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – Contributions – whether the trial judge erred in her assessment of the wife’s contributions and the adjustment in favour of the wife on account of s 75(2) factors – where Senior Counsel for the wife submitted that the appeal against the percentage distributions of the trial judge would not be pursued if they were applied to a pool including the husband’s interest in the family trust – where it was found that the trial judge’s property divisions were applied to an erroneous pool - the Court found that it would not be just and equitable to apply the trial judge’s contribution assessment and s 75(2) adjustment to the enlarged property pool without a recalculation of such assessment and adjustment – matter remitted for rehearing by another judge. FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – Adjournment of proceedings – ground of appeal not pursued. FAMILY LAW - CROSS-APPEAL – PROPERTY SETTLEMENT – Contributions – whether the trial judge erred in her assessment of the husband’s contributions to the parties’ property – where the trial judge divided the assets 60 per cent to the husband and 40 per cent to the wife – where the husband sought 80 per cent - whether the trial judge erred in making an adjustment of 40 per cent to the wife for s 75(2) matters – where property divisions were found to be directed to an erroneous pool – cross-appeal allowed – orders set aside – matter remitted for rehearing by another judge. FAMILY LAW - COSTS – orders made for written submissions in relation to the costs of the appeal and the cross-appeal. |
| Family Law Act 1975 (Cth) ss 4, 75(2), 79, 79(4), 79(5) |
| Best and Best (1993) FLC 92-418 Duff and Duff (1977) FLC 92-762 Figgins and Figgins (2002) FLC 92-762 Gabel v Yardley (2008) FLC 93-386 Hurst & Weber [2009] FamCAFC 137 Kelly & Kelly (No.2) (1981) FLC 91-108 Kennon v Spry [2008] 251 ALR 257 Stephens & Stephens & Ors (2007) FLC 93-336 |
| APPELLANT: | Mrs Pittman |
| RESPONDENT: | Mr Pittman |
| FILE NUMBER: | PTW | 578 | of | 2003 |
| APPEAL NUMBER: | WA | 28 |
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- AGLC
- Pittman & Pittman [2010] FamCAFC 30
- Case
- [2010] FamCAFC 30
- Decision Date
CaseChat Overview and Summary
The Court found that the trial judge had erred in excluding the husband’s interest in the family trust from the property pool. The husband had an irrevocable entitlement to both the income of the trust and to a share in the capital distribution on the vesting date, making his interest in the trust property that was capable of division. Consequently, the property pool should have included the husband’s interest in the family trust. The Court also found that the trial judge's assessment of contributions and the section 75(2) adjustment was based on an erroneous property pool. It was not just and equitable to apply these assessments to the enlarged property pool without a recalculation.
The appeal was allowed, and the cross-appeal was also allowed in part. The orders made by the primary judge were set aside, and the matter was remitted for rehearing by another judge. The parties were granted liberty to file written submissions regarding the costs of the appeal and cross-appeal, with a specific timeline provided for the submission and response process. The Court emphasised the necessity for a rehearing to ensure that the correct property pool was used in the calculations of contributions and section 75(2) adjustments.
Orders
Orders of the court
1.
That the appeal be allowed.
2.
That the cross-appeal be allowed.
3.
That Orders 2 and 5 of the orders made by the Honourable Justice Crisford on 16 October 2008 be set aside.
4.
That the applications heard by the Honourable Justice Crisford on 21 to 25 and 28 July 2008 be remitted for rehearing by a judge other than the Honourable Justice Crisford.
5.
That each party be at liberty to file and serve any written submissions in relation to the costs of the appeal and the costs of the cross-appeal within 28 days of the date hereof.
6.
That each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.
7.
That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
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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