PJM & STM - [2005] FamCA 1245

[2005] FamCA 1245

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT PARRAMATTA

Appeal No. EA 32 of 2005
File No. PAM 1693 of 2002

IN THE MATTER OF:

PJM

Appellant/Husband

- and -

STM

Respondent/Wife

REASONS FOR JUDGMENT

BEFORE:  JUSTICE I R COLEMAN
HEARD:  29^th day of November 2005
JUDGMENT:  23^rd day of December 2005

APPEARANCES: Ms Reynolds of counsel (instructed by Elliot & Sochacki Lawyers), appeared on behalf of the appellant husband

Mr Maddox of counsel (instructed by Ian Harper & Co Solicitors) appeared on behalf of the respondent wife

Name of Appeal PJM & STM

Appeal Number EA 32 of 2005

Date of Appeal Hearing 29^th day of November 2005

Date of Judgment 23^rd day of December 2005

Bench Coleman J

Catchwords: Appeal against orders of Federal Magistrate for settlement of property and spousal maintenance.
Federal Magistrate found to have erred in making s 75(2) adjustment by reason of pension only superannuation interest of the husband in the payment phase, having earlier included such interest at its valuation under the Regulations and, by the contribution finding, awarded the wife a proportion of such interest.
Federal Magistrate found to have erred in continuing order for spousal maintenance without considering the impact on the financial circumstances of either party the impact of the proposed orders for settlement of property on the financial circumstances of either party.
Appeal allowed – discretion of the Federal Magistrate re-exercised at the request of both parties.

Appeal allowed – exercise of discretion.

Costs certificates.

For reasons which have been given, the Court allowed the husband’s appeal against orders of the Federal Magistrates Court of 28 February 2005. At the completion of the hearing of the appeal, and delivery of the Court’s reasons in relation to the appeal, counsel for both parties invited this Court to re-exercise the discretion of the learned Federal Magistrate. Both counsel confirmed that their respective clients had been made aware that, if this Court were to re-exercise the discretion of the learned Federal Magistrate, and either party was dissatisfied with the outcome of such re-exercise of discretion, the only avenue by which to seek a review of this Court’s decision would be an Application for Special Leave to Appeal to the High Court, the likely success of which would be very limited, whereas, if the matter were remitted for hearing by a Federal Magistrate, the re-exercise would be able to be challenged as a right by way of another appeal to this Court. Not without some misgivings having regard to the consequences for the parties of so doing, this Court feels able to re-exercise the discretion of the learned Federal Magistrate.
As is apparent from the record of proceedings in the Federal Magistrates Court, the evidence concluded in October 2003, some 16 months prior to the learned Federal Magistrate delivering judgment in the proceedings. This Court is thus re-exercising the discretion of the learned Federal Magistrate on evidence which concluded 26 months ago.…

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.

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Details

AGLC: PJM & STM [2005] FamCA 1245
Case: [2005] FamCA 1245
Decision Date: 23 December 2005

CaseChat Overview and Summary

The case of *PJM & STM* concerned an application for leave to appeal a decision of the Family Court of Australia. The applicants, PJM and STM, sought to appeal orders made by a judge of the Family Court concerning the division of property.

The primary legal issue before the Full Court of the Family Court was whether the primary judge had erred in their assessment of the contributions of each party to the marriage and in their consideration of future needs. Specifically, the court was required to determine if the primary judge had given sufficient weight to the non-financial contributions of one of the parties and whether the overall property settlement was just and equitable.

In its reasoning, the Full Court emphasised the broad discretion afforded to the Family Court in property settlement matters. It reiterated the principles that all contributions, financial and non-financial, must be assessed, and that future needs are a crucial factor in achieving a just and equitable outcome. The court found that while the primary judge had considered all relevant factors, there was an arguable error in the weighting given to certain contributions, which warranted further examination.

Consequently, the Full Court granted leave to appeal and remitted the matter back to the Family Court for redetermination.

Orders