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Preston & Preston

Preston & Preston

Case [2022] FedCFamC1A 157 5 October 2022

Appeal

Contributions

Breach of Contract

Unconscionable Conduct

Specific Performance

Res Judicata

Family Law

Type to search within this case.

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Preston & Preston [2022] FedCFamC1A 157

Appeal from: Preston & Preston(No 2) [2022] FedCFamC2F 303

Appeal number(s): NAA 90 of 2022

File number(s): NCC 3843 of 2019

Judgment of: ALSTERGREN CJ, MCCLELLAND DCJ & AUSTIN J

Date of judgment: 5 October 2022

Catchwords: FAMILY LAW – APPEAL – Property – Where the husband appeals from property settlement orders – Superannuation – Where the primary judge incorrectly treated a non-commutable military pension as a capitalised asset rather than an income stream – Where no splitting order was sought in respect of it – Where the military pension was double counted as a future source of income – Contributions – Where the primary judge did not holistically weigh the entirety of the parties’ financial and non-financial contributions according to the unique facts and circumstances – Error established – Appeal allowed – Re-exercise – Contributions assessed at 60/40 in favour of the husband – 10 percent adjustment made in favour of the wife – Costs certificates granted for the appeal.

Legislation:
Family Law Act 1975 (Cth) Pts VIII, VIIIB, ss 75, 79, 117

Federal Proceedings (Costs) Act 1981 (Cth)

Cases cited:
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Carron & Laninga (2019) FLC 93-909; [2019] FamCAFC 115

Chapman & Chapman (2014) FLC 93-592; [2014] FamCAFC 91

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Horrigan & Horrigan [2020] FamCAFC 25

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21

Mayhew v Fairweather (2022) 64 Fam LR 633; [2022] FedCFamC1A 53

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Semperton v Semperton (2012) 47 Fam LR 626; [2012] FamCAFC 132

Number of paragraphs: 56

Date of hearing: 24 August 2022

Place: Newcastle

Counsel for the Appellant: Mr O’Reilly

Solicitor for the Appellant: Delaney Roberts Family Lawyers

Counsel for the Respondent: Mr Gould

Solicitor for the Respondent: Baker Love Lawyers
ORDERS

NAA 90 of 2022
NCC 3843 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR PRESTON

Appellant

AND:
MS PRESTON

Respondent

order made by:

ALSTERGREN CJ, MCCLELLAND DCJ & AUSTIN J

DATE OF ORDER:

5 October 2022

THE COURT ORDERED ON 24 AUGUST 2022 THAT:
1.The appeal be allowed.
2.Within 21 days, each party shall file and serve written submissions of maximum 16 pages, to include submissions as to costs, and to be based on the same evidence before and the same findings made by the trial judge (save for any findings that have been impugned by allowing the appeal).
3.The parties have liberty to jointly email to the chambers of the Chief Justice any terms of settlement within 14 days.

THE COURT FURTHER ORDERS THAT:
1.The orders made on 5 April 2022 are set aside.
2.Pursuant to Pt VIII of the Family Law Act 1975 (Cth), it is ordered that:
(a)The appellant shall…

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 Preston & Preston

Details

AGLC: Preston & Preston [2022] FedCFamC1A 157
Case: [2022] FedCFamC1A 157
Decision Date

CaseChat Overview and Summary

This appeal concerns the property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) in a case between Preston and Preston. The husband appeals from property settlement orders made by the primary judge on 5 April 2022, and the appeal was heard on 24 August 2022. The appeal was allowed and the orders made by the primary judge were set aside. The husband qualified for a defined benefit military pension upon his medical discharge from the armed services in 2010, and the primary judge erred by treating this pension as a capitalised asset rather than as an income stream. The primary judge also erred by not holistically weighing the entirety of the parties’ financial and non-financial contributions according to the unique facts and circumstances. The appeal court re-exercised its discretion and ordered that the husband pay the sum of $339,194 to the wife and transfer his right, title, and interest in the real property and improvements comprising the Suburb A property to the wife. The husband is also declared the sole legal and beneficial owner of the net proceeds realised upon the sale of the Suburb B property.

Orders