ROBERTSON & ROBERTSON - [2012] FamCAFC 60

FAMILY COURT OF AUSTRALIA

ROBERTSON & ROBERTSON

[2012] FamCAFC 60

FAMILY LAW – APPEAL – Adequacy of Reasons – Valuation of superannuation interest – Whether the Federal Magistrate failed to make relevant findings of fact as to the value of the asset pool – Where valuation of superannuation interest was six years old – Where Federal Magistrate failed to make findings in relation to the value of the husband’s superannuation interest – Where the Federal Magistrate failed to make findings as to the respective contributions of the parties – Where it was not open to the Federal Magistrate to find that the orders were just and equitable – Appealable error established – Appeal allowed – Matter remitted for rehearing.

FAMILY LAW – Appellant’s success on appeal arose because of errors by the Federal Magistrate – Appropriate to grant certificates to both parties under Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the re-hearing.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law Amendment (Superannuation) Regulations 2001 (Cth)

Bennett and Bennett (1991) FLC 92-191
Coghlan & Coghlan (2005) FLC 93-220
Ferraro and Ferraro (1993) FLC 92-335
In the Marriage of Lee Steere (1985) FLC 91-626

APPELLANT:

Ms Robertson

RESPONDENT:

Mr Robertson

FILE NUMBER:

BRC

7301

2008

APPEAL NUMBER:

130

2010

DATE DELIVERED:	4 May 2012
PLACE DELIVERED:	Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, Strickland & Ryan JJ

HEARING DATE:

1 March 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

23 November 2010

LOWER COURT MNC:

[2010] FMCAfam 1483

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Crabb

SOLICITOR FOR THE APPELLANT:

Schultz Toomey O’Brien Lawyers

SOLICITOR FOR THE RESPONDENT:

Ms Farnell of Family Law Solutions

Orders

The appeal be allowed.
The orders made by Federal Magistrate Burnett on 23 November 2010 be set aside.
The proceedings be remitted for rehearing to the Federal Magistrates Court before a Federal Magistrate other than Federal Magistrate Burnett.
That there be no order for costs in relation to the appeal.
That the Court grants to the appellant wife a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant/wife in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent/husband in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court,…

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 ROBERTSON & ROBERTSON

Details

AGLC: ROBERTSON & ROBERTSON [2012] FamCAFC 60
Case: [2012] FamCAFC 60
Decision Date: 4 May 2012

CaseChat Overview and Summary

This appeal arises from a family law matter where the wife, the appellant, sought to challenge the orders made by the Federal Magistrates Court concerning the distribution of property between the parties. The Federal Magistrates Court, led by Federal Magistrate Burnett, had made orders that the appellant considered inadequate, particularly in relation to the valuation and distribution of the husband's superannuation interest. The wife argued that the Federal Magistrate failed to make relevant findings of fact regarding the value of the asset pool and the respective contributions of the parties, which was critical to the equitable distribution of property. The Federal Court of Australia was tasked with determining whether the Federal Magistrate's decision was flawed and whether it was open to the court to find the orders just and equitable.

The central legal issues before the court were whether the Federal Magistrate made all necessary findings of fact and whether these findings were sufficient to support the orders made. The court had to consider whether the six-year-old valuation of the husband's superannuation interest was still relevant, and if the Federal Magistrate's failure to address this and other critical issues constituted an error that warranted the orders being set aside. The court also needed to decide whether the Federal Magistrate's conclusion that the orders were just and equitable was open to them, given the lack of specific findings.

The court found that the Federal Magistrate failed to make necessary findings of fact regarding the value of the husband's superannuation interest and the respective contributions of the parties. This omission constituted an error because it prevented the court from determining whether the orders were just and equitable. The court held that it was not open to the Federal Magistrate to find that the orders were just and equitable without making these critical findings. Consequently, the appeal was allowed, and the orders made by the Federal Magistrate were set aside. The court also remitted the proceedings for rehearing before a different Federal Magistrate, and granted costs certificates to both parties for the appeal and the rehearing, as appropriate under the Federal Proceedings (Costs) Act 1981.

The final orders of the court were to allow the appeal, set aside the orders made by the Federal Magistrate, remit the proceedings for rehearing before a different Federal Magistrate, and grant costs certificates to both parties for the appeal and the new trial. The court emphasized that the Federal Magistrate's errors warranted these steps to ensure that the matter was properly heard and decided.

Orders

Orders of the court

The appeal be allowed.

The orders made by Federal Magistrate Burnett on 23 November 2010 be set aside.

The proceedings be remitted for rehearing to the Federal Magistrates Court before a Federal Magistrate other than Federal Magistrate Burnett.

That there be no order for costs in relation to the appeal.

That the Court grants to the appellant wife a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant/wife in respect of the costs incurred by her in relation to the appeal.

The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent/husband in respect of the costs incurred by him in relation to the appeal.

The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.