FAMILY COURT OF AUSTRALIA
| RODGERS & RODGERS (NO. 2) | [2016] FamCAFC 104 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – whether the trial judge erred in refusing to deduct a calculation of the total future taxation payable by the parties’ corporation – where the treatment of the liability should be governed by what is just and equitable as between the parties – where the failure of the trial judge to include the calculated taxation liability is not, of itself, an error – where it was within discretion for the trial judge to treat the liability as a matter to be considered by reference to s 79(4)(e) – where the s 79(4)(e) assessment was not “plainly unjust” or “plainly wrong” – where the trial judge failed to consider relevant considerations in the s 79(4)(e) assessment – where error in the exercise of trial judge’s discretion established – appeal allowed – matter to be re-determined by the Full Court. FAMILY LAW – APPEAL – PROPERTY – RE-EXERCISE OF DISCRETION – where the appeal was allowed – where the husband held to be entitled to 55 per cent of the net assets and the wife to 45 per cent – costs certificate granted. |
| Family Law Act 1975 (Cth) ss 75(2), 79, 79(2), 79(4) and 117(1) |
Federal Proceedings (Costs) Act 1981 (Cth) ss 6 and 9
Income Tax Assessment Act 1936 (Cth) Div 7A and s 108
| Af Petersens and Af Petersens (1981) FLC 91-095 Aleksovski vAleksovski (1996) FLC 92-705 Biltoft and Biltoft (1995) FLC 92-614 Campbell v Kuskey (1998) FLC 92-795 Chorn and Hopkins (2004) FLC 93-204 Ferraro & Ferraro (1993) FLC 92-335 Lovell v Lovell (1950) 81 CLR 513 Money and Money (1994) FLC 92-485 Rowell and Rowell (1989) FLC 92-026 Shave & Shave (unreported, Family Court of Australia, Fogarty, Lindenmayer & Moore JJ, 13 February 1997) |
| APPELLANT: | Mr Rodgers |
| RESPONDENT/CROSS-APPELLANT: | Ms Rodgers |
| FILE NUMBER: | PTW | 2314 | of | 2011 |
| APPEAL NUMBER: | WA | 6 | of | 2015 |
| DATE DELIVERED: | 4 May 2016 10 June 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Perth & Sydney via video-link to Perth |
| JUDGMENT OF: | Thackray, Ainslie-Wallace & Murphy JJ |
| HEARING… |
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- AGLC
- Rodgers & Rodgers (No 2) [2016] FamCAFC 104
- Case
- [2016] FamCAFC 104
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the trial judge erred in not deducting the calculated taxation liability from the property settlement and whether the trial judge’s decision was plainly unjust or plainly wrong. The court held that the failure to include the taxation liability was not, in itself, an error, as it was within the trial judge's discretion to treat the liability as a matter to be considered under section 79(4)(e) of the Family Law Act. However, the court found that the trial judge had failed to consider relevant considerations in making this assessment, and that the exercise of the trial judge's discretion was erroneous. The court concluded that the appeal was allowed and the matter should be re-determined by the Full Court.
The Full Court allowed the appeal and varied the orders made by the trial judge. The husband was held to be entitled to 55 per cent of the net assets and the wife to 45 per cent. Each party was ordered to bear their own costs of and incidental to the appeal. Additionally, the husband was granted a costs certificate in respect of his costs of and incidental to the appeal, and the wife was granted a costs certificate in respect of her costs of and incidental to the appeal. The court’s decision was that the husband should pay the wife $532,701, with the wife to pay the husband $116,057 within 14 days.
Orders
Orders of the court
IT IS ORDERED THAT:
1.
The appeal be allowed.
2.
The orders made by Justice Crisford on 22 January 2015 be varied by deleting from paragraph 1 the words “the husband pay to the wife the sum of $648,758” and inserting in lieu the words “the husband pay to the wife the sum of $532,701” and to give effect to this order, the wife do pay or cause to be paid to the husband the sum of $116,057 within 14 days.
3.
Each party shall bear their own costs of and incidental to the appeal.
4.
The appellant husband be granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of his costs of and incidental to the appeal.
5.
The respondent wife be granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of her costs of and incidental to the appeal.
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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