RONDALOE & RONDALOE - [2016] FamCAFC 142

FAMILY COURT OF AUSTRALIA

RONDALOE & RONDALOE

[2016] FamCAFC 142

FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals all property settlement orders made – Where it is claimed that the trial judge “double counted” by including in the asset pool the amount of a loan account which had been spent in reducing the balance outstanding on a mortgage, but only taking into account the then outstanding balance of that mortgage – Where the wife submits that this claim was not raised before the trial judge – Where the transcript shows that the issue of a double count was raised by the husband’s counsel with the trial judge and no challenge to that was made by the wife’s counsel – Where the trial judge took no account of this submission in the reasons for judgment – Where in the summary of assets available for distribution the trial judge included the value of the business with the amount of the loan account – Where the trial judge has clearly erred and there is merit in this ground of appeal – Where there is no merit in the remaining two grounds of appeal – Appeal allowed in part and paragraph 1 of the orders of the trial judge varied – Appeal otherwise dismissed.

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Where the husband seeks to adduce further evidence – Where the wife opposes both applications – Applications dismissed.

FAMILY LAW – APPEAL – COSTS – Where there should be no order for costs – Where there was little to choose between the time spent on the first ground of appeal and the remaining two grounds of appeal – Where it is inappropriate for costs certificates to issue given only one ground of three grounds of appeal succeeded.

Family Law Act 1975 (Cth) – ss 75(2) and 93A(2)
Federal Proceedings (Costs) Act 1981 – ss 6, 8 and 9
Family Law Rules 2004 (Cth) – r 22.22(2)(c)

Bevan & Bevan (2013) FLC 93-545
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
Norbis v Norbis (1986) 161 CLR 513
Sharman v Evans (1977) 138 CLR 563
Stanford v Stanford (2012) 247 CLR 108
Zalewski and Zalewski (2005) FLC 93-241

APPELLANT:

Mr Rondaloe

RESPONDENT:

Ms Rondaloe

FILE NUMBER:

ADC

1076

2012

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

9 August 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

23 October 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

14 November 2014

LOWER COURT MNC:

[2014] FCCA 2533

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mrs Read

SOLICITOR FOR THE APPELLANT:

Lamont Black Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Richards

SOLICITOR FOR THE RESPONDENT:

Harry Alevizos

Orders

The applications in an appeal filed on 6 August 2015 and 10 September 2015 be dismissed.
The appeal be allowed in part.
Paragraph (1) of the Orders made on 14 November 2014 be varied to provide as…

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: RONDALOE & RONDALOE [2016] FamCAFC 142
Case: [2016] FamCAFC 142
Decision Date: 9 August 2016

CaseChat Overview and Summary

In the case of Rondaloe & Rondaloe, the husband appealed various property settlement orders made by the Family Court, arguing that the trial judge erred in the calculation of assets by including a loan account that had been spent on reducing the mortgage, while only considering the remaining balance of the mortgage. The wife contended that the husband's submission regarding this issue was not properly raised before the trial judge. However, the transcript demonstrated that the husband's counsel did raise the issue of double counting, which the wife's counsel did not challenge. Despite this, the trial judge did not account for this submission in the judgment and included the value of the business with the amount of the loan account in the summary of assets. The husband's argument regarding the trial judge's error was valid, whereas the other grounds of appeal presented no merit.

The husband sought to introduce additional evidence during the appeal, which the wife opposed. The court dismissed both applications, considering that the appeal's outcome was not contingent on the new evidence. Regarding costs, the court found no grounds for an order as it was inappropriate to issue costs certificates given that only one of the three grounds of appeal succeeded. Consequently, no party was entitled to recover costs from the other.

The appeal was partially allowed, with the court varying the first paragraph of the orders made by the trial judge. The husband was ordered to pay the wife the sum of $208,128.80 within sixty days from the date of the order. The applications in the appeal filed on 6 August 2015 and 10 September 2015 were dismissed, and there was no order as to costs or for the issue of costs certificates.

Orders

Orders of the court

The applications in an appeal filed on 6 August 2015 and 10 September 2015 be dismissed.

The appeal be allowed in part.

Paragraph (1) of the Orders made on 14 November 2014 be varied to provide as follows:

The husband pay to the wife within sixty (60) days of the date of this Order, the sum of TWO HUNDRED AND EIGHT THOUSAND ONE HUNDRED AND TWENTY-EIGHT DOLLARS AND EIGHTY CENTS ($208,128.80).

There be no order as to costs or for the issue of costs certificates.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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