S & S

[2003] FamCA 905

[2003] FamCA 905 FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA                   Appeal No EA26 of 2003
AT SYDNEY  File No SY2186 of 2001

BETWEEN:

S
Appellant Husband
- and -

S
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  KAY, MAY & CARTER JJ
DATE OF HEARING:                 9 July 2003
DATE OF JUDGMENT:             8 September 2003

APPEARANCES:  Mr Lloyd of Counsel, instructed by Holt & Allen, Solicitors, appeared on behalf of the Appellant Husband.

Ms Mundey of Counsel, instructed by Raymond Lee & Co, Solicitors, appeared on behalf of the Respondent Wife.

S & S
EA 26 of 2003
Coram: Kay, May & Carter JJ
Date of hearing: 9 July 2003
Date of Judgment: 8 September 2003

PROPERTY SETTLEMENT – discretion – errors in assessment of contributions and size of pool -  errors in s75(2) adjustments.

1. By an amended Notice of Appeal filed 4 April 2003 the appellant husband, Mr S appeals against orders made by Chisholm J on 27 February 2003 whereby his Honour ordered inter alia that the wife transfer to the husband her right, title and interest in the former matrimonial home, and the husband pay the wife $487,030.  The orders were premised on an equal division of the property pool by his Honour, which was consistent with the orders sought by the wife in her amended application filed 27 July 2001.

1. The husband proposed at trial that the net assets be divided 70 percent to the husband and 30 percent to the wife.  The orders sought in his amended Notice of Appeal are consistent with his original proposal.  The only substantive difference between the orders made by Chisholm J and those sought by the Appellant is that the amount of money to be paid by the husband to the wife be reduced by $220,184.66.

1. The trial took place over two days in August 2002, with written submissions received by mid-September.  The wife was diagnosed with breast cancer at about this time.  Further medical evidence was forthcoming and further submissions completed by mid-November 2002.  In January 2003, the learned trial Judge was asked to defer the delivery of judgment to allow the wife to consider her position with respect to superannuation and the amendments brought about by the Family Law Legislation Amendment (Superannuation) Act 2001 effective 28 December 2002. The wife ultimately did not seek leave to re-open the evidence and the learned trial Judge made orders on 27 February 2003.

HISTORY

1. The parties married in 1967 and separated finally in August 2000.  They have two adult children.  The learned trial Judge found net assets to the value of $1,166,560, with $244,580 being represented by superannuation interests.  Appeal grounds one and two are referable to his Honour’s finding as to the value of the wife’s superannuation entitlement.

1. His Honour initially characterised the marriage as one of significant length, with substantial contributions on each side to be regarded equally.  There were four specific issues of contribution then assessed individually by Chisholm J,

·    initial…