Simons & Simons

[2020] FamCAFC 128

FAMILY COURT OF AUSTRALIA

SIMONS & SIMONS [2020] FamCAFC 128

APPEAL – FAMILY LAW – PROPERTY – Appeal from orders made by the primary judge dividing the parties property under Part VII of the Family Law Act 1975 (Cth) – Where the primary judge made an assessment of the parties’ contribution-based entitlements pursuant to s 79(4) of the Family Law Act 1975 (Cth) and an adjustment under s 75(2) in favour of the wife – Where the husband’s complaint on appeal is that the primary judge erred at law by failing to give adequate reasons – Where the husband also contends the result was plainly wrong – Where the findings about the parties’ contributions and future needs were open to the primary judge – Where the primary judge’s reasons are not explicit about why the s 75(2) adjustment was found to be assessed at 7.5 per cent, but the explanation is easily inferred – Where it is not accepted the primary judge failed to give sufficient reasons for the property settlement orders – Where both grounds of appeal fail – Appeal dismissed.

APPEAL – FAMILY LAW – COSTS – Where the appeal is wholly unsuccessful – Where the wife sought an order for the husband to pay her solicitor/client costs in a fixed amount – Where part of the husband’s appeal was belatedly discontinued and the remainder lacked merit – Where the husband concedes an order for costs but not in the sum claimed – Where the husband’s financial circumstances do not preclude an order for costs against him – Where the wife’s counsel conceded it was open to fix a lesser sum of party/party costs – Where reliance upon r 19.18(1)(a) of the Family Law Rules 2004 (Cth) – Where the husband ordered to pay the wife’s costs of and incidental to the appeal in a fixed sum.

Family Law Act 1975 (Cth) Pt VII, VIII, ss 75(2), 79(4)

Family Law Rules 2004 (Cth) r 19.18(1)(a)

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
DL v The Queen (2018) 356 ALR 197; [2018] HCA 26
Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

APPELLANT: Mr Simons

RESPONDENT: Ms Simons

FILE NUMBER: PAC 4076 of 2016

APPEAL NUMBER: EAA 79 of 2019

DATE DELIVERED: 29 May 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney (via video link)

JUDGMENT OF: Kent, Austin & Tree JJ

HEARING DATE: 22 May 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 2 August 2019

LOWER COURT MNC: [2019] FCCA 2058

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Dart

SOLICITOR FOR THE APPELLANT: Rowlandson & Co Solicitors

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Matthews Dooley & Gibson Solicitors

Orders

1. The appeal is dismissed.

2. The appellant…