SINDEL & MILTON (AKA SINDEL) - [2010] FamCAFC 232

FAMILY COURT OF AUSTRALIA

SINDEL & MILTON (AKA SINDEL)

[2010] FamCAFC 232

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – s 75(2) factors – whether the trial judge erred in taking into account the husband’s earning capacity rather than his actual earnings at the date of trial – whether future earning capacity is a matter to be taken into account pursuant to s 75(2)(b) – whether the trial judge erred in his findings as to the husband’s future employment prospects and his future earnings and failed to attach sufficient weight to these matters – whether the trial judge failed to properly assess all relevant s 75(2) factors – no merit in any ground.

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – contributions – whether the trial judge erred in his finding as to a termination payment received by the husband – whether the trial judge erred in the assessment of the parties’ respective contributions – no error established.

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – liabilities – whether the trial judge erred in failing to include a potential capital gains tax liability in the balance sheet – no merit in ground.

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – whether the overall result was outside the bounds of a reasonable exercise of discretion – no merit in ground – appeal dismissed.

FAMILY LAW - APPEAL – COSTS ORDERS – where the husband also appealed costs orders made by the trial judge – where this appeal was only pursued in the event that the substantive appeal was allowed and a certain outcome was achieved on the Court’s re-exercise of discretion – where the substantive appeal is dismissed – costs appeal dismissed.

FAMILY LAW - APPEAL – COSTS – order for costs sought by the wife in relation to the substantive appeal, the costs appeal and a further appeal from a stay order discontinued by the husband prior to the hearing – where the husband was wholly unsuccessful – where the appeal grounds as initially drafted were prolix and difficult to understand – orders for costs made.

Family Law Act 1975 (Cth) ss 75(2), 79 & 117

Aleksovski & Aleksovski (1996) FLC 92-705
Best and Best (1993) FLC 92-418
Clauson and Clauson (1995) FLC 92-595
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Gronow v Gronow (1979) 5 FamLR 719
In the Marriage of Garrett (1984) FLC 91-539
Kennon v Kennon (1997) FLC 92-757
Norbis v Norbis (1986) 161 CLR 513

Waters and Jurek (1995) FLC 92-635

APPELLANT:

Mr Sindel

RESPONDENT:

Ms Milton (aka Sindel)

FILE NUMBER:

SYC

5856

2007

APPEAL NUMBER:	EA	102	of	2009
EA	135	of	2009
EA	37	of	2010

DATE DELIVERED:

19 November 2010

PLACE DELIVERED:

BRISBANE

PLACE HEARD:

SYDNEY

JUDGMENT OF:

Bryant CJ, Strickland and Murphy JJ

HEARING DATE:

14 September 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 August 2009

9 September 2009
23…

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 SINDEL & MILTON (AKA SINDEL)

Details

AGLC: SINDEL & MILTON (AKA SINDEL) [2010] FamCAFC 232
Case: [2010] FamCAFC 232
Decision Date: 19 November 2010

CaseChat Overview and Summary

Sindeland Milton were married in 1980 and separated in 2006. Following the separation, Sindeland sought a property settlement pursuant to the Family Law Act 1975 (Cth). The parties’ dispute reached the Federal Circuit Court, where the primary judge made a property settlement order. Milton appealed the decision to the Full Court of the Family Court of Australia. The appeal concerned the primary judge's assessment of Milton’s earning capacity, the assessment of contributions, and the inclusion of a potential capital gains tax liability in the balance sheet. Additionally, the husband appealed costs orders made by the trial judge, contingent on the success of the substantive appeal. Sindeland cross-appealed for costs.

The legal issues before the court were whether the trial judge erred in taking into account Milton’s earning capacity rather than his actual earnings at the date of trial, whether the trial judge failed to attach sufficient weight to Milton’s future employment prospects and earnings, and whether the trial judge properly assessed all relevant factors under section 75(2) of the Family Law Act. The court also needed to determine if the trial judge erred in his findings regarding a termination payment received by Milton and in the assessment of the parties' contributions. Furthermore, the court considered if the trial judge erred in failing to include a potential capital gains tax liability in the balance sheet. Lastly, the court examined whether the overall result was outside the bounds of a reasonable exercise of discretion and whether the costs orders were appropriate.

The Full Court held that there was no merit in any of the grounds of appeal. The court found that the trial judge had properly exercised his discretion in assessing Milton's earning capacity and future employment prospects. The court also found that the trial judge had considered all relevant section 75(2) factors in making his orders. The court rejected the contention that the trial judge erred in his findings regarding the termination payment and in the assessment of the parties' contributions. The court further held that there was no error in the trial judge's failure to include a potential capital gains tax liability in the balance sheet. The Full Court concluded that the overall result was within the bounds of a reasonable exercise of discretion and dismissed the appeal. The court also dismissed the costs appeal as the substantive appeal was dismissed. The husband was wholly unsuccessful, and the court made orders for costs in favour of Sindeland.

The court dismissed the appeal and the costs appeal and ordered that Milton pay Sindeland’s costs for the substantive appeal, the costs appeal, and a further appeal from a stay order discontinued by Milton prior to the hearing. The parties were also directed to confer and file a minute of order reflecting changes necessitated by the sale of properties referred to in the orders made by Fowler J.

Orders

Orders of the court

Appeal numbers EA102 of 2009, EA135 of 2009 and EA37 of 2010 are dismissed.

The husband shall pay the wife’s costs of and incidental to each of Appeal number EA102 of 2009, and Appeal number EA37 of 2010, in an amount as agreed or, failing agreement, to be assessed.

The husband shall pay the wife’s costs of and incidental to Appeal number EA135 of 2009 up to and including the filing of the Notice of Discontinuance on 8 September 2010, in an amount as agreed or, failing agreement, to be assessed.

Each of the parties, or their respective legal practitioners as the case may be, shall confer with a view to filing, within 21 days of the date of these Orders, a minute of order reflecting all such orders as are necessary to effect changes to the machinery provision of the orders made by Fowler J as necessitated by the sale of properties referred to therein.

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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