FAMILY LAW – APPEAL AND CROSS-APPEAL – PROPERTY – Where both the appellant and cross-appellant appeal against the same orders – Where both the appellant and cross-appellant appeal against the manner in which the trial judge determined how the husband’s inheritance should be treated – Where the trial judge identified an asset by asset and global approach and arrived at a “total asset pool on global approach” – Whether the trial judge failed to properly assess contributions and consider s 75(2) matters insofar as they relate to the husband’s inheritance – Where the trial judge erred in identifying the time upon which to assess contributions to the husband’s inheritance to be the four years between separation and trial – Where the trial judge erred in the identification of contributions – Appeal allowed.
FAMILY LAW – RE-EXERCISE OF DISCRETION – Where the parties’ respective roles remained much the same throughout the entire relationship – Where the husband introduced a substantial sum of money late in the marriage and after the parties separated – Where the Full Court considers that a global approach is appropriate – Where the Full Court assess the parties’ contributions to all of their property to the date of trial as 52.5 per cent in favour of the husband – Where each party contends s 75(2) matters are of significance – Where the Full Court does not consider any further adjustment is required pursuant to s 75(2).
(Amended pursuant to Rule 17.02 of the Family Law Rules 2004 on 8 September 2015)
The appeal be allowed.
The cross-appeal be allowed.
Orders 24, 25(f) and (g) of the orders made by the Honourable Acting Judge Jordan on 14 March 2013 be set aside.
In lieu thereof:
25 (f) as to $516,486$513,861 to the applicant wife; and
(g) the remainder to the respondent husband.
The husband file written submissions as to whether there should be an adjustment to the wife’s superannuation account in the [ABC] Superannuation Fund and if so in what amount, with a commensurate…
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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AGLC
Singerson & Joans [2014] FamCAFC 238
Case
[2014] FamCAFC 238
Decision Date
CaseChat Overview and Summary
In the case of Singerson & Joans, the appellant and cross-appellant brought their respective appeals against the same orders of the Family Court of Australia. The central issue in both appeals was the treatment of the husband’s inheritance by the trial judge. The appellant and cross-appellant contended that the trial judge erred in the assessment of contributions and in the application of section 75(2) matters concerning the husband's inheritance. They argued that the trial judge failed to properly evaluate the contributions and did not correctly identify the relevant period for assessing those contributions, which was the four years between separation and the trial.
The Full Court of the Family Court considered these appeals and found that the trial judge erred in both the assessment of contributions and the identification of the relevant period. The Full Court held that a global approach was appropriate and assessed the parties' contributions to their property to the date of trial, finding a 52.5 percent contribution in favour of the husband. Despite the parties arguing that section 75(2) matters should be considered, the Full Court determined that no further adjustment was necessary. The Full Court allowed both the appeal and the cross-appeal, setting aside certain orders made by the trial judge and substituting new orders regarding the division of property.
In addition to the property division, the Full Court ordered the husband to file written submissions regarding any potential adjustment to the wife's superannuation account, with a corresponding response from the wife. The Full Court also made orders concerning the costs of the appeal and cross-appeal, granting each party a costs certificate under the Federal Proceedings (Costs) Act 1981. These orders reflect the Full Court's determination that the trial judge's approach to the husband's inheritance and contributions was flawed and that a re-exercise of the Court's discretion was warranted.
Orders
Orders of the court
(Amended pursuant to Rule 17.02 of the Family Law Rules 2004 on 8 September 2015)
1. The appeal be allowed.
2. The cross-appeal be allowed.
3. Orders 24, 25(f) and (g) of the orders made by the Honourable Acting Judge Jordan on 14 March 2013 be set aside.
4. In lieu thereof:
25 (f) as to $516,486 $513,861 to the applicant wife; and
(g) the remainder to the respondent husband.
5. The husband file written submissions as to whether there should be an adjustment to the wife’s superannuation account in the [ABC] Superannuation Fund and if so in what amount, with a commensurate adjustment to the amount the wife to receive pursuant to order 25(f), by close of business 21 days after the publication of these reasons. The wife provide written submissions in response by close of business 21 days thereafter.
6. There be no order as to the costs of the appeal and the cross-appeal.
7. The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
8. The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
9. The Court grants to the cross-appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the cross-appellant in respect of the costs incurred by the cross-appellant in relation to the cross-appeal.
20. The Court grants to the cross-respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the cross-respondent in respect of the costs incurred by the cross-respondent in relation to the cross-appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Singerson & Joans has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).