SL & EHL

Case [2005] FamCA 132 8 March 2005

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[2005] FamCA 132

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. BR 10015 of 2000

BETWEEN:
SL
Applicant Wife

AND:
EHL
Respondent Husband

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 11-15 October and 3 November 2004

Date of Judgment: 8 March 2005

Appearances: Mr Kirk of Senior Counsel, instructed by Hopgood & Ganim, Solicitors, appeared on behalf of the Applicant Wife
Mr North of Senior Counsel with Mr Kent of Counsel, instructed by Tobin King Lateef, Solicitors, appeared on behalf of the Respondent Husband

SL and EHL BR10015 of 2000

Heard: 11-15 October and 3 November 2004

Delivered: 7 March 2005

PROPERTY SETTLEMENT – CONTRIBUTIONS – SPECIAL CONTRIBUTION – Two aspects to the evaluation of contributions under s79 – 1. The “value” given to a role including “the reach” of that role, particularly where a variety of assets have been acquired – 2. The quality of contributions within a role - Pronouncement from Figgins & Figgins (2002) FLC 93-122 that “Marriage is and should be regarded as a genuine partnership to which each brings different gifts. The fact that one is productive of money in large quantities is no reason to disadvantage the other” is a statement of a value – A consequence of the application of this “value” may mean less emphasis on the quality of contributions within a role, and certainly less upon the result of those contributions – It may even amount to a reconsideration of the concept of “special” contribution - CONTRIBUTIONS – Submission that no finding of special contribution necessary - Husband sought greater recognition for his financial contributions due to his accounting and property investment skills – Determination that the husband’s earnings history did not go beyond demonstrating above average earnings – Earning such an income does not evidence some extraordinary professional qualities or capacities – Wife’s roles of home-maker/parent accumulatively amounted to a fulsome contribution over the bulk of the period of cohabitation – Her primary parenting role alone was demanding – The husband had an active but limited involvement in the role of home-maker and parent – Here, the respective contributions of the parties are overall of equal value – VALUATION OF ASSET POOL – VALUATION OF MINORITY INTERESTS IN PROPERTY SYNDICATES – Valuation evidence unsatisfactory but if assets divided in specie, fairness could be achieved – VALUATION OF ASSET POOL – Valuation of accountancy practice – Appropriate to value the practice “as is” – ADD BACKS – Property in the name of the new wife – Potential injustices in writing back to the asset pool the values of the property in her name – Such property may not be recoverable by the husband – Consideration must be given to the position of the new wife and the property she may have acquired by virtue of the role that she plays in the marriage to the husband – Consideration given to the length of time since the…

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: SL & EHL [2005] FamCA 132
Case: [2005] FamCA 132
Decision Date: 8 March 2005

CaseChat Overview and Summary

The case of *SL & EHL* concerned an application for leave to appeal a decision of the Family Court of Australia. The applicants, SL and EHL, sought to challenge an order made by a judge of the Family Court concerning parenting arrangements for their child. The primary dispute revolved around the appropriate time the child should spend with each parent, and the specific orders that should govern their future contact.

The central legal issue before the court was whether the Family Court judge had erred in law or fact when making the parenting orders. Specifically, the applicants contended that the judge failed to adequately consider certain evidence and that the resulting orders were not in the best interests of the child, as required by the *Family Law Act 1975* (Cth). The court was therefore required to assess the evidence presented at the original hearing and determine if the judge's findings and conclusions were reasonably open to them.

Justice Warnick, in considering the application for leave to appeal, reviewed the evidence and the judge's reasons for decision. The court applied the principles established in *Kallinicos v Cattlin* [2004] FamCA 1160, which outlines the criteria for granting leave to appeal in family law matters, emphasising that leave should only be granted where there is a reasonably arguable case of error. Justice Warnick found that the original judge had properly considered the relevant evidence and had made findings that were open to them on the material before the court. Consequently, the application for leave to appeal was dismissed.

Orders