Somerset & Somerset - [2009] FamCAFC 5

FAMILY COURT OF AUSTRALIA

SOMERSET & SOMERSET

[2009] FamCAFC 5

FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATE DECISION – PROPERTY – Discretionary judgment – Whether the trial judge failed to properly identify the marital pool – Whether the trial judge failed to properly determine the liabilities and contributions of the parties - Whether the trial judge failed to give adequate reasons for the decision

FAMILY LAW – PROPERTY - DISCLOSURE – Where one party failed to make full and frank disclosure of financial circumstances – Where that failure resulted in an adverse judgment

FAMILY LAW – PROPERTY - LIABILITIES – Whether certain liabilities exist – Where the existence of those liabilities is evidenced by contentious documents

FAMILY LAW – PROPERTY - CONTRIBUTIONS – Where one party made a significant initial contribution – Whether that contribution attained considerable significance during the marriage

FAMILY LAW – JUDGMENTS - REASONS – Whether reasons for judgment adequate – Where the trial judge adopted the submissions of a party

Family Law Act 1975 (Cth)

AMS v AIF (1999) FLC 92-852
Athens and Another v Randwick City Council [2002] NSWCA 83
Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
Bennett and Bennett (1991) FLC 92-191
De Winter v De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513
Hickey and Hickey [2003] FLC 93-473
House v The King (1936) 55 CLR 499
In the Marriage of LA and EA Pierce (1999) FLC 92-844
In the Marriage of Merriman (1993) FLC 92-422
In the Marriage of Money (1995) FLC 92-485
In the Marriage of Smith (1994) FLC 92-488
Mallett & Mallett [1984] HCA 21; (1984) 156 CLR 605
Norbis v Norbis (1986) FLC 91-712
Scott and Scott (1994) FLC 92-457
Weir & Weir (1992) FLC 92-287
Whiterod & Taylor (2006) FLC 93-266

APPELLANT:

MR SOMERSET

RESPONDENT:

MRS SOMERSET

FILE NUMBER:

BRC

2533

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

19 January 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

23 July 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 February 2008

LOWER COURT MNC:

[2008] FMCAfam25

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hanlon and Mr Moore

SOLICITOR FOR THE APPELLANT:

GLS Global Legal Solutions

COUNSEL FOR THE RESPONDENT:

Mr Cameron and Ms Myer

SOLICITOR FOR THE RESPONDENT:

Barbeler and Cook Solicitors

Orders

The appeal is dismissed.
(a) That the respondent be at liberty to file and serve written submissions as to costs in relation to the costs of the appeal within 14 days of today and upon receipt of those submissions the appellant file and serve written submissions within a further 14 days.
(b)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

IT IS NOTED that publication of this judgment under the pseudonym Somerset & Somerset is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE…

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: Somerset & Somerset [2009] FamCAFC 5
Case: [2009] FamCAFC 5
Decision Date: 19 January 2009

CaseChat Overview and Summary

In this case, the parties, [Appellant] and [Respondent], were married and subsequently separated, leading to a dispute over the division of their property. The Federal Circuit and Family Court of Australia initially heard the matter, and the appellant, dissatisfied with the outcome, sought an appeal to the Family Court of Australia. The core issues in the appeal centred on the trial judge's identification of the marital pool, the liabilities and contributions of the parties, and the adequacy of the reasons provided for the decision. Specifically, the appellant argued that the trial judge did not correctly identify the marital pool, failed to accurately determine the liabilities and contributions of the parties, and did not give adequate reasons for the decision.

The court examined whether the trial judge's identification of the marital pool was accurate and whether the liabilities and contributions of both parties were correctly assessed. It was highlighted that the appellant had not made full and frank disclosure of financial circumstances, which impacted the outcome of the judgment. Additionally, the court considered whether certain liabilities existed, as evidenced by contentious documents, and whether the significant initial contribution made by one party had considerable significance during the marriage. The adequacy of the reasons provided by the trial judge was also scrutinized, particularly where the judge adopted the submissions of one party.

The court concluded that the trial judge did not err in identifying the marital pool or in determining the liabilities and contributions of the parties. The reasons provided by the trial judge were deemed adequate, and the appeal was dismissed. The court ordered that the respondent could file and serve written submissions regarding the costs of the appeal within 14 days, followed by the appellant's response within another 14 days. Each submission was to be endorsed with the date a copy was served on the other party.

Orders

Orders of the court

The appeal is dismissed.

(a) That the respondent be at liberty to file and serve written submissions as to costs in relation to the costs of the appeal within 14 days of today and upon receipt of those submissions the appellant file and serve written submissions within a further 14 days.

(b) That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

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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