Summerfield & Summerfield - [2006] FamCA 1238

[2006] FamCA 1238

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT No. SYF3067 of 2003

IN THE MATTER OF:	SUMMERFIELD	MR	Applicant Husband
AND	SUMMERFIELD	Mrs	Respondent Wife

REASONS FOR JUDGMENT

CORAM:	O’Ryan J
DATE OF HEARING:	15, 16, 17, 19, 22, 23 August 2005 and 3, 4, 5, 6, 7 and 10 April 2006 and 3 July 2006.
DATE OF JUDGMENT:	23 November 2006

APPEARANCES:

Mr Lloyd of Counsel	(instructed by Foulsham & Geddes, Solicitors
Mr Hodgson of Counsel	(instructed by ES Lawyers.

CATCHWORDS:

FAMILY LAW – PROPERTY SETTLEMENT – Value of property – Conflicting evidence

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

Introduction

Proceedings

Before me for hearing are applications for settlement of property. The proceedings were commenced by Application filed on behalf of Mr Summerfield on 7 April 2003. The Respondent is Mrs Summerfield.
A number of amendments were made to the order sought by each party. However, what the Husband seeks is set out in a Minute that was sent to me on 14 July 2006 and the order sought by the Wife is set out in a Minute sent to me on the same day.
The Wife was born on in 1936 and the Husband was born on in 1941. The parties commenced to live together in either 1980 or 1982 and were married in June 1995. They separated in March 2003.
There are no children of the relationship. However, both parties were previously married and each had children.
This was a very difficult case for reasons that will become apparent. There are a number of areas where I preferred the evidence of one witness over another. However, with the exception of the expert accountants overall I found the evidence of the parties and some witnesses to be unsatisfactory.

Property Proceedings - Relevant Principles

The approach to the determination of an application pursuant to s 79 of the Family Law Act 1975 (Cth) is well established by authority: In the Marriage of Lee Steere (1985) 10 Fam LR 431; In the Marriage of Ferraro (1992) 16 Fam LR 1; Davut and Raif (1994) 18 Fam LR 237; In the Marriage of Prpic (1994) 18 Fam LR 388; In the Marriage of Clauson (1995) 18 Fam LR 693; In the Marriage of Whitely (1996) 20 Fam LR 590 and Hickey and Hickey and Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143.
Section 79(2) provides that the court shall not make an order, under the section, unless it is satisfied, in all the circumstances, that it is just and equitable to make the order. I am required, in considering what order, if any, I should make, to take into account the respective contributions of the parties referred to in paragraphs (a), (b) and (c) of s 79(4); the effect of any proposed order upon the earning capacity of 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.

Continue reading Summerfield & Summerfield

Details

AGLC: Summerfield and Summerfield [2006] FamCA 1238
Case: [2006] FamCA 1238
Decision Date: 23 November 2006

CaseChat Overview and Summary

The case of *Summerfield & Summerfield* concerned a dispute between the parties, heard in the Family Court of Australia. The precise nature of the dispute is not detailed in the provided text, but it involved proceedings before the court.

The central legal issue before the Family Court was the determination of the appropriate orders to be made in the proceedings between Summerfield and Summerfield. The court was required to consider the relevant legal principles and evidence to reach its decision.

The court's reasoning and the legal principles applied are not elaborated upon in the provided text. However, the court ultimately made orders in the matter. The specific details of these orders and the full reasoning behind them are not available from the given excerpt.

Orders