FAMILY COURT OF AUSTRALIA
| SURRIDGE & SURRIDGE | [2017] FamCAFC 10 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where trial judge erred by including debts owed by the husband in the asset pool – where that finding was not open on the evidence – where husband has not made full and frank disclosure – where trial judge made adverse findings regarding credibility of husband and his evidence – where trial judge gave inadequate consideration of these matters in assessment of s 79(4)(e) – where trial judge should not have included hurt on duty pension in the asset pool – appeal allowed. FAMILY LAW – APPEAL – RE-EXERCISE OR REMITTER – where a rehearing would cause substantial injustice – s 79 discretion re-exercised. |
| Family Law Act 1975 (Cth), ss 75, 75(2)(o), 79, 79(4)(e), 90MS, 90MT Police Regulation (Superannuation) Act 1906 (NSW) |
| Allesch v Maunz (2000) 203 CLR 172 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 Giunti & Giunti (1986) FLC 91-759 Semperton & Semperton (2012) 47 Fam LR 626 Stanford v Stanford (2012) 247 CLR 108 The Queen v Baden-Clay (2016) 334 ALR 234 Weir & Weir (1993) FLC 92-338 Welch & Abney [2016] FamCAFC 271 |
| APPELLANT: | Ms Surridge |
| RESPONDENT: | Mr Surridge |
| FILE NUMBER: | PAC | 4412 | of | 2012 |
| APPEAL NUMBER: | EA | 120 | of | 2015 |
| DATE DELIVERED: | 3 February 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Murphy, Aldridge and Kent JJ |
| HEARING DATE: | 2 September 2016; Further written submissions filed by the appellant on 11 October 2016; by the respondent on 1 December 2016. |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 June 2015 |
| LOWER COURT MNC: | [2015] FamCA 493 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr J Priestley SC |
| SOLICITOR FOR THE APPELLANT: | Matthews Folbigg Pty Ltd |
| SOLICITOR FOR THE RESPONDENT: | Tilley Family Law & Mediation |
Orders
The appeal be allowed.
The orders made by Foster J on 29 June 2015 be set aside.
That as and by way of settlement of property pursuant to s 79 of the Family Law Act 1975 (Cth) orders be made in accordance with the reasons for judgment delivered herewith in a form agreed upon between the parties and filed by email with the Appeals Registrar within 14 days of the date of these orders.
The husband pay the wife’s costs of the appeal in such amount as is agreed in writing or, failing agreement, as assessed with such costs to be paid within 60 days of the date of agreement or assessment as the case may be.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Surridge & Surridge has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the
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- Surridge & Surridge [2017] FamCAFC 10
- Case
- [2017] FamCAFC 10
- Decision Date
CaseChat Overview and Summary
The primary issues for the court to decide were whether the trial judge had erred in including certain debts owed by the husband in the asset pool, whether the trial judge had given adequate consideration to the husband's lack of full and frank disclosure, and whether the trial judge had adequately considered the husband's credibility in the assessment of section 79(4)(e) factors. Additionally, the court needed to determine whether the trial judge should have included the husband's duty pension in the asset pool.
The court found that the trial judge had indeed erred in including the husband's debts in the asset pool, as this was not supported by the evidence. The court also found that the trial judge had not adequately considered the husband's lack of full and frank disclosure and had not given sufficient weight to the adverse findings regarding the husband's credibility. Furthermore, the court found that the trial judge had not adequately considered the husband's duty pension in the assessment of section 79(4)(e) factors. Consequently, the appeal was allowed, and the orders made by Foster J on 29 June 2015 were set aside.
The court re-exercised its discretion under section 79 of the Family Law Act 1975 (Cth) and ordered that a new settlement of property be made in accordance with the reasons for judgment delivered herewith, in a form agreed upon by the parties and filed with the Appeals Registrar within 14 days of the date of these orders. The husband was also ordered to pay the wife's costs of the appeal, to be agreed upon in writing or assessed, and paid within 60 days of the date of agreement or assessment.
Orders
Orders of the court
1.
The appeal be allowed.
2.
The orders made by Foster J on 29 June 2015 be set aside.
3.
That as and by way of settlement of property pursuant to s 79 of the Family Law Act 1975 (Cth) orders be made in accordance with the reasons for judgment delivered herewith in a form agreed upon between the parties and filed by email with the Appeals Registrar within 14 days of the date of these orders.
4.
The husband pay the wife’s costs of the appeal in such amount as is agreed in writing or, failing agreement, as assessed with such costs to be paid within 60 days of the date of agreement or assessment as the case may be.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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