Tallowfield & Tallowfield

[2018] FamCAFC 172

FAMILY COURT OF AUSTRALIA

TALLOWFIELD & TALLOWFIELD [2018] FamCAFC 172

FAMILY LAW – APPEAL – INADEQUACY OF REASONS – where the reasons for judgment did not engage with the wife’s case – where the wife inherited two unencumbered income producing real properties, the net value of which equated to 85 per cent of the pool found to be available for division – where no finding was made by the trial judge to the effect that the wife had used some of her inheritance for her own purposes – where contributions of all kinds, including some incapable of being measured in monetary terms, fall into the holistic assessment of contributions in s 79 property settlement determinations – where the reasons recorded a series of conclusions expressed in general terms which were not illuminated by specific findings – where the Court was unable to discern from the reasons the path by which the result has been reached – where the reasons are inadequate – where the Court cannot be satisfied that the orders made by the trial judge were just and equitable based upon a legitimate exercise of judicial discretion – appeal allowed.

Family Law Act 1975 (Cth) ss 75(2), 79, 94AAA(3)

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Dickons & Dickons [2012] FamCAFC 154
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lovine & Connor (2012) FLC 93-515; [2012] FamCAFC 168
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Polonius & York [2010] FamCAFC 228
Woodland and Todd (2005) FLC 93-217; [2005] FamCA 161

APPELLANT: Ms Tallowfield

RESPONDENT: Mr Tallowfield

FILE NUMBER: LEC 338 of 2013

APPEAL NUMBER: NOA 49 of 2017

DATE DELIVERED: 5 September 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 16 January 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 13 September 2017

LOWER COURT MNC: [2017] FCCA 2206

REPRESENTATION

THE APPELLANT: In person with the assistance of a McKenzie Friend

COUNSEL FOR THE RESPONDENT: Mr Theobald

SOLICITOR FOR THE RESPONDENT: Egan Simpson

Orders

1. The appeal from the orders made by Judge L. Turner on 13 September 2017 is allowed.

2. The orders made by Judge L. Turner on 13 September 2017 be set aside.

3. The proceedings be remitted for re-hearing in the Federal Circuit Court by a Judge other than Judge L. Turner.

4. The Court grants to the respondent husband a costs certificate pursuant to 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 husband in respect of the costs incurred by the respondent husband in relation to the appeal.

5. The Court grants to each of the parties a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act1981 (Cth)…