FAMILY LAW - APPEAL – PROPERTY – Whether the Federal Magistrate failed to give adequate weight to the husband’s post separation savings – Whether the Federal Magistrate failed to give adequate reasons for the contribution assessment – CROSS APPEAL – PROPERTY – Whether the Federal Magistrate failed to assess and give weight to the wife’s initial contribution of US stocks – Where Court unable to determine from the Federal Magistrate’s reason how the parties’ disparate initial contributions and post separation contributions were evaluated and weighed – Where there is merit to the challenges in both the appeal and cross appeal.
FAMILY LAW - APPEAL – PROPERTY – Whether the Federal Magistrate erred in the adjustment in the wife’s favour under s 75(2) – Where the facts do not support the adjustment made in favour of the wife – Where the Federal Magistrate erred in making a further adjustment on the basis of justice and equity in addition to the adjustment under s75(2) – Appealable error established.
FAMILY LAW - APPEAL – CHILD SUPPORT – DEPARTURE APPLICATION – Whether the Federal Magistrate erred by double counting in calculating the cost of maintaining the children for the purposes of the departure application – Where the effect of the Federal Magistrate’s orders is the husband bears a double liability for the children’s school fees – Appealable error established – CROSS APPEAL – Whether the Federal Magistrate erred in not back dating the commencement of the adjusted assessment to the date of the parties’ separation in 2005 – Where there was no assessment in force prior to March 2007 which could be the subject of a departure order – No merit in challenge – Whether the Federal Magistrate erred in making an order which did not take in consideration the wife leaving her employment at the children’s school or the children not continuing at the school – No reasons given why the school fee arrangement was limited to the children’s current school – Unnecessary for challenge to be considered in light of success of the appeal.
FAMILY LAW - APPEAL – CHILD SUPPORT – Application for leave to appeal and cross appeal – Where error of law demonstrated – Leave to appeal and to the extent necessary leave to cross appeal granted.
FAMILY LAW - APPEAL – Where assets and liabilities to be adjusted cannot be accurately identified on available material – Court unable to re-determine the s 79 proceedings – Wife’s application for property settlement and child support departure remitted for re-hearing
FAMILY LAW - COSTS – Where appropriate in the circumstances that the parties be granted costs certificates for the appeal, cross appeal and rehearing.
Bennett & Bennett (1991) FLC 92-191 Brodie v Brodie (2009) 41 Fam LR 18 Farmer & Bramley (2000) FLC 93-060
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
Teal & Teal [2010] FamCAFC 120
Case
[2010] FamCAFC 120
Decision Date
CaseChat Overview and Summary
The appeal and cross appeal in Teal & Teal concerns a dispute between the husband and wife regarding a property settlement and child support orders made by a Federal Magistrate. The husband appealed against the orders, arguing that the Federal Magistrate failed to adequately consider his post separation savings and the wife's initial contributions. The wife cross-appealed, contending that the Federal Magistrate did not give sufficient weight to her initial contribution of US stocks and erred in the adjustment made under s 75(2) in her favour. The husband also argued that the Federal Magistrate erred in the adjustment of child support and double counted in calculating the cost of maintaining the children.
The court had to determine whether the Federal Magistrate erred in the assessment and weighting of the parties' contributions and whether the adjustment in the wife's favour under s 75(2) was supported by the facts. The court also had to consider if the Federal Magistrate erred in the calculation of child support and whether the wife's cross appeal regarding the US stocks had merit. The court found that the Federal Magistrate failed to provide adequate reasons for the contribution assessment and erred in the adjustment under s 75(2). The court also found that the Federal Magistrate erred in the calculation of child support by double counting the cost of maintaining the children.
The appeal and cross appeal against the child support departure orders were allowed, and the appeal and cross appeal against the orders for property settlement were also allowed. The wife's application for property settlement and child support departure orders was dismissed, and the husband's applications were also dismissed. The wife's application for property settlement and child support departure orders was remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Dunkley. The court granted costs certificates to both parties for the appeal, cross appeal, and rehearing.
Orders
Orders of the court
1.
Leave to appeal is granted in respect of the husband’s appeal and the wife’s cross appeal against the child support departure orders.
2.
The appeal and cross appeal against the child support departure orders are allowed
3.
The appeal and the cross appeal against the orders for property settlement are allowed.
4.
The wife’s application in an appeal filed 12 October 2009 is dismissed.
5.
The husband’s application in an appeal filed 23 October 2009 and his application in an appeal filed 28 October 2009 are dismissed.
6.
The wife’s application for property settlement and child support departure orders be relisted for rehearing as soon as possible before a Federal Magistrate other than Federal Magistrate Dunkley.
7.
The Court grants to the appellant husband a costs certificate pursuant to s 9 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 appellant in respect of the costs incurred by him in relation to the appeal and the cross appeal.
8.
The Court grants to the respondent and cross appellant wife a costs certificate pursuant to the provisions of 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 in respect of the costs incurred by her in relation to the appeal and the cross appeal.
9.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by them in relation to the new trial ordered.