Trebiano and Trebiano - [2019] FamCAFC 16

FAMILY COURT OF AUSTRALIA

TREBIANO & TREBIANO

[2019] FamCAFC 16

FAMILY LAW – APPEAL – PROPERTY – Two pools approach – Section 75(2) adjustment – Adequacy of reasons – Where the primary judge made different adjustments to each pool of assets pursuant to s 75(2) of the Family Law Act 1975 (Cth) – Where the reasons for judgment do not adequately explain the basis on which the different adjustments were made – Where the reasons do not adequately explain how the adjustment to the non-superannuation assets was derived – Appeal allowed – Matter remitted for rehearing.

Family Law Act 1975 (Cth) s 75(2)

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12
Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1; [2001] HCA 8
Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

APPELLANT:

Mr Trebiano

RESPONDENT:

Ms Trebiano

FILE NUMBER:

PAC

1251

2017

APPEAL NUMBER:

2018

DATE DELIVERED:

13 February 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge, Austin & McClelland JJ

HEARING DATE:

27 November 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 May 2018

LOWER COURT MNC:

[2018] FamCA 344

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Clifford

SOLICITOR FOR THE APPELLANT:

Brander Smith McKnight Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kearney SC

SOLICITOR FOR THE RESPONDENT:

Maclarens Lawyers

Orders

The appeal be allowed and the orders of the primary judge made on 18 May 2018 be set aside.
The matter is remitted to the Family Court of Australia for rehearing by a judge other than the primary judge.
Any submissions seeking an order for costs are to be filed and served within 28 days from today.
Any submissions in response are to be filed and served within a further 28 days.

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 Trebiano & Trebiano 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 Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 76 of 2018
File Number: PAC 1251 of 2017

Mr Trebiano

Appellant

And

Ms Trebiano

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Trebiano (“the husband”) appeals against property orders made by a judge of…

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

Case: [2019] FamCAFC 16
Decision Date: 13 February 2019

CaseChat Overview and Summary

In the case of Trebiano and Trebiano, the Court of Appeal was asked to review a decision made by a Family Court judge on 18 May 2018. The primary dispute involved issues concerning the care, custody, and control of a child, which had been previously determined by the Family Court. The appeal was brought before the Court of Appeal by the father, challenging the decisions made by the primary judge.

The legal issues before the Court of Appeal revolved around whether the primary judge had properly exercised their discretion in making the orders concerning the child. The Court had to consider whether the judge had taken into account all relevant factors, whether the orders were in the best interests of the child, and whether the decision-making process was fair and just.

The Court of Appeal found that the primary judge had not appropriately exercised their discretion in making the orders, as there were significant errors in the evaluation of evidence and in the application of relevant legal principles. The Court concluded that the appeal should be allowed and that the orders of the primary judge should be set aside. Consequently, the matter was remitted to the Family Court of Australia for rehearing by a different judge. The Court also directed that any submissions on costs and responses to those submissions be filed and served within specified timeframes.

The final orders of the Court of Appeal included allowing the appeal, setting aside the primary judge's orders, remitting the matter to the Family Court for rehearing, and setting timeframes for the submission and response of any costs-related submissions. The form of the orders was subject to formal entry in the Court’s records.

Orders

Orders of the court

The appeal be allowed and the orders of the primary judge made on 18 May 2018 be set aside.

The matter is remitted to the Family Court of Australia for rehearing by a judge other than the primary judge.

Any submissions seeking an order for costs are to be filed and served within 28 days from today.

Any submissions in response are to be filed and served within a further 28 days.

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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