Trevi & Trevi

Case [2018] FamCAFC 173


FAMILY COURT OF AUSTRALIA

TREVI & TREVI [2018] FamCAFC 173
FAMILY LAW – APPEAL – PROPERTY – where final property orders were made eight and a half years after the parties separated – where the net property of the parties was substantial – where the trial judge concluded that contributions should be assessed as equal – where the wife received a 10 per cent adjustment pursuant to s 79(4)(e) – whether the trial judge erred in failing to addback amounts received by the wife pursuant to interim orders – where the trial judge erred in failing to addback an amount expended by the wife on legal fees – Chorn and Hopkins (2004) FLC 93-204 considered – where the trial judge confused two well-established approaches to dealing with the wife’s paid legal fees – Omacini and Omacini (2005) FLC 93-218 considered – whether the trial judge erred in the assessment of contributions – where the husband sought to agitate on appeal an argument not agitated below – whether the trial judge erred in failing to make a splitting order – where the trial judge considered it just and equitable to maximise the amount of cash the wife would receive – where the trial judge was well aware of the effect of making a splitting order – whether the trial judge erred in the assessment of s 79(4)(e) – appeal allowed in part.
Family Law Act 1975 (Cth) ss 75(2), 79, 117
Federal Proceedings (Costs) Act 1981 (Cth)

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1
Calder & Calder (2016) FLC 93-691; [2016] FamCAFC 36
Cerini & Cerini sub nom C & C [1998] FamCA 143
Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Harris and Harris (1991) FLC 92-254
Hoffman & Hoffman (2014) FLC 93-591; [2014] FamCAFC 92
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hurst & Hurst (2018) FLC 93-851; [2018] FamCAFC 146
Kowaliw and Kowaliw (1981) FLC 91-092; [1981] FamCA 70
Marker & Marker sub nom M & M [1998] FamCA 42
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Marsh & Marsh (2014) FLC 93-576; [2014] FamCAFC 24
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Norman & Norman [2010] FamCAFC 66
Omacini and Omacini (2005) FLC 93-218; [2005] FamCA 195
Rodgers & Rodgers (No 2) (2016) FLC 93-712; [2016] FamCAFC 104
Sharman v Evans (1977) 138 CLR 563; [1977] HCA 8
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Townsend and Townsend (1995) FLC 92-569; [1994] FamCA 144
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Watson & Ling (2013) FLC 93-527; [2013] FamCA 57
Willis & Willis [2007] FamCA 819

Doolan, P., “Now you see it, now you don’t:  notional property and add-backs in family law”,

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AGLC
Trevi & Trevi [2018] FamCAFC 173
Case
[2018] FamCAFC 173
Decision Date

CaseChat Overview and Summary

The appeal was heard by the Full Court of the Family Court of Australia, with the case involving a dispute between the husband and wife over the division of their property. The husband appealed the final property orders made by the trial judge eight and a half years after the parties separated. The net property of the parties was substantial, and the trial judge concluded that their contributions should be assessed as equal. However, the wife received a 10 per cent adjustment pursuant to s 79(4)(e) of the Family Law Act 1975 (Cth). The husband argued that the trial judge erred in failing to add back amounts received by the wife pursuant to interim orders and an amount expended by the wife on legal fees.

The Full Court considered the arguments and concluded that the trial judge erred in failing to add back the amount received by the wife pursuant to interim orders and in not considering the wife's paid legal fees in the assessment of contributions. The Full Court noted that the trial judge confused two well-established approaches to dealing with the wife’s paid legal fees. Additionally, the Full Court found that the trial judge erred in the assessment of s 79(4)(e) and in failing to make a splitting order. The appeal was allowed in part, and the Full Court set aside Order (1) of the Orders made by the trial judge. The parties were required to reach an agreement as to the cash sum payable to the wife in consequence of the said order being set aside, and the Full Court granted a costs certificate to both parties.

Orders

Orders of the court

1.

The appeal be allowed.

2.

Order (1) of the Orders made by the Honourable Justice Thornton on 18 May 2017 be set aside.

3.

In the event that, consistent with the Reasons for Judgment of the Full Court delivered contemporaneously with these orders, the parties reach agreement as to the cash sum payable to the wife in consequence of the said order being set aside, they shall within twenty-eight (28) days of the date of this order, file by email with the Appeals Registrar signed minutes of consent.

4.

In the event that signed minutes of consent are filed in accordance with the preceding order, the Appeals Registrar shall forward the minutes to this Full Court so as to consider the making of orders by consent in Chambers giving effect to the parties’ agreement.

5.

In the event that the parties do not reach agreement as contemplated by Order (3), the question of whether the sum of $437,628 paid by the wife in legal fees should be “added back”, and the question of the cash sum payable by the husband to the wife accordingly, shall be addressed by the parties each filing within 42 days of the date of these orders:

(a) the agreed facts and written submissions confined to five typed pages so as to permit this Full Court to re-exercise the discretion vested in the trial judge in respect of the said sum; or

(b) in the alternative, the proposed terms of the order for remitter.

6.

Pursuant to the provisions of s 117(1) of the Family Law Act 1975 (Cth) each party shall bear their own costs of and incidental to the appeal.

7.

The Court grants to the appellant a costs certificate pursuant to the provisions of 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 the appellant in relation to the appeal.

8.

The Court grants to the respondent 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 the respondent in relation to the appeal.

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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