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