Turner & Turner and Anor

[2016] FamCAFC 121

FAMILY COURT OF AUSTRALIA

TURNER & TURNER AND ANOR [2016] FamCAFC 121

FAMILY LAW – APPEAL – PROPERTY – Undefended hearing – Where there was a substantial property pool – Where the husband’s refusal to participate in the trial made it difficult to value the property pool – Where the husband was involved as both a shareholder and director in a number of companies – Where the trial judge ordered the husband pay the wife a cash – No discount or allowance was made for disposal of shareholdings or taxation – Where the husband was a minority shareholder and would need to dispose of or encumber shareholdings to meet his obligations – Where taxation and realisation costs would be incurred – Where an absence of evidence did not justify the orders made – Where no other inference could be drawn other than there would be a sale of shares – Where two grounds of appeal were conceded by the wife, being an indemnity costs order and an error in the valuation of the husband’s interest in a property – Error established and appeal allowed.

FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – CHILD SUPPORT – Where it is alleged the trial judge failed to have regard to the husband’s financial circumstances in making spousal maintenance and child support orders – Where the husband argued he did not have the capacity to pay – Where orders were previously made by consent for spousal maintenance – Where the husband has a high income and earning capacity – Where the orders made were appropriate on unchallenged evidence – These grounds were established.

FAMILY LAW – APPEAL – COSTS – The husband sought costs in his favour as the appeal was allowed – The wife resisted a costs order and sought a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) – Where the husband’s conduct in the trial did not assist the judge and there are no circumstances to justify a costs order in his favour – Where it is not appropriate to order costs or a certificate in favour of the wife – No order as to costs.

Child Support (Assessment) Act 1989 (Cth) ss 117(1), 117(4), 124(1)
Family Law Act 1975 (Cth) ss 79(4), 79, 117(1), 117(2A), Part VIII
Federal Proceedings (Costs) Act 1981 (Cth)

Bassingthwaite v Leane (1993) FLC 92-410
Chang and Su (2002) FLC 93-117
Elgin & Elgin [2015] FamCAFC 155
Gyselman and Gyselman (1992) FLC 92-289
Hendy v Deputy Child Support Registrar and Anor (2001) 27 Fam LR 641
Kannis & Kannis [2002] FamCA 1150
Medlow & Medlow (2016) FLC 93-692
Rosati v Rosati (1998) FLC 92-804
Weir and Weir (1993) FLC 92-338

APPELLANT: Mr Turner

FIRST RESPONDENT: Ms Turner

SECOND RESPONDENT: Turner Pty Ltd

FILE NUMBER: MLC 5928 of 2013

APPEAL NUMBER: SOA 43 of 2015

DATE DELIVERED: 8 July 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Melbourne

JUDGMENT OF: May, Ainslie-Wallace & Cronin JJ

HEARING DATE: 15 October 2015

LOWER COURT JURISDICTION: Family Court of Australia