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 |
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- AGLC
- Turner & Turner and Anor [2016] FamCAFC 121
- Case
- [2016] FamCAFC 121
- Decision Date
CaseChat Overview and Summary
The court held that the husband's refusal to participate in the valuation process created difficulties in accurately assessing the property pool. The trial judge had ordered the husband to pay the wife a cash amount, without considering the need for the husband to sell or encumber his shareholdings to meet the obligation. This oversight was significant, as the husband was a minority shareholder and would incur taxes and realisation costs in disposing of his shares. Additionally, the court found that the trial judge had erred in making spousal maintenance and child support orders without fully considering the husband's financial situation, despite his high income and earning capacity.
Consequently, the court allowed the appeal on two grounds: the trial judge's failure to properly value the husband's assets and the failure to consider the husband's financial circumstances in making the spousal maintenance and child support orders. The court remitted these issues for rehearing before a different judge, while dismissing the appeal on other grounds and refusing leave to appeal on others. The husband's application for costs was dismissed, and the wife's application for a costs certificate was also dismissed.
The court's orders included allowing the appeal on specific property settlement orders and remitting those issues for rehearing before a different judge, while refusing leave to appeal on other orders. The husband's application for costs was dismissed, as was the wife's application for a costs certificate.
Orders
Orders of the court
1.
The appeal against Orders (2), (4), (5) and (17) of the orders of Macmillan J made on 29 May 2015 is allowed and the applications for property settlement proceedings together with the issue of the costs of the matter before Macmillan J be remitted for rehearing before a judge other that Macmillan J.
2.
Leave to appeal from Orders (3), (11), (12) and (13) is refused.
3.
The appellant’s application for costs is dismissed.
4.
The respondent’s application for a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) is dismissed.
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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