FAMILY LAW – APPEAL – PROPERTY – Where the trial judge made orders dividing the property between the appellant husband and respondent wife on a 35 per cent and 65 per cent basis respectively – Where the appellant husband asserted that the trial judge erred in failing to find that a 10 per cent “management fee” existed between two entities associated with both the appellant husband and his business associate – Where the trial judge did not err in finding no valid agreement existed between the entities – Where the trial judge did not err in accepting that the “management fees” paid were excessive, and resonant of a profit sharing scheme – No merit in these grounds of appeal – Where the appellant husband submitted that the trial judge erred in not taking into account a loan of $70,000 between two of the entities as a liability of the parties – Where the trial judge fundamentally mistook the character of the said loan - Merit in this ground of appeal – Where the appellant husband received a $90,000 redundancy payment in 2009 – Where it the trial judge’s reasons do not reveal what weight was given to the redundancy payment – Where the trial judge erred in rejecting an amount of $50,000 loaned by the appellant husband’s parents as a contribution on his behalf – Where the trial judge erred in failing to giving any or sufficient weight to these direct financial contributions – Merit in these grounds of appeal – Appeal allowed – Where it is not appropriate for the Full Court to re-exercise the discretion – Remitted for rehearing.
FAMILY LAW – APPEAL – EXPERT EVIDENCE – Where the trial judge preferred one of two expert opinions – Where the appellant husband submitted that the trial judge erred in accepting the opinion of an expert – Where there was no error demonstrated of the factual premises upon which the expert opinion was based – No merit in these grounds of appeal – Appeal allowed – Remitted for rehearing.
FAMILY LAW – APPEAL – COSTS – Where the appeal succeeded on a question of law – Where no order for costs made – Costs certificates granted to the parties for the appeal and rehearing.
[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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AGLC
Vass & Vass [2015] FamCAFC 51
Case
[2015] FamCAFC 51
Decision Date
CaseChat Overview and Summary
This appeal arises from a property settlement dispute between the husband and wife. The wife sought a property settlement under the Family Law Act, and the parties agreed to a 35 per cent and 65 per cent division of property respectively. The husband appealed the decision, asserting several grounds of error by the trial judge. The Full Court of the Family Court of Australia considered the appeal and found some merit in the husband's arguments.
The primary legal issues considered by the Court were whether the trial judge erred in failing to find a 10 per cent “management fee” between two entities associated with the husband and his business associate, whether the trial judge erred in not considering a $70,000 loan as a liability of the parties, and whether the trial judge erred in rejecting a $50,000 loan from the husband's parents as a contribution on his behalf. The Court also considered whether the trial judge erred in failing to give sufficient weight to the husband's direct financial contributions. Additionally, the Court considered whether the trial judge erred in preferring one of two expert opinions.
The Court found no merit in the husband's arguments regarding the 10 per cent “management fee” and the trial judge’s acceptance of the expert opinion. However, the Court found merit in the husband's arguments regarding the $70,000 loan, the $50,000 loan from the husband's parents, and the trial judge’s failure to give sufficient weight to the husband's direct financial contributions. The Court found that the trial judge fundamentally mistook the character of the $70,000 loan, and that the trial judge erred in rejecting the $50,000 loan from the husband's parents as a contribution on the husband's behalf. The Court also found that the trial judge did not reveal what weight was given to the husband's $90,000 redundancy payment in 2009. The Court found that the trial judge failed to give sufficient weight to these direct financial contributions. The Court held that the appeal succeeded on these grounds and allowed the appeal. The Court remitted the proceedings to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Burchardt. The Court granted costs certificates to both parties for the appeal and the rehearing.
Orders
Orders of the court
1.
The appeal be allowed.
2.
The orders made on 11 September 2013 be set aside.
3.
The proceedings be remitted to the Federal Circuit Court of Australia to be reheard by a judge other than Judge Burchardt.
4.
There be no order as to costs.
5.
The Court grants to the appellant husband 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 the Act to the appellant husband in respect of costs incurred by him in relation to the appeal.
6.
The Court grants to the respondent wife 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 the Act to the respondent wife in respect of costs incurred by her in relation to the appeal.
7.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 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 the Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new hearing granted by these Orders.