FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where appeal related to the trial judge’s assessment of contributions – where the appellant counsel’s assertion that the trial judge’s assessment fell ‘outside the range reasonably available in the circumstances’ was insufficient, without more, to found an appealable error – where there was significant delay between trial and delivery of judgement – where that delay resulted in the trial judge’s failure to properly consider evidence in the assessment of contributions – where the trial judge erred by referring to a property purchased jointly by the parties as part of gifts given by the husband’s father – where the trial judge failed to include as a contribution an inheritance received by the wife – where the trial judge then assessed contributions as significantly in favour of the husband – appeal allowed.
FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – ‘outside the range’ – whether comparable cases should be considered in the exercise of discretion – where comparable cases may provide guidance when exercising the s 79 discretion.
FAMILY LAW – APPEAL – RE-EXERCISE OR REMITTER – where both parties requested re‑exercise in the event of error – where the parties submitted that court should proceed on the assumptions that interests in property, their values and uncontroversial fact findings pertained as at the hearing of appeal – where each of the parties provided further written submissions related to the assessment of contributions – s 79 discretion re-exercised.
[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
Wallis & Manning [2017] FamCAFC 14
Case
[2017] FamCAFC 14
Decision Date
CaseChat Overview and Summary
The appeal in Wallis & Manning concerned a property settlement dispute between the parties following their divorce. The decision was handed down by the Family Court of Australia. The appellant, the wife, sought to appeal the trial judge's assessment of contributions made by both parties towards their marriage, arguing that the trial judge had made errors in the assessment process. The husband, the respondent, defended the trial judge's decision and argued against the appeal.
The court was required to determine whether the trial judge's assessment of contributions fell outside the range reasonably available in the circumstances, and whether the trial judge had properly considered all relevant evidence. The court also needed to decide whether the trial judge had erred in referring to a jointly purchased property as part of gifts given by the husband's father and in failing to include an inheritance received by the wife as a contribution. Additionally, the court had to consider whether the delay between the trial and the delivery of the judgment had any impact on the trial judge's assessment.
The court found that the trial judge had indeed erred in their assessment of contributions, particularly in relation to the jointly purchased property and the inheritance. The court also noted that the significant delay between the trial and the delivery of the judgment resulted in the trial judge's failure to properly consider evidence. As a result, the appeal was allowed, and the orders for settlement of property made by Judge Demack on 4 November 2015 were set aside. The parties were required to provide agreed minutes of order to the appeals registrar, and the sum of money required to be paid by the husband to the wife was to be paid within 60 days of the date of the orders. The court granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth).
Orders
Orders of the court
1.
That the appeal be allowed.
2.
The Orders for settlement of property made by Judge Demack on 4 November 2015 be set aside.
3.
That the parties provide to the appeals registrar via email, within 21 days of the date of these Orders, agreed minutes of order giving effect to the reasons of judgment published contemporaneously herewith and taking account of any steps taken by the parties to give effect to the Orders of Judge Demack and providing for the sum of money required to be paid by the husband to the wife in accordance with these reasons be paid within 60 days of the date of these orders.
4.
There be no order as to the costs of the appeal.
5.
The Court grants to the appellant wife 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 wife in respect to the costs incurred by the appellant wife in relation to the appeal.
6.
The Court grants to the respondent husband 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 husband in respect to the costs incurred by the respondent husband in relation to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.