Warner & Warner - [2008] FamCAFC 156

FAMILY COURT OF AUSTRALIA

WARNER & WARNER

[2008] FamCAFC 156

FAMILY LAW - APPEAL – From decision of Federal Magistrate – PROPERTY SETTLEMENT – The Federal Magistrate indicated in his reasons for judgment an intention to divide the net “assets” by 70/30, in favour of the wife, and to divide superannuation entitlements equally – To give effect to the superannuation division, the Federal Magistrate indicated in his reasons for judgment an intention to make a “splitting order” – The Federal Magistrate recognised the claims of the wife to retain the former matrimonial home, albeit subject to a mortgage – Husband appealed – The orders relating to the division of property did not provide for any adjusting cash payment by the wife to the husband – The effect of the order was to give the wife more than 70% – The Federal Magistrate failed to give any weight to an entitlement of the wife under her late father’s will – Respondent conceded appeal should be allowed

FAMILY LAW - APPEAL – Re-exercise of discretion – Consideration of s 75(2) factors – Assets treated the same as before the Federal Magistrate with superannuation assets separated from other property – Contributions of both parties of equal value – Adjustment in wife’s favour conceded by husband due to her health and future needs – Consideration of the wife’s inheritance from her father’s will and whether it should be treated as a s 75(2) factor – Distribution of assets in kind, including superannuation – Orders made

FAMILY LAW - APPEAL – Costs of and incidental to the appeal – Costs certificates awarded to both parties

Family Law Act 1975 (Cth), s 75(2)
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT:

MR WARNER

RESPONDENT:

MS WARNER

APPEAL NUMBER:

2008

FILE NUMBER:

DGC

728

2007

DATE DELIVERED:

23 October 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Warnick and Boland JJ

HEARING DATE:

10 October 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

19 March 2008

LOWER COURT MNC:

[2008] FMCAfam 179

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms E Swart

SOLICITOR FOR THE APPELLANT:

Anderson Partners

COUNSEL FOR THE RESPONDENT:

Mr G Combes

SOLICITOR FOR THE RESPONDENT:

Alpass & Associates

Orders

That the appeal be allowed.
That the orders of Federal Magistrate Turner made on 19 March 2008 be set aside.
That by way of alteration of property interests of the parties:
(i)the wife pay the husband the sum of $34,617.50 as follows:
(a)$20,000.00 on or before 45 days from the date hereof;
(b)the balance within 2 years from the date hereof, together with interest on so much thereof as is outstanding from time to time at the rate of seven per cent per annum, such interest to be paid annually, calculated from the date hereof.
That contemporaneously with compliance with Order 3(i)(a) the husband transfer to the wife all his right title and interest in and to the real property at [Property F].
That the wife indemnify…

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.

Continue reading Warner & Warner

Details

AGLC: Warner & Warner [2008] FamCAFC 156
Case: [2008] FamCAFC 156
Decision Date: 23 October 2008

CaseChat Overview and Summary

The matter of Warner & Warner was heard by the Family Court of Australia. The appeal arose from a decision made by a Federal Magistrate concerning the division of property between the parties following the breakdown of their marriage. The Federal Magistrate had proposed a division of assets in a 70/30 ratio in favour of the wife, with superannuation entitlements to be divided equally. The Federal Magistrate also intended to issue a "splitting order" to facilitate the division of superannuation. The wife was to retain the former matrimonial home, subject to a mortgage. The husband appealed this decision, arguing that the orders did not result in an equitable division of the assets, as they provided no adjustment in his favour, and that the Federal Magistrate had failed to consider an inheritance entitlement of the wife under her late father's will.

The legal issues before the court were whether the appeal should be allowed and, if so, what orders should be made to achieve an equitable distribution of the parties' property. The court considered the contributions of both parties to the marriage, their future needs and health, and the wife's inheritance from her father's will. The court held that the orders made by the Federal Magistrate did not provide for an equitable division of the parties' assets and that the Federal Magistrate had not appropriately considered the wife's inheritance. The court re-exercised its discretion and made new orders for the division of property, including superannuation, between the parties.

The court allowed the husband's appeal and set aside the orders made by the Federal Magistrate. The court ordered that the wife pay the husband $34,617.50, to be paid in two instalments with interest. The court also ordered a transfer of property interests between the parties, with each party retaining ownership of their other assets, including superannuation entitlements. The court granted costs certificates to both parties, allowing them to seek costs from the Attorney-General under the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

That the appeal be allowed.

That the orders of Federal Magistrate Turner made on 19 March 2008 be set aside.

That by way of alteration of property interests of the parties:

(i) the wife pay the husband the sum of $34,617.50 as follows:

(a) $20,000.00 on or before 45 days from the date hereof;

(b) the balance within 2 years from the date hereof, together with interest on so much thereof as is outstanding from time to time at the rate of seven per cent per annum, such interest to be paid annually, calculated from the date hereof.

That contemporaneously with compliance with Order 3(i)(a) the husband transfer to the wife all his right title and interest in and to the real property at [Property F].

That the wife indemnify and keep indemnified the husband against any and all liability under the mortgage to the Commonwealth Bank of Australia secured over the property at [Property F].

That contemporaneously with the transfer of the husband’s interest to the wife in the [Property F] property, she transfer to the husband all her right, title and interest in the real property situated at [Property B].

That the husband indemnify and keep indemnified the wife against any and all liability under to the mortgage to the Commonwealth Bank of Australia secured over the [Property B] property.

That, save as aforesaid, each party retain ownership of the assets presently in their possession, power or control including superannuation entitlements.

That the court grants to the appellant husband a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 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 husband in respect of the costs incurred by the appellant husband in relation to the appeal.

10.

That the court grants to the respondent wife a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 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 wife in respect of the costs incurred by the respondent wife in relation to the appeal.

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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