WARRINER & WARRINER - [2020] FamCAFC 33

FAMILY COURT OF AUSTRALIA

WARRINER & WARRINER

[2020] FamCAFC 33

FAMILY LAW – APPEAL – PROPERTY – Where the primary judge determined adjustments as 52.5 per cent to the wife and 47.5 per cent to the husband – Where the wife argues that the adjustment was not reflected in the superannuation orders – Where the wife sought to add back property into the property pool – Discretion correctly exercised by the primary judge – Conclusion drawn by the primary judge not plainly wrong – Parties agreed that the wife should receive an additional sum of $63,146.88 from the joint superannuation fund – Appeal allowed in part – Discretion re‑exercised.

FAMILY LAW – APPEAL –COSTS – Where the appeal was wholly unsuccessful bar the adjustment in the superannuation split –Wife to pay the husband’s costs of the appeal in a fixed sum.

Family Law Act 1975 (Cth), s 75(2) and s 94(2)

Carron & Laninga (2019) FLC 93-909;[2019] FamCAFC 115
De Winter v De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Holland & Holland (2017) FLC 93-798; [2017] FamCAFC 166
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

APPELLANT:

Ms Warriner

RESPONDENT:

Mr Warriner

FILE NUMBER:

SYC

8565

2015

APPEAL NUMBER:

EAA

2019

DATE DELIVERED:

14 February 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

19 November 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

28 June 2019

LOWER COURT MNC:

[2019] FCCA 1803

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Bridger

SOLICITOR FOR THE APPELLANT:

Jo-Anna F S Moy Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

De Saxe La Cava O'Neill

Orders

The appeal EAA 68 of 2019 against the orders of Judge Boyle made on 28 June 2019 be allowed in part.
The parties shall within fourteen (14) days of the date of these orders, prepare a minute of order to give effect to the provision for the wife of the sum of $63,146.88 from the Joint Superannuation Fund and that order will be made in Chambers.
The appeal is otherwise dismissed.
The wife to pay the husband’s costs of and incidental to the appeal in the sum of $8,000.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Warriner & Warriner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EAA 68 of 2019
File…

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 WARRINER & WARRINER

Details

AGLC: WARRINER & WARRINER [2020] FamCAFC 33
Case: [2020] FamCAFC 33
Decision Date: 14 February 2020

CaseChat Overview and Summary

The appeal was brought by the husband, Warriner, against an order made by Judge Boyle in the Family Court of Australia concerning the division of property between the parties. The wife had argued that the primary judge had not properly reflected the agreed adjustment in the superannuation orders and that she should be entitled to additional property. The husband contested these claims, asserting that the primary judge's discretion was appropriately exercised. The appeal was heard in the Full Court of the Family Court of Australia.

The legal issues before the court were whether the primary judge had correctly exercised their discretion in adjusting the property settlement and in the division of superannuation. The wife contended that the property pool should have been adjusted to reflect the agreed distribution and that the primary judge had erred in not allowing her to add back property into the pool. The husband argued that the primary judge's orders were correct and that the wife's claims were without merit.

The court found that the primary judge had correctly exercised their discretion in the division of the property, concluding that the wife's argument regarding the adjustment was not supported by the evidence. The court also determined that the wife was entitled to the additional sum of $63,146.88 from the joint superannuation fund, as the parties had agreed to this amount. However, the court found that the husband's appeal was otherwise unsuccessful. As a result, the wife was ordered to pay the husband's costs of the appeal in the sum of $8,000. The court allowed the appeal in part, re-exercising the discretion in relation to the superannuation split.

Orders

Orders of the court

The appeal EAA 68 of 2019 against the orders of Judge Boyle made on 28 June 2019 be allowed in part.

The parties shall within fourteen (14) days of the date of these orders, prepare a minute of order to give effect to the provision for the wife of the sum of $63,146.88 from the Joint Superannuation Fund and that order will be made in Chambers.

The appeal is otherwise dismissed.

The wife to pay the husband’s costs of and incidental to the appeal in the sum of $8,000.

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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