IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE
Appeal No. NA8 of 2004 File No. BRF1767 of 2003
IN THE MATTER OF:
DW
Appellant Wife
and
GT
Respondent Husband
REASONS FOR JUDGMENT OF THE FULL COURT
Coram: Finn, May & O’Reilly JJ Dates of Hearing: 11 June 2004 Date of Judgment: 15 March 2005
APPEAL SUMMARY
MATTER:DW & GT
APPEAL NUMBER: NA 8 of 2004 (BRF 1767 of 2003)
CORAM:Finn, May and O’Reilly JJ
DATE OF HEARING: 11 June 2004
DATE OF JUDGMENT: 15 March 2005
CATCHWORDS: FAMILY LAW – APPEALS – PROPERTY SETTLEMENT – FLA 1975 ss 44(3), 75(2) and 79 –Antecedent agreement – Just and equitable – Whether the trial Judge erred in considering assets as at the date of agreement rather than as at the date of trial – Whether the trial Judge erred in considering the applicable law was that at the date of agreement rather than as at the date of trial – Whether the trial Judge failed to have regard to the identity of, the value of, and contributions to, the property as it existed at the time of trial – Whether the trial Judge failed to have any or any proper regard to s 75(2) factors that might be applicable in the division of the property as it existed at the time of the trial.
CASELAW CITED: Burgoyne and Burgoyne (1978) FLC 90-467
Candlish and Pratt (1980) FLC 90-819
Dupont and Dupont (No.3) (1981) FLC 91-104
Schokker v Edwards (1986) FLC 91-723
Thallon (unreported, 12 May 1993, Lindenmayer J)
Woodcock v Woodcock (1997) FLC 92-739
Appeal allowed. Costs certificate granted to both parties for costs relating to appeal and retrial.
Introduction
This is an appeal by the wife against orders made by Bell J on 16 January 2004 in which his Honour dismissed the wife’s application for property settlement (filed on 15 November 2002) following a trial on 21 October 2003.
In August 1997, the parties had effected a division of their property through an informal agreement. It was the wife’s case at trial that the division amounted to a ‘partial property settlement’ while the husband contended that the agreement was intended to finalise the parties’ financial arrangements. Subsequent to the 1997 agreement, the assets of the parties with which the Court could deal significantly increased, partly due to the enactment of the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth).
In November 2002, the wife commenced proceedings under s 79 of the Family Law Act 1975 (“the Act”) for an alteration of property interests. She was apparently given leave to do so under s 44(3) of the Act by an order of the Federal Magistrates Court. We have not seen the reasons for that decision.
In her initiating application the wife sought a division of property which would provide her with 70 per cent of the then net assets of the parties. It is agreed that…
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.
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Details
AGLC
Woodland & Todd [2005] FamCA 161
Case
[2005] FamCA 161
Decision Date
CaseChat Overview and Summary
The appeal concerned a property settlement dispute between a husband and wife, heard by Finn, May, and O’Reilly JJ. The core of the disagreement revolved around the date at which the parties' assets should be valued and the applicable law for division, with the wife contending the trial judge erred in considering these matters as at the date of an antecedent agreement rather than the date of trial.
The legal issues before the Full Court were whether the trial judge had erred in considering the parties' assets as at the date of their antecedent agreement instead of the date of trial, and whether the trial judge had applied the incorrect legal framework by referencing the law applicable at the time of the agreement rather than at the time of trial. Furthermore, the court was asked to determine if the trial judge had failed to properly consider the identity, value, and contributions to the property as it existed at the time of trial, and if there was a failure to adequately regard the factors under section 75(2) of the *Family Law Act 1975* in relation to the property at the time of trial.
The Full Court allowed the appeal, finding that the trial judge had erred in his approach. The court reasoned that property settlement orders under the *Family Law Act 1975* should generally be determined by reference to the assets and the law as they exist at the time of trial, not at the time of an antecedent agreement, unless specific circumstances warrant otherwise. The trial judge's failure to properly consider the property and relevant statutory factors as they stood at the time of trial constituted a material error.
The appeal was allowed, and both parties were granted a costs certificate for the appeal and the retrial.
Orders
Orders of the court
Appeal allowed.
Costs certificate granted to both parties for costs relating to appeal and retrial.
Background
Background to the litigation
Factual Background The relevant factual background to this matter as found by the trial Judge was not the subject of argument in the appeal. At the time of trial the wife and the husband were aged 46 and 51, respectively. The parties were married in November 1977 and separated in January 1996. They were thus married for over 18 years and separated for eight at the time of the trial. There are three children of the marriage born 20 December 1980, 7 June 1984 and 11 February 1991. At the date of separation, the children were aged 15, 11 and 4. At the date of the trial, the children were aged 22, 19 and 12. The Judgment of the Trial Judge Grounds of Appeal Costs Orders
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The Judgment of the Trial Judge Grounds of Appeal Costs Orders