WYNDHAM & GILBERT - [2012] FamCAFC 164

FAMILY COURT OF AUSTRALIA

WYNDHAM & GILBERT

[2012] FamCAFC 164

FAMILY LAW – APPEAL – PROPERTY – appeal by the wife against orders of the Federal Magistrate dividing property with net value of $517,307 as to 70 per cent to the husband and 30 per cent to the wife – asserted by the wife that the Federal Magistrate should not have accepted the single expert’s evidence in determining the value of the parties’ business – Full Court found no error, being satisfied that the Federal Magistrate was well aware of the limitations of the expert’s evidence but in circumstances where no other evidence was provided – asserted by the wife that the Federal Magistrate erred in determining the liabilities of the parties and that the Federal Magistrate should not have accepted the husband’s explanation of his liabilities, particularly post-separation – Full Court found no justification for interfering with this exercise of discretion by the Federal Magistrate, the Full Court having concluded that the Federal Magistrate had carefully examined the husband’s material and was satisfied to accept the husband’s claimed liabilities – asserted by the wife that the Federal Magistrate erred in the exercise of discretion in assessing the parties’ contributions – Full Court found that, despite the Federal Magistrate having overlooked the husband’s evidence as to the amount of his liabilities at the time of the marriage, it would not be justified in interfering with the contribution assessment – asserted by the wife that the Federal Magistrate erred in the adjustment made for s 75(2) factors – Full Court found this challenge to be solely based on an argument as to weight and that again its interference would not be warranted – appeal dismissed – each party to bear their own costs in relation to the appeal.

Family Law Act 1975 (Cth) s 75(2), s 121(g)

Federal Magistrates Court Rules (2001) (Cth) r 16.05(2)(e)

Gronow v Gronow (1979) 144 CLR 513
Kowaliw and Kowaliw (1981) FLC 91-092

APPELLANT:

Ms Wyndham

RESPONDENT:

Mr Gilbert

FILE NUMBER:

SYC

7763

2007

APPEAL NUMBER:

2010

DATE DELIVERED:

5 October 2012

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Strickland and Murphy JJ

HEARING DATE:

19 September 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

9 April 2010

LOWER COURT MNC:

[2010] FMCAfam 24

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Durra

SOLICITOR FOR THE APPELLANT:

Pearson Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Rees SC

SOLICITOR FOR THE RESPONDENT:

Abrams Turner Whelan

Orders

The appeal be dismissed.
Each party bear their own costs in relation to the appeal.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 54 of 2010
File Number: SYC 7763 of 2007

Ms WYNDHAM

Appellant

And

Mr GILBERT

Respondent

REASONS FOR JUDGMENT

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

Case: [2012] FamCAFC 164
Decision Date: 5 October 2012

CaseChat Overview and Summary

The appeal before the Full Court was brought by the wife against orders of the Federal Magistrate concerning the division of property with a net value of $517,307, awarded 70 per cent to the husband and 30 per cent to the wife. The wife contested the division, arguing that the Federal Magistrate had erred in several respects: in accepting the single expert’s evidence to determine the value of the parties’ business, in accepting the husband’s explanation of his liabilities, particularly post-separation, in assessing the parties’ contributions, and in the adjustment made for factors under section 75(2) of the Family Law Act.

The Full Court reviewed the decision of the Federal Magistrate and found no error in the Magistrate's approach. The Court was satisfied that the Magistrate was aware of the limitations of the expert’s evidence but, in the absence of any other evidence, it was appropriate to rely on it. The Full Court also found no justification for interfering with the Magistrate’s assessment of the husband’s liabilities, having concluded that the Magistrate had carefully examined the husband’s material and was satisfied to accept his claimed liabilities. Despite the Magistrate overlooking the husband’s evidence regarding his liabilities at the time of the marriage, the Full Court determined that it would not be justified in interfering with the contribution assessment. Lastly, the Court found that the wife’s challenge to the adjustment made for section 75(2) factors was solely based on an argument as to weight, and therefore, the Court’s interference was not warranted.

Accordingly, the appeal was dismissed. Each party was ordered to bear their own costs in relation to the appeal.

Orders

Orders of the court

The appeal be dismissed.

Each party bear their own costs 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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