Appeal against Property Orders in the Family Court allowed. Fresh Evidence not allowed in the Appeal

29/03/2017

The Full Family Court has considered a recent decision of the Family Court as to the Application of Section 79 of the Family Law Act and whether the Trial Judge failed to consider relevant Section 75(2) factors resulting in an injustice to the wife.

This case is not only important for its conclusion but also important as to matters that must be considered and the preparation and conduct of the case for the original Hearing.

Pursuant to Section 79 of the Family Law Act which incorporates Section 75(2) the Family Court can take into consideration almost everything (other than why the parties separate).

Our experienced Lawyers at Watson & Watson take care in preparing the evidence required to prove matters needed to be proved at a Hearing.

In this Appeal some evidence was not available at the Hearing and the Appellant wife sought an Order from the Full Family Court to introduce fresh evidence.  In certain circumstances fresh evidence (which was not relied upon at a hearing) is available in an Appeal case.  However generally fresh evidence will not be allowed to boost your case by evidence, which should have been raised in the initial hearing.

Fundamentally, even though the Full Family Court in the recent matter dealt with the matter on 3 specific bases, the fresh evidence was not allowed in the Appeal case as far as relevant the evidence would have been available to be presented at the Hearing.

In this particular case the husband was 71 years old and the wife was 59 years old.  The husband had made the significant financial contributions and the wife had made minor financial contributions.

The parties had cohabitated for 8 years before separation which commenced 12 years before the trial.

The wife had suffered a motor vehicle accident and proceedings relating to that motor vehicle accident had not been completed as at the time of the Hearing in the Family Court.  This in our view was one of the issues that could have been better prepared for in the initial trial and was one of the areas about which the wife sought to introduce fresh evidence.  That was not allowed by the Full Court of the Family Court.

The Trial Judge assessed the contributions at 87.5% to the husband and 12.5% to the wife.

The asset pool totalled $3,900,000.00 which does not appear to have included the claim for the wife’s damages as a result of the motor vehicle accident.

The Trial Judge held that the wife’s incapacity had not been adversely affected by the marriage.

On Appeal there was no adjustment to the Trial Judge’s findings as to contributions (financial and non-financial) as allocated between the husband and the wife namely 87.5% to the husband and 12.5% to the wife.

However, the Full Family Court held that there was no basis for the finding of the Trial Judge that the marriage had not adversely affected the wife’s earning capacity.

The Full Court of the Family Court then had to decide as to whether to either:

(a)       Refer the matter back to the original Trial Judge to reassess the appropriate adjustment for the effect on the wife’s earning capacity; or

(b)       To make an assessment of that and make an adjustment in the Full Family Court.

There are particular reasons as to why the Full Family Court may approach the matter by either referring the case back to the Trial Judge for a decision based on their findings or the Full Family Court may make its own decision.

In this particular case the Full Family Court made an adjustment and varied the original order. In those circumstances it was not necessary for the matter to be referred back to the original Court.

This case is one that emphasises the need for experienced Family Lawyers to properly consider what the evidence is and to prepare the case so as to present the best possible case.

Our experienced Family Lawyers at Watson & Watson can assist you in advising of the rights and obligations of each of the parties and preparing the case for the Hearing in particular in the unfortunate event that the matter cannot be resolved.

Please contact Richard Watson or his Personal Assistant Shereen DaGloria to obtain advice as to your particular circumstances and the likely outcome of proceedings together with the processes required.

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