Alexiou and Alexiou - [2012] FamCA 1146

FAMILY COURT OF AUSTRALIA

ALEXIOU & ALEXIOU

[2012] FamCA 1146

FAMILY LAW – PROPERTY SETTLEMENT – Add-backs – Whether expenditure of proceeds of trust be the wife should be a notional asset – use those proceeds were put to – Child Support – Whether payment of private school fees is appropriate.

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

C & C [1998] FamCA 143
Chorn & Hopkins (2004) FLC 93-204
Farmer & Farmer [2007] FamCA 158
Lightfoot v Hampson (1996) FLC 92-663
Mee & Ferguson (1986) FLC 91-716
Omacini and Omacini (2005) FLC 93-218
Stanford v Stanford [2012] HCA 52
T & T (1984) FLC 91-588
Townsend & Townsend (1995) FLC 92-569
Wild & Ballard (1997) FLC 92-771

APPLICANT:

Mr Alexiou

RESPONDENT:

Ms Alexiou

FILE NUMBER:

PAC

3070

2010

DATE DELIVERED:

14 December 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

7-10 August 2012; 17 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wong

SOLICITOR FOR THE APPLICANT:

York Family Law

COUNSEL FOR THE RESPONDENT:

Mr Watkins

SOLICITOR FOR THE RESPONDENT:

Self represented

Orders

The parties are to jointly appoint an accountant to assist in the winding up of the companies X Investments Pty Limited and Z Finance Pty Limited. The parties are to then instruct the chosen accountant to cause the companies to be wound up. Each party is to do all things necessary to enable such winding up. The parties are to contribute equally to the cost of the winding up.
The wife’s application for a departure order in relation to the Child Support Assessment issued in respect of the children of the marriage is refused.
The orders made 10 August 2012 as “until Further orders” become final orders as part of these orders. Those orders are as follows:
1.That within 2 months from the date of these orders, the husband will do all acts and things and execute all documents necessary to transfer to the wife at the expense of the wife the whole of the husband's right title and interest in the property situate and known as 49 S Street, Suburb T in the state of NSW being the whole of the land contained in folio identifier … ("the No. 49 property").
2.That simultaneously with the husband’s compliance with Order 8 hereof, the wife will do all acts and things and pay all sums of money to discharge the parties' Westpac mortgage (comprising of Westpac Banking Corporation Loan Account numbers …704, …989 and …095) secured over the No. 49 property and pending the transfer pursuant to Order 7 hereof the wife shall make and be responsible for the payment of all moneys due and owing pursuant to the parties' Westpac mortgage secured over the No. 49 property and all outgoings in respect of the No. 49 property and the wife shall indemnify the husband in respect of all such outgoings.
3.That within 2 months from the date of these orders, the wife will do…

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.

Keep reading for free

Create a free CaseChat account to read Alexiou and Alexiou and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FamCA 1146
Decision Date

CaseChat Overview and Summary

The parties, Mr and Ms Alexiou, sought property settlement orders from the Family Court of Australia following their separation after 16 years of marriage. While they agreed their contributions were equal, disputes arose concerning "add-backs" to the asset pool and adjustments under section 75(2) of the Family Law Act 1975 (Cth). A significant issue involved the wife's application for a departure order regarding child support, specifically concerning private school fees.

The court was required to determine whether certain expenditures by the wife, particularly of trust proceeds and funds used for private school fees, should be treated as notional assets for the purpose of property division. Additionally, the court had to consider the appropriateness of the husband contributing to the children's private school fees, given the parties' financial circumstances and the husband's assertion of inability to afford them. The court also needed to finalise property division orders, taking into account a partial property order agreed upon by the parties during the hearing.

The court reasoned that the wife's expenditure of trust proceeds for private school fees would not be treated as a notional asset to be added back to the pool, as these were legitimate expenses for the children's education. The wife's application for a departure order to compel the husband to contribute to the children's private school fees was refused, with the court finding that the husband's financial position did not support such an order. The court made final property orders, including the transfer of properties and a vehicle between the parties, and a payment of $120,000 from the husband to the wife, secured against the husband's retained property. The parties were also ordered to jointly appoint an accountant to wind up two companies.

Orders