AM & MM

[2006] FamCA 164

[2006] FamCA 164

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No EA83 of 2004
AT SYDNEY  File No NCF570 of 2003

BETWEEN:

AM
Appellant Husband
- and -

MM
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  KAY, COLEMAN & BOLAND JJ
DATE OF HEARING:                 By way of written submissions
DATE OF JUDGMENT:             17 March 2006

SUBMISSIONS RECEIVED FROM:

Mr Lethbridge, Senior Counsel, instructed by Mr K Lee, Solicitor, 82 Marine Parade, Kingscliff NSW 2487, on behalf of the Appellant Husband.

Mr Duane of Counsel, instructed by Ms Susan Green, Solicitor, 35 Gordon Street, Coffs Harbour NSW 2450, on behalf of the Respondent Wife.

APPEAL SUMMARY

MATTER:AM and MM

APPEAL NUMBER:  EA 83 of 2004

CORAM:Kay, Coleman and Boland JJ

DATE OF HEARING:  By way of written submissions

DATE OF JUDGMENT:                   17 March 2006

CATCHWORDS:               

APPEAL – Appeal of 28 May 2005 allowed – Submissions as to further disposition of appeal –PROPERTY - disagreement as to value of two properties – remitted to single Judge for determination – Appeals Registrar made order by consent – Agreed values reduced pool of assets – Sum due under trial Judge’s orders varied.

Cases considered:

Allesch v Maunz (2000) 203 CLR 172

1. On 4 April 2005 we heard argument in an appeal by the husband appeal against property orders made by Moore J on 13 July 2004.  Her Honour ordered that the wife should be entitled to receive 36 per cent of a pool of assets valued at $2,252,637.  This required a payment of $520,000 to the wife by the husband. The appellant sought to reduce the sum payable to the wife to $300,000 or alternatively have the matter remitted for rehearing.

1. On 28 May 2005 we allowed the husband’s appeal and invited the parties, in accordance with the procedure outlined by the High Court in Allesch v Maunz (2000) 203 CLR 172, to put before the Court any submissions as to the further disposition of the appeal.

1. After receiving further written submissions it became apparent that the parties had been unable to agree upon the value of two pieces of real estate owned by the husband situated in the inner western suburbs of Sydney. On 28 July 2005 we ordered that the question of the current value of those properties be remitted for determination by a single judge at the Sydney Registry and the outcome of such a hearing be notified to the Full Court as soon as a judgment had been delivered.

1. We have now been informed that on 20 February 2006 the Appeals Registrar made an order by consent in the following terms:

"1.  That the two valuations by [CM] attached to his affidavit filed 17 November 2005 be accepted as the values to be used in relation to the property adjustment in these proceedings being:
[The first property]  $960,000
[The second property]                   $800,000."

1. The trial Judge had determined that the pool of assets to be divided between the parties was valued at $2,252,637 and in so doing her Honour had ascribed a value of $980,000 to the first property and $925,000 to the second property.

1. The effect of the now agreed values for those properties is to reduce the pool of assets by $145,000 down to $2,107,637.

1. The trial Judge had ordered that the wife should receive 36 percent of the value of the pool as determined by her. For reasons set out in our judgment delivered 18 May 2005 we held that her Honour was in error in undervaluing the significance of the husband’s initial contributions towards the asset pool. We said

“49.     If it is of some assistance to the parties in endeavouring to avoid further expenditure in this matter, we would indicate that on the pool of assets as found by the trial Judge, and given the limited nature of this appeal, we would assess the relevant contributions of the parties to the pool of assets as found by trial Judge in the ratio suggested at trial by Mr [S], namely 75 per cent in favour of the husband and 25 per cent in favour of the wife.  This would create a greater disparity in the capital position of the parties then that determined by her Honour.  

50.      We would assess the adjustment that ought to be made by reference to the balance of the factors identified by her Honour under s 79(4) in a further sum of 7.5 per cent of the asset pool.  These factors include:

·     the capital disparity;

·     the disparity in the ability of the parties to earn income;

·     the wife’s obligation to care for the children;

·     the husband’s obligation to pay child support; and

·     the husband’s contributions to the support of the wife’s children from her first marriage.

51.     The appropriate division of the pool would thus be 67.5 per cent in favour of the husband and 32.5 per cent in favour of the wife.”

1. The effect of a diminution in the value of the pool of assets is to magnify even more the importance of the husband’s initial contributions. However at the same time as we noted in our judgment of 28 July 2005 the wife also provided evidence of a diminution in the level of child support being paid by the husband from $370 per week to $210 per week. 

1. In the circumstances we conclude that an outcome based on the percentages set out above remains appropriate. The wife should receive assets worth $684,982 being 32.5 percent of the available pool worth $2,107,637. As she already holds assets to the value of $290,444 she should receive a cash adjustment from the husband of $394,538.

1. Her Honour’s orders required a payment of $100,000 within one month of 13 July 2004 and the balance within 3 months thereafter. We propose to  simply vary the sum due under those orders without changing the dates the monies fell due. The parties can then calculate any relevant interest due.

1. We note that costs issues were dealt with in our first judgment delivered on 18 May 2005.

Orders

Order 1 of the orders made by the Honourable Justice Moore on 13 July 2004 be varied by substituting the sum of $294,538 for the sum of $420,000 therein appearing.

I certify that the preceding 11 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.



Associate