AMENDED PURSUANT TO RULE 17.02A OF THE FAMILY LAW RULES 2004 (CTH) ON 18 NOVEMBER 2020
FAMILY COURT OF AUSTRALIA
| BALKEN & VYNER | [2020] FamCA 955 |
| FAMILY LAW – PROPERTY SETTLEMENT – Just and Equitable – where the husband asserted that it was not just and equitable to make orders adjusting the parties property interests – where the husband received significant gifts, inheritances and income from trusts established by his father during the relationship – where the husband made non-financial contributions to the welfare of the wife and himself – where the wife made more limited financial contributions – where the wife’s primary contribution was to the welfare of the husband and the husband’s child from a previous marriage – where orders are made for the payment of a lump sum to the wife from the husband. FAMILY LAW – DE FACTO RELATIONSHIPS – where the wife asserted that the parties were in a de facto relationship prior to their marriage – where the husband denied the existence of the de facto relationship – where the parties having married it is the nature of the relationship, its duration and contributions themselves which is relevant rather than whether it meets the legal definition – whilst the parties were in a relationship prior to the marriage the evidence does not demonstrate that they were in a continuous relationship living together on a genuine domestic basis for the duration of their relationship prior to the marriage– where the parties having married it is their contributions they both made prior to and following the marriage that are relevant. FAMILY LAW – TRUSTS – where the asset pool comprises of a number of corporate entities and trusts – where the husband is the beneficiary of trusts established by his father prior to his death – where the parties instructed a single expert to prepare a valuation of the various entities which they control or in which they have an interest – where there were disputes as to the value and control of the trusts established by the husband’s father – where it is determined that the husband does not have control of the trusts established by his father, have any current entitlement to or access to the capital of those trusts ADDENDUM – Correction of Reasons for Judgment pursuant to r 17.02A of the Family Law Rules 2004 (Cth) – Addition of addendum explaining the corrections. |
| Corporations Act 2001 (Cth) s 1305 Family Law Rules 2004 (Cth) rr 13.07, 17.02A |
| Anor & Selwood & Selwood [2017] FamCAFC 197 Black and Kellner (1992) FLC 92-287; (1992) 15 FamLR 343 Carroll v. Price (1960) V.R. 651 Clauson v Clauson (1995) FLC 92-595; (1994) 18 FamLR 693 Dickons & Dickons [2012] FamCAFC 154 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 Frederick & Frederick [2019] FamCAFC 87 Giunti and Giunti (1986) FLC 91-759; (1976) 11… |
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- BALKEN & VYNER [2020] FamCA 955
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- [2020] FamCA 955
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CaseChat Overview and Summary
The court was required to determine whether it was just and equitable to make orders adjusting the parties' property interests, and to consider the nature of the parties' relationship prior to their marriage. Specifically, the court had to assess the contributions made by each party to the relationship and the asset pool, including the husband's receipt of significant gifts, inheritances, and income from trusts, and the wife's contributions to the welfare of the husband and his child from a previous marriage.
Macmillan J reasoned that while the parties were in a relationship prior to their marriage, the evidence did not demonstrate a continuous relationship living together on a genuine domestic basis for the entire duration of their pre-marital cohabitation. Consequently, the court focused on the contributions made by both parties both prior to and following the marriage. The husband's assertion that it was not just and equitable to make orders was rejected, and orders were made for the payment of a lump sum to the wife from the husband. The judgment also included an addendum correcting figures in the original reasons for judgment.
Orders
Orders of the court
Orders made on 30 September 2020
1. All extant applications be adjourned for mention before Justice Macmillan at 11am on 2 October 2020.
Orders made on 18 November 2020
1. Pursuant to r 17.02A of the Family Law Rules 2004 (Cth), the Reasons for Judgment delivered on 30 September 2020 are amended to delete references to the incorrect figures as per the reasons outlined in the ‘Addendum.’
2. All extant applications be adjourned for mention before Justice Macmillan at 10 am on 23 November 2020.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Balken & Vyner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
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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