FAMILY LAW – PROPERTY PROCEEDINGS – Where it is just and equitable to alter the parties’ rights and interests in their property – Stanford v Stanford [2012] HCA 52 applied
FAMILY LAW – ASSET POOL – Whether unvested share units from an employment equity plan are an asset or financial resource – Where share units cannot be sold, assigned or dealt with until they vest – Unvested share units a financial resource –Whether assets disposed of after separation should be notionally added back to the asset pool – Whether the treatment of funds owned at separation to pay legal fees should be added back –Where the payment of legal fees by the husband from post-separation income considered – Where payment of legal fees by the wife constitutes a premature distribution of property albeit property that no longer exists – Where it should be dealt with pursuant to s 79(4) rather than create a notional pool – Where husband’s paid legal expenses taken into account pursuant to s 75(2)(o)
FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife’s chances of paid employment are hindered by her years out of the workforce – Where the wife is entitled to maintenance for the remainder of the year in order to re-train and prepare to return to full-time employment
FAMILY LAW – CHILD SUPPORT – Where a departure order is sought in accordance with the Child Support (Assessment) Act 1989 (Cth) – Where special circumstances must be shown for a ground of departure – Where the wife’s necessary commitments exhaust her income thus her capacity to contribute to the children’s support – Whether the children’s attendance at private fee paying schools is a style of education in the manner that was expected by the parties – Where risk of hardship to liable parent if order made for total duration sought – Closed period order made
AJO & GRO (2005) FLC 93-218 Antman & Antman (1980) FLC 92-800 B and B[2000] FamCA 1301 Biltoftv Biltoft (1995) FLC 92-614 Browne v Green (1999) FLC 92-873 C and C[1998] FamCA 143 Chorn & Hopkins (2004) FLC 93-204 Clauson v Clauson (1995) FLC 92-595 De Angelis v De Angelis (2003) FLC 93-133 DJM v JLM (1998) FLC 92-816 Dwyer v McGuire (1993) FLC 92-420 Farmer and Bramley (2000) FLC 93-060 Farnell and Farnell (1996) FLC 92-681 Ferraro & Ferraro (1993) FLC 92-335 Gyselman & Gyselman (1992) FLC 92-279 Kasiopoulos & Garapiperis[2012] FamCAFC 85 Kelly and Kelly (No.2) (1981) FLC 91-108 Kennon v Spry (2008) 238 CLR 366 Kowaliw & Kowaliw (1981) FLC 91-092 Lee Steere and Lee Steere (1985) FLC 92-626 Lightfoot & Hampson (1996) FLC 92-663 M and M[1998] FamCA 42 Mee…
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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AGLC
BEKLAR & BEKLAR
[2013] FamCA 327
Case
[2013] FamCA 327
Decision Date
CaseChat Overview and Summary
This matter concerned property proceedings between a husband and wife, heard by Ryan J. The wife sought orders altering the parties' rights and interests in their property, spousal maintenance, and a departure from the standard child support assessment.
The court was required to determine whether unvested share units from an employment equity plan constituted an asset or a financial resource, given that they could not be sold, assigned, or dealt with until vesting. Further issues included whether assets disposed of after separation, specifically funds used to pay legal fees, should be notionally added back to the asset pool. The court also considered the wife's entitlement to spousal maintenance, given her years out of the workforce and the need for retraining, and whether special circumstances existed to justify a departure from the standard child support assessment, considering the parties' expected standard of education for their children and the wife's limited capacity to contribute.
Applying the principles in *Stanford v Stanford* [2012] HCA 52, the court found that the unvested share units were a financial resource, not an asset. Regarding the legal fees, the court determined that payments made by the husband from post-separation income were to be taken into account under s 75(2)(o) of the *Family Law Act 1975* (Cth). The wife's payment of legal fees was treated as a premature distribution of property that no longer existed, to be dealt with under s 79 of the Act rather than by creating a notional pool. The wife was awarded spousal maintenance for the remainder of the year to facilitate her return to full-time employment. For child support, the court made a closed period order, finding that while the children's attendance at private schools reflected the parties' expected standard of education, there was a risk of hardship to the liable parent if an order was made for the total duration sought, and the wife's necessary commitments exhausted her income, limiting her capacity to contribute.