Beyer & Beyer - [2023] FedCFamC2F 59

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beyer & Beyer [2023] FedCFamC2F 59

File number(s): SYC 1966 of 2022

Judgment of: JUDGE ELDERSHAW

Date of judgment: 31 January 2023

Catchwords: FAMILY LAW – PROPERTY – FINAL ORDERS – Where the parties entered a Financial Agreement – Where the parties have departed from the intention contained in the Agreement – Where the parties recorded their contributions to the Property in a Microsoft Excel spreadsheet – Where the parties maintained a high degree of separateness – Where the parties’ direct financial contributions to the Property were equal as of April 2021 – Where a two-pool approach is adopted – Where the financial contributions favour the wife – Where the non-financial contributions favour the husband – Where there is adjustment for the disparity in age – Where orders are made to equalise the parties’ superannuation and non-superannuation assets

Legislation:
Family Law Act 1975 (Cth) ss 75(2), 79, 90UC, 90UJ, 90XE, 90XT, 106A, 121

Family Law (Superannuation) Regulations 2001 (Cth) Pt 6

Cases cited:
Adair & Adair [2019] FamCAFC 70

Clauson & Clauson (1995) FLC 92 – 595; [1995] FamCA 10

Jabour & Jabour (2019) FLC 93 – 898; [2019] FamCAFC 78

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Perrin & Perrin (No 2) [2018] FamCAFC 122

Simons & Simons [2020] FamCAFC 128

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Division: Division 2 Family Law

Number of paragraphs: 125

Date of hearing: 16 & 17 January 2023

Place: Sydney

Counsel for the Applicant: Mr Stapleton

Solicitor for the Applicant: SWAAB Attorneys

Counsel for the Respondent: Mr Howard

Solicitor for the Respondent: Neilan Stramandinoli Family Law
ORDERS

SYC 1966 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BEYER

Applicant

AND:
MS BEYER

Respondent

order made by:

JUDGE ELDERSHAW

DATE OF ORDER:

31 January 2023

ON A FINAL BASIS THE COURT ORDERS THAT:
1.All prior orders in these proceedings be discharged.
2.By no later than 4.00 pm on 1 May 2023 (“the Due Date”), the husband shall pay the wife the sum of $259,237.
3.If the husband fails to fully comply with Order 2 herein by the Due Date, then the parties shall do all acts and things, and sign all documents necessary, to sell the property known and situated at B Street, Suburb C in the Australian Capital Territory (“the Property”) for the best price reasonably obtainable.
4.In the event the parties cannot agree on the appointment of an agent, engagement of a conveyancer or other matters relevant to the conduct of the sale of the Property, Order 17 herein shall apply to the extent necessary.
5.The sale proceeds of the Property shall be distributed in the following manner and priority:
(a)On discharge of any loan account that is secured by way of registered mortgage;
(b)In payment of the costs of legal fees and disbursements incurred by the conveyancer acting for the parties;
(c)In payment of the selling agent’s commission…

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.

Continue reading Beyer & Beyer

Details

AGLC: Beyer & Beyer [2023] FedCFamC2F 59
Case: [2023] FedCFamC2F 59
Decision Date

CaseChat Overview and Summary

This case concerns property distribution pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The husband sought to retain 63 per cent of the overall assets using a one pool approach without disturbing any superannuation. In closing submissions, counsel for the husband contended that contributions should be assessed as about 53 to 55 per cent in favour of the husband, and that there should be a future needs adjustment in favour of the husband of about 2.5 per cent. The wife sought that the cash payment to her should represent 55 per cent of the non-superannuation assets and an equalisation of superannuation. The court found that the husband’s financial contributions were greater at the commencement of the relationship, however, his initial contributions to the property were accounted for in the Excel spreadsheet, which recorded parity by the end of April 2021. The court found that non-financial contributions favour the husband. The court found that the effect of any proposed order upon the earning capacity of either party to the marriage will not be effected by any proposed order. The court found that the age disparity favours the husband. The court found that it is appropriate that the wife should be given a reasonable opportunity to rehouse herself in her own home from non-superannuation assets. The court found that it is just and equitable in all the circumstances to make orders to equalise the parties’ superannuation and non-superannuation assets.

The court ordered that all prior orders in these proceedings be discharged, that the husband shall pay the wife $259,237 by 1 May 2023, and that if the husband fails to fully comply with the payment order by the due date, then the parties shall do all acts and things, and sign all documents necessary, to sell the property at B Street, Suburb C in the Australian Capital Territory for the best price reasonably obtainable. The court ordered that the sale proceeds of the property shall be distributed in a certain manner and priority, and that pending the discharge of the payment order or the sale of the property, the husband shall pay as and when they fall due, all mortgage repayments, council and water rates, and home building insurance costs of the property without further recourse to the wife. The court also made a superannuation splitting order and other orders.

Orders