DAMIANI & DAMIANI - [2012] FamCA 535

FAMILY COURT OF AUSTRALIA

DAMIANI & DAMIANI

[2012] FamCA 535

FAMILY LAW – PROPERTY – short marriage, one child – husband had significant assets at the date of the marriage - where the factual findings about family violence in a children’s case were admitted in the property proceedings – where it is appropriate to make an adjustment based on a Kennon claim because contributions were made significantly more arduous due to violence – where the wife had recovered from post traumatic stress disorder arising from the violence – where the husband has a far greater earning capacity than the wife – determined that it was a just and equitable alteration for the wife to receive 28% of the net assets

FAMILY LAW – CHILD SUPPORT – departure determination – where the husband has a substantially higher earning capacity – where it is just and equitable that the husband pay 85% of the child’s expenses

Family Law Act 1975 (Cth)

Biltoft & Biltoft (1995) FLC 92-614
Chidiac v Maatouk [2010] NSWSC 386
Chorn & Hopkins (2004) FLC 93-204
Gray v O’Donnell [2009] NSWSC 259
Gyselman & Gyselman (1992) FLC 92-279
Kennon & Kennon (1997) FLC 92-757
Ogilvie v Adams [1981] VR 1041
Omacini & Omacini (2005) FLC 93-218
Spagnardi & Spagnardi [2003] FamCA 905

APPLICANT:

Ms Damiani

RESPONDENT:

Mr Damiani

FILE NUMBER:

SYF

4576

2004

DATE DELIVERED:

9 July 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

21 – 24 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Knox

SOLICITOR FOR THE APPLICANT:

Dettmann Longworth

COUNSEL FOR THE RESPONDENT:

Mr Lloyd, SC

SOLICITOR FOR THE RESPONDENT:

Blanchfield Nicholls

Orders

Pursuant to s 79 Family Law Act 1975 (Cth), an order be made in the terms of paragraphs 2 - 9 below.
Within 60 days the husband pay to the wife the sum of $1,023,441.
Forthwith upon the making of such payment, the wife do all acts and things necessary to transfer her interest in the property situated at and known as … O Street, Suburb R (“the R property”) in the State of New South Wales, Folio Identifier … to the husband.
The husband to do all acts and things and sign all documents necessary to indemnify and keep indemnified the wife from all rates and taxes and all other outgoings including utility expenses relating to the R property.
The husband is hereby declared the sole legal and beneficial owner of his shareholdings in:
5.1.B Pty Ltd ACN …;
5.2.D Pty Ltd ACN …;
5.3.E Pty Limited ACN …;
5.4.F Pty Limited ACN …;
5.5.I Limited ACN … .
The husband indemnify and thereafter keep indemnified the wife in respect of all and any liability in respect of:
6.1.B Pty Ltd ACN …;
6.2.D Pty Ltd ACN …;
6.3.E Pty Limited ACN …;
6.4.F Pty Limited ACN ;
6.5.I Limited ACN …;
including, but not limited to:
6.5.1.liability in relation to loan accounts or pursuant to a guarantee or personal covenant(s).
6.5.2.liability incurred at…

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 DAMIANI & DAMIANI

Details

AGLC: DAMIANI & DAMIANI [2012] FamCA 535
Case: [2012] FamCA 535
Decision Date: 9 July 2012

CaseChat Overview and Summary

In the matter of *Damiani & Damiani*, Watts J of the Family Court of Australia considered property settlement and child support following a short marriage with one child. The wife sought an adjustment to the property settlement based on a *Kennon* claim, arguing that contributions were made significantly more arduous due to family violence. Factual findings regarding this violence, previously made in a children's case, were admitted in the property proceedings. The husband possessed significant assets at the commencement of the marriage, and had a substantially greater earning capacity than the wife, who had recovered from post-traumatic stress disorder arising from the violence.

The court was required to determine the just and equitable alteration of property interests between the parties, considering the admitted family violence and its impact on the wife's contributions. Additionally, the court had to determine whether to make a departure from the standard child support assessment, given the husband's significantly higher earning capacity, and if so, to what extent it would be just and equitable for him to contribute to the child's expenses.

Watts J reasoned that an adjustment was appropriate under section 79 of the *Family Law Act 1975* (Cth) due to the increased arduousness of the wife's contributions stemming from the admitted family violence, applying the principles established in *Kennon*. The court found that a just and equitable outcome for the property division involved the wife receiving 28% of the net assets. In relation to child support, the court determined that it was just and equitable for the husband to pay 85% of the child's expenses, departing from the standard assessment due to his substantially higher earning capacity.

The court ordered the husband to pay the wife a sum of $1,023,441 within 60 days, in exchange for which the wife was to transfer her interest in the R property to the husband. The husband was also to indemnify the wife against all liabilities relating to the R property and his shareholdings in several companies. Provisions were made for the sale of the R property should the payment not be made within the specified timeframe. The wife's application for spousal maintenance was dismissed. The court varied the periodic child support payable by the husband for the child N, setting an annual rate of $25,304, with subsequent annual adjustments based on the Consumer Price Index. The husband was ordered to pay the wife's costs in respect of a specific application.

Orders

Orders of the court

Pursuant to s 79 Family Law Act 1975 (Cth), an order be made in the terms of paragraphs 2 - 9 below.

Within 60 days the husband pay to the wife the sum of $1,023,441.

Forthwith upon the making of such payment, the wife do all acts and things necessary to transfer her interest in the property situated at and known as … O Street, Suburb R (“the R property”) in the State of New South Wales, Folio Identifier … to the husband.

The husband to do all acts and things and sign all documents necessary to indemnify and keep indemnified the wife from all rates and taxes and all other outgoings including utility expenses relating to the R property.

The husband is hereby declared the sole legal and beneficial owner of his shareholdings in:

5.1. B Pty Ltd ACN …;

5.2. D Pty Ltd ACN …;

5.3. E Pty Limited ACN …;

5.4. F Pty Limited ACN …;

5.5. I Limited ACN … .

The husband indemnify and thereafter keep indemnified the wife in respect of all and any liability in respect of:

6.1. B Pty Ltd ACN …;

6.2. D Pty Ltd ACN …;

6.3. E Pty Limited ACN …;

6.4. F Pty Limited ACN ;

6.5. I Limited ACN …;

including, but not limited to:

6.5.1. liability in relation to loan accounts or pursuant to a guarantee or personal covenant(s).

6.5.2. liability incurred at the suit of any of the aforementioned entities or their shareholders, unit holders or office bearers.

6.5.3. any taxation liability, howsoever such liability arises and in whatever capacity such liability is incurred.

In the event that the husband has not paid to the wife the amount referred to in paragraph 2 within 60 days of the date of these orders then the husband shall immediately do all things and sign all documents necessary to sell the R property and the proceeds of sale shall be applied in the following order and priority:

7.1. costs of sale including legal expenses and agents commission;

7.2. 73% of the sale price of the R property or $1,023,441 together with interest to the date of payment, whichever amount is higher, to the wife;

7.3. the balance to the husband.

Within 28 days of the payment to the wife of the capital sum, the wife cause to be delivered to the husband the engagement ring he had given to her.

The husband and the wife shall each solely be entitled to the exclusion of the other to all other property and resources not already referred to in these Orders in the possession or control of that party at this date.

10.

The wife’s application for spouse maintenance be dismissed.

11.

Pursuant to s 117 Child Support (Assessment) Act 1989 (Cth):

11.1. the periodic rate of child support payable by the husband for the child N be varied by setting the annual rate of child support during the period 1 November 2011 to 31 October 2012 at $25,304.

11.2. That the annual rate of child support to be paid to the wife pursuant to sub-paragraph 11.1 herein be varied each year on and from 1 November 2012 and on each 1 November thereafter, in accordance with the variation of the Consumer Price Index for Sydney over the previous year as published by the Commonwealth of Australia Statistician as at 30 June of the year in question.

12.

Each party shall be at liberty to apply on 7 days notice in relation to the implementation of these Orders.

13.

Without admission and by consent, the husband pay the wife’s costs, to be agreed or assessed, in respect of the husband’s Application in a Case filed 27 May 2011 and withdrawn on 21 November 2011.

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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