Davalos & Davalos & Ors - [2015] FamCA 679

FAMILY COURT OF AUSTRALIA

DAVALOS & DAVALOS AND ORS

[2015] FamCA 679

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where the husband and wife were married for approximately 52 years and have raised four adult children – Where the parties accommodation during almost the entirety of the marriage was provided by the wife’s father – Where significant income has come to the wife from her father but the level of such income was unable to be quantified – Where the contributions overall were found to be 55 percent by the wife and 45 percent by the husband – Where the parties are aged 80 and 79 years and are retired – Where the wife has gifted approximately $800 000 to the parties’ children without the husband’s consent – Where the husband has had the benefit of various sums of money including a portion of his superannuation, proceeds of the sale of shares and a rental benefit – Where a $64 250 adjustment in favour of the husband is appropriate taking account of the relevant s 75(2) matters – Where an order is made for the wife to receive 55 percent less $64 250 and the husband to receive 45 percent plus $64 250 of the available property and superannuation.

FAMILY LAW – PROPERTY – Where the husband sought a declaration pursuant to s 78 of the Act against the second respondent – Where the second respondent sought summary dismissal of the husband’s application – Where the orders sought by the husband were dismissed.

Family Law Act 1975 (Cth) – ss 75(2), 78, 79
Evidence Act 1995 (Cth) – s 128

Calverley v Green (1984) 155 CLR 242
Kyriakos & Kyriakos & Anor (2013) 51 Fam LR 197
Kowaliw & Kowaliw (1981) FLC 91-092
Martin & Martin (1959) 110 CLR 297
Stanford v Stanford (2012) FLC 93-518

APPLICANT:

Mr Davalos

1st RESPONDENT:

Ms Davalos

2nd RESPONDENT:

Mr A Davalos

3rd RESPONDENT:

Ms B Davalos

FILE NUMBER:

SYC

6919

2011

DATE DELIVERED:

18 August 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

5, 6 & 7 February 2014 and 4, 5 & 13 August 2014 and 17 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd, SC

SOLICITOR FOR THE APPLICANT:

Blanchfield Nicholls Partners

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Batey

SOLICITOR FOR THE 1^ST RESPONDENT:

Delaney Lawyers

SOLICITOR FOR THE 2^ND RESPONDENT:

Mr Holmes of KD Holmes Solicitors

SOLICITOR FOR THE 3^RD RESPONDENT:

Mr Holmes of KD Holmes Solicitors

Orders

That the husband’s application for a declaration pursuant to s 78 of the Family Law Act 1975 with respect to shares in the company C Pty Ltd be dismissed.
That the application at paragraph 7 of the husband’s Application in a Case filed on 25 February 2014 be dismissed.
That the husband and the wife do all things and sign all documents necessary to cause the money in the joint controlled money account ($1 419 972) to…

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 Davalos & Davalos & Ors

Details

AGLC: Davalos & Davalos & Ors [2015] FamCA 679
Case: [2015] FamCA 679
Decision Date: 18 August 2015

CaseChat Overview and Summary

In *Davalos & Davalos & Ors*, Johnston J of the Family Court of Australia considered a property settlement dispute between a husband and wife who had been married for approximately 52 years. The wife's father had provided accommodation for the parties for most of their marriage, and the wife had received significant, though unquantified, income from her father. The wife had also gifted approximately $800,000 to the parties' children without the husband's consent. The husband had benefited from various sums, including superannuation, share sale proceeds, and a rental benefit.

The court was required to determine the appropriate division of the parties' property and superannuation, taking into account their respective contributions and future needs. A key issue was the husband's application for a declaration pursuant to s 78 of the *Family Law Act 1975* against the second respondent concerning shares in C Pty Ltd, which the second respondent sought to have summarily dismissed.

Johnston J found that the overall contributions to the marriage were 55 percent by the wife and 45 percent by the husband. The court determined that a $64,250 adjustment in favour of the husband was appropriate, considering relevant s 75(2) matters. The husband's application for a declaration under s 78 was dismissed. The court ordered that the wife receive 55 percent less $64,250 and the husband receive 45 percent plus $64,250 of the available property and superannuation. Specific orders were made regarding the distribution of funds from a joint controlled money account, the transfer of the wife's interest in Davalos Pty Limited to the husband, and indemnities concerning tax liabilities and a debt owed by the husband to the wife. The orders were not to commence operation until 3 September 2015.

Orders

Orders of the court

That the husband’s application for a declaration pursuant to s 78 of the Family Law Act 1975 with respect to shares in the company C Pty Ltd be dismissed.

That the application at paragraph 7 of the husband’s Application in a Case filed on 25 February 2014 be dismissed.

That the husband and the wife do all things and sign all documents necessary to cause the money in the joint controlled money account ($1 419 972) to be paid as follows:

- $1 410 110 to the husband; and

- $9862 to the wife.

That within 42 days the wife do all things and sign all documents necessary to transfer to the husband her right, title, shares and interest in the company Davalos Pty Limited.

That forthwith upon the transfer referred to above the wife shall sign all documents necessary to resign as a director of Davalos Pty Limited and relinquish any rights she might have as director.

That the husband shall indemnify and keep the wife indemnified from and against all liability arising from any assessment or amended assessment of income tax, fines, penalties and/or interest as may issue in respect of the wife’s receipt of any money or obligations or liability she has including any liability of the wife to the Australian Taxation Office however such liability arises in relation to her connection with and in respect of any tax, penalty and interest arising from the husband’s dealings with the Davalos Pty Limited Superannuation Fund and Davalos Pty Limited.

That the wife shall indemnify the husband from and against the liability of $534 000 owed to the wife by the husband for the purpose of reducing liabilities owed by Davalos Pty Limited.

That otherwise the parties are each declared the sole owner of all other property and superannuation in their possession and/or control respectively.

That if either party fails or neglects to sign any document pursuant to these orders the registrars of this Court at Sydney shall be appointed pursuant to s 106A of the Family Law Act 1975 to sign such document in the name of that party and to do all things necessary to give validity or operation to the document.

10.

That the Court certifies for Mr Holmes as counsel.

11.

That all exhibits be released.

12.

That all parties have leave to relist these proceedings by arrangement with Johnston J’s associate […] in relation to the implementation of these orders.

13.

That these orders not commence operation until 3 September 2015.

14.

That all parties have leave to relist these proceedings by arrangement with Johnston J’s associate […] not later than 2 September 2015 for the purpose of further submissions in relation to the form of the orders only.

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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