Legal Research
Cases
Davids and Davids

Davids and Davids

Case [2019] FamCA 544 14 August 2019

Type to search within this case.

FAMILY COURT OF AUSTRALIA

DAVIDS & DAVIDS

[2019] FamCA 544

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Contributions – Where the wife has made significant financial contributions – Where the wife’s parents have made contributions for the benefit of the parties – Where the parties have made an equal contribution to the parenting of the children – Appropriate to make an order – Orders.

Family Law Act 1975 (Cth) ss 75, 75(2), 75(2)(o), 79, 79(2), 79(4)

Aleksovski & Aleksovski (1996) FLC 92-705
Bevan & Bevan [2013] FamCAFC 116
Bonnici & Bonnici (1992) FLC 92-272
Carter & Carter (1981) FLC 91-061
Chorn & Hopkins (2004) FLC 93-204
Clifford & Lodge [2000] FamCA 1666
CPL & CPL [1998] FamCA 143
Dickons & Dickons [2012] 50 Fam LR 244
Finlayson v Finlayson & Gillam (2002) FLC 93-121
Hurst & Hurst [2018] FamCAFC 146
Kouper & Kouper (No 3) [2009] FamCA 1080
Kowaliw & Kowaliw (1981) FLC 91-092
SMB & MFB [2006] FamCA 46
Stanford & Stanford (2012) 247 CLR 108
Thurston & Loomis & Ors [2018] FamCA 26
Vass & Vass [2015] FamCAFC 51

APPLICANT:

Mr Davids

RESPONDENT:

Ms Davids

FILE NUMBER:

ADC

2298

2016

DATE DELIVERED:

14 August 2019

PLACE DELIVERED:

Darwin

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

8, 9 and 10 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Jordan & Fowler Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Lewis

SOLICITOR FOR THE RESPONDENT:

Jacqui Ion Lawyers Pty Ltd

Orders

That in full and final settlement of any claim that either party may have against the other or at any time in the future for settlement of property or alteration of interests in property:-
(a)That within thirty (30) days of the date of this order the parties do all things necessary and sign all such documentation as may be required to pay to the husband the settlement sum of ONE HUNDRED AND FOURTEEN THOUSAND FOUR HUNDRED AND FORTY SIX DOLLARS ($114,446) and that thereafter the balance of the funds held in the joint ANZ savings account number …57 be paid to the wife and the parties shall cause the said ANZ account to be closed;
(b)That with respect to the wife’s interest in P personal superannuation held within the P2 Superannuation Fund (ABN …) with the account number …01 (“the superannuation fund”):-
(i)Pursuant to s 90XT(4) of the Family Law Act 1975 (Cth) the husband shall be allocated a base amount of ONE HUNDRED AND FORTY THREE THOUSAND AND EIGHTY SIX DOLLARS ($143,086) out of the wife’s splittable interest in the superannuation fund;
(ii)Pursuant to s 90XT(1)(a) of the Family Law Act 1975 (Cth) whenever the trustee of the superannuation fund (namely P Limited) (“the trustee”) makes a splittable payment out of the wife’s interest in the superannuation fund pursuant to this order, the trustee shall pay to the husband the sum calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 (Cth) using the…

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 Davids and Davids

Details

AGLC: Davids and Davids [2019] FamCA 544
Case: [2019] FamCA 544
Decision Date: 14 August 2019

CaseChat Overview and Summary

This matter concerned the final settlement of property and alteration of interests between the parties, Mr. Davids (husband) and Mrs. Davids (wife), before Berman J of the Family Court of Australia. The dispute revolved around the division of their joint and separate assets, including superannuation interests, businesses, bank accounts, and personal effects, as well as the allocation of debts and liabilities.

The court was required to determine the terms of a final property settlement, including the distribution of funds from a joint savings account, the division of a superannuation interest held by the wife, and the allocation of various other assets and liabilities between the parties. The court also had to consider the implications of these orders on child support obligations.

Berman J ordered that a settlement sum of $114,446 be paid to the husband from the joint ANZ savings account, with the remaining balance to be paid to the wife, and the account closed. The wife's superannuation interest in the P2 Superannuation Fund was to be split, with the husband allocated a base amount of $143,086, to be paid by the trustee in accordance with the Family Law (Superannuation) Regulations 2001. The wife was to retain her business interests, including F Pty Ltd and associated entities, her remaining funds in the joint account, her separate savings and investments, household effects, and other personal property, except for the superannuation interest allocated to the husband. The husband was to retain his business, H Business, and associated entities, his separate savings and investments, vehicles, sporting equipment, household effects, and other personal property. Each party was to be solely liable for their respective debts and liabilities, including any owed to the Australian Taxation Office, and indemnified the other accordingly. Injunctions were granted restraining either party from pledging the other's credit. The wife's periodic child support payments were reduced to zero.

Orders

Orders of the court

That in full and final settlement of any claim that either party may have against the other or at any time in the future for settlement of property or alteration of interests in property:-

(a) That within thirty (30) days of the date of this order the parties do all things necessary and sign all such documentation as may be required to pay to the husband the settlement sum of ONE HUNDRED AND FOURTEEN THOUSAND FOUR HUNDRED AND FORTY SIX DOLLARS ($114,446) and that thereafter the balance of the funds held in the joint ANZ savings account number …57 be paid to the wife and the parties shall cause the said ANZ account to be closed;

(b) That with respect to the wife’s interest in P personal superannuation held within the P2 Superannuation Fund (ABN …) with the account number …01 (“the superannuation fund”):-

(i) Pursuant to s 90XT(4) of the Family Law Act 1975 (Cth) the husband shall be allocated a base amount of ONE HUNDRED AND FORTY THREE THOUSAND AND EIGHTY SIX DOLLARS ($143,086) out of the wife’s splittable interest in the superannuation fund;

(ii) Pursuant to s 90XT(1)(a) of the Family Law Act 1975 (Cth) whenever the trustee of the superannuation fund (namely P Limited) (“the trustee”) makes a splittable payment out of the wife’s interest in the superannuation fund pursuant to this order, the trustee shall pay to the husband the sum calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount and there shall be a corresponding reduction in the wife’s interest in the superannuation fund thereafter;

(iii) The trustee, in accordance with the obligations set out under the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth) shall do all such acts and things as may be necessary to calculate the entitlement of and make the payment to the husband in accordance with paragraph 1(b)(i) herein;

(iv) This order shall have effect from the operative time;

(v) The operative time shall be four (4) business days after the date of service of this order upon the trustee;

(vi) The husband shall serve a certified copy of this order upon the trustee within fourteen (14) days of the date of this order by ordinary pre-paid post;

(vii) That this order binds and shall bind the trustee.

(c) That unless otherwise specified herein, the wife shall have as her sole property and free from any claim, right or entitlement of the husband the following:-

(i) Her business known as F Pty Ltd including but not limited to, her interest in the entities known as D Pty Ltd, Q Pty Ltd, and C Pty Ltd;

(ii) The entirety of the funds held in the joint ANZ account following the payment of the settlement sum;

(iii) Her separate savings and investments including, but not limited to the funds held in her CBA Smart Access Account number …77, her CBA Net Saver Account number …85 and her CBA Term Deposit account number …39;

(iv) All items of furniture and household effects and personal effects presently in her possession or under her control;

(v) All entitlements to superannuation in her name SAVE AND EXCEPT as provided in paragraph 1(b) herein;

(vi) Any life insurance policies, income protection insurance policies and trauma insurance policies held in her name; and

(vii) All other items of personal property presently in her possession or under her control and otherwise specified herein;

(d) That unless otherwise specified herein, the husband shall have as his sole property and free from any claim, right or entitlement of the wife the following:-

(i) His business known as H Business including but not limited to his interest in the entities known as R Pty Ltd and the Davids Family Trust;

(ii) His separate savings and investments;

(iii) His motor vehicles and motor cycles and accessories;

(iv) His windsurfing, surfing and other sporting equipment;

(v) All items of furniture and household effects and personal effects presently in his possession or under his control;

(vi) All entitlements to superannuation in his name;

(vii) Any life insurance policies, income protection insurance policies and trauma policies in his name; and

(viii) All other items of personal property presently in his possession or under his control not otherwise specified herein;

(e) That unless otherwise specified herein the wife be solely liable for and do indemnify the husband and forever keep him indemnified in respect of her debts and liabilities including any amounts owing by the wife to the Australian Taxation Office and/or the Commonwealth Government of Australia.

(f) That unless otherwise specified herein the husband be solely liable for and do indemnify the wife and forever keep her indemnified in respect to his debts and liabilities including any amounts owing by the husband to the Australian Taxation Office and/or the Commonwealth Government of Australia.

(g) That each party is retrained and an injunction is granted restraining each of them from pledging the credit of the other;

(h) That each party shall do all such acts and things and sign all documents necessary to give effect to the terms of this order; and

(i) That if either party shall refuse or neglect to sign any document necessary to give effect to the terms of this order after it shall have been presented to him or her and it shall remain unsigned after seven (7) days thereafter THEN upon proof by affidavit of such refusal or neglect a Registrar of the Family Court of Australia is hereby appointed to execute and if in the Registrar’s opinion it shall be necessary to do so, to settle the same and do all such other acts and things and execute such other documents as shall be necessary to give full force and effect to the terms of this order.

(j) That the wife’s periodic amount of child support pursuant to Child Support Assessment dated 18 January 2018 or any subsequent assessment be reduced to zero pursuant to s 118(1)(a) of the Child Support (Assessment) Act 1989 (Cth).

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Davids and Davids [2019] FamCA 544

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

Hurst & Hurst
[2018] FamCAFC 146 Para 6

…The Full Court in Hurst & Hurst [2018] FamCAFC 146 referred with approval to the decision of Dickons & Dickons [2012] 50 Fam LR 244 and in particular the following paragraphs:- 16.While that apparent “causal connection” might be seen in s 79(4)(a) (and (b)), no such connection is apparent from the terms of s 79(4)(c)…
Fontana & Fontana
[2018] FamCAFC 63 Para 20

…e parties, it would be appropriate for significant weight to be given to the contribution by the wife of those monies.[2] [2] See Fontana & Fontana [2018] FamCAFC 63.…
Thurston & Loomis & Ors
[2018] FamCA 26 Para 10

…In Thurston & Loomis & Ors [2018] FamCA 26, Forrest J considered that an assessment needed to be conducted of the reasonableness of the expenditure, noting that the Court generally takes the property of the parties as it finds it at the date of the trial.…
Vass & Vass
[2015] FamCAFC 51 Para 10

…In Vass & Vass [2015] FamCAFC 51 the Full Court said:- [138]There is no error committed per se in adjusting the parties actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan…
Stanford v Stanford
[2012] HCA 52 Para 2

…In Stanford & Stanford (2012) 247 CLR 108 the majority held:- 35It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken…
Kouper & Kouper (No 3)
[2009] FamCA 1080 Para 8

…In Kouper & Kouper (No 3) [2009] FamCA 1080 Murphy J was required to consider the treatment of the loss by the husband of $4.5 million in money invested in failed business ventures. The wife argued that the monies invested and ultimately lost amounted to waste in the sense as referred to in Kowaliw & Kowaliw (1981)…
SMB & MFB
[2006] FamCA 46 Para 12

…In SMB & MFB [2006] FamCA 46 the wife had received a total sum of $102,500 from various Court orders.…
Finlayson v Finlayson & Ors, Finlayson v Baker
[2000] HCATrans 352

…81) FLC 91-061 Chorn & Hopkins (2004) FLC 93-204 Clifford & Lodge [2000] FamCA 1666 CPL & CPL [1998] FamCA 143 Dickons & Dickons [2012] 50 Fam LR 244 Finlayson v Finlayson & Gillam (2002) FLC 93-121 Hurst & Hurst [2018] FamCAFC 146 Kouper & Kouper (No 3) [2009] FamCA 1080 Kowaliw & Kowaliw (1981) FLC 91-092 SMB & MFB [2006] FamCA 46 St…
Gartner & Gartner
[2000] FamCA 793 Para 6

…Following a consideration of the authorities the following appears:- [50] In Gartner [2000] FamCA 793, Kay, Holden & Mullane JJ said: … 47.Whilst the principle the (sic) emerges from Farnell (1996) FLC 92-681 is that where prepayment of legal costs has the effect of depleting the pool of assets available for divisi…
Suttor v Gundowda Pty Ltd
[1950] HCA 35 Para 6

…unsel so that the Judge could have dealt with it and made the necessary findings. It is too late to raise it on appeal. ( Suttor v Gundowda Pty Ltd (1950) 81 CLR 418).…
Bevan & Bevan
[2013] FamCAFC 116 Para 3

…In Bevan & Bevan [2013] FamCAFC 116 the Full Court considered at [73] that the decision of Stanford could be reduced to three fundamental propositions:- (1)The Court needs to consider the existing property interests of the parties and to identify those interests (by reference to common law and equity); and (2)The dis…
C & C
[1998] FAMCA 143 Para 7

…In CPL & CPL [1998] FamCA 143 the pool of property as between the parties was approximately $3 million and the trial Judge had made a number of add backs. The Full Court considered on appeal whether $13,000 spent by the husband post-separation on an overseas trip should have been added back. The Full Court said at…
Marker & Marker sub nom M & M
[1998] FAMCA 42 Para 11

…n in a manner that is consistent with properly getting on with their lives. ( Cerini [1998] FamCA 143, per Nicholson CJ, Ellis, Kay JJ.) [1] Marker [1998] FamCA 42, 1 May 1998, per Baker, Kay and Chisolm JJ.…
Full Court in Clifford & Lodge
[2000] FAMCA 1666 Para 7

…Their Honours at [52] referred to the decision of the Full Court in Clifford & Lodge [2000] FamCA 1666 where the following was said:- 52.It will be seen from the table of the parties’ assets and liabilities contained in his Honour’s judgment … that his Honour included as assets the legal fees already paid by each pa…

Legislation cited in this decision · 4

Family Law Act 1975 (Cth)
75, 75(2), 75(2)(o), 79, 79(2), 79(4) 7 mentions (from Para 1)
Child Support (Assessment) Act 1989 (Cth)
1 mention (from Para 1)
Family Law (Superannuation) Regulations 2001 (Cth)
1 mention (from Para 1)
Family Law Rules 2004 (Cth)
1 mention