DEMARA & MONTIJO - [2013] FamCA 612

FAMILY COURT OF AUSTRALIA

DEMARA & MONTIJO

[2013] FamCA 612

FAMILY LAW – PROPERTY – Application by the wife for property settlement orders pursuant to s 79 of the Family Law Act 1975 (Cth) – Whether just and equitable to alter property interests and rights – Stanford v Stanford [2012] HCA 52 considered – Consideration of factors under s 79 and s 75(2) of the Family Law Act 1975 (Cth) – Where the outcome of the assessment of contributions resulted in the husband receiving 54 per cent of the assets compared to the wife’s 46 per cent – Where an adjustment, pursuant to s 75(2), of 16 per cent in the wife’s favour is appropriate.

FAMILY LAW – SPOUSAL MAINTENANCE – where the wife sought an order for spousal maintenance – where the husband submitted that he does not have present capacity to pay any sum – where it is difficult to determine the husband’s income – where it is possible, if not likely, that the husband will have capacity to pay the shortfall between the wife’s reasonable needs and her income in the near future due to him improving the businesses – where it is appropriate to capitalise the spousal maintenance and for it to be paid as a lump sum - where it is proper that an order for lump sum spousal maintenance be made.

FAMILY LAW – CHILD SUPPORT DEPARTURE – where the wife sought an order for child support departure – where the evidence demonstrated that the income disclosed by the husband in his income tax return did not completely record the funds available to him from his employment – where the wife submitted that a special ground for departure order pursuant to s 117(2)(c)(ia) of the Child Support (Assessment) Act 1989 (Cth) is established – where the evidence was sufficient to establish special circumstances and the ground for departure pursuant to s 117(2)(c)(ia) has been established – consideration of whether it is just and equitable to make an order for child support departure – where non-disclosure by the husband entitles the court to be sceptical about the husband’s income and the completeness of his disclosure but does not go further than that – where the evidence does not enable an inference that the husband has sufficient income or earning capacity that would make it just and equitable to require him to pay a particular sum for child support – where the wife’s application for a child support departure order is dismissed.

Family Law Act 1975 (Cth) ss 74, 75(2), 75(3), 79, 81
Child Support (Assessment) Act 1989 (Cth) s 116(1)(B); 117(2)(c)(ia); 117(4)

Bevan & Bevan (1995) FLC 92-600

Black & Kellner (1992) FLC 92-287

Dwyer & Mcguire (1993) FLC 92-420

Grey & Grey [2012] FamCA 389

Gyselman (1992) FLC 92-279

Kowaliw & Kowaliw (1981) FLC 91- 092

Mayne & Mayne [2011] FamCAFC 192

Mitchell & Mitchell (1995) FLC 92-600

Stanford v Stanford [2012] HCA 52

Weir & Weir (1993) FLC 92-338

APPLICANT:

Ms Demara

RESPONDENT:

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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Details

AGLC: DEMARA & MONTIJO [2013] FamCA 612
Case: [2013] FamCA 612
Decision Date: 23 August 2013

CaseChat Overview and Summary

The case of *Demara & Montijo* concerned an application by the wife for property settlement orders under section 79 of the *Family Law Act 1975* (Cth), spousal maintenance, and a child support departure order. The husband contested the wife's claims, particularly regarding his capacity to pay spousal maintenance and the extent of his available income for child support purposes.

The court was required to determine whether it was just and equitable to alter the parties' property interests, considering their contributions and future needs under sections 79 and 75(2) of the *Family Law Act*. Additionally, the court had to assess the husband's present and future capacity to pay spousal maintenance and whether the wife had established grounds for a child support departure order under section 117(2)(c)(ia) of the *Child Support (Assessment) Act 1989* (Cth) due to alleged non-disclosure of income by the husband.

In relation to property settlement, the court found that while the initial assessment of contributions favoured the husband with 54% of the assets compared to the wife's 46%, a further adjustment of 16% in the wife's favour was warranted under section 75(2) to account for future needs. For spousal maintenance, despite difficulties in precisely determining the husband's income, the court concluded that he was likely to have the capacity to pay a shortfall in the wife's needs in the near future, and therefore, it was appropriate to capitalise this maintenance into a lump sum payment. However, the application for a child support departure order was dismissed, as the evidence, while raising scepticism about the husband's income disclosure, did not sufficiently establish that it was just and equitable to require him to pay a specific sum for child support.

Orders