Demas & Demas - [2023] FedCFamC2F 273

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Demas & Demas [2023] FedCFamC2F 273

File number(s): HBC 455 of 2021

Judgment of: JUDGE TAGLIERI

Date of judgment: 16 March 2023

Catchwords: FAMILY LAW – property – long relationship – where both parties seek to retain the former matrimonial home – where parties consent to equalisation of superannuation interests – whether former matrimonial home retained by one party or sold – whether post-separation inheritance received by the wife included in the asset pool in whole or in part – whether wife ought to received adjustment under s 75(2)(o) for funds expended by husband post-separation – orders that husband retain former matrimonial home and wife receive adjustment for rehousing under s 75(2)(o) – no adjustment for post-separation expenditure by wither party

Legislation: Family Law Act 1975 (Cth) ss 75, 75(2)(b), 75(2)(d), 75(2)(o), 79, 79(2)

Cases cited:
Bevan and Bevan (2013) FLC 93-545

NHC & RCH [2004] FamCA 633

Farnham & Farnham [2022] FedCFamC2F 83

Horrigan & Horrigan [2020] FamCAFC 25

In the Marriage of Myerthall (1977) 3 Fam LR 11324

Jabour & Jabour [2019] FamCAFC 78

Kouper & Kouper (No.3) [2009] FamCA 1080

Marriage of Hickey (2003) 30 Fam LR 355

Mayne & Mayne (No.2) [2012] FLC 93-510

AJO & GRO [2005] FamCA 195

Phillips & Phillips [2002] FLC 93-104

Stanford and Stanford [2012] HCA 52

Trevi & Trevi [2018] FamCAFC 173

Wagstaff and Wagstaff [2018] FCCA 927

Division: Division 2 Family Law

Number of paragraphs: 91

Date of hearing: 23 January 2023

Place: Hobart

Counsel for the Applicant: Mr Trezise

Solicitor for the Applicant: Simmons Wolfhagen

Counsel for the Respondent: Mr McKenna, solicitor

Solicitor for the Respondent: Butler McIntyre & Butler
ORDERS

HBC 455 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS DEMAS

Applicant

AND:
MR DEMAS

Respondent

order made by:

JUDGE TAGLIERI

DATE OF ORDER:

16 March 2023

THE COURT ORDERS THAT:
1.Forthwith the Applicant Wife MS DEMAS (the Wife) and Respondent Husband MR DEMAS (the Husband) (jointly the Parties) must do all acts and things necessary to list for sale the property at B Street, Town C, more particularly described in Certificate of Title Volume … Folio … (B Street, Town C) with Mr D of Real Estate E, or such other agent as agreed between the parties, subject to the sale provisions attached herein as Annexure “A” (noting that the Parties agree the property be listed in early 2023 for $375,000) (the Sale).
2.At the completion of the Sale, the proceeds of the Sale be distributed as follows:
(a)to pay all costs, commissions and expenses of the Sale;
(b)in payment of any Council and water rates in respect of the property;
(c)in payment of $75,000.00 in an interest bearing account standing in the name of the Parties to be held for the purpose of paying the capital gains tax liability payable by the Husband in respect of the sale of 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 Demas & Demas

Details

AGLC: Demas & Demas [2023] FedCFamC2F 273
Case: [2023] FedCFamC2F 273
Decision Date

CaseChat Overview and Summary

In the matter of Demas & Demas, the parties had a long relationship of approximately 20 years and were married for part of that time. They separated in January 2021. The Wife sought orders to adjust property interests as between them in order to separate financially. The Husband agreed to a superannuation split order, but otherwise contested the Wife's proposed division of the non-superannuation assets. The Court found that the parties had made relatively equal financial and non-financial contributions during the relationship, and that the Husband's reduced income post-separation was not solely due to him not exercising his earning capacity. However, the Court made an adjustment in favour of the Wife of $20,000, finding that the Husband had the benefit of continued residence in a permanent home while the Wife's stability, comfort and occupation of her home had been disrupted. The Court ordered that the Husband retain the former matrimonial home, but only if he was able to secure the funds required to pay the Wife a 50/50 adjustment of the parties' net non-superannuation assets. If he was unable to do so, the former matrimonial home would be sold. The final orders ensured that each party had close to or over $1,000,000 in non-superannuation assets, and equal superannuation interests.

Orders