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Denning & Denning

Denning & Denning

Case [2011] FamCA 160

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FAMILY COURT OF AUSTRALIA

DENNING & DENNING AND ANOR (NO 3)

[2011] FamCA 160

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Add-backs – Credit card debts – Limited pool – Where the intervenor sought the payment of debts incurred by the applicant husband – Discussion of approach to assessment of contributions per s 79(4) of the Family Law Act 1975 (Cth) and s 75(2) factors
FAMILY LAW – PROPERTY SETTLEMENT – Superannuation – Where the husband asserted that he had only minimal or no superannuation entitlements
FAMILY LAW – EVIDENCE - Documentary evidence – Allegations that the applicant husband diverted funds from the asset pool – Standard of proof applicable – Expert evidence of chartered accountant
FAMILY LAW – WITNESSES – Discretion to draw inferences
FAMILY LAW – SPOUSAL MAINTENANCE - Factors considered – Where periodic spousal maintenance application of the wife reserved
FAMILY LAW – COSTS - Circumstances justifying order – Previous costs orders in favour of the applicant husband – Where applicant husband sought a cost order against the respondent wife pursuant to s 117AB of the Family Law Act 1975 (Cth)
FAMILY LAW – COSTS - Circumstances justifying order – Where the intervenor claimed its costs on an indemnity basis against the applicant husband

Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), s 72, s 74, s 75(2), s 79(4), s 117(2A), s117AB
Family Law Rules 2004 (Cth), r 17.03

AJO & GRO (2005) FLC 93-218; (2005) 33 Fam LR 134, cited

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, applied
Bulleen v Bullen (2010) 43 Fam LR 489; [2010] FamCA 187, discussed

C & C [1998] FamCA 143, applied

Clives & Clives (2008) FLC 93-385; (2008) 40 FAm LR 273, applied

Dobbs & Brayson (No 2) (2007) FLC 93-354; (2007) 38 Fam LR 95, cited

Fabre v Arenales (1992) 27 NSWLR 437, discussed

Ferguson & Ferguson (1978) FLC 90-500; (1978) 4 Fam LR 312, cited

Garrett & Garrett (1984) FLC 91-539, applied

Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304, applied

GWR v VAR (2006) 36 Fam LR 237;[2006] FamCA 894, applied

Hickey & Hickey (2003) FLC 93-143; (2003) 30 Fam LR 355, applied

Hunt & Zuryn (2005) FLC 93-226; (2005) 34 Fam LR 169, applied

In the Marriage of Clauson (1995) FLC 92-595; (1995) 18 Fam LR 693, applied
In the Marriage of Davut & Raif (1994) FLC 92-503; (1994) 18 Fam LR 237, cited
In the Marriage of Steere (1985) FLC 91-626; (1985) 10 Fam LR 431, applied
In the Marriage of Waters & Jurek (1995) FLC 92-635; (1995) 20 Fam LR 190, cited

In re J (a child) (FC) [2006] 1 AC 80; [2005] UKHL 40, applied
JEL v DDF (2001) FLC 93-075; (2001) 28 Fam LR 1, applied
Johnson v Johnson (1997) FLC 92-764; (1997) 22 Fam LR 141, cited

Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235,…

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: Denning & Denning [2011] FamCA 160
Case: [2011] FamCA 160
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered a property settlement dispute between Mr. Denning (applicant husband) and Ms. Denning (respondent wife), with B Pty Ltd (intervenor) seeking to recover a judgment debt and costs from the husband. The central issue revolved around determining the quantum of the asset pool available for division and satisfying the intervenor's claim, particularly in light of allegations that the husband had diverted funds. The court also addressed issues concerning the husband's superannuation entitlements, the standard of proof for alleged fund diversions, and the wife's reserved application for spousal maintenance.

The court was required to determine the just and equitable distribution of property under section 79 of the *Family Law Act 1975* (Cth), considering the contributions of each party under section 79(4) and the relevant financial circumstances under section 75(2). Key legal questions included how to treat credit card debts incurred by the husband, the appropriate approach to assessing contributions when the asset pool was limited, and whether to draw inferences from the evidence presented, particularly regarding the husband's alleged diversion of funds. The court also had to consider the intervenor's claim for costs on an indemnity basis and the husband's application for costs against the wife.

In its reasoning, the court applied the principles established in cases such as *Briginshaw v Briginshaw* regarding the standard of proof for allegations of fraud or wilful dissipation of assets. The court considered the documentary evidence and expert accounting evidence to ascertain the true value of the asset pool. It also addressed the husband's assertion of minimal superannuation entitlements and the wife's claim for spousal maintenance, ultimately reserving the latter. The court's approach to the credit card debts involved assigning responsibility for specific debts to each party, with the husband bearing the majority.

The court ordered that the monies held in Westpac term deposits be paid out, with 75% to the wife and 25% to the intervenor, to reduce the judgment debt owed by the husband. The wife was also ordered to pay certain previously ordered costs from her share of these funds. The husband was made solely responsible for various credit card debts and monies owed to his mother, while the wife was assigned responsibility for her own debts and liabilities. The husband was ordered to pay the intervenor's costs of the hearing, fixed at $27,000. Otherwise, each party was to retain their personal chattels and be liable for their own incurred debts. The wife's entitlement to future periodic spousal maintenance was reserved.

Orders