FAMILY LAW – PROPERTY – Where single expert appointed to value real estate in a Sydney suburb – Where husband accepted valuation but wife does not – Where wife made application to call adversarial expert evidence of value on fourth day of trial – Where held that the wife failed to satisfy any of the criteria in Rule 15.59(2)(a), (b) or (c) of the Family Law Rules, 2005 – Where court would not have exercised discretion in favour of permitting the wife to call adversarial expert evidence.
REAL PROPERTY – VALUATION – Valuation of real property – Where parcel of real estate had remote potential for rezoning to allow high density residential development – Whether single expert used proper valuation methodology – Whether potential for rezoning too remote – Whether Court should reject valuation evidence of single expert - whether Court should reach its own value as a “best guess” – where held the evidence did not permit departure the value reached by the single expert –Where any potential for a higher value to be taken into account under s 79(4)(e) of the Family Law Act 1975 (Cth).
DEEDS – CONSTRUCTION – Proper construction of deeds – Where husband executed “Deed of Acknowledgement” – Whether document recorded or created a trust in favour of third respondent – Where held not trust existed – Whether alternatively the document acknowledged a promise to pay on a contingency – Whether conduct of husband swearing affidavit evidence in support of a trust argument was subsequent conduct inconsistent with any contractual or promissory intention.
FAMILY LAW – PROPERTY – Where very substantial asset pool close to $40 million – Where significant dispute concerning what constituted the “property of the parties to the marriage” – Where substantial assets held in two non-exhaustive discretionary trusts – Whether the trust assets were property “of” the husband – Where husband a discretionary object but not trustee, settlor, or appointor of the trusts – Where trustee a company – Where husband no longer a director of the trustee – Where decisions of trustee made by husband’s father – Where held the trust assets not property “of” the husband – Where trust assets fit more readily within concept of “financial resources”.
FAMILY LAW – PROPERTY – where wife sought orders under Part VIIIAA of the Act to protect any payment ordered in her favour – Where rights or property interests of third parties likely to be altered by proposed orders – Where held not appropriate to make orders under Part VIIIAA
FAMILY LAW – PROPERTY – Contributions – Where there was a long marriage as between the parties – Where the parties took gender traditional roles during the marriage – Where the husband brought substantial assets into the relationship – Where those assets grew significantly during the relationship – Where the asset pool is now close to $40 million – Where husband made overwhelming financial contribution while wife made…
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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AGLC
Dovgan & Dovgan [2021] FamCA 306
Case
[2021] FamCA 306
Decision Date
CaseChat Overview and Summary
The Family Court of Australia considered a property settlement dispute between Mr. and Mrs. Dovgan. The primary dispute concerned the valuation of real estate, the inclusion of substantial assets held in discretionary trusts within the marital property pool, and the proper construction of a deed executed by the husband. The wife also sought orders under Part VIIIAA of the *Family Law Act 1975* (Cth) to protect her interests.
The court was required to determine several key legal issues. These included whether the wife should be permitted to adduce adversarial expert evidence regarding the valuation of real estate, despite the prior appointment of a single expert and the husband's acceptance of that valuation. The court also had to consider the proper methodology for valuing real estate, particularly where there was a remote potential for rezoning, and whether to depart from the single expert's valuation. Furthermore, the court needed to construe a "Deed of Acknowledgement" executed by the husband to determine if it created a trust or a contingent promise, and whether the trust assets of two discretionary trusts were property "of" the husband for the purposes of property settlement. Finally, the court had to assess the appropriateness of making orders under Part VIIIAA of the Act.
Regarding the real estate valuation, the court found that the wife failed to satisfy the criteria under Rule 15.59(2) of the *Family Law Rules 2005* to permit the late introduction of adversarial expert evidence, and the court would not have exercised its discretion in her favour. The court held that the evidence did not permit a departure from the value determined by the single expert, noting that any potential for a higher value due to rezoning could be considered under s 79(4)(e) of the *Family Law Act 1975*. On the construction of the deed, the court found that it did not create a trust, but rather acknowledged a promise to pay on a contingency, and the husband's subsequent conduct was inconsistent with any contractual or promissory intention. The court determined that the substantial assets held within the discretionary trusts were not property "of" the husband, as he was a discretionary object but not a trustee, settlor, or appointor, and the trustee's decisions were made by his father. These trust assets were therefore considered "financial resources" rather than property. The court also found it inappropriate to make orders under Part VIIIAA as the rights or property interests of third parties were likely to be altered. Despite these disputes, the court acknowledged the long marriage, the parties' traditional roles, the husband's substantial financial contributions and growth of assets, and the wife's significant contributions as homemaker and carer, noting the substantial asset pool of close to $40 million.