Dyer & Kaeser - [2023] FedCFamC2F 452

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dyer & Kaeser [2023] FedCFamC2F 452

File number: DNC 117 of 2021

Judgment of: JUDGE YOUNG

Date of judgment: 29 March 2023

Catchwords: FAMILY LAW – property – where the husband alleges he owes large debts to members of his family – where the wife alleges the debts are either non-existent or should not be considered – where the husband was not a reliable witness – where the wife was a generally reliable witness - where the husband’s brother gave evidence in support of the alleged debts – where the husband’s brother sent the husband letters requesting the debts be repaid – where there was an unavoidable inference that these letters had been written for the purpose of court proceedings - where the court was not satisfied the debts exist – court orders an adjustment in the wife’s favour of $100,000 – husband is to pay the wife $288,969.

Legislation: Family Law Act 1975 (Cth) s 90SM

Cases cited:
Biltoft & Biltoft [1995] FamCA 45

Rogers & Rogers (No 2) [2016] FamCAFC 104

Division: Division 2 Family Law

Number of paragraphs: 27

Date of hearing: 22 - 24 and 29 March 2023

Place: Darwin

Counsel for the Applicant: Mr Simon Taylor

Solicitor for the Applicant: Bowen Lawyers

Counsel for the Respondent: Mr Gregg Stagg

Solicitor for the Respondent: Ward Keller
ORDERS

DNC 117 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DYER

Applicant

AND:
MS KAESER

Respondent

order made by:

JUDGE YOUNG

DATE OF ORDER:

29 MARCH 2023

THE COURT ORDERS THAT:
CASH PAYMENT
1.That within sixty (60) days of the date of these Orders, Applicant shall make pay $288,969 to the Respondent.
2.That in the event the Applicant fails to comply with Order 1 herein, the parties shall forthwith do all acts and things and sign all necessary documents to effect the sale of the property at B Street, Suburb C in the State of Queensland and more particularly described as Title … Lot … of Registered Plan … and for that purpose the following shall apply:
(a)The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within fourteen (14) days from the date of these Orders, the real estate agent will be as nominated by the then Chief Executive Officer of the Real Estate Institute of Queensland at the request of the parties or either of them
(b)The list price of the property shall be an amount as is agreed between the parties and failing agreement within fourteen (14) days, the list price will be as nominated by the real estate agent.
(c)The sale price of the property shall be such amount as is agreed between the parties and failing agreement, any offer to buy the property that is at least 80% of the list price shall be accepted by the parties as the sale price.
(d)The Applicant is to…

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 Dyer & Kaeser

Details

AGLC: Dyer & Kaeser [2023] FedCFamC2F 452
Case: [2023] FedCFamC2F 452
Decision Date

CaseChat Overview and Summary

The case of Dyer and Kaeser involved a property settlement dispute between a de facto couple. The husband sought a 45/55 split in the wife's favour, excluding $47,000 of superannuation, based on a net asset pool of about $111,000, while the wife sought a 35/65 split in her favour, arguing that the husband's alleged debts to his family should be disregarded. The court found the husband to be an unreliable witness and was not satisfied that any of the alleged debts existed. The court ordered that the husband pay the wife $288,969 within 60 days, or alternatively, the property at B Street, Suburb C, is to be sold according to the terms set out in the orders sought by the wife. The court also ordered that the proceeds of the sale be divided between the husband and wife in a 42.5/57.5 split.

The legal issues in this case centred around the debts allegedly owed by the husband to his family and whether they should be considered in the property settlement. The court had to determine the credibility of the witnesses and the evidence presented, including the bank statements and letters of demand. The court also had to consider the contributions made by each party during the relationship and the future needs of both parties. Ultimately, the court found that the husband's evidence was not reliable and that the alleged debts should not be included in the property settlement. The court also found that the wife's post-separation contribution to the care of the children merited a significant adjustment in her favour of approximately $100,000.

Orders