Essex & Essex

FAMILY COURT OF AUSTRALIA

ESSEX & ESSEX [2009] FamCAFC 236

FAMILY LAW - APPEAL – PROPERTY – Whether the trial Judge erred in “adding back” into parties’ asset pool money withdrawn by the wife post-separation from the parties’ bank account – Whether the trial Judge erred in finding the wife acted wantonly and recklessly in post-separation spending – Whether the trial Judge denied the wife natural justice in rejecting evidence of post-separation expenditure – Where the trial Judge made adverse findings about the wife’s credit – Where the wife unilaterally removed funds – Where the wife failed to provide appropriate corroboration for expenditure – Where trial Judge carefully assessed the parties’ assets and liabilities – Where issue of lack of corroborative evidence raised at trial – No appealable error.

FAMILY LAW - APPEAL – PROPERTY – Contributions – Whether the trial Judge erred in weight given to contributions by husband and husband’s family – Whether the trial Judge erred in failing to provide adequate reasons for contribution assessment – Where the trial Judge carefully considered the parties’ initial contributions – Where the contributions of the husband’s family were significant – The contribution assessment by the trial Judge took into account the contribution by the husband’s family and gave full weight to the contributions of the wife – No error in assessment of parties’ contributions – The trial Judge’s reasoning discernible – No appealable error.

FAMILY LAW - APPEAL – PROPERTY – SECTION 75(2) ADJUSTMENT – Whether the trial Judge erred in his assessment of the wife’s earning capacity – Whether trial Judge’s discretion vitiated by factual error in relation to the wife’s employment in 2006 –Where trial Judge mistaken in finding wife had undertaken full-time work in 2006 – Where finding not of magnitude that discretion miscarried – Whether the trial Judge erred in rejecting the evidence of the wife’s medical expert – Where findings in relation to the wife’s earning capacity open to the trial Judge – No appealable error.

FAMILY LAW - APPEAL – PROPERTY – SECTION 75(2) ADJUSTMENT – FINANCIAL RESOURCE – Family trust – Whether the finding that husband did not have a financial resource in the trusts was against the weight of the evidence – Whether the trial Judge’s discretion miscarried

(per Bryant CJ and Boland J, Faulks DCJ dissenting) Where the evidence before the trial Judge about the two trusts was limited – Where the husband an income beneficiary but not capital beneficiary of one trust – Where the attempt to remove the husband as a beneficiary was ineffective – Where the husband did not seek to remove himself as a beneficiary of trust – Where the settling of two trust was not necessary for the purposes for which it was asserted the trust were settled – Where the husband had effective operation of the trusts for 18 months – Where husband’s evidence inconsistent with that of his brother – No onus on the wife to call trusts’ accountant as a witness –…