GEORGIADES & GEORGIADES - [2015] FamCAFC 115

FAMILY COURT OF AUSTRALIA

GEORGIADES & GEORGIADES

[2015] FamCAFC 115

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the husband appealed against final property settlement orders – The trial judge did not err in finding that the husband had the beneficial ownership of a share in a family company, which he claimed to hold on trust for his parents – The trial judge did not err in adding back funds withdrawn from the husband’s personal accounts, which he claimed belonged to his parents’ business – The trial judge did not err in his treatment of the parties’ rent-free accommodation in a home owned by the husband’s parents – Appeal dismissed.

Family Law Act 1975 (Cth) – s 75(2)
Family Law Rules 2004 (Cth) – r 6.02(1)

APPELLANT:

Mr Georgiades

RESPONDENT:

Ms Georgiades

FILE NUMBER:

MLC

11134

2011

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

19 June 2015

PLACE DELIVERED:

Perth

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thackray, Ryan & Kent JJ

HEARING DATE:

3 March 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

8 September 2014

LOWER COURT MNC:

[2014] FamCA 856

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr Ingleby with Mr Hutchings

SOLICITOR FOR THE APPELLANT:

FLA Partners

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

MCK Legal

Orders

The appeal be dismissed.
The husband pay the wife’s costs of and incidental to the appeal as agreed, and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Georgiades & Georgiades has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 69 of 2014
File Number: MLC 11134 of 2011

Mr Georgiades

Appellant

And

Ms Georgiades

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Georgiades (“the husband”) has appealed against orders made by Berman J on 8 September 2014. Ms Georgiades (“the wife”) opposes the appeal.
The husband’s parents were parties in the proceedings below, but did not participate in the appeal, having succeeded at trial in defending the wife’s claim that she and the husband held an interest in a property they owned.

The appeal

The husband has three primary complaints:
·the trial judge’s rejection of his argument that he held his share in a family company on trust for his parents (Ground 1);
·the decision to “add back” funds he disbursed from his accounts in the three years prior to the parties’ separation (Ground 2); and
·the trial judge’s treatment of contributions (Grounds 4 and 5).
Save for arguing that his failure to give full disclosure was not as egregious as the trial judge found, the husband does not challenge the damning credit findings the trial judge made about him and most of his witnesses.

Ground 1 – Beneficial ownership of a share in G Pty Ltd

Ground 1 asserts that the trial judge…

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 GEORGIADES & GEORGIADES

Details

AGLC: GEORGIADES & GEORGIADES [2015] FamCAFC 115
Case: [2015] FamCAFC 115
Decision Date: 19 June 2015

CaseChat Overview and Summary

In the matter of GEORGIADES & GEORGIADES, the appeal was brought forth to challenge the decisions made by the trial judge regarding property division and financial transactions between the parties. The husband argued against the trial judge's findings that certain funds were still available to him, contending that the trial judge overlooked evidence indicating that the funds had been used to acquire property in the name of his parents or their entities. The legal issues at the heart of this appeal revolved around the interpretation of the trial judge's statements and the weight to be given to the evidence presented, particularly concerning the husband's credibility and the transactions in question.

The court found that the husband's interpretation of the trial judge's remarks was constrained and not reflective of the broader context and findings of the trial judge. The trial judge had made clear findings regarding the husband's unreliability as a witness, the existence of a plan to minimise the available property for the court's consideration, and the husband's lack of a credible explanation for the funds in question. These findings, combined with the evidence presented, led the court to conclude that the trial judge's decision was well-supported. The husband's argument was further weakened by his failure to provide a satisfactory explanation for the substantial withdrawals from his accounts.

As a result, the appeal was dismissed, and the husband was ordered to pay the wife's costs of and incidental to the appeal. This decision underscores the importance of considering the totality of the evidence and the credibility of the witnesses in property division cases. The court's reasoning highlights the need for parties to provide clear and credible explanations for financial transactions, particularly when seeking to challenge the findings of a trial judge.

Orders

Orders of the court

The appeal be dismissed.

The husband pay the wife’s costs of and incidental to the appeal as agreed, and in default of agreement, as assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

While we accept “Exhibit 11” as showing that the funds were used to acquire property in the name of the husband’s parents or their entities, the fact remains that neither the husband nor his parents advanced any explanation as to why the husband divested himself of funds which belonged to him. We consider it is in this sense that the trial judge said at [338] (emphasis added):There is no evidence as to the destination of the funds and I consider it open to the Court to find that in the absence of full and frank disclosure, those monies may still be available to the husband as opposed to the proposition that they have been dissipated, spent or in some way returned to [KK Pty Ltd] or the husband’s father. The husband’s argument requires the adoption of a constrained interpretation of what the trial judge said at [338]. Constrained because the interpretation is sustainable only by adopting the artifice of reading those words in isolation and with complete disregard to all that was said by the trial judge which is contrary to it; and the findings of the trial judge that do not sit conformably with it. We have already quoted [5] of the reasons. Not only did the trial judge there refer to “six irregular but substantial withdrawals”, but his Honour also specifically referred to the husband’s contention that the funds were “ultimately withdrawn at the direction of his father with no benefit gained or enjoyed by the husband”. At [146] (also quoted above), the trial judge detailed the dates and amounts of each of the withdrawals. These statements combine to confound the proposition that the trial judge somehow overlooked or ignored Exhibit 11, and thus confound the interpretation urged by the husband. Moreover, the matters of context in which the trial judge said what he did at [338] should be emphasised. That context included his Honour’s findings:·at [156] to [158] that the husband was not a witness of truth, that his evidence was “entirely unreliable”, that he “was prepared to concoct his evidence if he thought it would assist in promoting the position adopted by his family”, and that in some of his answers he was “either deliberately lying or demonstrably reckless”; ·at [189] that an agreement in respect of a “boat loan” from the husband’s parents was entered into as a “sham document for the purpose of these proceedings”, and at [323] that the agreement was entered into by the husband and his parents as “a concoction”;·at [191] that the husband’s father was an unsatisfactory and unreliable witness who was evasive and was in “no sense … attempting to assist the Court”;·at [312] that as between the husband and his father “there was a clear plan to ensure that the husband’s financial interests were arranged following separation in such a way as to minimise the property that was available for the Court’s consideration”;·at [316] that an agreement between G Pty Ltd and the husband’s parents in respect of a purported loan of $1,207,530 was “a device designed to minimise the available property of the parties”;·at [302] to [320], rejecting the case urged by the husband and his parents that the husband is not beneficially entitled to his shareholding in G Pty Ltd; and·at [332] that with respect to the aggregate sum of $217,800, “the husband puts forward no credible alternate explanation to the proposition of the wife that the husband was entitled to that money”, and at [351] that the husband’s acquisition of those funds was part of his “proper entitlement”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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