FAMILY LAW - APPEAL – Property settlement – Husband appeals orders that he transfer to the Wife his interest in the former matrimonial home and discharge the mortgage of about $274,000 – Disputed asset pool – Husband earning capacity in excess of $500,000 per year – Add back of the $72,281 gifted by the Husband to his new partner to acquire property set aside in light of the principle that parties are entitled to reasonably conduct their affairs post-separation – Tax debt owing at date of hearing of $88,000 included even though partly attributable to income spent on the husband’s new partner – Property order exceeds value of asset pool – Normally an order adjusting property interests under section 79 ought not exceed the totality of the net assets of the parties – In the re-exercise of discretion, noting a concession as to equal contributions, the relevant section 75(2) factors:
· the Husband’s overwhelmingly larger earning capacity;
· the Wife’s health;
· the Wife’s ongoing responsibility for the children;
· the Husband’s benefits from his occupation of his partner’s property;
· the Husband’s obligations to pay spousal maintenance and child support; and
· some of the tax liability relates to monies spent for the benefit of the new partner
favour a very significant adjustment in favour of the Wife of 98% of the asset pool, whereby the Husband discharges $150,000 of the mortgage and the Wife retains the former matrimonial home
Spousal Maintenance – $48,000 per year – As the needs of the Wife were unchallenged and the Husband did not show he could not reasonably meet the amount ordered, appeal dismissed
C & C [1998] FamCA 143 Chang v Su (2002) FLC 93-117; (2002) 29 Fam LR 406 Chorn and Hopkins (2004) FLC 93-204; (2004) 32 Fam LR 518 HDM and MM and SJM [2006] FamCA 47 Kowaliw (1981) FLC 91-092 Milankov and Milankov (2002) FLC 93-095; (2002) 28 Fam LR 514 Omacini and Omacini (2005) FLC 93-218; (2005) 33 Fam LR 134 SMB and MFB [2006] FamCA 46 Weir and Weir (1993) FLC 92-338; (1992) 16 Fam LR 154
APPELLANT HUSBAND:
MR GOLLINGS
RESPONDENT WIFE:
MS SCOTT
FILE NUMBER:
PTW
143
of
2004
APPEAL NUMBER:
WA
5
of
2006
DATE DELIVERED:
4 May, 2007
PLACE DELIVERED:
Melbourne
JUDGMENT OF:
Finn, Kay and Boland JJ.
HEARING DATE:
17 October 2006
LOWER COURT JURISDICTION:
Family Court of Western Australia
LOWER COURT JUDGMENT DATE:
1 March 2006
REPRESENTATION
COUNSEL FOR THE APPELLANT:
Mr Bennett
COUNSEL FOR THE RESPONDENT:
Mr McCormack
SOLICITORS FOR THE RESPONDENT:
Paynes
Orders
(1) That the appeal be allowed.
(2)That orders 2 and 3 of the orders made by the Honourable Justice Martin on 1 March 2006 be varied by substituting the sum of $150,000 for the sum of $274,361 therein appearing.
(3)That within 21 days the appellant file and serve any submissions that he seeks to make…
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
Gollings & Scott [2007] FamCA 397
Case
[2007] FamCA 397
Decision Date
CaseChat Overview and Summary
The Full Court of the Family Court of Australia heard an appeal by the Husband against property settlement orders made by a single judge. The dispute concerned the division of the parties' assets and the Husband's obligation to pay spousal maintenance. The primary orders under appeal required the Husband to transfer his interest in the former matrimonial home to the Wife and to discharge a mortgage of approximately $274,000 on that property.
The legal issues before the Full Court included whether the primary judge erred in adding back to the asset pool a sum of $72,281 gifted by the Husband to his new partner, and whether the property orders made exceeded the value of the asset pool. The Court also considered whether the primary judge correctly took into account various section 75(2) factors of the *Family Law Act 1975* (Cth) in re-exercising the discretion regarding property adjustment, and whether the spousal maintenance order of $48,000 per year was appropriate.
The Full Court set aside the add-back of the $72,281 gift, holding that parties are entitled to conduct their affairs reasonably post-separation. However, the Court found that the property order made by the primary judge did exceed the value of the asset pool. In re-exercising the discretion, and noting a concession of equal contributions, the Court considered the Husband's significantly larger earning capacity, the Wife's health, her ongoing responsibility for the children, the Husband's benefits from occupying his partner's property, his spousal maintenance and child support obligations, and the fact that some of the tax liability related to monies spent for the benefit of his new partner. These factors favoured a substantial adjustment in favour of the Wife.
The Full Court ordered that the Husband discharge $150,000 of the mortgage and the Wife retain the former matrimonial home, resulting in an adjustment of 98% of the asset pool in her favour. The appeal against the spousal maintenance order was dismissed, as the Wife's needs were unchallenged and the Husband had not demonstrated an inability to meet the ordered amount.