Gollings & Scott

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.