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Grieves and Grieves

Case [2012] FamCA 691

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FAMILY COURT OF AUSTRALIA

GRIEVES & GRIEVES

[2012] FamCA 691

FAMILY LAW ─ PROPERTY ─ Value of property ─ Conflicting evidence ─ Where the parties were in dispute as to the value of the husband’s interest as tenant in common with his brother in a property ─ Where one expert valued the property on what might loosely be described as a “continuing use” basis and the other expert on the basis of the “highest and best use” of the premises ─ Discussion of the authorities on the principle of “highest and best use” relevant to the valuation of real property ─ Where the Court preferred the valuation of the expert who approached the valuation on a “highest and best use” basis.

FAMILY LAW ─ PROPERTY SETTLEMENT ─ Contributions ─ Where the Court determined that adopting an asset-by-asset approach was in the circumstances of this case more conducive to achieving a just and equitable determination than considering the assets of the parties globally (see Norbis v Norbis (1986) 161 CLR 513).

FAMILY LAW ─ PROPERTY SETTLEMENT ─ Adjustment ─ Where the “duration” of the marriage, and the wife’s primary role as homemaker and parent have “affected” the wife’s earning capacity ─ Where on balance the Court concluded that a s 75(2) adjustment in the wife’s favour of 5 per cent would, in the circumstances, reasonably reflect the implications of the disparity of earning ability of the parties for the parties into the future ─ Where having regard to the authorities and having “stood back”, and scrutinised the proposed award, and its practical implications, the Court was satisfied that the proposed settlement of property was just and equitable.

FAMILY LAW ─ SPOUSAL MAINTENANCE ─ Where on balance, the Court concluded that the husband should pay the wife interim spousal maintenance ─ Where the Court was not persuaded that the order for spousal maintenance should continue beyond the date upon which the wife receives her entitlement to property settlement.

Family Law Act 1975 (Cth) Part VII; ss 72, 75(2), 79

Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources (1988) 65 LGRA 410
Bevan and Bevan (1995) FLC 92-600
Brett-Hall and Brett-Hall (2006) FLC 93-276
Brisbane City Council v The Valuer-General for the State of Queensland (1978) 140 CLR 41
Coghlan and Coghlan (2005) FLC 93-220
Daandine Pastoral Co Pty Ltd v Commissioner of Land Tax (1943) 7 The Valuer 299
Elsey and Elsey (1997) FLC 92-727
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336
Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor (2003) 129 LGERA 65
Housing Commission of New South Wales v San Sebastian Proprietary Limited & Others (1978) 140 CLR 196
Jarrott & Jarrott [2012] FamCAFC 29
Kardos v Sarbutt (2006) 34 Fam LR 550
Kessey and Kessey (1994) FLC 92-495
Mallett v Mallett (1984) 156 CLR 605
Manolis & Manolis (No 2) [2011] FamCAFC 105
Norbis v Norbis (1986) 161 CLR 513
Pierce and Pierce (1999) FLC…

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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Details

AGLC: Grieves and Grieves [2012] FamCA 691
Case: [2012] FamCA 691
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered a property settlement and spousal maintenance dispute between Ms Grieves (the wife) and Mr Grieves (the husband). The wife sought approximately $740,000 in property settlement, while the husband proposed a figure of approximately $260,000. The wife also sought interim spousal maintenance of $1,000 per week until December 2013, whereas the husband proposed payment until her property settlement entitlement was received, along with continued payment of her motor vehicle lease and health insurance.

The court was required to determine the value of the parties' assets, particularly the husband's interest in a property at U Road, where conflicting expert valuations were presented. One valuer assessed the property on a "continuing use" basis, while the other adopted a "highest and best use" approach. The court also needed to consider the appropriate method for assessing property settlement, whether an asset-by-asset approach or a global approach, and whether to apply a section 75(2) adjustment to account for the wife's reduced earning capacity due to her role as homemaker and parent. Finally, the court had to decide on the quantum and duration of interim spousal maintenance.

The court favoured the valuation of the husband's interest in the U Road property based on the "highest and best use" principle, which it explained by reference to High Court authorities such as *Spencer v The Commonwealth*. This principle dictates that property should be valued based on its most advantageous purpose for which it is adapted, considering a hypothetical prudent purchaser. The court also determined that an asset-by-asset approach to property settlement was more conducive to a just and equitable outcome in this case, referencing *Norbis v Norbis*. A 5 per cent adjustment under section 75(2) of the Family Law Act 1975 was made in the wife's favour to reflect the disparity in future earning capacity.

The court ordered the husband to pay the wife a total of $567,147 within four months, along with the credit balance of a joint bank account and the proceeds of sale of the former matrimonial home. Upon receipt of this sum, the wife was to transfer her shareholding in S Pty Limited to the husband, who would indemnify her against any liabilities arising from it. Interim spousal maintenance was ordered at $400 per week, with the husband to continue paying the wife's motor vehicle lease and health cover, until the property settlement was finalised. Costs were reserved.

Orders