Heeney & Eynas - [2022] FedCFamC2F 1514

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Heeney & Eynas [2022] FedCFamC2F 1514

File number(s): SYC 402 of 2020

Judgment of: JUDGE KEMP

Date of judgment: 11 November 2022

Catchwords: FAMILY LAW – property – initial contributions – pre-existing ownership of real property – where the parties cared for each other’s biological children – where the wife was the primary carer due to husband’s work commitments – where the wife has had medical issues associated with multiple medical conditions – just and equitable orders

Legislation:
Family Law Act 1975 ss 44(3), 75(2), 79, 80(1)(h), 81, 90XT(1)(B), 90XT(4) 106A, 117, Part VIIIB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 6.01, 6.06, 6.08, 6.17

Family (Superannuation) Regulations 2001 Part 6

Cases cited:
Aleksovski & Aleksovski (1996) FLC 92-705

Bevan & Bevan (2013) FLC 93-545

Chancellor & McCoy [2016] FamCAFC 256

NHC & RCH (2004) FLC 93-204

C & C (2005) FLC 93-220

Dickson & Dickson (1999) FLC 92-843

D & D (2006) FLC 93-256

G & G (1984) FLC 91-582

HDM & MM & SJM [2006] FamCA 47

Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143

Hurst & Webber [2009] FamCAFC 137

Kowaliw & Kowaliw (1981) FLC 91-092

Luciano (2000) FamCA 401 (non-reportable)

M & M (2006) FLC 93-281

M & M [1998] FamCA 42

Mallett & Mallett (1984) FLC 91-507

Marriage of Townsend [1994] 18 FamLR 505

Norbis & Norbis (1986) 161 CLR 513

Parshen & Parshen (1996) FLC 92-720

Pierce & Pierce (1999) FLC 92-844

Re Chemaisse; Federal Commissioner of Taxation (Intervener) (1990) FLC 92-133

Robb & Robb (1995) FLC 92-555

Russell & Russell (1999) FLC 92-877

Sippel & Sippel [2004] FamCA 201

Stanford & Stanford [2012] HCA 52

T & T (2000) FLC 93-023

Townsend & Townsend (1995) FLC 92-569

Vass & Vass [2015] FamCAFC 51

Walters & Walters (1986) FLC 91-733

Weir & Weir (1993) FLC 92-338

W & W (2005) FLC 93-222

Division: Division 2 Family Law

Number of paragraphs: 177

Date of last submission/s: 7 July 2022

Date of hearing: 6-7 July 2022

Place: Sydney

Counsel for the Applicant: Mr Scriva

Solicitor for the Applicant: Swiftly Legal

Counsel for the Respondent: Mr Hodgson

Solicitor for the Respondent: Nash Allen Williams & Wotton
ORDERS

SYC 402 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HEENEY

Applicant

AND:
MR EYNAS

Respondent

order made by:

JUDGE KEMP

DATE OF ORDER:

11 NOVEMBER 2022

THE COURT ORDERS THAT:
1.The respondent husband (“the husband”) pay to the applicant wife (“the wife”) the sum of $145,990.03 (“the settlement sum”) on or before 60 days from the date of these orders (“the due date”).
2.If the whole of the settlement sum has not been paid by the due date, then the husband shall immediately do all acts and things and sign all documents necessary to list for sale and sell the property at B Street, Suburb C, NSW (“

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: Heeney & Eynas [2022] FedCFamC2F 1514
Case: [2022] FedCFamC2F 1514
Decision Date

CaseChat Overview and Summary

The applicant wife sought a property settlement from the husband, following the end of their 14-year relationship. The husband had, in 2011, paid the wife $24,500.00 and transferred to her the title to a motor vehicle in what he described as a final property settlement. The wife maintained that no such agreement was made and that, in any event, the substantial increase in the value of the B Street, Suburb C property (valued at $825,000.00 at the time of hearing) should be shared. The husband argued that no final property settlement had been entered into and that, in any event, the wife’s claim was not justified given the substantial disparity in their financial positions. The wife also sought a superannuation split. The Court found that, although the wife had not satisfied the threshold in Stanford v Stanford, her claim was justified given the substantial increase in the value of the B Street, Suburb C property. The Court also found that the husband’s post separation contribution to the relationship was significantly greater than that of the wife. The Court ordered that the husband pay the wife a settlement sum of $145,990.03 and that a superannuation split be made in her favour.

Orders