Hurst & Weber

Case [2009] FamCAFC 137

FAMILY COURT OF AUSTRALIA

HURST & WEBER [2009] FamCAFC 137

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – PROPERTY SETTLEMENT – Short marriage – Wife’s application for property settlement was dismissed at trial – The wife’s litigation and other debts left her in a negative asset position – The husband’s net assets exceeded two million dollars in value – Federal Magistrate stated that the order left the wife in substantially the same position as when cohabitation commenced – Debt for litigation loan meant that the Federal Magistrate erred in so concluding – Mere absence of percentage apportionment on the basis of contributions is not an error of approach
FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – PROPERTY SETTLEMENT - Federal Magistrate accepted the expert value of the husband’s share options – Treated the options as a financial resource, not as property – (per Warnick and Boland JJ) Federal Magistrate did not make a finding that the options were not property – No error in the approach taken, proportion of option value to the asset pool means inclusion as property as against treatment as a financial resource would not make a difference.
(per O’Ryan J) The share options were property and as such it was not open to the Federal Magistrate to treat them as a financial resource – Important distinction is that between property and financial resources, not ‘assets’ and financial resources – Appeal allowed
Parties sought re-exercise of discretion – wife to receive $100,000 from husband – release of security for costs to the wife

FAMILY LAW - COSTS – certificates in relation to the appeal granted to each party
Family Law Act 1975 (Cth) s 4; s 75(2); s 75(2)(b); s 79(4)(e)
Coghlan and Coghlan (2005) FLC 79,635
Cook and Langford (2008) FLC 93-374
Dickson and Dickson (1999) FLC 92-843
G and G (2000) FLC 93-043
Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93,143
Kennon and Kennon (1997) FLC 92-751
Kennon v Spry (2008) FLC 93-388
Milankov and Milankov (2002) FLC 93-095
Whitely and Whitely (1996) FLC 92-684
APPELLANT: Ms HURST
RESPONDENT: Mr WEBER
FILE NUMBER: SYC 1991 of 2007
APPEAL NUMBER: EA 83 of 2008
DATE DELIVERED: 28 July 2009
PLACE DELIVERED: Brisbane
PLACE HEARD: Sydney
JUDGMENT OF: Warnick, Boland and O'Ryan JJ
HEARING DATE: 30 March 2009
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 20 June 2008
LOWER COURT MNC: [2008] FMCAfam 643

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Maurice with Mr Sara
SOLICITOR FOR THE APPELLANT: Doolan Wagner & Callaghan
COUNSEL FOR THE RESPONDENT: Ms Rees
SOLICITOR FOR THE RESPONDENT: Watts McCray

Orders

  1. That the appeal be allowed.

  2. That, in lieu of Order 2, the following order be substituted:

    2.That the husband pay the wife, within 30 days of 30 June 2008, the sum of $100,000.00

  3. That the husband cause his solicitors, Watts McCray Lawyers, to refund the sum of $5,000 paid as security for costs pursuant to…

Continue reading Hurst & Weber

Sign in free to access the full text

Details
AGLC
Hurst & Weber [2009] FamCAFC 137
Case
[2009] FamCAFC 137
Decision Date

CaseChat Overview and Summary

In the case of Hurst & Weber, the parties were involved in a property settlement dispute following a short marriage. The wife had appealed a decision by a Federal Magistrate dismissing her application for a property settlement, which left her with litigation and other debts resulting in a negative asset position. The husband's net assets exceeded two million dollars. The Federal Magistrate had concluded that the order left the wife in substantially the same position as when cohabitation commenced, which was contested by the wife due to a debt for a litigation loan. The court was tasked with determining whether the Federal Magistrate's conclusions and approach were correct, particularly regarding the treatment of the husband's share options as a financial resource rather than property.

The central legal issues revolved around whether the Federal Magistrate had erred in concluding that the wife was left in substantially the same position as when cohabitation commenced, and whether the treatment of the husband's share options as a financial resource rather than property constituted an error. The court examined the distinction between property and financial resources and whether the absence of percentage apportionment on the basis of contributions was an error of approach. The Federal Magistrate's approach was scrutinised to determine if there was any error in the treatment of the husband's share options, and if the inclusion of the options as property would have made a difference to the outcome.

The Full Court of the Family Court found that the Federal Magistrate had erred in concluding that the wife was left in substantially the same position as when cohabitation commenced due to the litigation loan debt. The court also determined that while the Federal Magistrate had not explicitly found that the share options were not property, treating them as a financial resource was not an error of approach. However, the court held that the share options were indeed property, and thus it was not open to the Federal Magistrate to treat them as a financial resource. The Full Court allowed the appeal and exercised its discretion to order the husband to pay the wife $100,000 and to refund $5,000 paid as security for costs to the wife. Additionally, the court granted costs certificates to both parties.

Orders

Orders of the court

1.

That the appeal be allowed.

2.

That, in lieu of Order 2, the following order be substituted:

2. That the husband pay the wife, within 30 days of 30 June 2008, the sum of $100,000.00

3.

That the husband cause his solicitors, Watts McCray Lawyers, to refund the sum of $5,000 paid as security for costs pursuant to orders made 1 December 2008 to the wife within 14 days of these orders

4.

That the court grants to the appellant a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

5.

That the court grants to the respondent a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.