FAMILY LAW – APPEAL – PROPERTY – Contribution-based entitlements – Initial contributions – Where equal contributions made over a long period of time – Where property to be divided was rezoned and increased in value – Approach to the apportionment of the increase in value of the assets initially contributed discussed – Where the initial purchase of the property was a springboard for what occurred subsequently – Where increase in value of property through rezoning did not favour one party over the other – Weight to be attached to initial contribution to be assessed against rubric of all contributions made by the parties – Post-separation contributions – The weight afforded to a number of post-separation contributions – Procedural fairness – Appeal allowed – Orders set aside – Re-exercise – Where the primary judge assessed the husband’s contributions at 66 per cent – On re-exercise husband’s contributions assessed at 53 per cent.
[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.
Continue reading Jabour & Jabour
Sign in free to access the full text
Details
AGLC
Jabour & Jabour [2019] FamCAFC 78
Case
[2019] FamCAFC 78
Decision Date
CaseChat Overview and Summary
The appeal was brought by the husband, Jabour, against an earlier decision of the Family Court concerning the division of property between the parties. The primary dispute was regarding the apportionment of the increase in value of certain assets, specifically a property that was initially contributed to the relationship by one party and subsequently rezoned, leading to a significant increase in its value. The court was tasked with determining the extent to which the increase in value should be attributed to each party, considering the initial contributions and subsequent developments.
The court was required to address several legal issues, including the assessment of the initial contributions made by each party, the significance of the initial property as a springboard for later events, and the appropriate weight to give to post-separation contributions. The court also had to consider procedural fairness in the way the initial decision was reached. The central question was how to balance the initial contributions against all contributions made by the parties over the course of the relationship.
The court concluded that the primary judge had erred in assessing the husband's contributions at 66 per cent. On re-exercise of the relevant discretions, the court found that the husband's contributions should be assessed at 53 per cent. The court reasoned that while the initial purchase of the property was significant, it could not be considered in isolation. The increase in value through rezoning did not favour one party over the other, and therefore, the initial contribution needed to be assessed within the broader context of all contributions. The court also found that the procedural fairness of the initial decision was compromised, necessitating a re-exercise of the discretions. The appeal was allowed, and the orders were varied accordingly.
The final orders included allowing the appeal, varying the earlier orders to reflect a 53/47 per cent division of non-superannuation assets, setting aside a specific order, and directing the parties to agree on a new order. Additionally, it was ordered that the wife would pay the husband $100,000 from her share, and the husband was directed to pay the wife's costs of the appeal.
Orders
Orders of the court
1.
The appeal is allowed.
2.
Orders 6 and 7 made on 25 May 2018 are varied by replacing “66%” and “34%” with “53 per cent” and “47 per cent” respectively.
3.
Set aside Order 5(c) and direct the parties to forward to the Court within seven (7) days an agreed replacement order giving effect to the 53/47 per cent division of non-superannuation assets.
4.
It is further ordered, by consent, that from the sum to be received by the wife under Order 5(c), as varied, she is to pay to the husband $100,000.
5.
The husband is to pay the wife’s costs of and incidental to the appeal in the amount of $35,536.91.
Note: The form of the order is subject to the entry of the order in the Court’s records.