JS & GP

Case [2006] FamCA 150

[2006] FamCA 150

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT ADELAIDE

Appeal No. SA 33 of 2005

File No. ADF 2328 of 2001

IN THE MATTER OF:

JS

Appellant/Wife

- and -

GP

Respondent/Husband

REASONS FOR JUDGMENT

BEFORE:Kay, Warnick and Boland JJ

HEARD:11 and 12 October 2005

JUDGMENT:            13 March 2006

APPEARANCES:   

Mr McQuade of counsel (instructed by Lempriere Abbott McLeod of 93 Carrington Street, Adelaide SA 5000) appeared on behalf of the Appellant Wife

Mr Stathopoulos of counsel (instructed by Alderman Redman of 28 Grenfell Street, Adelaide SA 5000) appeared on behalf of the Respondent Husband.

APPEAL SUMMARY

MATTER:JS and GP

APPEAL NUMBER:  SA 33 of 2005

CORAM:Kay, Warnick and Boland JJ

DATE OF HEARING:  11 and 12 October 2005

DATE OF JUDGMENT:  13 March 2006

CATCHWORDS:               

APPEALS – From decision of Family Court Judge – Property settlement –PROPERTY – Family company – Family trust – Whether trial Judge erred in finding property was asset of discretionary trust of which company is corporate trustee –– Findings of trial Judge in respect of manifestation of declaration of trust in writing based on connectivity of documents not open on evidence, but evidence leads to conclusion that land not an asset of company in own right - Trial Judge correct in not including any sum to represent husband’s interest in company - Findings did not vitiate trial Judge’s discretion - Whether trial Judge erred in including debt due by husband to partnership in list of assets and liabilities - No error in trial Judge’s inclusion of debt in parties’ list of assets and liabilities - contributions – Trial Judge’s assessment of relevant factors under s 79 not outside generous ambit of discretion – SPOUSAL MAINTENANCE –Whether trial Judge erred in dismissing wife’s application for spousal maintenance – Trial Judge’s finding wife did not satisfy threshold not open on expert evidence - Re-exercise of discretion - Husband has capacity to pay – Spousal maintenance order for defined period made as lump sum.

Legislation

Statute of Frauds 1677 (29 Car.11c3) ss 7, 8, 9
Law of Property Act 1925 (UK)
Family Law Act 1975 (Cth) ss 75(2) and (3), 74, 79, 80, 83
Law of Property Act (1936) (SA) ss 26, 29, 30
Conveyancing Act (1919) (NSW) s 54A

Case law

Af Petersens and Af Petersens (1981) FLC 91-095
Anast and Anastopoulos (1982) FLC 91-201
Antmann v Antmann (1980) FLC 90-908
Baloglow v Konstantinidis & Ors [2001] NSWCA 451
Barkworth v Young (1856) 56 LJ CH 153
Bevan and Bevan (1995) FLC 92-600
Biltoft and Biltoft (1995) FLC 92-614
Clauson and Clauson (1995) FLC 92-595
Davut and Raif (1994) FLC 92-503
De Winter and De Winter (1979) FLC 90-605
DKLR Holding Co Pty Ltd v Commissioner of Stamp Duties (NSW) 149 CLR 431
Equuscorp Pty. Ltd. v Jimeniz; sub nom [2002] SASC 225
Ferraro and Ferraro (1993) FLC 92-335
Georgeson and Georgeson (1995) FLC 92-618
Gronow v Gronow(1979) 144 CLR 513
House v…

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Details
AGLC
JS & GP [2006] FamCA 150
Case
[2006] FamCA 150
Decision Date

CaseChat Overview and Summary

The appeal concerned a property settlement and spousal maintenance dispute between JS and GP, heard by the Full Court of the Family Court of Australia. The primary dispute revolved around whether certain assets, including those held within a family company and a family trust, were properly characterised and included in the property pool for division. The wife also appealed the dismissal of her application for spousal maintenance.

The Full Court was required to determine whether the trial judge erred in finding that certain property was an asset of a discretionary trust, with the company acting as the corporate trustee. Further, the court had to consider whether the trial judge erred in including a debt owed by the husband to a partnership in the list of assets and liabilities, and whether the wife had satisfied the threshold for spousal maintenance. The court also had to assess whether the trial judge's overall assessment of contributions and exercise of discretion under s 79 of the *Family Law Act 1975* (Cth) was within the generous ambit of that discretion.

Regarding the property settlement, the Full Court found that while the trial judge's reasoning regarding the manifestation of a declaration of trust in writing was not open on the evidence, the evidence did support the conclusion that the land in question was not an asset of the company in its own right. Consequently, the trial judge was correct in not including any sum to represent the husband's interest in the company. The court also found no error in the inclusion of the debt owed by the husband to the partnership. However, concerning spousal maintenance, the Full Court determined that the trial judge's finding that the wife did not satisfy the threshold was not open on the expert evidence. The court therefore re-exercised its discretion, finding that the husband had the capacity to pay and made a spousal maintenance order for a defined period as a lump sum.

The appeal was allowed.

Orders

Orders of the court

APPEAL ALLOWED

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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