JS & GP

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.