JUAREZ & JUAREZ (No.2) - [2009] FMCAfam 1188

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JUAREZ & JUAREZ (No.2)

[2009] FMCAfam 1188

FAMILY LAW – Property and maintenance – 29 year marriage – 3 children over the age of 18 years at trial – net pool just under $3M – delay of 5 years between separation and trial – where husband made redundant following trial and before judgment – where value of shares and superannuation decreases following economic downturn – where parties given leave to reopen and adduce further evidence – where argument on add-backs – whether leave entitlements and retention bonus should be included in pool – how to treat payments made during marriage to husband’s mistress without knowledge and consent of wife – assessment of contributions – where wife seeks adjustment for her role being more onerous because of husband’s affair – where husband seeks adjustment for increasing net worth of parties post-separation – whether wife made contributions to redundancy payment – where argument over what adjustment should be made to wife under s.75(2) – where wife suffers poor health and ceased work on medical advice – where husband’s future employment prospects uncertain – where husband has 8 year old child, not of marriage, with special needs.

Where husband’s leave entitlements and retention bonus included in net pool – where payments to mistress treated as add-back – where court found contributions overall to be equal – no Kennon adjustment in favour of wife – where wife was found to have contributed to redundancy, leave and retention payments – where no extra adjustment made for husband’s post-separation contributions – where wife received 10% adjustment under s.75 (2).

Family Law Act 1975 (Cth), ss.75, 79

AJO v GRO (2005) FLC 93-218
Challen & Challen [2007] FamCA 1292
In the Marriage of Kowaliw (1981) FLC 91-092
Kennon & Kennon (1997) FLC 92-757
R v Industrial Commission (SA); Ex parte Adelaide Milk Supply Cooperative Ltd (1977) 44 SAIR 1202
Russell & Russell (1999) FLC 92-877
Phipson & Phipson [2009] FamCAFC 28
Clauson & Clauson (1995) FLC 92-595

Applicant:

MS JUAREZ

Respondent:

MR JUAREZ

File Number:

BRC 11607 of 2007

Judgment of:

Purdon-Sully FM

Hearing dates:

21-22 August 2008, 27 April 2009

Date of Last Submission:

21 May 2009

Delivered at:

Brisbane

Delivered on:

13 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr Page SC

Solicitors for the Applicant:

Jones Mitchell Lawyers

Counsel for the Respondent:

Mr Thistleton

Solicitors for the Respondent:

Frazi Lawyers

ORDERS

That within seven (7) days of today’s date the wife’s legal representatives prepare a Draft Minute of Orders reflecting the judgment.

IT IS NOTED that publication of this judgment under the pseudonym Juarez & Juarez (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 11607 of 2007

MS JUAREZ

Applicant

And

MR JUAREZ

Respondent

REASONS FOR JUDGMENT

Introduction

The husband and the wife, who were married for 29 years, are unable to agree on their property entitlements.
The husband had a successful career in the insurance…

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.

Continue reading JUAREZ & JUAREZ (No.2)

Details

AGLC: JUAREZ & JUAREZ (No.2) [2009] FMCAfam 1188
Case: [2009] FMCAfam 1188
Decision Date: 13 November 2009

CaseChat Overview and Summary

The case of Juarez & Juarez (No. 2) was heard by the Family Court of Australia, involving a lengthy and complex dispute between the husband and wife regarding the division of their property and maintenance after a 29-year marriage. The couple had three children who were over 18 years old at the time of the trial. The net pool of their assets amounted to just under $3 million, but the economic downturn affected the value of their shares and superannuation. The trial faced a significant delay of five years between the separation and the trial, and the husband was made redundant just before the judgment. The court was required to decide on various legal issues, including the inclusion of leave entitlements and retention bonus in the net pool, the treatment of payments made to the husband’s mistress, and the assessment of contributions.

The court determined that leave entitlements and retention bonuses should be included in the net pool. Payments made to the husband’s mistress were treated as add-backs, and the court found that the overall contributions of both parties were equal, leading to no adjustment in favour of the wife. The wife was found to have contributed to the redundancy, leave, and retention payments, and no extra adjustment was made for the husband’s post-separation contributions. However, a 10% adjustment was made in favour of the wife under section 75(2) of the Family Law Act. The wife's health issues and the husband's uncertain future employment prospects, along with the presence of a child with special needs not from the marriage, were also considered in the court's decision.

The court ordered that within seven days of the date of the judgment, the wife's legal representatives prepare a Draft Minute of Orders reflecting the judgment. The court's decision addressed the complex issues presented, providing a fair and balanced outcome for both parties based on the evidence and circumstances of the case.

Orders

Orders of the court

That within seven (7) days of today’s date the wife’s legal representatives prepare a Draft Minute of Orders reflecting the judgment.

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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