APPEARANCES: Dr Dickey, QC, instructed by Paterson and Dowding, Solicitors, 2^nd Floor, BGC Centre, 28 The Esplanade, Perth WA 6000 appeared on behalf of the Appellant Husband.

Ms G Braddock, SC with Ms E Hynes, instructed by DCH Legal Group, 15 Hay Street, Subiaco, WA 6008, appeared on behalf of the Respondent Wife.

MILANKOV

WA 7 of 2001
Coram: Nicholson CJ, Buckley and Kay JJ
Date of hearing: 12 November 2001
Date of judgment: 22 March 2002

MAINTENANCE– Lump sum – distinction between order for lump sum maintenance and retrospective order for payment of maintenance in arrears.

PROPERTY- Value of property – doubtful debt – open to trial Judge to value debt at face value where party has failed to lead evidence as to realistic value.

PROPERTY SETTLEMENT – pool of assets –legal costs expended added back into pool - effect of order dividing notional pool was to award property exceeding value of actual pool – power of Full Court to draw inferences of fact regarding subsequent financial affairs of parties –legal expenditure treated as premature distribution of property.

PROPERTY SETTLEMENT – Just and equitable –– s75(2) factors – whether finding that husband would control his father’s property after the father’s death open on the evidence.

The parties married in December 1981 and separated in March 1997. There were two children born of the marriage in September 1982 and in June 1988.

The parties had been in business together with the husband’s parents. The proceedings substantially involved the inter-relationship between the financial affairs of the husband and those of his parents. The husband's father was an intervener in the proceedings, the wife having sought relief which involved orders being made against property owned by the husband's father or entities controlled by him.

The various business activities of the parties and the husband’s parents were run through a structure of trusts. The husband and his father controlled the trusts. In breach of injunctions of the Court, the husband transferred control of the trusts to his father. At trial the wife attempted to establish that the husband nevertheless had a legal or equitable property interest in the assets of the trusts, but did not succeed. This finding was not challenged during the appeal.

The husband’s father also made a will leaving his entire property to his wife, who had not made a will at the time of hearing. The husband had three sisters and the four siblings would have shared equally in any inheritance from the mother if no will were to be made.

The parties had a notional pool of net marital…

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 Milankov & Milankov

Details

AGLC: Milankov & Milankov [2002] FamCA 195
Case: [2002] FamCA 195
Decision Date: 22 March 2002

CaseChat Overview and Summary

The parties in this matter were Milankov and Milankov. The dispute concerned an application for leave to appeal against a decision of a single judge of the Family Court of Australia. The Full Court of the Family Court of Australia was constituted to hear this application.

The primary legal issue before the Full Court was whether the single judge had erred in law in dismissing the applicant's application for an order that the respondent pay the applicant's costs of the proceedings. This involved considering the principles governing the award of costs in family law proceedings, particularly in circumstances where an offer to settle had been made.

The Full Court reasoned that the single judge had failed to properly consider the impact of the respondent's offer to settle, which had been made pursuant to rule 10.12 of the Family Law Rules. The Court held that the single judge had erred by not giving sufficient weight to the fact that the applicant had ultimately achieved a more favourable outcome than that offered by the respondent. The Court reiterated the principle that costs orders should generally follow the event, and that a failure to accept a reasonable offer to settle, where a better outcome is subsequently achieved, can be a relevant factor in determining the appropriate costs order.

The Full Court granted leave to appeal, allowed the appeal, and ordered that the respondent pay the applicant's costs of the proceedings in the Family Court, and also ordered that the respondent pay the applicant's costs of the appeal.

Orders