FAMILY LAW – PROPERTY – De facto relationship – relationship of 8 years – parties have one child where party’s income is unknown due to false declarations on tax returns – addbacks – legal fees – where party has used joint funds post-separation – where party spent superannuation at commencement of relationship on failed business venture – just and equitable – one party remains resident in home with children, wishes to retain – whether just and equitable to order superannuation split instead of cash payment to ensure the home can be retained.
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MINH Applicant
AND:
MS DIEU Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
23 DECEMBER 2021
THE COURT ORDERS THAT:
1.Within 21 days of the date of this order, the sum of controlled monies in the amount of $16,754.00 (together with any interest accrued thereon), held by Blanchfield Nicholls Lawyers, be paid to the Applicant;
2.The Respondent within one-hundred and twenty days (120) days of the date of this order pay to the Applicant the sum of $108,582.25 (‘the sum’);
3.In the event that the Respondent defaults on the payment to the Applicant pursuant to paragraph 2 above the…
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.
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Details
AGLC
Minh & Dieu [2021] FedCFamC2F 649
Case
[2021] FedCFamC2F 649
Decision Date
CaseChat Overview and Summary
This matter concerned a property settlement between the Applicant, Mr Minh, and the Respondent, Ms Dieu. The parties were in a de facto relationship for approximately eight years and have one child together. The Applicant sought an adjustment of property interests under s 90SM of the Family Law Act 1975. The Respondent opposed the application. The Court was required to determine the issues of the Respondent’s use of a redraw from a mortgage secured against the Suburb O property, and whether the Applicant’s expenditure of his superannuation early in the relationship amounted to waste. The Court was also required to determine the nature and extent of the Applicant’s financial, non-financial, and homemaking contributions, and the extent of any adjustment to the Respondent (if any) for s 90SF(2) factors. The Court was also required to determine whether it was just and equitable to meet a proportion of the Applicant’s non-superannuation entitlement with a superannuation split, the aim being to ensure the Applicant retains the home at B Street, Suburb C. The Court held that the entire redraw of almost $180,000.00 should be added back to the property pool. This is because, in the Applicant’s submission, the redraw monies constitute a premature distribution of a matrimonial asset to the Respondent. The Court also held that the sum of $40,000.00, being legal fees paid by the Respondent from the redraw monies, should be added back to the property pool. The Court found that it was not just and equitable for the Court to order the payment of $58,582.25 from the Respondent’s superannuation to the Applicant’s superannuation in substitution for his entitlement to non-superannuation property of the same value. The Court found that the terms of the ultimate order in relation to non-superannuation and superannuation assets to be just and equitable.