MITYUKOV & MITYUKOV - [2019] FamCAFC 199

FAMILY COURT OF AUSTRALIA

MITYUKOV & MITYUKOV

[2019] FamCAFC 199

FAMILY LAW – APPEAL – PROPERTY – Where the trial judge made orders dividing the property as to 57.5 per cent to the husband and 42.5 per cent to the wife – Where the husband asserts the trial judge erred in not adequately considering the husband’s contributions – Where it was asserted that the trial judge failed to give sufficient reasons – No error found – Appeal dismissed.

FAMILY LAW – COSTS – Where the appeal was wholly unsuccessful – Where an order for costs made against the appellant.

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Wallis & Manning (2017) FLC 93-759; [2017] FamCAFC 14

APPELLANT:

Mr Mityukov

RESPONDENT:

Ms Mityukov

FILE NUMBER:

PAC

3644

2017

APPEAL NUMBER:

2019

DATE DELIVERED:

5 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

8 October 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

20 May 2019

LOWER COURT MNC:

[2019] FCCA 1121

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Maddox

SOLICITOR FOR THE APPELLANT:

Meehans Solicitors

SOLICITOR FOR THE RESPONDENT:

Bainbridge Legal

Orders

The appeal EA 58 of 2019 be dismissed.
The appellant husband pay the respondent wife’s costs of and incidental to the appeal fixed in the sum of $12,473.41 such sum to be paid within twenty-eight (28) days of this order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mityukov and Mityukov has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 58 of 2019
File Number: PAC 3644 of 2017

Mr Mityukov

Appellant

and

Ms Mityukov

Respondent

REASONS FOR JUDGMENT

On 20 May 2019 Judge Dunkley in the Federal Circuit Court made orders for property adjustment between Mr Mityukov (“the husband”) and Ms Mityukov (“the wife”) the effect of which was to divide the parties’ net assets of $208,765.41 as to 57.5 per cent to the husband and 42.5 per cent to the wife.
The husband appeals those orders.

BACKGROUND

The parties commenced cohabitation in 1999 and married in 2009. There are two children of the relationship Ms Y aged 21 who resides with the wife and X aged 15 years who resides with the husband. The parties separated on 20 May 2017 when the husband left the matrimonial home.
Although the wife remained living in the parties’…

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 MITYUKOV & MITYUKOV

Details

AGLC: MITYUKOV & MITYUKOV [2019] FamCAFC 199
Case: [2019] FamCAFC 199
Decision Date: 5 November 2019

CaseChat Overview and Summary

The case of Mityukoff & Mityukoff involved a dispute between a husband and wife over the division of property following their divorce. The matter was heard and determined in the Family Court of Australia. The wife appealed the trial judge's orders, which allocated 57.5 per cent of the property to the husband and 42.5 per cent to the wife, arguing that the trial judge had failed to adequately consider the husband's contributions and did not provide sufficient reasons for the division. The husband contended that no error had been made.

The court considered the arguments presented by both parties, focusing on whether the trial judge had erred in his assessment of the husband's contributions and whether he had provided adequate reasons for his decision. The court examined the evidence and the trial judge's findings, ultimately concluding that the trial judge had not erred in his assessment or in providing reasons for his decision. The appeal was dismissed, and the husband was ordered to pay the wife's costs of and incidental to the appeal, fixed in the sum of $12,473.41, to be paid within twenty-eight days of the order.

Orders

Orders of the court

The appeal EA 58 of 2019 be dismissed.

The appellant husband pay the respondent wife’s costs of and incidental to the appeal fixed in the sum of $12,473.41 such sum to be paid within twenty-eight (28) days of this order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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