``1. That within one month from this date the husband do all things and sign all documents necessary to assign to the wife all of his right title and interest in and to the fund of thirty-six thousand three hundred and ninety nine dollars ($36,399.00) which sums represents the proceeds of sale of the former matrimonial home situate at... St Ives in the State of New South Wales and that until such payment order number 2 made herein on the 13th day of December 1984 be continued.

2. That on or before the 20th day of June 1986 the husband pay to the wife the sum of twenty thousand dollars ($20,000) and a further sum of twenty thousand dollars ($20,000.00) on or before the 20th day of June 1987 and that such sums or the balance of such sums remaining unpaid bear interest at the rate of 10% per annum to be calculated from the 20th day of September 1985 until the date of payment in full.''

The relevant financial history is canvassed extensively in the learned trial Judge's reasons for judgment and we will endeavour to confine our statement of the facts to those matters which are of relevance in the appeal.

The parties were married on 8 July 1967 and finally separated in 1983. There were two children of the marriage, A born on 7 July 1970 and J born on 27 May 1971. Since shortly after the separation the children have been living with the husband.

During most of the marriage the husband followed the occupation of a private enquiry agent and for the majority of that time conducted his own business. At the time of the hearing the wife was unemployed although she acknowledged that once the proceedings had been concluded she would not have any difficulty in obtaining employment. Until shortly before the trial the wife had been employed as a perfume/beauty consultant.

At an early stage of her reasons the trial Judge made the following general comments concerning the circumstances of the hearing:

``The hearing of this case took five days and for about half of that time the husband was in the witness box. Notwithstanding the length of time that he gave evidence and was questioned, it was not possible to establish what his assets and financial circumstances were. I have never encountered a case where it was more difficult to establish the financial detail relevant and necessary to make a decision in a property application. It was not wholly clear whether the husband in fact went out of his way to deliberately make his evidence as confusing as…

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 Monte & Monte

Details

AGLC: Monte & Monte [1986] FamCA 1
Case: [1986] FamCA 1
Decision Date: 28 February 1986

CaseChat Overview and Summary

The Full Court of the Federal Court of Australia heard an appeal in *Monte & Monte*. The dispute concerned the interpretation and application of certain provisions of the *Family Law Act 1975* (Cth) in relation to property settlement proceedings. The primary issue on appeal was whether the trial judge had erred in their assessment of the parties' respective contributions and future needs.

The Full Court was required to determine whether the trial judge had correctly applied the principles of property division under the *Family Law Act*, specifically concerning the assessment of financial and non-financial contributions, as well as the consideration of future needs and the appropriate adjustment to be made to achieve a just and equitable outcome. A further issue was whether the trial judge had adequately considered the impact of certain alleged dissipation of assets by one of the parties.

The Court analysed the evidence presented at trial and the relevant case law concerning the assessment of contributions and future needs. It affirmed that the overarching objective of property settlement is to achieve a just and equitable distribution of the marital assets, taking into account all relevant factors. The Court found that the trial judge had made no error in law or fact in their assessment of contributions and future needs, and that the consideration of asset dissipation was appropriately handled within the broader context of the property settlement.

The appeal was dismissed, and the orders made by the trial judge were affirmed.

Orders