Monteiro & Monteiro

Case [2022] FedCFamC1A 86

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Monteiro & Monteiro [2022] FedCFamC1A 86

Appeal from: Monteiro & Monteiro [2021] FedCFamC2F 458
Appeal number(s): NAA 109 of 2021
File number(s): ADC 2845 of 2014
Judgment of: TREE J
Date of judgment: 3 June 2022
Catchwords:

FAMILY LAW – APPEAL – PROPERTY – Appeal against final property settlement orders – Whether the overall division of the parties’ property of 60/40 per cent in favour of the wife was unreasonable – Challenge to the adjustment made under s 75(2) of the Family Law Act 1975 (Cth) – Whether the primary judge erred in not including a personal debt of the husband in the balance sheet – Where such post separation liabilities are not bound to be included in the balance sheet – Adequacy of reasons – Challenges to the weight attributed to the evidence – Where no ground of appeal established – Appeal dismissed – Costs ordered.

FAMILY LAW – CROSS-APPEAL – PROPERTY – Cross-appeal from the primary judge’s failure to add-back a sum of money to the balance sheet – Where the sum was a distribution of profit from the parties’ trust – Not exceptional – No appealable error established – Costs ordered – Where costs ordered against each party were offset.    
Legislation: Family Law Act 1975 (Cth) s 75(2)
Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

De Winter v De Winter (1979) 23 ALR 211

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

Wilde & Wilde [2007] FamCA 1044
Number of paragraphs: 73
Date of hearing: 24 May 2022
Place: Cairns (via video link)
Counsel for the Appellant/Cross-Respondent: Mr Heinrich
Solicitor for the Appellant/Cross-Respondent: Townsends Solicitors
Counsel for the Respondent/Cross-Appellant: Mr Tredrea
Counsel for the Respondent/Cross-Appellant: Jordan & Fowler Family Lawyers

ORDERS

NAA 109 of 2021
ADC 2845 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR MONTEIRO

Appellant/Cross-Respondent
AND:

MS MONTEIRO

Respondent/Cross-Appellant

ORDER MADE BY:

TREE J

DATE OF ORDER:

3 JUNE 2022

THE COURT ORDERS THAT:

1.The appeal and cross-appeal are dismissed.

2.The husband pay the wife the sum of $6,467.28 in respect of her costs within 28 days.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances,…

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AGLC
Monteiro & Monteiro [2022] FedCFamC1A 86
Case
[2022] FedCFamC1A 86
Decision Date

CaseChat Overview and Summary

The appeal and cross-appeal in Monteiro & Monteiro involved a dispute over the final property settlement between the husband and wife following their divorce. The husband challenged the primary judge's decision to divide the parties' property in a 60/40 per cent ratio in favour of the wife, arguing that it was unreasonable. He also contested the exclusion of a personal debt from his balance sheet. The wife, on the other hand, cross-appealed against the primary judge's failure to add back a sum of money to the balance sheet, which represented a distribution of profit from the parties' trust. The court had to determine whether the primary judge's decision was correct, whether the exclusion of the debt was justified, and if the failure to add back the profit distribution constituted an appealable error.

The court found that the husband's arguments did not establish any ground of appeal. The division of property was deemed reasonable considering the parties' circumstances, and the exclusion of the personal debt from the balance sheet was not considered a significant error. The court also held that the failure to add back the profit distribution was not exceptional and did not amount to an appealable error. Consequently, both the appeal and cross-appeal were dismissed.

The court further ordered that the husband pay the wife $6,467.28 in respect of her costs, attributable to the appeal, within 28 days. The wife's costs for the appeal were $11,396.37, while the husband's costs for the cross-appeal were $4,929.09. The court found that offsetting the parties' respective costs was appropriate given the outcome of the appeals.

The appeal and cross-appeal in Monteiro & Monteiro were dismissed, and the husband was ordered to pay the wife $6,467.28 in respect of her costs within 28 days. The court's decision upheld the primary judge's property settlement and found no merit in the husband's and wife's respective appeals and cross-appeal.

Orders

Orders of the court

NAA 109 of 2021

ADC 2845 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR MONTEIRO

Appellant/Cross-Respondent

AND:

MS MONTEIRO

Respondent/Cross-Appellant

ORDER MADE BY:

TREE J

DATE OF ORDER:

3 JUNE 2022

THE COURT ORDERS THAT:

1. The appeal and cross-appeal are dismissed.

2. The husband pay the wife the sum of $6,467.28 in respect of her costs within 28 days.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons which follow, the appeal and the cross-appeal will both be dismissed.BACKGROUND The husband was born in 1966 and is presently 55 years of age. The wife was born in 1967 and hence is 54 years of age. The parties met in 1988, married in 1991, separated around June 2008 and divorced in 2014. They have two children of their relationship, the eldest of whom is 23 years of age and the youngest 17. The uncontested background facts to these proceedings are set out in the primary judge’s reasons for judgment at [3]–[19]. In summary, the parties had bought and sold various properties and undertook a range of property development projects over the years. They also acquired a business and purchased a one-third interest in a company through the Monteiro Family Trust. In 2004, the parties moved into what was then the wife’s parents’ house (which is the Suburb A property). Following the wife’s father’s death, the parties continued to live in the Suburb A property with the wife’s mother. In 2008, the parties purchased the Suburb A property from the wife’s mother for an agreed price of $500,000, of which they paid $400,000, with the remaining $100,000 being provided by way of vendor finance. The parties and the wife’s mother entered into an agreement whereby she would remain living at the property rent free for her lifetime or until the property was sold. The $100,000 had not been repaid to the wife’s mother at the time of trial, and the wife’s mother remained living in part of the Suburb A property. In 2005, the parties established the Monteiro Retirement Fund, which is a self-managed superannuation fund, with each party rolling their personal superannuation into the fund. The fund purchased a property at Suburb C (“the Suburb C property”) in the same year. In April 2008, the parties purchased the Suburb B property, into which the husband initially moved at separation. The wife remained living in the Suburb A property where she and her mother still reside. Between 2009 and 2020, the wife provided accommodation to student lodgers at the Suburb A property as a source of income. In 2009, the parties refinanced their existing debt structure with ANZ Bank. At the time of trial, the parties had five different loan accounts all secured against the Suburb A property, although one of those loans was secured against the Suburb B property as well. The husband and his new partner resided in the Suburb C property between 2011 and 2019. In 2011/2012, the parties’ company went into liquidation. The husband and his business partner continued to work in the company and an agreement was later reached whereby the husband and his partner would purchase the business from the liquidators. This occurred and the husband and his partner set up X Pty Ltd. The wife commenced these proceedings in August 2018, with leave later being given to commence them out of time. For the purposes of the trial, a single expert was appointed to value the parties’ interests in the Monteiro Family Trust, X Pty Ltd and the Monteiro Retirement Fund. It became clear during the early stages of the proceedings that the Monteiro Retirement Fund was non-compliant with the relevant superannuation regulations, as a result of the husband and his partner having lived in the Suburb C property.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ground 1 fails.CONCLUSION No ground of either the appeal or cross-appeal succeeds. Both will be dismissed.COSTS In the event the appeal failed, the wife sought her costs. In the event the cross-appeal failed, the husband sought his costs. Unfortunately the costs schedules filed by the parties did not enable differentiation between their costs of the appeal and cross-appeal. At the hearing, the parties agreed that, using a broad brush, about 25 per cent of their costs were attributable to the cross-appeal. Hence the wife’s costs, claimed at $15,195.17, are attributable to the appeal in the sum of $11,396.37 and the husband’s costs, claimed at $19,716.39, are attributable to the cross-appeal in the sum of $4,929.09, the difference being $6,467.28. The appeal has wholly failed, as has the cross-appeal. Both parties have financial capacity to meet a costs order. I am satisfied that each party should pay the other’s costs in relation to their respective failures. Further, I am satisfied that offsetting the parties’ respective costs should see the husband pay the wife the sum of $6,467.28, and it should be payable within 28 days.

Ratio Decidendi

Legal Principle Established

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