FAMILY COURT OF AUSTRALIA
| MURRAY & MURRAY | [2020] FamCAFC 293 |
| FAMILY LAW – APPEAL – PROPERTY – Where the appellant appeals from property settlement orders granting the respondent 73.2 per cent of the “identifiable asset pool” – Lack of financial disclosure – Whether primary judge erred in declining to add back to the asset pool credit card and tax liabilities – Whether appellant’s post‑separation expenditure on living expenses was reasonable – Where primary judge’s assessment of parties’ contributions was open – Adjustments pursuant to s 75(2) factors was open – Just and equitable – No error identified – Appeal dismissed – Costs ordered in a fixed amount. FAMILY LAW – APPEAL – COSTS – Appellant appeals from costs orders arising out of substantive proceedings – Financial non‑disclosure – Adequacy of reasons – Whether primary judge failed to take into account compromises reached over child support and spousal maintenance – No error identified – Appeal dismissed – Costs ordered in a fixed amount. |
| Bankruptcy Act 1966 (Cth) Family Law Rules 2004 (Cth) r 19.18 |
| Anison & Anison (2019) FLC 93-908; [2019] FamCAFC 108 Biltoft and Biltoft (1995) FLC 92-614; [1995] FamCA 45 Black and Kellner (1992) FLC 92-287; [1992] FamCA 2 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Lovine & Connor and Anor (2012) FLC 93-515; [2012] FamCAFC 168 Maiden v Maiden (1909) 7 CLR 727; [1909] HCA 16 Mallory & Mallory [2020] FamCAFC 62 McCauley v McCauley (1910) 10 CLR 434; [1910] HCA 16 Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4 Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44 Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 5 Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173 Trustee for the Bankrupt Estate of N Lasic & Lasic (2009) FLC 93-402; [2009] FamCAFC 64 Trustee of the Property of G Lemnos, A Bankrupt & Lemnos and Anor (2009) FLC 93-394; [2009] FamCAFC 20 Vass v Vass (2015) 53 Fam LR 373; [2015] FamCAFC 51 Weir and Weir (1993) FLC 92-338; [1992] FamCA 69 |
| APPELLANT: | Mr Murray |
| RESPONDENT: | Ms Murray |
| FILE NUMBER: | SYC | 5665 | of | 2014 |
| FIRST APPEAL NUMBER: | EAA | 136 | of | 2019 |
| SECOND APPEAL NUMBER: | EAA | 52 | of | 2020 |
| DATE DELIVERED: | 24 November 2020 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Austin JJ |
| HEARING DATE: | 22 October 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 18 November 2019; 1 April 2020 |
| LOWER COURT MNC: | [2019] FamCA 847; [2020] FamCA 223 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Cheshire SC |
| SOLICITOR FOR THE APPELLANT: | Mills Oakley |
| COUNSEL FOR THE RESPONDENT: | Mr Cox SC |
| SOLICITOR FOR THE RESPONDENT: | Pearson Emerson Family Lawyers |
Orders
Appeal No. EAA 136 of 2019 is dismissed.
Appeal No. EAA 52 of 2020 is dismissed.
The appellant shall pay the respondent’s costs of…
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- AGLC
- Murray & Murray [2020] FamCAFC 293
- Case
- [2020] FamCAFC 293
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1.
Appeal No. EAA 136 of 2019 is dismissed.
2.
Appeal No. EAA 52 of 2020 is dismissed.
3.
The appellant shall pay the respondent’s costs of and incidental to both appeals in the fixed sum of $46,500.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In the appeal, the appellant submitted:27.The primary Judge gives no consideration to any authority involving add-backs where such an approach is taken where there has been pre-mature distribution of income and entitlements received by the [a]ppellant post-separation as opposed to a pre-mature distribution of matrimonial assets that existed at the time of the parties’ separation.… 29.Adding “property” back to the pool is to be treated as the exception, not the rule. The funds retained by the [a]ppellant were funds derived from post-separation income earned by the [a]ppellant and subject to various interim orders made by the Court.(Emphasis added) (Footnote omitted) The primary judge’s failure to recite authority (such as Trevi & Trevi (2018) FLC 93-858) for the approach taken does not demonstrate error. As this Court said in Vass v Vass (2015) 53 Fam LR 373 at [138], “[t]here is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties”. His Honour’s approach was consistent with such authority and there is no doubt it was understood the transactions occurred post-separation. The appellant’s explicit acceptance that his Honour could have alternatively considered such expenditure as a material fact under s 75(2)(o) of the Act represents his implicit acceptance that it was open to notionally add back against him the full value of the funds he retained for his exclusive use. In the circumstances of this case, in truth, this is an argument of form over substance. The appellant’s submission that the funds retained by him were derived from his post-separation income, as distinct from pre-existing assets, and he was therefore able to spend it as he chose, does not correlate with the evidence and is rejected. The mortgage registered over the family home was serviced from the time it was first acquired in 2003 (at [42]). When the appellant first joined H Firm in October 2013, the $320,000 capital he then paid to H Firm was borrowed by way of an overdraft facility secured against the former family home (at [86]). The appellant ceased making repayments on the mortgage and the overdraft facility in February 2015 (at [98]) so, in August 2015, the primary judge made interim orders requiring some of the appellant’s income to be diverted to the quarantine account which was to be used, in part, to service the mortgage (at [105]). During 2016 and 2017, the appellant made withdrawals from the mortgage which triggered default interest rates (at [108], [111], [119], [122] and [372]). Even though the appellant’s income had funded the mortgage repayments (at [408]), his last redraw of $59,200 in March 2017 was contrary to the interim orders made in August 2015 and his personal expenditure of the $180,000 from the capital of $263,000 repaid to him by H Firm in July 2017 (at [128]) was not used to defray the mortgage or the overdraft facility from which it originated.