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Nitaya & Paramat

Nitaya & Paramat

Case [2023] FedCFamC2F 37 23 January 2023

Homemaker Contributions

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nitaya & Paramat [2023] FedCFamC2F 37

File number(s): SYC 14 of 2018

Judgment of: JUDGE ELDERSHAW

Date of judgment: 23 January 2023

Catchwords: FAMILY LAW – PROPERTY – FINAL ORDERS – Where the husband seeks various equitable and common law relief – Where the respondents seek that the husband’s application be dismissed – Where the husband and wife entered a financial agreement – Where the second respondent was not a party to the financial agreement – Where the husband divested himself of his interest in the property – Where the financial agreement was declared not binding – Where a global approach is taken – Where the second respondent’s interest in the property be excluded from the assets for division – Where the grounds of equitable and common law relief sort by the husband fail – Where it is found the financial and non-financial contributions to the wife’s interest in the property are equal as between the husband and wife – Where the wife shall pay a specified sum to the husband – Where each party shall retain all right, title and interest in all property or claim in their name of standing to their benefit.

Legislation: Family Law Act 1975 (Cth) ss 71A, 75(2)(o), 79, 90G, 90K, 90KA, 106B

Cases cited:
Adair & Adair [2019] FamCAFC 70

Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17

Clauson & Clauson (1995) FLC 92 – 595; [1995] FamCA 10

Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10

Greater Pacific Investments Pty Ltd (in liq) v Australian National Industries Ltd (1996) 39 NSWLR 143

Horrigan & Jennings (2018) FLC 93 – 868; [2018] FamCAFC 206

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Paragon Finance plc v DB Thakerar & Co (a firm) [1999] 1All ER 400

Perrin & Perrin (No 2) [2018] FamCAFC 122

Pobjoy v Reynolds [2013] NSWSC 885

Simons & Simons [2020] FamCAFC 128

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Weir & Weir (1993) FLC 92 – 338; [1992] FamCA 69.

Division: Division 2 Family Law

Number of paragraphs: 151

Date of hearing: 21 December 2022

Place: Sydney

Solicitor for the Applicant: Mr Brown, Browns the Family Lawyers

Solicitor for the Respondents: Mr McGirr, McGirr Lawyers
ORDERS

SYC 14 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR NITAYA

Applicant

AND:
MS PARAMAT

First Respondent

MR SANGSORN

Second Respondent

order made by:

JUDGE ELDERSHAW

DATE OF ORDER:

23 January 2023

THE COURT ORDERS THAT:
1.By no later than 4.00 pm on 23 April 2023 the wife shall pay the husband the sum of $93,750 (“the Sum”).
2.For the purposes of the preceding Order, payment of the Sum shall be made into the following bank account: Account Name: Mr Nitaya, BSB …25; Account Number …73.
3.Each party, including the Second Respondent, shall otherwise retain all right,…

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 Nitaya & Paramat

Details

AGLC: Nitaya & Paramat [2023] FedCFamC2F 37
Case: [2023] FedCFamC2F 37
Decision Date

CaseChat Overview and Summary

This is a case of property settlement following the separation of the parties, who were married in 2006 and separated in 2012. The parties acquired a residence in 2006 and the husband and wife entered into a Financial Agreement in 2014, which was subsequently declared not binding. The husband seeks various forms of equitable and common law relief in relation to the property, including that the second respondent should be required to transfer his interest in the property to the wife or the husband. The wife and the second respondent seek that the husband's application be dismissed with costs. The court found that the second respondent's interest in the property was to be excluded from the pool of assets for division. The court found that the financial and non-financial contributions to the wife’s interest in the property were equal as between the husband and wife. The wife was ordered to pay the husband $93,750. Each party was ordered to retain all right, title and interest in all property or claim in their name of standing to their benefit.

Orders