Omacini & Omacini

[2005] FamCA 195

[2005] FamCA 195

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT PERTH

Appeal No. WA 20 of 2003
  File No. PT 5677 of 2001

IN THE MATTER OF:

AJO

Appellant

- and -

GRO

Respondent

REASONS FOR JUDGMENT

BEFORE:                  Holden, Warnick & Le Poer Trench JJ
HEARD:  7^th & 8^th  day of July 2004
JUDGMENT:           23rd day of March 2005

FAMILY LAW – APPEALS – Property – Value of property – Date of valuation – Whether the trial judge ought to have taken the value of the rent roll as at the date of the trial and then considered contributions to that value between separation and the date of trial

FAMILY LAW – APPEALS – Property Settlement – Categories of cases where it is appropriate to add back funds to the asset pool available for division - Whether the trial judge correctly added back money spent purchasing shares and investments that resulted in a loss of money - Whether the expenditure of money realised from the disposition of assets that existed as at the date of separation were correctly added back to the pool of assets

1. This is an appeal and a cross appeal against orders made by Martin J on 26 September 2003, dividing the property of the parties between them and which ordered that the appellant husband contribute to the respondent wife’s costs in the sum of $20,000.

Background

1. As at the date of trial, the appellant husband was 51 years of age and was unemployed.  The respondent wife was 48 years of age and a proprietor of a real estate business.  The parties married on October 1974.  There are two children of the marriage, C, who at the date of trial was 27 and A, who at the date of trial was 25.  The parties had a short separation in late 1993 and separated again from March 1997 until early 1999.  They finally separated on March 2000.

2. Because this appeal revolves around a number of discrete issues, it is unnecessary for us to set out in any detail the history of the acquisition, conservation and improvement of assets.  It will suffice to summarise the position as did her Honour as follows:

   “They started with virtually nothing and, at trial, had nett assets in excess of $3,000,000 which is quite an achievement, since neither had any professional qualifications, or family assistance, apart from some modest assistance received from the wife’s parents in the early years of the marriage.”

The judgment of the trial Judge

1. Notwithstanding that there were ten grounds of appeal, which are set out later in these reasons for judgment, it is self-evident from the written submissions of counsel for the appellant husband that his attack against the orders made by her Honour concentrated on three areas as follows:

   (a)her Honour’s finding as to the valuation of the respondent wife’s business;

   (b)the “add backs” that her Honour included in the asset pool available for distribution to…