PERICLES & HOPMAN - [2021] FamCA 235

FAMILY COURT OF AUSTRALIA

PERICLES & HOPMAN

[2021] FamCA 235

FAMILY LAW – DE FACTO PROPERTY – where relationship is found to be of fourteen years duration – where husband made the overwhelming financial contributions – where wife’s contributions were non-financial and as a homemaker – where parties did not have children.

FAMILY LAW – DE FACTO PROPERTY – where husband claimed payments made to wife around the time of and after separation as monies received by her on account of entitlement to an alteration of property interests – where payments totalling approximately $300,000 had been fully expended by wife at the time of the trial – where payments of $300,000 were not treated as add backs.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Dickons (2002) FamCA 154
GVC v HPC (1998) FamCA 143
H&T [2018] EWHC 3692 (Fam)
Kowaliw (1981) FLC 91-092
Pericles & Hopman [2020] FamCA 465
Re L and B (Children) [2013] UKSC 8
Summit & Summit & Ors (Re-opening) [2009] FamCA 365
Townsend & Townsend (1995) FLC 92-567

APPLICANT:

Ms Pericles

RESPONDENT:

Mr Hopman

FILE NUMBER:

MLC

9624

2016

DATE DELIVERED:

23 April 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

13, 15, 18, March 2019 and 21-22, 25 March 2019 and 8-9 August 2019 and 24 February 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr Strum QC (13, 15 and 18 March 2019)

Mr Nehmy (13, 15 and 18 March 2019)
Mr Weil (21, 22, 25 March, 8-9 August 2019)

SOLICITOR FOR THE RESPONDENT:

Blackwood Family Lawyers

Orders

The husband pay or cause to be paid to the wife $2,340,655.10 as follows:
(a) The parties forthwith authorise the Applicant's Lawyers, Lander & Rogers Lawyers, to pay to the Applicant, the sum of $518,003.97 presently held on trust by them on behalf of the parties;
(b) Within ninety days of the date of these Orders the Respondent shall pay to the Applicant the sum of $1,822,651.13 ("the payment").
The parties irrevocably authorise the Applicant's Lawyers, Lander & Rogers Lawyers, to pay to the Applicant, when received, the net proceeds of sale of the property known as and situate at 4 M Street Suburb N pursuant to Paragraph 3 of the Orders of the 24th February 2021, with such monies to be deducted from the payment required to be made by the Respondent to the Applicant pursuant to paragraph 1(b) of this Order.
In the event that the whole of the payment has not been made by the due date, then he Respondent do all such acts and things and sign all such documents as required to place the real property known as and situate at O Street, Suburb P in the State of New South Wales (being the real property described in Certificate of Title Folio Identifier …) (the Suburb P property) on the market for sale on the following…

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 PERICLES & HOPMAN

Details

AGLC: PERICLES & HOPMAN [2021] FamCA 235
Case: [2021] FamCA 235
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of *Pericles & Hopman* concerned a dispute over property interests following the breakdown of a fourteen-year de facto relationship. The husband, Mr. Hopman, was found to have made the overwhelming financial contributions to the relationship, while the wife, Ms. Pericles, primarily contributed as a homemaker. The parties did not have children. A key issue was whether payments totalling approximately $300,000 made by the husband to the wife around the time of and after separation should be treated as "add backs" to the property pool, meaning they would be notionally added back to the wife's entitlement.

The court was required to determine the division of the parties' financial relationship. Specifically, it needed to consider the husband's claim that payments made to the wife post-separation were received on account of her entitlement to an alteration of property interests. The court also had to decide how to treat these payments, which had been fully expended by the wife by the time of the trial, in the context of the overall property settlement.

The court ordered the husband to pay the wife a total of $2,340,655.10. This included an immediate payment of $518,003.97 held on trust by the applicant's lawyers, with the balance of $1,822,651.13 to be paid within ninety days. The court did not treat the $300,000 in payments made to the wife as add backs. The orders also detailed the process for the sale of certain properties and the distribution of proceeds, including provisions for the sale of shares if property sale proceeds were insufficient to meet the wife's entitlement. The parties were to retain specific assets for their sole benefit, and joint tenancies were severed. The orders were intended to finally determine the financial relationship between the parties.

Orders