Pope and Pope - [2012] FamCA 204

FAMILY COURT OF AUSTRALIA

POPE & POPE

[2012] FamCA 204

FAMILY LAW – PROPERTY – Initial contributions – Valuation of husband’s interest in entertainment group at cohabitation – Retrospective valuation principles discussed - Royalty income – Valuation of royalty income – Whether future royalty income is property or financial resource –– Where losses on property development venture - Tax losses – Whether tax losses on property development venture available to offset royalty income – Found tax losses available – Found future royalty income is property – Consideration of property development losses – Principles established in Weir v Weir (1993) FLC 92-338 engaged – Section 75(2) of the Family Law Act 1975 (Cth) considerations – Various factors discussed – Where husband supported wife’s child from an earlier relationship – Ordered that the property pool divided 74 per cent in favour of the husband and 26 per cent in favour of the wife.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 79

Antman (1980) FLC 92-800
Aroney & Aroney (1979) FLC 90-709
Bell and Bell [2000] FamCA 1301
Browne v Green (1999) FLC 92-873
Cerini [1998] FamCA 143
Farmer and Bramley (2000) FLC 93-060
G & T [2002] FamCA 613
In the Marriage of Clauson (1995) FLC 92-595
In the Marriage of Duff (1977) 15 ALR 476
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
Jones v Skinner (1835) 5 LJ Ch 87
Kelly and Kelly (No.2) (1981) FLC 91-108
Kennon v Spry (2008) 238 CLR 366
Kowaliw (1981) FLC 91-092
Lutzke & Lutzke (1979) FLC 90-714
Marker [1998] FamCA 42
Omacini & Omacini (2005) FLC 93-218
Pierce (1999) FLC 92 -844
Robb & Robb (1995) FLC 92-555
Russell v Russell (1999) FLC 92-877
Tomasetti (2000) FLC 93-023
Townsend (1995) FLC 92-569
Weir v Weir (1993) FLC 92-338

APPLICANT:

Mr Pope

RESPONDENT:

Ms Pope

FILE NUMBER:

SYC

5303

2008

DATE DELIVERED:

3 April 2012

DATE ORDERS MADE:

4 April 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

18, 19, 22, 23 and 24 August 2011 and 7 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC with
Mr Kearney

SOLICITOR FOR THE APPLICANT:

Swaab Attorneys

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC with Mr Gray

SOLICITOR FOR THE RESPONDENT:

KDB Holmes

Orders made 4 april 2012

That forthwith the husband do all acts and things and sign all necessary documents in order to transfer to the wife all of his right title and interest in the following properties:
1.1rural town K property, being the whole of the land contained in folio identifier …;
1.2Sydney suburb 1 property, being the whole of the land contained in folio identifier …; and,
and the wife shall indemnify the husband and keep him indemnified in respect of all liability of the husband whenever and however arising in relation to each property, including but not limited to any liability for taxation in respect of…

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 Pope and Pope

Details

AGLC: Pope and Pope [2012] FamCA 204
Case: [2012] FamCA 204
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Pope (the husband) and Ms Pope (the wife) were involved in property settlement proceedings. The dispute centred on the valuation of the husband's interest in an entertainment group at the commencement of cohabitation, the treatment of his future royalty income, and the impact of significant losses incurred in a property development venture. The court was required to determine the composition of the net asset pool and the just and equitable division of these assets.

The primary legal issues before the court were the retrospective valuation of the husband's interest in the entertainment group at the time cohabitation began, and whether future royalty income should be classified as property or a financial resource. Additionally, the court had to consider whether tax losses generated from the unsuccessful property development venture could be offset against the royalty income, and how these losses should be factored into the overall property division. The court also had to consider various factors under section 75(2) of the Family Law Act 1975 (Cth), including the husband's support of the wife's child from a previous relationship.

The court applied the principles established in *Weir v Weir* (1993) FLC 92-338 regarding retrospective valuation. It found that the future royalty income was to be treated as property. The court also determined that the tax losses from the property development venture were available to offset the royalty income. After considering all relevant factors, including the parties' contributions and future needs, the court ordered that the property pool be divided 74 per cent in favour of the husband and 26 per cent in favour of the wife.

Orders