APPEARANCES: Mr Page, Senior Counsel, instructed by Peter J Sheehy, Solicitor, PO Box 12045 Elizabeth Street, Brisbane, 4002, appeared on behalf of the Appellant Husband.
Mr Waterman of Counsel, instructed by Bennett, Carroll & Gibbons, PO Box 6030, Upper Mt Gravatt 4122, appeared on behalf of the Respondent Wife.

Q and Q

NA 8 of 1999
Coram: Finn, Kay and Burr JJ
Date of appeal: 3 August 1999
Date of judgment: 17 September 1999

PROPERTY – Contributions – Future needs – Asset pool $935,000 – Erroneous finding of equal contributions despite H’s large initial financial contribution and $135,000 inheritance at end of relationship – Excessive weight given to W’s homemaker contribution and post-separation liabilities incurred by H in family business – Incorrect approach to W’s future income loss due to role as carer – Inappropriate to impose total costs of children solely on H – Discretion re-exercised

The parties were married for 20 years. They had four children. H brought to the marriage two type A commercial licences and vehicles, one type B commercial licence, equity in three properties and a jointly contributed equity in a fourth property. W’s pre-marriage contributions were limited to the deposit on the fourth property, some labour, and $2,000 used for joint purposes. During the marriage the parties traded through corporate and partnership entities in commercial vehicles, building and landscaping businesses. On their mutual evidence, both spouses worked very hard - H working 18-20 hour days in the business and W being the homemaker (with some paid help) and doing administration.

For several years H resisted W’s advice that they rationalise their businesses to reduce debt. W left the company books of account in disarray at separation. H inherited $135,000 shortly before separation. W had the care of the three youngest children who were aged 16, 14 and 12 at trial.

The proceedings before the primary judge were centred on the size of the asset pool and whether either party had mismanaged assets. His Honour found an asset pool of c$935,000. He off-set H’s inheritance against an increase in business liabilities since separation. W’s contribution to the welfare of the family (despite there being almost no evidence on point) was regarded as being as disproportionate as H’s direct financial contributions. The parties were found to have made equal contributions.

His Honour then considered the s 79(4)(e) factors. W could become qualified and enter full-time employment once the youngest child completes school. If it became necessary to sell the businesses, H could anticipate obtaining alternative employment. His Honour calculated that the three children who still lived with W would…

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 Quaresmini & Quaresmini

Details

AGLC: Quaresmini & Quaresmini [1999] FamCA 1314
Case: [1999] FamCA 1314
Decision Date: 17 September 1999

CaseChat Overview and Summary

The Full Court of the Federal Magistrates Court of Australia heard an appeal concerning property settlement between Mr. Quaresmini (H) and Ms. Quaresmini (W). The primary dispute revolved around the division of a net asset pool valued at $935,000, with the original finding of equal contributions being challenged.

The court was required to determine whether the initial finding of equal contributions was erroneous, particularly in light of H's significant initial financial contribution and a substantial inheritance received towards the end of the relationship. Further issues included the weight afforded to W's contributions as a homemaker, the impact of post-separation liabilities incurred by H in the family business, and the appropriateness of the approach taken to W's future income loss as a carer. The court also considered whether the entirety of the children's costs had been inappropriately imposed solely on H.

The Full Court found that the primary judge had given excessive weight to W's homemaker contributions and H's post-separation liabilities. It also determined that the approach to W's future income loss due to her role as carer was incorrect, and that it was inappropriate to place the total costs of the children solely on H. The court re-exercised its discretion in light of these findings.

Orders