Samper & Samper

Case [2021] FamCAFC 140

FAMILY COURT OF AUSTRALIA

Samper & Samper [2021] FamCAFC 140

Appeal from: Samper & Samper [2020] FCCA 1675
Appeal number(s): EAA 108 of 2020
File number(s): SYC 2499 of 2015
Judgment of: AINSLIE-WALLACE, WATTS & AUSTIN JJ
Date of judgment: 5 August 2021
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where, given the way the parties presented their cases, it was open to the primary judge to value the husband’s business at the mid-point of a range given by an expert – Where the wife operated a second business under a partnership structure with the husband – Where findings as to the wife’s income and the profits from the partnership business were open to the primary judge – Inheritance – Where the husband received an inheritance post-separation – Assessment of post-separation contributions – Immaterial error – Where the primary judge did not err when considering s 79(4)(d)–(g) factors – Appeal dismissed – Costs ordered in a fixed sum.
Legislation: Family Law Act 1975 (Cth) s 79
Cases cited:

Bankstown Trotting Recreational Club Ltd v Chisholm (2016) 218 LGERA 428; [2016] NSWCA 274

Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303

Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336; [1981] HCA 4

Commonwealth v Milledge (1953) 90 CLR 157; [1953] HCA 6

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2001] HCA 21

De Winter and De Winter (1979) FLC 90-605

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Hickey and Hickey and Attorney-General (Cth) (Intervener) (2003) FLC 93-143; [2003] FamCA 395

Horrigan & Horrigan [2020] FamCAFC 25

House v King (1936) 55 CLR 499; [1936] HCA 40

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Sellars v Adelaide Petroleum N.L. and Ors (1994) 179 CLR 332; [1994] HCA 4
Division: Appeal Division
Number of paragraphs: 80
Date of hearing: 15 April 2021
Place: Sydney
Counsel for the Appellant: Mr Coleman SC with Mr Hodgson
Solicitor for the Appellant: Malouf Solicitors
Counsel for the Respondent: Mr Schonell SC
Solicitor for the Respondent: Barry Nilsson Lawyers

ORDERS

EAA 108 of 2020
SYC 2499 of 2015

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR SAMPER

Appellant
AND:

MS SAMPER

Respondent

ORDER MADE BY:

AINSLIE-WALLACE, WATTS & AUSTIN JJ

DATE OF ORDER:

5 AUGUST 2021

THE COURT ORDERS THAT:

1.Leave be granted to the Appellant to rely on their schedule of costs.

2.The appeal be dismissed.

3.Within 28 days, the appellant pay the respondent’s costs fixed in the sum of $30,418.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02

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Details
AGLC
Samper & Samper [2021] FamCAFC 140
Case
[2021] FamCAFC 140
Decision Date

CaseChat Overview and Summary

This case involves an appeal by Mr. Samper against a decision made by the primary judge in relation to the division of property between the parties. The primary judge had valued the husband’s business at the mid-point of a range given by an expert, which was open to the judge given the way the parties presented their cases. The wife operated a second business under a partnership structure with the husband, and the findings as to the wife’s income and the profits from the partnership business were open to the primary judge. The husband received an inheritance post-separation, which was a factor in the assessment of post-separation contributions. The primary judge did not err when considering the s 79(4)(d)-(g) factors.
The court was required to decide whether the primary judge had erred in valuing the husband’s business, in assessing the wife’s income and the profits from the partnership business, and in considering the husband’s post-separation inheritance. The court was also required to decide whether the primary judge had erred in applying the s 79(4)(d)-(g) factors. The court found that the primary judge had not erred in any of these respects. The husband’s inheritance post-separation was acknowledged in the reasons, and the primary judge’s findings as to the wife’s income and the profits from the partnership business were open to the judge. The court also found that the primary judge did not err when considering the s 79(4)(d)-(g) factors.
The appeal was dismissed, and costs were ordered in a fixed sum of $30,418 to be paid by the appellant within 28 days. The court found that the primary judge had not erred in any of the respects mentioned above, and therefore the appeal had no merit. The court also found that it was just for an order for costs to be made against the appellant in the event the appeal was dismissed.

Orders

Orders of the court

EAA 108 of 2020

SYC 2499 of 2015

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR SAMPER

Appellant

AND:

MS SAMPER

Respondent

ORDER MADE BY:

AINSLIE-WALLACE, WATTS & AUSTIN JJ

DATE OF ORDER:

5 AUGUST 2021

THE COURT ORDERS THAT:

1. Leave be granted to the Appellant to rely on their schedule of costs.

2. The appeal be dismissed.

3. Within 28 days, the appellant pay the respondent’s costs fixed in the sum of $30,418.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

For reasons which follow, the appeal fails.BACKGROUND The parties met in Country W, they married in mid-1987 and commenced cohabitation at that date. There are three adult children from the marriage, one of whom was under 18 years at the date of separation. The parties migrated to Australia in 1992 and became Australian citizens in 1996. The parties separated on a final basis on 27 June 2013 after a 26 year cohabitation and were divorced on 24 July 2015. The net pool of assets was $5,806,567. The wife, aged 60 years at the hearing before the primary judge, has education qualifications. The parties, under an oral partnership agreement, ran D Company, and this business (including the property from which it operates) (“the D Company business”) is the major asset in the pool ($3,544,665 net). In the six years since the date of separation, the wife has worked in, maintained and managed the D Company business without involvement by the husband. The husband, aged 63 years at the hearing before the primary judge, is a health care worker operating as a sole trader from rented premises. The primary judge valued the husband’s practice at $162,093. Before the primary judge, both parties agreed that their contributions to the date of separation were equal. Consequently the focus of the hearing was on whether or not there should be any different result when post-separation contributions and s 79(4)(d)–(g) considerations were taken into account. Each of the parties contended that there should be a 55/45 division of the net pool in their favour.THE PRIMARY JUDGE’S REASONS The primary judge assessed, what, if any, appropriate and just and equitable adjustment to the parties’ property should be made by using the “preferred” four stepped approach (Hickey and Hickey and Attorney-General (Cth) (Intervener) (2003) FLC 93-143) and specifically focused on issues raised by the parties during the hearing. At [166], relevant to s 79(2) of the Act, the primary judge noted:Both parties agree that their property interests require adjustment to finally terminate their financial relationship. The primary judge resolved the issue as to the value of the husband’s practice and this shall be discussed when dealing with Ground 3. By the end of the hearing, the value of all other assets, liabilities and superannuation was agreed. At [10] and [128] the primary judge referred to the parties’ agreement as to the equality of contributions at the date of separation. As indicated, the focus of the dispute was on the post-separation contributions and activities of the parties in the six years after separation and on whether there should be a further s 79(4)(d)–(g) adjustment. The primary judge extensively discussed the wife’s operation of the D Company business and how the profits of that business were expended by her in the six years after the separation. We discuss his Honour’s treatment of that issue when dealing with Ground 4. It was not controversial at the hearing before the primary judge that the husband made significant post-separation contributions in the form of an inheritance from his mother’s estate in 2018 of $290,000. There is an issue on appeal as to the extent that contribution was acknowledged in the reasons (see Ground 1 below).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There is no merit in Ground 2.CONCLUSION Given that no ground of appeal has been successful, the appeal shall be dismissed.COSTS The husband rightly conceded that in the event the appeal was dismissed, it would be just for an order for costs to be made against him in the fixed sum of $30,418 and that sum should be paid within a period of 28 days.

Ratio Decidendi

Legal Principle Established

Accordingly there is no merit in Ground 3.Did the primary judge err when analysing the wife’s use of the profits from the D Company business after the separation? (Ground 4) The husband’s complaints under this ground relate to:(a)the primary judge’s finding that $150,000 per annum gross salary which the wife received from financial years 2016 onwards was reasonable and appropriate;(b)the primary judge’s finding that a reasonable total gross notional salary for the wife for the two financial years that she did not get paid (2014 and 2015) was $285,000; and(c)the primary judge not accepting that the husband should be entitled to an adjustment of one half of the profits of the D Company business in the post-separation period. Prior to separation, the D Company business was operated by the wife and the husband in partnership. That partnership structure continued after the separation, notwithstanding the wife operated the D Company business to the exclusion of the husband. In the 2014 and 2015 financial years, the wife did not receive a salary. From 2016 the wife received a salary of $150,000 per annum. There was an equal distribution of the profits of the partnership recorded on the tax returns of each of the parties from 2014 onwards, even though the husband did not receive any of those profits.The wife’s salary of $150,000 At [80]–[102], the primary judge considered whether it was appropriate for the wife to be paid a salary of $150,000 per annum for the 2016 financial year and following. The primary judge considers the evidence of the D Company business’ external chartered accountant and compares it to the evidence of the husband’s adversarial expert on the same point. At [74] the primary judge observed:[The external chartered accountant for D Company] was cross-examined as to the approach used to determine the $150,000 figure, and explained that it had been looked at in a number of ways. She gave evidence that she sought and obtained a detailed list of [the wife’s] roles and duties, looked at the modern award for day care centres and using that award determined a base hourly rate, leave loadings and allowances based on that. She also took into account the fact that [the wife] looked after [the D Company business] in an ownership capacity as well as in an employee capacity, including looking after the finances, staff, employment, insurances and having to deal with the overall running of [the D Company business]. The primary judge made the following observations and findings:100.[The external chartered accountant for D Company]’s sum of $120,000 plus superannuation, or $131,400 was based on a detailed analysis of the actual duties and roles performed by [the wife] in the context of the award, which also included [professional qualifications] and other tasks as required not accounted for by [the husband’s forensic accounting expert], and on that basis was likely to be an accurate assessment of the value of all of [the wife’s] work in [the D Company business]. For this reason I prefer [the external chartered accountant for D Company’s] analysis over that of [the husband’s forensic accounting expert], without any disrespect to [the husband’s forensic accounting expert] who was undertaking a different task and was not seeking to determine the proper valuation of [the wife’s] personal exertion, but rather was undertaking a general business valuation assuming that [the wife’s] labour could be entirely replaced by a non-professionally qualified director.101.It is also relevant that the figure did not increase across the period from 2016 to 2019 which arguably involved a discounting in later years from the 2016 assessment.102.I find that the $150,000 salary package valuation of [the wife’s] personal exertion income in all the roles and the operation of [the D Company business] in the years 2016 to 2019 was an accurate assessment of the value of her personal exertion in the [the D Company business] and an appropriate notional salary.