Sasse & Sasse - [2008] FamCAFC 152

FAMILY COURT OF AUSTRALIA

SASSE & SASSE

[2008] FamCAFC 152

FAMILY LAW - APPEAL – From decision of Federal Magistrate – PROPERTY – Consent orders made in relation to altering property interests between husband and wife – Five years later those orders were set aside by consent – The issue of whether another order altering property interests ought be made and if so, what order, was litigated in the Federal Magistrates Court – Federal Magistrate published reasons for judgment with a 60/40 division of property in favour of the wife – Federal Magistrate did not make orders but asked parties to file and serve a proposed final order to reflect the reasons for judgment – Parties could not agree on final order – The matter was relisted and the husband made an application under the slip rule for an amendment to a finding made by the Federal Magistrate in relation to the value of a business conducted through a trust – The husband had contended at trial that what should be valued was the trust – After the determination of that issue and other points of disagreement the Federal Magistrate made final orders by way of alteration of property interests and costs – Husband appealed

FAMILY LAW - APPEAL – From decision of Federal Magistrate – PROPERTY – Whether the learned Magistrate was correct to include in the asset pool the value of the business rather than the net value of the Trust that undertook that business – Whether, in finding that the business operated by the husband at the date of hearing was the same as the business operated by the parties at separation, the Federal Magistrate erred in fact – Whether the business should have been valued at the date of the first consent orders and whether the Federal Magistrate gave adequate reasons for not so doing – Whether, having valued the business as at the date of hearing, the Federal Magistrate ought have given greater weight to the post-separation contributions of the husband in the development and operation of the business – Whether the Federal Magistrate failed to give adequate reasons for the adjustment of only 5 per cent in respect of the husband’s contributions to the date of hearing – Whether the Federal Magistrate ought have added back to the property pool monies allegedly expended by the wife on legal fees in relation to family law proceedings – Whether the Federal Magistrate erred in his assessment of s 75(2) factors resulting in a 15 per cent adjustment in favour of the wife or failed to properly explain that adjustment – Whether the Federal Magistrate erred in failing to make an order for costs against the wife because of her initial resistance to the husband’s s 79A application and subsequent consent to the original order being set aside – Whether the Federal Magistrate erred in failing to make an order for costs against the wife because of allegations made by the wife in the trial, but rejected…

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.

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Details

AGLC: Sasse & Sasse [2008] FamCAFC 152
Case: [2008] FamCAFC 152
Decision Date: 20 October 2008

CaseChat Overview and Summary

The case of Sasse & Sasse involved a dispute between a husband and wife regarding the division of their property interests. After the initial consent orders were set aside by mutual consent, the matter was litigated in the Federal Magistrates Court, where the Federal Magistrate proposed a 60/40 division of property in favour of the wife. However, the parties could not agree on the final order, leading to a relisting of the matter. During this relisting, the husband applied under the slip rule for an amendment to a finding made by the Federal Magistrate concerning the value of a business conducted through a trust. Ultimately, the Federal Magistrate made final orders by way of alteration of property interests and costs, which the husband appealed.

The appeal raised several legal issues, including whether the learned Magistrate was correct to include the value of the business rather than the net value of the Trust that operated the business in the asset pool. Other issues included whether the Federal Magistrate erred in fact in finding that the business operated by the husband at the date of hearing was the same as the business operated by the parties at separation, and whether the Federal Magistrate ought to have valued the business as at the date of the first consent orders. The appeal also questioned whether the Federal Magistrate gave adequate reasons for not doing so and whether, having valued the business as at the date of hearing, the Federal Magistrate ought to have given greater weight to the post-separation contributions of the husband in the development and operation of the business. Additionally, the appeal questioned whether the Federal Magistrate failed to give adequate reasons for the adjustment of only 5 per cent in respect of the husband’s contributions to the date of hearing. Other issues included whether the Federal Magistrate ought to have added back to the property pool monies allegedly expended by the wife on legal fees in relation to family law proceedings, whether the Federal Magistrate erred in his assessment of s 75(2) factors resulting in a 15 per cent adjustment in favour of the wife, or failed to properly explain that adjustment, and whether the Federal Magistrate erred in failing to make an order for costs against the wife because of her initial resistance to the husband’s s 79A application and subsequent consent to the original order being set aside.

The court found that some grounds of appeal had merit, leading to the allowance of the appeal. The asset pool was re-exercised, and the net value of the Trust was substituted for the value of the business conducted by it. The final orders made by the court involved amending the tables of assets in the orders of the Federal Magistrate and varying the third order by deleting and substituting certain sums. These orders carried through the mathematical consequences of the substitution.

Orders

Orders of the court

That the appeal be allowed.

That the tables of assets in orders 1 and 2 of the orders of Federal Magistrate Howard made 22 July 2008 be amended as follows:

(i) in the schedule to orders 1:

(a) deletion of the first item and substitution of the following:

Asset Value

The [Mr Sasse] Trust $451,503.00

(b) deletion of the value for the item “Total assets (including superannuation)” and substitution of $4,262,299.97”

(ii) In the schedule to orders 2(a):

(a) deletion of the value for the item “Payment from husband” and substitution of $25,731.26.

(b) deletion of the value for the item “Total assets (including superannuation)” and substitution of $2,483,031.23.

(iii) In the schedule to order 2(b):

(a) deletion of the first item and substitution of the following:

Asset Value

The [Mr Sasse] Trust $451,503.00

(b) deletion of the value for the item “Payment to the wife” and substitution of $25,731.26.

(d) deletion of the value for the item “Total liabilities” and substitution of $282,199.28.

(e) deletion of the value for the time “TOTAL NET ASSETS” and substitution of $1,522,800.73.

That order 3 of the orders of Federal Magistrate Howard made 22 July 2008 be varied by deleting the sum of $62,329.47 and substituting the sum of $25,731.26.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Federal Magistrate’s conclusions in respect of s 75(2) factors were as follows:44.Does there need to be an adjustment pursuant to s.75(2) of the Act? I will only refer to the relevant matters in s.75(2).a)(i) The husband is aged 53 years and the wife is aged 51 years.(ii) The wife does have certain health issues. I accept the evidence of the psychologist, [Ms E] – that following the initial marital dissolution in 1999 the wife suffered from an adjustment disorder with mixed anxiety and depressed mood.(iii) I am not in a position to make a finding as to whether or not the wife is suffering from post traumatic stress disorder. In the circumstances I do not consider it is necessary to make a finding concerning post traumatic stress disorder one way or the other. Furthermore, I accept that the anxiety and depressive symptoms suffered by the wife made it impossible for her to work effectively in paid employment. In particular this is due to poor concentration, panic attacks and racing thoughts. I accept the evidence of Ms [E] that the wife is unfit for employment until she has addressed these debilitating symptoms. I consider that the twelve months of psychological counselling recommended by Ms [E] is appropriate. b)(i) Neither party has made a specific submission concerning the income of the parties. Counsel for the husband accepts in his written submissions that the husband has a greater earning capacity and has improved the value of the business with the assistance of his current wife since the separation. (ii)In view of the fact that the husband has control and ownership of the [X] business and having regard to the fact that, since separation, the value of the business has continued to increase I find that the husband in fact has a substantially greater earning capacity than the wife.(iii)I do note that both parties are in control of substantial assets, however it is the husband’s substantially greater earning capacity which I am particularly taking into account. c)Through the course of this 25 year marriage the wife provided substantial home making contributions to the family as well as performing book work for the [X] business. I find that the wife’s prospects of future employability are very limited having regard to the length of time that she has been absent from the employment market (it is approximately 28 years since the wife worked for any substantial period of time in anything other than a family related business).Conclusion in relation to section 75(2) adjustment45.Mr Hamwood, counsel on behalf of the husband, contended that there should be an adjustment in the husband’s favour in the amount of 5%. 46.Mr George, counsel on behalf of the wife, seeks an adjustment in the amount of 20% in favour of the wife.47.I conclude that there should be an adjustment in favour of the wife in the amount of 15%. I have reached this conclusion based on the matters referred to in paragraph 44 herein as well as my impression of the evidence generally, including the evidence given by the husband and the wife in the witness box.

Ratio Decidendi

Legal Principle Established

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