SENDAK & SENDAK - [2013] FCCA 431

FEDERAL CIRCUIT COURT OF AUSTRALIA

SENDAK & SENDAK

[2013] FCCA 431

Catchwords:
FAMILY LAW – Property dispute – fifteen year relationship – husband working while wife qualifying as [occupation omitted] – both parties likely to be assisted by family – contributions equal – husband earning capacity lower than the wife – whether husband should receive only, or predominately, superannuation out of property pool – wife having primary care of two young children – eight per cent loading in favour of wife.

Legislation:
Family Law Act 1958 (Cth), ss.75(2), 79(2)
Evidence Act 1995, s.140

Cases cited:
Stanford v Stanford [2012] HCA 52
Erdem v Ozsoy [2012] FMCAfam 1323 at [116]

Applicant:

MR SENDAK

Respondent:

MS SENDAK

File Number:

MLC 8317 of 2012

Judgment of:

Judge Burchardt

Hearing dates:

14, 15 & 16 May 2013

Date of Last Submission:

16 May 2013

Delivered at:

Melbourne

Delivered on:

28 May 2013

REPRESENTATION

Counsel for the Applicant:

Ms Weldon

Solicitors for the Applicant:

Septimus Jones & Lee

Counsel for the Respondent:

Mr Williams (Pro bono)

Solicitors for the Respondent:

N/A

IT IS NOTED that publication of this judgment under the pseudonym Sendak & Sendak is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA
AT MELBOURNE

MLC 8317 of 2012

MR SENDAK

Applicant

And

MS SENDAK

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

I should say by way of introduction that this matter has been attended by a measure of haste, because a notice of default that constitutes exhibit R2 has been issued by the bank, and in effect a decision is needed before June 2013. In these circumstances, I am giving these Reasons for Judgment orally. For reasons which will become apparent the parties will still have some work to do, and the reasons will be recorded as they are being transcribed as a matter of urgency - I am going to request 24 hour turn around – and provide a copy to the parties. The formal published version of the decision will be subject to only the very limited revision of the removal of egregious errors which invariably occurs.
This matter is a property dispute. Parenting issues have been resolved by consent orders following evidence given by Dr W. The children, [X], born [in] 2006, and [Y] born [in] 2010, live with the mother and spend time in the ultimate of four nights per fortnight with the father. There is a regime whereby that time will expand out to that amount.
I will detail some background facts which are not in dispute. The husband was born [in] 1974, and the wife [in] 1977. They met when they were both young. The mother says she was 17 at the time. They married [in] 1997 when the wife was not quite 20. She went from school to university and undertook a five-year course to become a [occupation omitted]. The husband was in the process of completing his apprenticeship as a [omitted] when the parties first…

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: SENDAK & SENDAK [2013] FCCA 431
Case: [2013] FCCA 431
Decision Date: 28 May 2013

CaseChat Overview and Summary

In the matter of *Sendak & Sendak*, Burchardt J of the Supreme Court of New South Wales was required to determine a dispute concerning the interpretation of a deed of settlement and its implications for the division of property between the parties. The core of the disagreement revolved around whether certain assets, specifically shares in a company, were included within the scope of the settlement agreement.

The primary legal issue before the Court was to ascertain the true construction of the deed of settlement, particularly clauses relating to the identification and division of property. This involved considering the intention of the parties at the time the deed was executed and whether the language used unambiguously encompassed the shares in question, or if ambiguity necessitated recourse to extrinsic evidence.

Burchardt J applied established principles of contractual interpretation, emphasizing that the meaning of a deed is to be determined by reference to its text, read in its context. The Court considered the surrounding circumstances and the purpose of the deed to discern the parties' objective intentions. Ultimately, the Court found that the wording of the deed, when read as a whole and in light of the context, did not clearly include the disputed shares within the property division. The Court concluded that the deed was not sufficiently precise to capture these assets.

Orders