Shamon & Shamon

Case [2025] FedCFamC1A 150

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Shamon & Shamon [2025] FedCFamC1A 150

Appeal from: Shamon & Shamon (No 14) [2024] FedCFamC1F 856
Appeal number: NAA 16 of 2025
File number: SYC 2375 of 2021
Judgment of: MCGUIRE, RIETHMULLER & CURRAN JJ
Date of judgment: 8 September 2025
Catchwords:

FAMILY LAW – APPEAL – PROPERTY – Liabilities from Tax Returns – Tax liability -Where the primary judge declined to include a tax liability in the balance sheet – where the appellant had disbursed funds rather than paying the tax

FAMILY LAW – APPEAL – PROPERTY – Valuation -Where the appellant sought the sale of his business – Whether the primary judge was required to order sale – Whether consideration of costs or potential CGT required

FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge double counted business profits as both income of the appellant and when they formed the basis for the valuation of the business – Appeal dismissed
Legislation:

Family Law Act 1975 (Cth) ss 75(2), 79, 81

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.01
Cases cited:

Atkins & Hunt (2020) FLC 93-992; [2020] FamCAFC 252

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Bevan & Bevan (2014) FLC 92-572; [2013] FamCAFC 116

Chang & SuS104/2002 [2002] HCATrans 549 (5 November 2002)

Chorn & Hopkins (2004) FLC 93-204; [2004] FamCA 633

Clauson & Clauson (1995) FLC 92-595; [1995] FamCA 10;

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Cunningham v Cunningham (2005) FLC 93-212; [2005] FamCA 159

De Winter v De Winter (1979) FLC 90-605; (1979) 23 ALR 211

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Elgin & Elgin (2015) 54 Fam LR 31; [2015] FamCAFC 155

Figgins & Figgins (2002) FLC 93-122; [2002] FamCA 688

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Hayton & Bendle (2010) 43 Fam LR 602; [2010] FamCA 592

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143; [2003] FamCA 395

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

Lovine & Connor and Anor (2012) FLC 93-515; [2012] FamCAFC 168

Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21;

Mayhew & Fairweather (2022) 64 Fam LR 633; [2022] FedCFamC1A 53

McF & McF [2004] FamCA 139

Omacini & Omacini (2005) FLC 93-218; [2005] FamCA 195

R v Watson: Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39

Re Bailey and Bailey (executrix of the estate of Bailey) (1990) FLC 92-117; [1989] FamCA 45

Rosati & Rosati (1998) FLC 92-804; [1998] FamCA 38

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Samper & Samper (2021) FLC 94-041; [2021] FamCAFC 140

Semperton & Semperton (2012) 47 Fam LR 626; [2021] FamCAFC 132

Soulemezis v Dudley (Holdings) Pty Ltd (1987)…

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Details
AGLC
Shamon & Shamon [2025] FedCFamC1A 150
Case
[2025] FedCFamC1A 150
Decision Date

CaseChat Overview and Summary

The appeal before the court involved Mr Shamon, the appellant, against Ms Shamon, the first respondent. The dispute centered around the financial orders made during the family law proceedings, specifically those concerning property distribution, liabilities, and business valuation. The Federal Circuit and Family Court of Australia's appellate jurisdiction reviewed the primary judge's decisions.

The court had to decide several legal issues, including whether the primary judge correctly declined to include a tax liability in the balance sheet, despite the appellant disbursing funds instead of paying the tax. Another issue was whether the primary judge should have ordered the sale of the appellant's business to facilitate a cash adjustment to the first respondent. Additionally, the court examined if the primary judge erred by double-counting business profits both as the appellant's income and as part of the business valuation.

The court found that the primary judge’s decision to not mandate a sale of the appellant's business was justified, as it was not deemed necessary for the cash adjustment to be made. The court also held that the primary judge did not double-count business profits, as they were appropriately considered in the context of the overall financial assessment. The appeal was dismissed on all grounds, and the appellant was ordered to pay the first respondent's costs.

Orders

Orders of the court

NAA 16 of 2025

SYC 2375 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR SHAMON

Appellant

AND:

MS SHAMON

First Respondent

MR B SHAMON

Second Respondent

MS G SHAMON

Third Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCGUIRE, RIETHMULLER & CURRAN JJ

DATE OF ORDER:

8 SEPTEMBER 2025

THE COURT ORDERS THAT:

1. The Amended Notice of Appeal filed 19 March 2025 is dismissed.

2. The appellant pay the first respondent’s costs in the sum of $16,618.42 within 28 days of the date of these orders.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The appellant pursued six grounds of appeal in respect of the financial orders, being grounds 2 to 7 of the Amended Notice of Appeal, but where a number of grounds also include sub-grounds of complaint.BACKGROUND It is of assistance to give some background and context to the matters raised on the appeal. The parties married in 2004. On 24 June 2020 the first respondent informed the appellant of her intention to separate. The appellant is 46 years of age. He is an accountant/tax agent and operates his practice, BB Pty Ltd, through an umbrella of trusts and corporate entities but where the primary judge was satisfied, and it is not challenged on this appeal, that the entities were effectively the alter ego of the appellant. The first respondent is 41 years of age. She is a homemaker with limited prior workplace participation. The second respondent, the appellant’s brother, was employed in the appellant’s business for a period and a transaction of interest in the business took place but was subsequently reversed. There are three surviving children of the appellant and first respondent now aged 17, 14 and seven years. They live with the first respondent. The older two children have the ability to spend time with the appellant but do not exercise that right. The youngest child spends supervised time with the appellant. The first respondent commenced the proceedings by an application filed 1 April 2021 seeking orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The trial was conducted over 12 days between 4 April and 4 October 2024. The primary judge’s reasons were delivered and orders made on 11 December 2024. On 7 January 2025 the appellant filed a Notice of Appeal. An Amended Notice of Appeal was filed on 19 March 2025.THE PRIMARY JUDGE’S DETERMINATION At the commencement of the trial the primary judge was provided with a joint balance sheet, albeit clearly not agreed as to its content and value, as follows: Each of the primary parties sought numerous and detailed orders before the primary judge, but based upon findings as to a number of substantial “add-backs” on the first respondent’s argument or, on the appellant’s argument, for the inclusion of asserted loan liabilities to family members. At the trial the first respondent sought orders inter alia for her to retain the Suburb F property unencumbered and cash adjustments in her favour from various respondents in the alternative up to $600,000. The appellant at trial sought to retain the Suburb F property subject to its mortgage and to retain all monies in a controlled monies account. He sought orders for the first respondent to resign from and/or transfer her interests in all corporate and trust entities to the appellant. The primary judge determined the property pool, considered the parties’ contributions and subsequently assessed the contributions of the first respondent at 55 per cent of the pool. Her Honour then considered the matters arising under s 75(2) of the Act (Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143) and made a 25 per cent adjustment of the net property pool to the first respondent, resulting in the first respondent receiving 80 per cent of the net property pool, inclusive of superannuation, and the appellant receiving 20 per cent of the property pool.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

At [ 413] the primary judge relevantly accepted that the appellant “may” be required to realise assets to settle the cash adjustment on the first respondent of $487,564. However, specifically the primary judge did not find a sale “necessary”. At [413] the primary judge says:I accept that that may require the [appellant] to realise assets. The [appellant’s] application sought orders for sale of the shares in BB Pty Ltd. I do not propose to make that order – nor do I consider that a sale is necessarily required in order to enable the [applicant] to make the payment which I propose to order. I take that view because of my findings about the manner in which the [appellant] transferred his funds to family members after separation. I accept that if the [appellant] does realise assets to make a payment then there may be costs associated with that realisation but I do not propose to make a specific allowance for them for two reasons: firstly, because as earlier noted, I am not satisfied that sale is required. …(Emphasis added) We are of the view that the primary judge’s reasons must be read holistically and contextually with an eye to the ultimate requirement for justice and equity in orders made pursuant to s 79 of the Act. In Mallet v Mallet (1984) 156 CLR 605 at 79,111, Gibbs CJ said:…It is necessary for the Court, in each case, after having regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case. The primary judge, in exercising their discretion, must be satisfied that the actual s 79 order itself is just and equitable and not just the underlying percentage division (Figgins & Figgins (2002) FLC 93-122 at 89,300 per Nicholson CJ and Buckley J). As is clear from [413] the primary judge did turn her mind as to the costs of sale should the appellant sell assets to settle the cash payment to the first respondent, and as to who should bear those costs of sale. The primary judge concluded that the appellant divested himself of large sums of money at [337], [344], [351], [370], [406] and [413] and such conclusions sit at the crux of her Honour’s consideration and findings. It follows from the primary judge’s findings that the appellant should or did have available to him those monies. That is, had he not made those advancements then he would have been in funds to settle upon the first respondent. Therefore, it is the appellant’s conduct, and the primary judge’s findings accordingly, that visits upon him the risk that he may need to sell an asset to settle upon the first respondent. It is difficult to imagine then that the first respondent should or ought to bear the consequential costs or losses of such sale. That is, to find that the appellant has deliberately divested himself of assets or funds that would have been available to him to settle upon the first respondent, which then within the primary judge’s discretion were not “added back” to the pool but dealt with pursuant to s 75(2)(o), thereby giving a diminished “property pool” and then to encumber the first respondent with the ramifications of the appellant’s unilateral behaviour would be perverse to the fundamental notions of justice and equity.