Stueck & Stueck

Case [2025] FedCFamC1A 68

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Stueck & Stueck [2025] FedCFamC1A 68

Appeal from: Stueck & Stueck [2024] FedCFamC2F 1406
Appeal number(s): NAA 295 of 2024
File number(s): BRC 15613 of 2022
Judgment of: RIETHMULLER J
Date of judgment: 16 April 2025
Catchwords: FAMILY LAW – APPEAL – Property – Where appellant argues that amount of overcapitalisation was greater than that conceded by the respondent at trial – Where appellant argues the primary judge erred in accepting the concession of the respondent that the overcapitalisation was around $500,000 – Where appellant claims that the Court should make an assessment based on the use of funds during the relationship as opposed to initial contributions – Where appellant argues primary judge failed to properly exercise discretion – Consideration of authorities on overcapitalisation – Where no detailed argument or authorities regarding overcapitalisation were put to the primary judge – Ground of appeal not established – No error of discretion as per House v The King (1936) 55 CLR 499 established – Appeal dismissed – Costs awarded.
Legislation:

Evidence Act 1995 (Cth) s 144

Family Law Act 1975 (Cth) ss 75, 117

Cases cited:

Browne v Green (1999) FLC 92-873; [1999] FamCA 1483

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

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

Farley & Manoly [2013] FamCAFC 93

G & G [2001] FamCA 1138

Hackshaw & Hackshaw [2010] FamCA 1123

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

In the Marriage of Chance & Bryant (Appeal No 2 of 1986, 20 March 1986); C v B [1986] FamCA 70

Kowaliw & Kowaliw (1981) FLC 91-092; [1981] FamCA 70

MacKinnon & Talbot [2023] FedCFamC1A 156

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Sharman v Evans (1977) 138 CLR 563; [1977] HCA 8

Vrbetic & Vrbetic (1987) FLC 91-832

Willmore and Willmore (1988) FLC 91-975; [1988] FamCA 45
Number of paragraphs: 32
Date of hearing: 6 March 2025
Place: Parramatta
Counsel for the Appellant: Mr Hackett
Solicitor for the Appellant: Bruce Dulley Family Lawyers
Counsel for the Respondent: Mr Strong
Solicitor for the Respondent: Mills Oakley Lawyers

ORDERS

NAA 295 of 2024
BRC 15613 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS STUECK

Appellant
AND:

MR STUECK

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

16 APRIL 2025

THE COURT ORDERS THAT:

1.Appeal NAA 295 of 2024 is dismissed.

2.The appellant pay the respondent’s costs in the amount of $15,000.

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…

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AGLC
Stueck & Stueck [2025] FedCFamC1A 68
Case
[2025] FedCFamC1A 68
Decision Date

CaseChat Overview and Summary

The appeal in Stueck & Stueck was brought by the appellant, Ms Stueck, against the property settlement orders made by the primary judge. The appeal focused on the primary judge's assessment of overcapitalisation of a real property, arguing that the amount of overcapitalisation was greater than that conceded by the respondent, Mr Stueck. The appellant claimed that the court should base its assessment on the use of funds during the relationship, rather than the initial contributions, and argued that the primary judge failed to properly exercise discretion. The legal issues before the court were whether the primary judge erred in accepting the concession of overcapitalisation and whether there was a failure to properly exercise discretion.

The court considered the authorities on overcapitalisation and noted that no detailed argument or authorities regarding overcapitalisation were put to the primary judge. The court held that the ground of appeal was not established, as the appellant had not demonstrated that the primary judge's assessment was plainly wrong or that there was a failure to properly exercise discretion. The appeal was dismissed, and the court awarded costs to the respondent. The court found that the primary judge had taken a holistic approach in assessing the parties' contributions, considering the context of their relationship over 12 years.

The court concluded that the appellant had not established that the primary judge's assessment was such that one could infer a failure to properly exercise discretion. The court also considered the costs, finding that an appropriate amount was $15,000 on a lump sum basis. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs in the sum of $15,000. The court's decision was based on a thorough review of the evidence and the applicable legal principles, ensuring that the appeal was decided fairly and in accordance with the law.

Orders

Orders of the court

NAA 295 of 2024

BRC 15613 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS STUECK

Appellant

AND:

MR STUECK

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

16 APRIL 2025

THE COURT ORDERS THAT:

1. Appeal NAA 295 of 2024 is dismissed.

2. The appellant pay the respondent’s costs in the amount of $15,000.

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 appeals against property settlement orders made by the primary judge. The appellant’s argument on the appeal is limited to how the primary judge dealt with the over‑capitalisation of a real property.BACKGROUND The primary judge identified at the beginning of the judgment:1The [appellant] wife is 37 years old and the Respondent husband is 46 years old. The parties commenced cohabitation in 2010, married [in] November 2017, separated [in] March 2022 and were divorced [in] May 2023. Sustaining a relevant relationship of 12 years. At the commencement of the relationship, the appellant had a motor vehicle worth around $15,000 and superannuation of around $12,500: total assets of around $27,500. The respondent brought considerable wealth to the relationship, around $1.25 million in assets and $252,919 in superannuation: a total of around $1.5 million. The parties were both members of the military during the relationship, the respondent leaving the military before the relationship ended. The total of their taxable incomes during the relationship were similar. There were no children of their union. The primary judge found that:47The evidence clearly establishes that throughout the relationship the husband and wife jointly made contributions of the nature referred to in s.79(4) to the best of their individual abilities. I am satisfied that the husband was able to do more of the physical work relating to renovations than the wife but nevertheless the wife was also contributing to the best of her ability to those renovations over various properties. 48The evidence clearly establishes that both the husband and wife supported each other during the relationship in relation to their individual careers and the changes they both made to their careers. There were times when the wife was away for training purposes and there were times when the husband was away on deployment. 49It is not in dispute that the husband received significant tax-free dollars that were utilised to purchase shares from his three deployments during the relationship. 50It is also not in dispute that since separation the husband has continued to reside in the former matrimonial home, the [Suburb B] property, and he has continued to maintain, to the best of his ability, the payment of outgoings and maintenance of the property. The husband sets out in his trial affidavit the work he has done and the expenditure he has met in relation to the [Suburb B] property post separation, and the husband was not challenged on any of this evidence. (footnotes omitted) After considering the contributions of the parties over their 12-year relationship, the primary judge assessed the parties’ contributions at 37 per cent to 63 per cent in favour of the respondent. This assessment represented around $1.05 million to the appellant and $1.78 million to the respondent. The primary judge went on to determine that the respondent ought to receive an adjustment of 5 per cent having regard to various factors under s 75(2) of the Family Law Act 1975 (Cth), including the appellant’s entitlement to $455,662 from her father’s estate, the respondent’s lower earnings, the likely impact upon the respondent’s ability to continue in employment due to the respondent’s physical and psychological injuries, and the appellant having re-partnered to a spouse that earned a little more than the appellant. There was no challenge to the primary judge’s findings in this respect.GROUND OF APPEAL

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On either view, the outcome resulted in the appellant receiving a far greater increase in net assets than the respondent, despite the enormous initial contribution by the respondent and the otherwise similar contributions (both earned similar amounts over the course of the relationship). The primary judge clearly took a holistic and not mathematical approach, recognising the contributions in the context of a relationship of over 10 years. The appellant has not established that the contributions assessment by the primary judge is such that one could infer that there has been a failure to properly exercise the discretion nor that it could be considered plainly wrong. CONCLUSION As the appellant has not established the ground of appeal, the appeal must be dismissed. The appellant has been wholly unsuccessful in the appeal, in a case concerning financial issues. It is appropriate, having regard to s 117 of the Family Law Act 1975 (Cth), that the appellant pay the respondent’s costs on a party and party basis. The parties agreed that I ought to assess costs on a lump sum basis. I have had regard to the Schedule of Costs that each party has prepared. The respondent seeks $22,927.78 on a party and party basis. The appellant’s schedule set out her costs (on a party and party basis) as $17,538.15. The appellant had the additional work of preparing the grounds of appeal and the filing fee. I am persuaded that costs fixed in the sum of $15,000 are appropriate in the circumstances of this appeal.

Ratio Decidendi

Legal Principle Established

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