Suk and Fulham - [2019] FamCA 921

FAMILY COURT OF AUSTRALIA

SUK & FULHAM

[2019] FamCA 921

FAMILY LAW – PROPERTY – Where the parties have been separated for nine years – Where the wife has greater future earning capacity – Where the husband has the benefit of funds not accounted for in the balance sheet – Where the contributions are assessed as equal – Where there are no adjustments for s75(2).

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

Aleksovski & Aleksovski (1996) FLC 92-705
Williams & Williams [2007] FamCA 313

APPLICANT:

Ms Suk

RESPONDENT:

Mr Fulham

FILE NUMBER:

SYC

6579

2011

DATE DELIVERED:

5 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

25 & 26 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gardiner

SOLICITOR FOR THE APPLICANT:

Blanchfield Nicholls

COUNSEL FOR THE RESPONDENT:

Mr Fowler

SOLICITOR FOR THE RESPONDENT:

Crawford Ryan Lawyers Pty Ltd

Orders

IT IS ORDERED

That the parties do all things necessary to cause the funds held in the controlled monies account in the DD Bank to be divided as to $176,784 to the wife and the balance to the husband.
That other than as provided in these orders, each party will retain the assets in his or her possession.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Suk & Fulham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6579 of 2011

Ms Suk

Applicant

And

Mr Fulham

Respondent

REASONS FOR JUDGMENT

Ms Suk (“the wife”) and Mr Fulham (“the husband”) commenced cohabitation in 1999 (according to the wife) or 1999 (according to the husband) and married in 2000.
They have two children, Ms Y who will be 18 years of age in 2020 who lives with the wife, and X aged 15 years. The wife asserts that X lives primarily with her and the husband asserts that X spends approximately equal time with him. It is not possible to determine which is the more accurate representation. Neither party was a persuasive witness.
The parties separated finally in July 2010 and were divorced in 2012.

HISTORY

When the parties started living together, the wife was a qualified health care worker and the husband was a professional.
The wife had a 1/3^rd interest in a property at C Street, Suburb D (“the Suburb D property”) as tenant in common with her two brothers. The property had been purchased for $230,000 in 1993 and was subject to a mortgage. The wife’s parents had provided $160,000…

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.

Continue reading Suk and Fulham

Details

AGLC: Suk and Fulham [2019] FamCA 921
Case: [2019] FamCA 921
Decision Date: 5 December 2019

CaseChat Overview and Summary

The case of *Suk and Fulham* concerned a dispute between a husband and wife regarding the division of funds held in a controlled monies account. The matter came before Rees J.

The primary legal issue before the Court was how to divide the funds held in the controlled monies account between the husband and wife. The Court was required to determine the appropriate distribution of these assets in light of the parties' circumstances.

Rees J ordered that the funds held in the controlled monies account at DD Bank be divided, with the wife to receive $176,784 and the husband to receive the remaining balance. The Court further ordered that, apart from this division of the controlled monies account, each party was to retain the assets already in their possession.

Orders

Orders of the court

IT IS ORDERED

That the parties do all things necessary to cause the funds held in the controlled monies account in the DD Bank to be divided as to $176,784 to the wife and the balance to the husband.

That other than as provided in these orders, each party will retain the assets in his or her possession.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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