Surace & Surace - [2022] FedCFamC2F 1637

Federal Circuit and Family Court of Australia
(DIVISION 2)
Surace & Surace [2022] FedCFamC2F 1637

File number(s): PAC 6325 of 2020

Judgment of: JUDGE MURDOCH

Date of judgment: 30 November 2022

Catchwords: FAMILY LAW – PROPERTY– Application for property adjustment – 6 ½ year relationship – no children – where the wife seeks a Kennon adjustment based on the husband’s alleged conduct - where the husband has lived with mental health issues - where the relationship was categorised by significant dysfunction – where the husband was the victim of a serious assault by the wife’s daughter - where the wife’s evidence was found to be unreliable and designed to paint the husband in the worst light–- where the court does not find that the husband has perpetrated family violence as alleged by the wife – where the court finds that the husband’s mental health issues did not have a discernible impact on the wife such that it made her contributions more onerous – no basis for the wife’s Kennon claim – where the conduct of the hearing on the wife’s behalf was unfortunate and unnecessary – where the husband made significant and superior financial contributions – Orders made for division of property where the wife receives 15% and the husband receives 85% of property.

Legislation:
Family Law Act1975 (Cth) ss 75, 75(2) 78, 79(4), 106A, 114(1);

Mental Health Act 2007 (NSW) s33

Cases cited:
NHC v RCH [2004] FamCA 633

1 Edgehill & Edgehill [2007] FamCA 1102

Fields & Smith [2015] FamCAFC 57

Gollings & Scott [2007] FamCA 397

Horrigan & Horrigan [2020] FamCAFC 25

Kennon v Kennon [1997] FamCA 27

Kowaliw and Kowaliw [1981] FamCA 70

AJO & GRO [2005] FLC 93-218

S & S [2003] FamCA 905

Stanford & Stanford [2012] HCA 52

Murray & Parsel [2022] FedCFamC2F 626

Trevi & Trevi [2018] FamCAFC 173

Division: Division 2 Family Law

Number of paragraphs: 196

Date of hearing: 2-3 August 2022

Place: Parramatta

Solicitor for the Applicant Mr Blackah of Counsel

Solicitor for the Respondent Mr Havenstein of Counsel

ORDERS

PAC 6325 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS SURACE

Applicant

AND:
MR SURACE

Respondent

order made by:

JUDGE MURDOCH

DATE OF ORDER:

30 November 2022

THE COURT ORDERS, BY CONSENT THAT:
1.That in accordance with section 78 of the Family Law Act 1975 (Cth) (“the Act”), the Court declares that the Respondent have the sole right, title and interest to the interest he presently has in the real property at B Street, Town C being Folio Identifiers … and ….
2.That, in accordance with section 78 of the Family Law Act 1975 (Cth), the Court declares that the Respondent have the sole right, title and interest in the real property at D Street, Suburb E being Folio Identifier ….
3.That subject to any other Order, the Applicant and Respondent shall each respectively retain all interest in and entitlement to:
(a)All personal property now in his/her respective possession or control;
(b)All shares,…

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 Surace & Surace

Details

AGLC: Surace & Surace [2022] FedCFamC2F 1637
Case: [2022] FedCFamC2F 1637
Decision Date

CaseChat Overview and Summary

The case of Surace & Surace involved a property settlement application under the Family Law Act 1975 (Cth) following the breakdown of a 6 ½ year relationship between the parties, with no children of the marriage. The wife sought a property adjustment based on her allegations of family violence by the husband, and the impact of his mental health issues on her contributions. The husband disputed these claims and argued that he had made superior financial contributions. The court found that the wife's evidence was unreliable, and she did not establish that the husband's conduct or mental health issues made her contributions significantly more onerous. The court assessed the parties' contributions holistically and found that the husband had made superior financial contributions, while the wife made higher non-financial contributions as a homemaker. Based on this assessment, the court ordered that the wife receive 15% of the property pool, equating to $507,145, while the husband received 85%. The court considered this distribution to be just and equitable, taking into account the parties' health, earning capacity, and contributions.

The final orders declared that the husband had the sole right, title, and interest in two properties, while the wife and husband were to retain their respective personal property, bank accounts, life insurance policies, superannuation funds, and liabilities. The wife was ordered to pay $405,567 from the trust account, and the husband was to receive the remaining balance. The court also ordered that the wife and husband indemnify each other with respect to liabilities currently in their sole names. The court reserved each party's costs for a period of 28 days from the date of the orders.

Orders