Swarb and Swarb - [2013] FamCA 404

FAMILY COURT OF AUSTRALIA

SWARB & SWARB

[2013] FamCA 404

FAMILY LAW ─ PROPERTY SETTLEMENT ─ Valuation ─ Contentious issue of fact in the proceedings concerned the extent of the husband’s beneficial ownership of real estate in a foreign country ─ Where the difference of opinion between the valuers was of extraordinary ambit (approximately 500 per cent) with respect to the value of the real estate in a foreign country ─ Where although both valuers sought to explain how the system actually works in the foreign country, the Court was less than clear on how valuers can readily have access to reliable evidence of the true sale prices of potentially comparable sales ─ Where the Court was not persuaded on the balance of probabilities that either valuation was correct ─ Where the Court was persuaded that the figure asserted by the wife’s valuer was probably closer to the real value of the husband’s interest in real estate in a foreign country than was the figure asserted by the husband’s valuer and thus preferred the valuation of the wife’s valuer to that of the husband

FAMILY LAW ─ PROPERTY SETTLEMENT ─ Where the wife abandoned her application for orders with respect to foreign lands however any such lands in which the husband had an interest remained relevant to determining a just and equitable apportionment of the only significant asset within the jurisdiction of the Court, the parties’ jointly owned former matrimonial home ─ Where the former matrimonial home had an agreed value and was unencumbered ─ Where on balance, to fail to recognise that the wife has had the sole use and enjoyment of the major asset of the marriage for a period of eight years, when that property has been unencumbered, and the husband has been living in rented accommodation would not be just or equitable ─ Where conversely, the husband’s lack of candour in relation to financial matters, and his ability to access, or realise his substantial interest in real estate in a foreign country since separation required recognition ─ Where the Court concluded that the wife should be granted the first option to purchase the husband’s interest in the former matrimonial property ─ Where given their ages, similar absences of earning capacity, and the quantum and nature of the parties’ property, the Court was persuaded that the requirements of s 79(2) were satisfied

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

Black & Kellner (1992) FLC 92-287
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1980) 146 CLR 336
Kessey & Kessey (1994) FLC 92-495
Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
Manolis & Manolis (No.2) [2011] FamCAFC 105
Oriolo & Oriolo (1985) FLC 91-653
Paino v Paino (2008) 40 Fam LR 96; [2008] NSWCA 276
Stanford v Stanford [2012] HCA 52
Weir & Weir (1993) FLC 92-338
Williams & Williams (1985) FLC 91-628

APPLICANT:

Mr Swarb

RESPONDENT:

Ms Swarb

FILE NUMBER:

PAF

1593

2005

DATE DELIVERED:

3 May 2013

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 Swarb and Swarb

Details

AGLC: Swarb and Swarb [2013] FamCA 404
Case: [2013] FamCA 404
Decision Date

CaseChat Overview and Summary

This case, heard in the Family Court of Australia, concerned property settlement proceedings between Mr Swarb (the husband) and Ms Swarb (the wife). The primary dispute revolved around the valuation and beneficial ownership of real estate located in Lebanon, which the husband claimed an interest in. The wife had abandoned her application for orders concerning these foreign lands, but their existence remained relevant to the just and equitable apportionment of the parties' main asset within the jurisdiction: their former matrimonial home.

The court was required to determine several legal issues. Firstly, it needed to ascertain the extent of the husband's beneficial ownership of the real estate in Lebanon and its true value, given a significant discrepancy between the valuations provided by the parties' respective experts. Secondly, the court had to consider how to achieve a just and equitable division of the parties' assets, particularly the former matrimonial home, taking into account the husband's foreign interests, the wife's sole use of the matrimonial home for an extended period, and the husband's conduct regarding financial disclosures.

The court found that the valuations of the Lebanese real estate presented by the parties' experts were of extraordinary difference, and it was not persuaded on the balance of probabilities that either valuation was correct. However, it considered the wife's valuer's figure to be closer to the real value and therefore preferred it. The court also noted the husband's lack of candour in financial matters, particularly concerning his Lebanese property interests. Despite the wife abandoning her claims regarding foreign lands, the court acknowledged that the husband's interest in them was relevant to the overall property settlement. The court concluded that failing to recognise the wife's sole use of the matrimonial home for eight years would be inequitable, as would failing to acknowledge the husband's ability to access his substantial foreign real estate interests.

Ultimately, the court ordered that the wife pay the husband $174,297 within 90 days to acquire his interest in the former matrimonial home. Alternatively, if the wife failed to make this payment, the husband had 60 days to pay $315,703 to acquire her interest. If neither party exercised these options, the property was to be sold, with proceeds divided 35.57% to the husband and 64.43% to the wife. The parties were to otherwise retain their own property, and mutually indemnify each other for half of any liability to their son.

Orders