TETHYS & TETHYS - [2014] FamCAFC 125

FAMILY COURT OF AUSTRALIA

TETHYS & TETHYS

[2014] FamCAFC 125

FAMILY LAW – APPEAL – PROPERTY – Where there was a property overseas – where the husband did not disclose this property – where the valuation of this property was not clear – where the husband and the wife had two businesses – where there were tax implications of those assets.

Family Law Act 1975 (Cth)

Ho v Powell (2001) 51 NSWLR 572
House v The King (1936) 55 CLR 499
Jones v Dunkel (1958-1959) 101 CLR 298
Kannis & Kannis (2003) FLC 93-135
Kuhl v Zurich Financial Services (2011) 243 CLR 361
Weir & Weir (1993) FLC 92-338

APPELLANT:

Mr Tethys

RESPONDENT:

Ms Tethys

FILE NUMBER:

SYC

1303

2010

APPEAL NUMBER:

131

2012

DATE DELIVERED:

17 July 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ainslie-Wallace & Austin JJ

HEARING DATE:

18 March 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 September 2012

LOWER COURT MNC:

[2012] FamCA 811

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hodgson

SOLICITOR FOR THE APPELLANT:

Fox O'Brien Solicitors & Conveyancers

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Crawford Ryan Lawyers Pty Limited

Orders

The Appeal be dismissed.
The Husband pay the Wife’s costs of and incidental to the appeal. The quantum of those costs to be agreed or assessed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 131 of 2012
File Number: SYC 1303 of 2010

Mr Tethys

Appellant

And

Ms Tethys

Respondent

REASONS FOR JUDGMENT

Mr Tethys (“the husband”) appeals against property orders made by Rees J on 21 September 2013 in proceedings with Ms Tethys (“the wife”).
The effect of her Honour’s orders was to divide the property of the parties as to 50.5 per cent to the wife and the balance to the husband. The issue at the trial and on appeal did not so much concern the percentage division of the property, rather the assessment of the value of some assets, the impact of non-disclosure and appropriate section 75(2) of the Family Law Act 1975 (Cth) (“the Act”) factors.
Her Honour’s findings of fact are essentially unchallenged and we set out some background, which we believe to be uncontentious, to give a context to the appeal.

Background

The parties were married in 1970 and separated in 2008. They have two children, both of whom are adult. The husband and wife were aged 64 at the date of the hearing before her Honour.
Neither of the parties had assets or resources of significance when they married. However, throughout the course of their relationship, by dint of hard work and careful investing, at the date of the hearing, they had accumulated assets in the order of $5 million…

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 TETHYS & TETHYS

Details

AGLC: TETHYS & TETHYS [2014] FamCAFC 125
Case: [2014] FamCAFC 125
Decision Date: 17 July 2014

CaseChat Overview and Summary

The appeal was brought by the husband against the orders of the Family Court of Australia, which had made a property settlement between the parties. The wife had sought an equal division of the parties' property, while the husband argued for a lower percentage. The Full Court of the Family Court of Australia was required to decide whether the primary judge had erred in making the orders he did.

The court considered the relevant statutory provisions and case law, including the principles of equal division of property and the factors to be taken into account when making property settlement orders. The court found that the primary judge had correctly applied the law and made orders that were fair and reasonable in the circumstances. The husband had failed to demonstrate that the orders were unjust or inequitable.

The appeal was dismissed, and the husband was ordered to pay the wife's costs of and incidental to the appeal. The quantum of those costs was to be agreed or assessed.

Orders

Orders of the court

The Appeal be dismissed.

The Husband pay the Wife’s costs of and incidental to the appeal. The quantum of those costs to be agreed or assessed.

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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