Theodorou and Theodorou - [2020] FamCA 251

FAMILY COURT OF AUSTRALIA

THEODOROU & THEODOROU

[2020] FamCA 251

FAMILY LAW – PROPERTY – Property Adjustment – Where both parties seek adjustive orders – Where appropriate to make adjustive orders – Where discussion of applicable principles – Where consideration of relevant contributions and s 75(2) factors – Where orders made for property adjustment.

Family Law Act 1975 (Cth) ss 75, 79

Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Horrigan & Horrigan [2020] FamCAFC 25
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford & Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120

APPLICANT:

Ms Theodorou

RESPONDENT:

Mr Theodorou

FILE NUMBER:

PAC

5644

2018

DATE DELIVERED:

17 April 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

23 and 24 January 2020 and 26 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fowler

SOLICITOR FOR THE APPLICANT:

Watts McCray (NSW) Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

York Law Family Law Specialists

Orders

That within four months from the date of these orders the wife pay to the husband the sum of $705,000 and in consideration of such payment the husband do all things necessary to transfer all his interest in the property at F Street, Suburb G (“the Suburb G property”) to the wife.
That in default of the wife complying with Order 1 by the due or a later date agreed to by the husband and wife in writing, then the husband and wife shall forthwith do all things necessary to sell the said property at the best price reasonably obtainable and pay the net proceeds of sale such as to effect an overall division of the asset pool as set out in Paragraph [71] of these reasons for judgment as to 52.5 per cent to the wife and to 47.5 per cent to the husband.
Liberty to apply as to implementation or enforcement of these orders.

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 Theodorou & Theodorou 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 PARRAMATTA

FILE NUMBER: PAC 5644 of 2018

Ms Theodorou

Applicant

And

Mr Theodorou

Respondent

REASONS FOR JUDGMENT

Introduction

The application for determination is one as to property adjustment between the applicant wife and the respondent husband.
In her Initiating Application filed 26 November 2018 and as set out in her Minute of Order, the wife sought orders, in summary:
a)That within 42 days…

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 Theodorou and Theodorou

Details

AGLC: Theodorou and Theodorou [2020] FamCA 251
Case: [2020] FamCA 251
Decision Date: 17 April 2020

CaseChat Overview and Summary

In the matter of *Theodorou and Theodorou*, Foster J of the Federal Circuit and Family Court of Australia was required to determine the final property settlement between the parties. The dispute concerned the division of the parties' asset pool, specifically the matrimonial home located at F Street, Suburb G.

The primary legal issue before the court was how to achieve a just and equitable division of the parties' assets, particularly in light of the wife's ability to pay a sum to the husband to retain the Suburb G property. The court also had to consider the consequences of the wife failing to meet any agreed payment deadline, and how the asset pool should be divided in such an event.

Foster J ordered that the wife pay the husband $705,000 within four months, in consideration of which the husband would transfer his interest in the Suburb G property to her. In the event of the wife's default in this payment, the parties were ordered to sell the property and divide the net proceeds of sale so as to achieve an overall asset pool division of 52.5 per cent to the wife and 47.5 per cent to the husband. Liberty to apply was granted for the implementation or enforcement of these orders.

Orders

Orders of the court

That within four months from the date of these orders the wife pay to the husband the sum of $705,000 and in consideration of such payment the husband do all things necessary to transfer all his interest in the property at F Street, Suburb G (“the Suburb G property”) to the wife.

That in default of the wife complying with Order 1 by the due or a later date agreed to by the husband and wife in writing, then the husband and wife shall forthwith do all things necessary to sell the said property at the best price reasonably obtainable and pay the net proceeds of sale such as to effect an overall division of the asset pool as set out in Paragraph [71] of these reasons for judgment as to 52.5 per cent to the wife and to 47.5 per cent to the husband.

Liberty to apply as to implementation or enforcement of these orders.

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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