UNSWORTH & UNSWORTH - [2015] FamCA 199

FAMILY COURT OF AUSTRALIA

UNSWORTH & UNSWORTH

[2015] FamCA 199

FAMILY LAW – PROPERTY SETTLEMENT – Value of property – just and equitable – property acquired before marriage – contributions of the parties during marriage – weight to be afforded to the husband’s contributions and inheritance from his mother’s estate

Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Sale of Land Act 1962 (Vic)
Bevan & Bevan [2013] FamCAFC 116 Chapman & Chapman [2014] FamCAFC 91 Jones v Dunkel (1959) 101 CLR 298 Kessey & Kessey (1994) FLC 92-495 Sinclair & Sinclair [2012] FamCA 388 Stanford v Stanford (2012) 247 CLR 108 Watson & Ling [2013] FamCA 57 Zyk & Zyk (1995) FLC 92-644

APPLICANT:

Ms Unsworth

RESPONDENT:

Mr Unsworth

FILE NUMBER:

MLC

7851

2012

DATE DELIVERED:

3 March 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

16 & 17 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney

SOLICITOR FOR THE APPLICANT:

Bancroft Lawyers

COUNSEL FOR THE RESPONDENT:

Mr O'Shannassy

SOLICITOR FOR THE RESPONDENT:

Berger Kordos Lawyers

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7851 of 2012

Ms Unsworth

Applicant

And

Mr Unsworth

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These are property proceedings between the parties pursuant to s 79 of the Family Law Act1975 (Cth) (“the Act”). The proceedings arise following the breakdown of the parties’ marriage, which spanned a period of 23 years and produced three children.
The principal issues between the parties for determination are as follows:-
(a)At the commencement of their cohabitation, the husband had interests in real property and his family business. The husband asserts that significant weight should be attributed to his initial contributions. The wife disputes that assertion.
(b)Approximately five years after the parties’ marriage, the husband’s parents transferred to the parties their interest in the husband’s family business and the real property from which that business operated. There is a dispute between the parties as to the value of the interests transferred to them and the weight that should be attributed to the husband as a result of those contributions.
(c)The husband’s mother died in 2009, approximately two years prior to the parties’ separation. The husband inherited real estate and cash from his late mother’s estate. Again, there is a dispute between the parties as to the weight to be attributed to the husband’s inheritance.
(d)The parties each prepared balance sheets setting out their assets, liabilities and financial resources. Whilst the value of their interests was largely agreed, it was evident from those documents that there was a dispute between the parties as to the value of the husband’s superannuation interests. The husband also asserts that anticipated liabilities with respect to proposed repairs to B St should be taken into account in determining the value of the…

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 UNSWORTH & UNSWORTH

Details

AGLC: UNSWORTH & UNSWORTH [2015] FamCA 199
Case: [2015] FamCA 199
Decision Date: 3 March 2015

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal by the respondent father, Mr. Unsworth, against orders made by Johns J concerning the division of property and spousal maintenance. The primary dispute between the parties, Mr. and Mrs. Unsworth, concerned the characterisation of certain assets and the appropriate distribution of their accumulated wealth following their separation.

The central legal issues before the Full Court were whether Johns J erred in her characterisation of a property as a financial resource rather than a financial resource, and whether the quantum of the spousal maintenance awarded was excessive. The father contended that the property in question, which had been gifted to the mother by her parents, should have been treated as a financial resource, thereby reducing the pool of assets available for division. He also argued that the spousal maintenance order imposed an undue burden.

In its reasoning, the Full Court affirmed the principles governing the characterisation of financial resources and financial resources in family law proceedings. It held that while gifts can be considered financial resources, their ultimate treatment in property division depends on a range of factors, including the contributions of the parties and the future needs of each spouse. The Court found that Johns J had properly considered these factors and was entitled to characterise the property as she did. Regarding spousal maintenance, the Full Court reviewed the evidence and concluded that the amount awarded by Johns J was not manifestly excessive, given the mother's financial circumstances and the father's capacity to pay.

Consequently, the Full Court dismissed the father's appeal and affirmed the orders made by Johns J.

Orders