Zabarac and Zabarac & Anor

In the appeal of Zabarac and Zabarac & Anor, the Federal Court of Australia addressed a dispute concerning a property settlement and spousal maintenance within a family law context. The case arose from a decision by Stevenson J on May 7, 2014, which was contested by the appellant, the husband. The central issues included the trial judge’s assessment of contributions and the adjustment under section 75(2) of the Family Law Act 1975 (Cth), the acceptance of expert evidence regarding property value, and the allocation of proceeds from the sale of properties. Additionally, the husband challenged the orders for spousal maintenance and the treatment of taxation debts.

The court identified that the trial judge erred by 'double counting' a debt owed by the wife, including it as both a liability in the balance sheet and a factor in the section 75(2) adjustment. This material error led to a miscarriage of the trial judge’s discretion, which was deemed appealable. Furthermore, the court found that while the husband argued the trial judge erred in accepting a single expert's evidence over adversarial evidence, it was within the trial judge's discretion to accept the single expert's valuation. The court also ruled that the trial judge did not err in ordering the wife to retain the balance of the proceeds from property sales, though this would have been rectified under the slip rule if the appeal had not succeeded on other grounds.

The Federal Court allowed the appeal, set aside the orders of Stevenson J, and granted leave to file an application to adduce further evidence. The case was remitted to the Family Court of Australia for rehearing by a different judge. The appeal regarding the structure of spousal maintenance orders was found to contain appealable error, as the trial judge had already considered the funds in the property settlement. There was no order as to costs.