Father Opposes Final Property Settlement Orders

Conroy & Penner [2022] FedCFamC1A 39 (24 March 2022)

Final property settlement orders were made by the primary judge which effected a 42/58 percent division of the parties’ property in favour of the husband and a split of the husband’s superannuation in favour of the wife.  The father appeals from such final property settlement orders. The Court, in determining whether or not the appeal should be granted, assessed the adequacy of the primary judge's reasons. 

Facts:

Mr Conroy (“the husband”) appeals from final property settlement orders made on 21 June 2021 (albeit amended on 22 June 2021) by a judge of the then Family Court of Australia in proceedings brought by Ms Penner (“the wife”).  

Those orders effected a 42/58 per cent division of the parties’ property in favour of the husband, the practical effect of which provided the wife with the remaining net sale proceeds of the former matrimonial home (“Suburb F”) in the sum of $3,214,692 (Order 1), a split of the husband’s superannuation in favour of the wife in the sum of $300,000 (Orders 2–6) and for each party to retain the remaining assets held in their respective names (Orders 7 and 8).   The husband appeals from Orders 1–6 only.  The wife opposes the appeal.

The parties commenced a relationship in early 2008 and were married in May of that year.  At this time, both parties had children from previous relationships; the wife had three children aged 10, 9 and 7 and the husband had two children aged 12 and 10.  The wife’s children lived with the parties for 12 nights per fortnight and the husband’s children six nights per fortnight.  In September 2008, the parties jointly purchased Suburb F for $6,510,385. 

The parties opened a flexible loan facility (“the portfolio facility”) in joint names with an overall limit of $5,495,000 to help fund the purchase.  In March 2014, the parties separated and the wife and her children left Suburb F and rented elsewhere for a number of years.  The husband remained living in Suburb F up until its sale in October 2018.

Significant expenditure and works were required to ready Suburb F for sale, including renovating a structural wall costing $60,000, the purchase of furniture, and removing the heritage listing. On 16 March 2018, a contract for Suburb F for $11,200,000 was signed.  On 19 March 2018, the parties were able to agree upon consent orders dealing with the proceeds of sale of Suburb F, which provided for all relevant loan accounts to be discharged, all legal and real estate fees paid, and for each party to retain $3 million by way of partial property settlement.  The sale of Suburb F settled in October 2018 and the portfolio facility was paid out and each party received their partial property settlement.  The remaining funds were placed in a controlled monies account and are the funds referred to in Order 1 made 21 June 2021. 

The wife sought to retain the entirety of them and the husband sought 60 per cent of the remaining funds.  The wife sought a split of it in the sum of $1,500,000 of the husband's superannuation, whereas the husband contended that there should be no superannuation split.  Orders were made appointing single experts to value the wife’s interest in her business, two other properties owned by the wife, and to assess the relevant market rental value of Suburb F, with such reports later being admitted into evidence at the trial.  

Issue:

Whether or not the appeal should be granted. 

Applicable law:

Family Law Act 1975 (Cth) s 79 - provides that if a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 - provides that there was no obligation on the primary judge to engage with, or to give reasons for failing to engage with, something he had never been referred to, or which had not otherwise been brought to his attention.

Analysis:

As to the parties' contributions, the father submitted that his intial contribution is larger and thus there should be a five per cent adjustment of the pool in his favour.  However, no elaboration of what the husband intended by the word “larger” was thereafter given in cross-examination nor sought in re-examination.  No reference to that evidence, nor any suggestion that the husband’s initial contributions were larger than the wife’s, was made in final submissions by senior counsel for the husband.  Whilst identifying the assets each party brought to the relationship in his affidavit, the husband did not make any claim as to the value of those assets, nor any allegation that his initial contributions were materially greater than those of the wife. 

The very nature of Annexure B or the parties’ joint application for finance to assist in the purchase of Suburb F dated 24 July 2008, which included many estimates and attributed values beyond the competency of the parties to express, should lead to it being treated with great circumspection, especially given the lack of cross-examination of the wife by reference to its contents.  The husband’s unexplained, unparticularised and thereafter wholly ignored, assertion in cross-examination that his initial contributions were “larger” than the wife did not preclude the conclusion made by the primary judge.  Nor did Annexure B, particularly given the failure of counsel to even mention it before the primary judge, much less the outcome of the construction of it that the husband now contends should be adopted.

Conclusion:

The Court dismissed Appeal No. EAA 78 of 2021.  Within 28 days, the appellant is to pay the respondent’s costs in the sum of $30,000.

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