Husband Appeals Final Property Settlement Orders

Elmanu & Elmanu [2022] FedCFamC1A 186 (16 November 2022)

The husband appeals from final property settlement orders.  The Court, in determining whether to grant the appeal, assessed whether the primary judge erred in considering the Kennon argument independent of the other contributions of the parties.

Facts

After a 32 year marriage to which three now adult children were born, the parties separated in 2017.  Six years into their marriage, the parties established a business, which the husband still operates.  The wife also worked in that business, as well as providing the bulk of the homemaker and parenting contributions.  As found by the primary judge, the net pool of assets of the parties had a value of $3,890,169, together with a small amount of superannuation.

The primary judge determined the parties' respective contribution based entitlements at 55/45 in the wife's favour, and assessed the factors listed in s 75(2) of the Family Law Act 1975 (Cth) as favouring the wife, with an adjustment of 6 per cent reflective of that.  The husband asserts that the learned trial judge erred in considering the Kennon argument independent of the other contributions of the parties and the learned trial judge gave inadequate reasons as to why it was just and equitable to make an adjustment of 5% in favour of the wife.  The wife contended that the husband's family violence made her contributions more onerous, and thereby called in aid of her case the principles espoused in the decision of Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757 (“Kennon”).

Issue

Whether or not the appeal should be granted.

Applicable law

Analysis

The primary judge did not holistically assess contributions, but rather determined that Kennon considerations justified “an uplift of her contributions to reflect this” assessed at 5 per cent.  Because the primary judge should not have considered the more onerous nature of the wife’s contributions in isolation, the adequacy of her reasons for a 5 per cent adjustment becomes, as the husband conceded in oral argument, a sterile debate.  The Notice of Contention – restricted as it is to the primary judge’s assessment of the parties’ contributions based entitlements – does now fall for consideration.  As to that, the parties were agreed that the question which requires to be answered is “what the outcome would have been, had the Kennon argument been properly considered as part of the holistic assessment of all contributions”.

Conclusion

The appeal is dismissed.  The appellant should pay the respondent's costs in the sum of $12,059.68 within 28 days.