Full Court overturns property adjustment decision in favor of wife in dispute with husband
Greer & Shui (No 2) [2023] FedCFamC1A 8 (31 January 2023)
The case involves a dispute over property adjustment between a husband and wife. The Full Court allowed the appeal, finding that the primary judge's exercise of discretion was wrong at law, and a consent order was proposed for the husband to pay the wife an additional $200,000 to finally dispose of the proceedings.
The couple got married in 1995 after living together since 1994 and had four children. They separated in 2013/14 and were divorced in 2016. The husband initiated litigation for parental and property matters in 2015 and 2016, respectively, and bought a property jointly with his then-partner in 2015, while the wife re-partnered and moved to the UK with their twin children in 2018. In November 2021, the primary judge dismissed the wife's Amended Response and allowed the husband to proceed with his application for property adjustment on an undefended basis.
The wife raised seven grounds in her appeal, but the husband conceded that only Ground 3 has merit, which challenges the primary judge's finding that the wife made no contribution to the Suburb C property. The husband's affidavit evidence before the primary judge indicates that the wife made contributions of $363,000 and $82,000 to the property through his personal accounts.
Issue:
The issue at hand is the wife's appeal against the primary judge's finding that she made no contribution to the Suburb C property. The husband has conceded that this finding was in error and that the wife did make contributions to the property. The specific contributions made by the wife are detailed in the husband's affidavit evidence.
Applicable law:
Family Law Act 1975 (Cth) s 79 - mandates the Court to “weigh and assess the contributions of all kinds and from all sources made by each of the parties” prior to the relationship, during it, and after separation, up to the hearing, rather than “causally linking contributions with their asserted financial ‘product’ or ‘value’".
Analysis:
The husband's affidavit evidence indicates that he contributed at least $462,000 to the Suburb C property from funds that would have otherwise formed the property interests of both parties at separation. The primary judge's finding that the wife made no contribution to the property was based on a mistaken fact, and his exercise of discretion was therefore wrong at law. The Full Court has clarified that the task of the court is to weigh and assess all contributions made by each party before, during and after separation, rather than causally linking contributions to their financial value. The error made by the primary judge establishes a ground for appeal.
Both parties seek for the court to re-exercise its discretion in making a final property adjustment order. They proposed a consent order for the husband to pay the wife an additional $200,000, which both parties agree falls within the broad range of discretion afforded by s 79 of the Act.
Conclusion:
The appeal has been allowed and the husband has consented to pay the wife an additional $200,000 within 14 days. The payment is to be made to the trust account of the wife's solicitors. The court has also granted the wife a costs certificate.
Case: Greer & Shui (No 2) [2023] FedCFamC1A 8
Judgment of: ALDRIDGE, RIETHMULLER & CAMPTON JJ
Counsels:
Counsel for the Appellant: Ms Anderson
Solicitor for the Appellant: Kerr Fels
Counsel for the Respondent: Dr Smith
Solicitor for the Respondent: O’Sullivan Davies Lawyers
