Trial judge errors set aside property settlement
Zabarac & Zabarac and Anor
FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the grounds asserted error in the trial judge’s contribution assessment and s 75(2) of the Family Law Act 1975 (Cth) adjustment – Where the trial judge erred in ‘double counting’ a debt owed by the wife by including it as both a liability in the balance sheet and a factor in the s 75(2) adjustment – Where this ‘double counting’ was a material error that caused the trial judge’s discretion to miscarry in assessing the s 75(2) factors – Appealable error demonstrated – Appeal allowed on this basis.
FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the husband asserted that the trial judge erred in her acceptance of the single expert’s evidence as to value – Where it was open to the trial judge to accept the single expert’s evidence over that of the adversarial expert – Where the husband argued that the trial judge failed to order the sale of a property to ascertain its value – Where the trial judge had accepted evidence as to the property’s value and no sale was necessary – Where the trial judge accepted the value of the husband’s life insurance policy as asserted by him in a sworn document – Where the husband failed to produce further evidence – Where it was open to the trial judge to accept the husband’s evidence of value – Where the husband asserted that the orders made were not just and equitable – Where the trial judge’s reasoning process was not flawed or inadequate – No appealable error demonstrated.
FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the husband asserted the trial judge erred in ordering the wife retain the balance of the proceeds of sale of properties rather than a percentage split – Where the orders did not reflect the trial judge’s stated intention and gave rise to potential unfairness – Where if not for the appeal succeeding on different grounds the error would have been rectified pursuant to the slip rule.
FAMILY LAW – APPEAL – PROPERTY SETTLEMENT– Where the husband asserted that the orders relating to the taxation debts did not reflect the trial judge’s findings and stated intentions – Where this failure had no adverse impact on the husband as the percentage division of the property settlement was not affected.
FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Where the orders provided that the husband pay spousal maintenance to the wife pending full implementation of the orders for alteration of property interests – Where the structure of the orders does not contemplate the wife’s partial receipt of her entitlement – Where the trial judge found that the husband had the capacity to pay spousal maintenance – Where the trial judge had already taken these funds into consideration as part of the wife’s entitlement in the property settlement – Appealable error demonstrated.