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Horrigan & Horrigan 2020 FamCAFC 25

By October 19, 2021 No Comments
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In Horrigan & Horrigan [2020] FamCAFC 25, the court considered a property settlement adjustment.

The Trial Judge had ordered that the wife receive 22% of the net pool and the husband 78%. The wife appealed.

The wife had run a Kennon v Kennon [1997] FamCA 27 case.  The Judge was not satisfied that that had been established on the evidence. That was not challenged in the appeal.

The issue was the husband’s allegation that the wife gambled extensively during the relationship.

She alleged that was it was one of the children and not her. The Primary Judge rejected that contention and found that she had gambled over a period of three years nearly $100,000, having had winnings of around $55,000 with a net loss of $40,000.

The fact that she’d lost at lost at least $40,000 was not challenged in the appeal.

The parties entered the relationship with property, so the Primary Judge engaged an exercise to identify the value of their property at the commencement of cohabitation. That led to a conclusion that the husband had property of about $1.5M and the wife had approx. $195,000.

The submission was made that the husband’s financial contributions were far greater than the wife’s at the time of commencement of cohabitation.

The court considered the wife’s initial contributions. Of the $195,000 she introduced, $105,000 was a compensation payment.   This was an important asset and His Honour accepted that as “[it] was an asset which was of value to the parties as the properties came out of drought”.

Equal contribution since the commencement of cohabitation was accepted up to and following separation.

A 7% adjustment for s.75(2) factors was made on behalf of the wife.

Spouse maintenance was extended until the time the lump sum payment was due to be paid to the wife and her sole occupation of a house was extended until 30 days after the payment.

The wife appealed, arguing that the process had failed to assess her contributions holistically over the whole asset pool and because of the categorising of the contributions into different timeframes and he failed to properly assess her contribution in the application of her compensation funds.

The appeal grounds were dealt with under the following headings:

Wife’s conservation of husband’s farms

This was answered by the Full Court in this way.

“….this argument is pure conjecture, and is not reflected in any evidence, or indeed submissions, before the primary judge.”

The court also pointed to the wife’s gambling losses of $40,000 from 2014 onwards.

The next concept was that the finding of equal contribution was not reflected in the outcome. The wife argued that that finding “necessitated that the parties should equally share in the increase in value of pre-cohabitation assets, and particularly, that the wife should be entitled to 50 per cent of the increase in value of the husband’s farming properties, livestock, machinery and the like”.

Meanwhile, the wife’s three children would stay with the parties and the wife’s receipt of drought assistance from the government was not a contribution by either party.  The parties’  care of the wife’s grandson was another issue to be balanced.

The Court said:

“They provide no warrant for the argument raised by the wife that, in effect, at the commencement of cohabitation, a line is ruled across the balance sheet, and the parties should thereafter share in any increase in value of pre-cohabitation assets in the percentage of their other contributions during the course of the relationship.”

The next discussion was entitled “Failure to holistically assess contributions”.

The court did not accept the wife’s view that the trial judge undertook a purely mathematical exercise.

The court then considered Jabour & Jabour [2019] FamCAFC 78.  This is a case that dealt with a parcel of land brought into a long marriage by the husband that was serendipitously rezoned effecting a very large increase in its value. The Full Court said that’s not what the primary judge here.

At paragraph 47:

“Unlike in Jabour, the primary judge here did not isolate the husband’s contribution of the farming properties from the myriad of other contributions, and, in effect, weighed them against each other. Nor did his Honour embark upon some quest to find a “nexus” between the contributions of the parties and particular items of property.” 

 Jabour was also a relationship over 24 years and this relationship was for less than eight years.

This attack was adequacy of reasons.

In the costs aspect of this case, the court determined that the wife’s contribution to the husband’s cost in the appeal could be met by way of a deduction from the final payment which was yet to be made to the wife.

This is an interesting case because of the short relationship and a vastly superior financial contribution by the husband, but with the wife arguing strenuously that the equal contributions during the relationship finding was not adequately articulated in the numerical outcome.