Appeal Division of the Family Court of Australia (Appearing for the Appellant wife)

 

FAMILY LAW – APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – PROPERTY SETTLEMENT – Short marriage – Wife’s application for property settlement was dismissed at trial – The wife’s litigation and other debts left her in a negative asset position – The husband’s net assets exceeded two million dollars in value – Federal Magistrate stated that the order left the wife in substantially the same position as when cohabitation commenced – Debt for litigation loan meant that the Federal Magistrate erred in so concluding – Mere absence of percentage apportionment on the basis of contributions is not an error of approach
FAMILY LAW – APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – PROPERTY SETTLEMENT – Federal Magistrate accepted the expert value of the husband’s share options – Treated the options as a financial resource, not as property – (per Warnick and Boland JJ) Federal Magistrate did not make a finding that the options were not property – No error in the approach taken, proportion of option value to the asset pool means inclusion as property as against treatment as a financial resource would not make a difference.
(per O’Ryan J) The share options were property and as such it was not open to the Federal Magistrate to treat them as a financial resource – Important distinction is that between property and financial resources, not ‘assets’ and financial resources – Appeal allowed
Parties sought re-exercise of discretion – wife to receive $100,000 from husband – release of security for costs to the wife
FAMILY LAW – COSTS – certificates in relation to the appeal granted to each party