Ainsley and Ainsley - [2013] FCCA 408

FEDERAL CIRCUIT COURT OF AUSTRALIA

AINSLEY & AINSLEY

[2013] FCCA 408

Catchwords:
FAMILY LAW – Alteration of property interests – whether contribution to be assessed globally or otherwise – where substantial assets accumulated after separation – where wife’s contribution and needs greater – non-disclosure by the husband.

Legislation:
Family Law Act 1975, ss.66G , 75(2), 79, 111AA, 117

Cases cited:
Bradley v Weber [1998] FamCA 90
Branicki (unreported Full Court 18 May 1990)
NHC & RCH (2004) FLC 93-204
DJM & JLM (1998) FLC 92-816
Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-060
Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Jones and Jones (1990) FLC 92-143
Norbis v Norbis (1986) 161 CLR 513
Pastrikos and Pastrikos (1980) FLC 90-897
Shaw and Shaw (1989) FLC 92-010
Stanford v Stanford (2012) FLC93-518

Applicant:

MS AINSLEY

Respondent:

MR AINSLEY

File Number:

SYC 6032 of 2011

Judgment of:

Judge Altobelli

Hearing date:

8 and 9 April 2013

Date of Last Submission:

9 April 2013

Delivered at:

Sydney

Delivered on:

4 June 2013

REPRESENTATION

Counsel for the Applicant:

Mr Schonell SC

Solicitors for the Applicant:

Diana Perla & Associates

Counsel for the Respondent:

Mr Gould

Solicitors for the Respondent:

James Antonenas Solicitor & Barrister

ORDERS

That the husband forthwith, do all acts and things and sign all documents to pay the proceeds of the (bank omitted) Account number (omitted) in the sum of $100,812 to the wife.
That the husband, within 14 days of the date of these Orders, do all acts and things and sign all documents to transfer to the wife the following properties:
Property D, being the whole of the land contained in Folio Identifier (omitted).
Property S, being the whole of the land contained in Folio Identifier (omitted).
Property M, being the whole of the land contained in Folio Identifier (omitted).
Simultaneously with the transfers, the husband shall:
Do all acts and things and sign all documents to discharge mortgage number (omitted) to the (omitted) Bank, and
Pay to the wife the sum of $335,800.
That pursuant to paragraph 90(MT)(1)(b) of the Family law Act 1975, whenever the Trustee of (omitted) Superannuation Fund makes a splittable payment from the interest held by Mr Ainsley, the Trustee shall pay to Ms Ainsley or her administrators, executors, beneficiaries, heirs or assigns the amount of $177,733 and there shall be a corresponding reduction in the entitlement Mr Ainsley would have had in (omitted) Superannuation Fund but for these Orders.
That within 14 days of the date of these Orders, the husband do all acts and things and sign all documents to cause Qantas Frequent Flyer to transfer 430,000 of his frequent flyer points to the wife’s account.
That other than as specifically provided for in these Orders each party is solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the name, possession, ownership and/or control of each of the parties as at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ainsley and Ainsley

Details

AGLC: AINSLEY & AINSLEY [2013] FCCA 408
Case: [2013] FCCA 408
Decision Date: 4 June 2013

CaseChat Overview and Summary

In the matter of Ainsley and Ainsley, Judge Altobelli of the Family Court of Australia made orders concerning the division of property and child maintenance between the husband and wife. The dispute involved the distribution of various assets, including bank accounts, real estate, superannuation entitlements, frequent flyer points, and the payment of child maintenance.

The court was required to determine the appropriate allocation of the parties' financial resources and to make orders for the ongoing maintenance of the children. This involved considering the value of the assets and liabilities of the parties and applying the principles of the *Family Law Act 1975* to achieve a just and equitable outcome.

The court ordered the husband to transfer a significant portion of the marital assets to the wife, including a substantial sum from a bank account, three properties, and a specific amount from his superannuation fund. Additionally, the husband was directed to pay a lump sum of $335,800 and to transfer frequent flyer points. The court also made orders for child maintenance, stipulating a monthly payment from the husband to the wife until the children reach the age of 18. To ensure compliance, the court provided for the Registrar to execute necessary documents if either party refused to do so, pursuant to section 106A of the *Family Law Act 1975*.

Orders

Orders of the court

That the husband forthwith, do all acts and things and sign all documents to pay the proceeds of the (bank omitted) Account number (omitted) in the sum of $100,812 to the wife.

That the husband, within 14 days of the date of these Orders, do all acts and things and sign all documents to transfer to the wife the following properties:

Property D, being the whole of the land contained in Folio Identifier (omitted).

Property S, being the whole of the land contained in Folio Identifier (omitted).

Property M, being the whole of the land contained in Folio Identifier (omitted).

Simultaneously with the transfers, the husband shall:

Do all acts and things and sign all documents to discharge mortgage number (omitted) to the (omitted) Bank, and

Pay to the wife the sum of $335,800.

That pursuant to paragraph 90(MT)(1)(b) of the Family law Act 1975, whenever the Trustee of (omitted) Superannuation Fund makes a splittable payment from the interest held by Mr Ainsley, the Trustee shall pay to Ms Ainsley or her administrators, executors, beneficiaries, heirs or assigns the amount of $177,733 and there shall be a corresponding reduction in the entitlement Mr Ainsley would have had in (omitted) Superannuation Fund but for these Orders.

10.

That within 14 days of the date of these Orders, the husband do all acts and things and sign all documents to cause Qantas Frequent Flyer to transfer 430,000 of his frequent flyer points to the wife’s account.

11.

That other than as specifically provided for in these Orders each party is solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the name, possession, ownership and/or control of each of the parties as at the date of these Orders.

12.

In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to all or any of the Orders made herein, then the Registrar of the Family Court shall be appointed pursuant to Section 106A of the Family Law Act to execute such deed or instrument and do all acts and things necessary to give validity and operation to the said deed or instrument.

CHILD MAINTENANCE

13.

Pursuant to Section 66G of the Family Law Act, the husband shall pay to the wife directly child maintenance for the child Y born (omitted) 1995 (“the children”), in the sum of $3,150 per month commencing on the first day of the month following the making of these Orders and continuing until each of the children attains the age of 18 years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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