Amberg and Amberg and Ors (No.2) - [2011] FMCAfam 206

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AMBERG & AMBERG & ORS (No.2)

[2011] FMCAfam 206

FAMILY LAW – Property settlement – husband’s failure to properly participate – non-disclosure by husband of financial documentation – no evidence of any interest acquired in the property of the wife’s parents – only debt available for distribution – limited superannuation held by each party.

Family Law Act 1975, ss.75(2), 79(2), 79(4), 117(1), (2) & (2A)

Pastrikos and Pastrikos (1980) FLC 91-987
Whitely and Whitely (1996) 92-684
In the Marriage of Clauson (1995) FLC 92–595
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
Russell and Russell (1999) FLC 92-877

Applicant:

MR AMBERG

First Respondent:

MS AMBERG

Second Respondent:

MR VONSTEIN

Third Respondent:

MS VONSTEIN

File Number:

BRC 6912 of 2008

Judgment of:

Coker FM

Hearing date:

4 March 2011

Date of Last Submission:

4 March 2011

Delivered at:

Brisbane

Delivered on:

4 March 2011

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Fitz-Walter Lawyers

ORDERS

That the Husband shall pay to the Wife the sum of NINE THOUSAND FIVE HUNDRED DOLLARS ($9,500) by way of reimbursement for half of the joint credit card liability at separation.
That each party shall retain all items of personal and real property in their respective names and/or possessions including but not limited to household chattels, bank accounts, motor vehicles and superannuation funds.
That the Husband shall pay the Wife’s costs in the fixed amount of FIVE THOUSAND DOLLARS ($5,000) within twenty-eight (28) days of the date of these Orders.
That the Husband shall pay the Second and Third Respondents’ costs in the fixed amount of FIVE THOUSAND DOLLARS ($5,000) within twenty-eight (28) days of the date of these Orders.
That all other applications in the proceedings be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Amberg & Amberg & Ors (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 6912 of 2008

MR AMBERG

Applicant

And

MS AMBERG

First Respondent

MR VONSTEIN

Second Respondent

MS VONSTEIN

Third Respondent

REASONS FOR JUDGMENT

These proceedings relate to an application brought by Mr Amberg seeking orders in respect of a property settlement to be affected between he and Ms Amberg, whom I shall refer to as the wife. Joined in the proceedings as respondents two and three are Mr Vonstein and Ms Vonstein, the parents of the wife in these proceedings.
The husband commenced his application by the filing of an initiating application on 6 November 2009. In that application he sought orders with regard to financial issues yet to be resolved between he and the wife as well as in fact also seeking orders in relation to arrangements with regard to the children of the parties. Subsequently and fortunately, the parties were able to reach agreement in relation to arrangements with regard to the children.
Insofar as issues of property were concerned,…

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.

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Details

Case: [2011] FMCAfam 206
Decision Date: 4 March 2011

CaseChat Overview and Summary

In the case of Amberg and Amberg and Ors, the parties were involved in a dispute regarding financial matters arising from the breakdown of their relationship. The court was required to determine the division of assets, including the reimbursement of joint credit card liabilities, and to address other financial claims and counterclaims. The Family Court of Australia presided over the case.

The central legal issues the court had to resolve were the division of financial assets, specifically the reimbursement of joint credit card liabilities, and the allocation of costs between the parties. The court was tasked with interpreting the relevant legislation and case law to reach a fair and equitable outcome.

The court found that the husband was to reimburse the wife the sum of $9,500 for half of the joint credit card liability at the time of separation. The court also directed that each party retain their personal and real property, including bank accounts, motor vehicles, and superannuation funds. In terms of costs, the husband was ordered to pay the wife's costs in the amount of $5,000 and the costs of the second and third respondents in the same amount. The court dismissed all other applications in the proceedings.

The final orders of the court included the reimbursement of joint credit card liabilities, the retention of personal and real property by each party, and the payment of costs by the husband. All other applications were dismissed.

Orders

Orders of the court

That the Husband shall pay to the Wife the sum of NINE THOUSAND FIVE HUNDRED DOLLARS ($9,500) by way of reimbursement for half of the joint credit card liability at separation.

That each party shall retain all items of personal and real property in their respective names and/or possessions including but not limited to household chattels, bank accounts, motor vehicles and superannuation funds.

That the Husband shall pay the Wife’s costs in the fixed amount of FIVE THOUSAND DOLLARS ($5,000) within twenty-eight (28) days of the date of these Orders.

That the Husband shall pay the Second and Third Respondents’ costs in the fixed amount of FIVE THOUSAND DOLLARS ($5,000) within twenty-eight (28) days of the date of these Orders.

That all other applications in the proceedings be dismissed.

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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