ANISON & ANISON - [2018] FamCA 113

FAMILY COURT OF AUSTRALIA

ANISON & ANISON

[2018] FamCA 113

FAMILY LAW – PROPERTY – 13 year relationship – where the parties were retired at the commencement of the relationship – where the husband made the overwhelming financial contributions, primarily in the form of inheritances – where the husband asserts he owes a significant debt to his son – non-financial contributions – where the wife made significant non-financial contributions – where the husband contends that it is just and equitable that each party retain the property currently owned by each respectively – where the wife seeks orders for an equal division of the parties’ property

FAMILY LAW – PROPERTY – SPOUSE MAINTENANCE – where the wife seeks ongoing spousal maintenance – whether the wife is unable to adequately support herself after receipt of her entitlement to property as found

Family Law Act 1975 (Cth)

AM v KAO [2006] FamCA 734
Bevan v Bevan (2013) FLC 93-545
Brodie v Brodie (2009) 41 Fam LR 18
Bucknell v Bucknell [2009] FamCAFC 177
Clauson and Clauson (1995) FLC 92-595

Crapp and Crapp (No 2) (1979) FLC 90-615
Dickons v Dickons (2012) 50 Fam LR 244
DJM v JLM (1998) FLC 92-816
Ferraro & Ferraro (1993) FLC 92-335

Hepworth v Hepworth (1963) 110 CLR 309
Hickey & Hickey (2003) FLC 93-143
In the Marriage of Weir (1993) 92-338
Kelly and Kelly (No 2) (1981) FLC 91-108
Lee Steere & Lee Steere (1985) FLC 91-626
Lovine v Connor (2012) FLC 93-515
Mallet v Mallet (1984) 156 CLR 605
Pastrikos & Pastrikos (1980) FLC 90-897
Stanford and Stanford (2012) 247 CLR 108

Waters & Jurek (1995) FLC 92-635

APPLICANT:

Ms Anison

RESPONDENT:

Mr Anison

FILE NUMBER:

BRC

1827

2013

DATE DELIVERED:

28 February 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

17 and 18 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Wiltshire Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hackett

SOLICITOR FOR THE RESPONDENT:

Evans & Co Family Lawyers

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous orders, other than those by which any party was ordered to pay costs, are discharged.
Within ninety (90) days of the date of this Order, the Respondent pay to the Applicant the sum of $233,550.00.
The Applicant retain as her own property absolutely all other property in her possession or under her control including motor vehicles, bank accounts, any shareholdings, boat and accessories, furniture and chattels.
The Respondent retain as his own property absolutely all other property in his possession or under his control including motor vehicles, bank accounts, furniture and chattels.
Each party sign all relevant documents and do all necessary things to give effect or to transfer property to the entitled party in accordance with this Order within seven (7) days of a written request to do so.
Should either party fail to sign any documents necessary to implement this Order, a Registrar of the Court is appointed pursuant to s…

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 ANISON & ANISON

Details

AGLC: ANISON & ANISON [2018] FamCA 113
Case: [2018] FamCA 113
Decision Date: 28 February 2018

CaseChat Overview and Summary

In ANISON & ANISON, Hogan J of the Family Court of Australia considered a property settlement and spousal maintenance application between a husband and wife who had been in a thirteen-year relationship. Both parties were retired at the commencement of the relationship. The husband asserted that he had made the overwhelming financial contributions, largely through inheritances, and also claimed a significant debt owed to his son. The wife, conversely, contended that she had made significant non-financial contributions to the relationship. The husband sought an order that each party retain the property currently in their respective names, while the wife sought an equal division of the parties' property and ongoing spousal maintenance.

The court was required to determine the appropriate division of the parties' property, considering their respective financial and non-financial contributions, as well as the husband's alleged debt. Additionally, the court had to assess whether the wife was unable to adequately support herself following the property settlement, in order to determine her entitlement to spousal maintenance.

Hogan J ordered that the respondent husband pay the applicant wife a sum of $233,550.00 within ninety days. The wife was to retain all other property in her possession absolutely, including motor vehicles, bank accounts, shareholdings, a boat and accessories, furniture, and chattels. Similarly, the husband was to retain all other property in his possession absolutely, including motor vehicles, bank accounts, furniture, and chattels. The court also ordered the husband to pay the wife $500.00 per week for maintenance until the lump sum payment was made. Provisions were made for the signing of necessary documents to give effect to the orders, with a Registrar appointed to sign in lieu of a non-compliant party. All previous applications, save for those relating to costs, were dismissed. The court also set out a detailed process for any future applications concerning costs.

Orders

Orders of the court

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous orders, other than those by which any party was ordered to pay costs, are discharged.

Within ninety (90) days of the date of this Order, the Respondent pay to the Applicant the sum of $233,550.00.

The Applicant retain as her own property absolutely all other property in her possession or under her control including motor vehicles, bank accounts, any shareholdings, boat and accessories, furniture and chattels.

The Respondent retain as his own property absolutely all other property in his possession or under his control including motor vehicles, bank accounts, furniture and chattels.

Each party sign all relevant documents and do all necessary things to give effect or to transfer property to the entitled party in accordance with this Order within seven (7) days of a written request to do so.

Should either party fail to sign any documents necessary to implement this Order, a Registrar of the Court is appointed pursuant to s 106A(1) of the Family Law Act 1975 (Cth) to sign any such document in lieu of the non-signing party.

The Respondent pay the sum of $500.00 per week directly to the Applicant for her maintenance, with such payments to be made weekly by direct deposit into a bank account nominated by the wife, until payment to her by him of the sum referred to in Clause 2 of this Order.

All extant Applications other than any relating to costs are dismissed.

AND IT IS FURTHER ORDERED THAT

In the event that any party seeks an order that the other party pay his or her costs:

(a) if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same provided that such affidavits are filed within twenty-eight (28) days of the date of this Order; and

(b) any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and

(c) the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and

(d) the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,

and any such application for costs shall be considered in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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