ARMITAGE & ARMITAGE - [2015] FCCA 2974

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARMITAGE & ARMITAGE

[2015] FCCA 2974

Catchwords:
FAMILY LAW – Property – where there is a small pool for distribution – where there is strong evidence as to one party’s failure to cooperate with the proceedings and to provide disclosure – where there is an inference to be drawn that one party to the proceedings has dissipated or secreted assets away – consideration of the approach to be taken in such a situation and the inferences to be drawn – where orders are made which reflect a negative inference drawn in relation to the evidence of one of the parties to the proceedings.

Legislation:
Family Law Act 1975 (Cth), ss.75(2), 79(4)

Pastrikos and Pastrikos (1980) FLC 91-987
Whitely and Whitely (1996) FLC 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
Hickey and Hickey and A-G for the Commonwealth (2003) FLC93-143
Stanford v Stanford [2012] HCA 52; (2012) 47 FamLR 481
Erdem & Ozsoy [2012] FMCAfam 1323
Hobbs & Valonz [2013] FCCA 1999
Bateman & Bowe [2013] FamCA 253
Jones & Dunkel (1959) 101 CLR 298
Black & Kellner (1992) FLC 92-287

Stanford and Stanford Lots of Questions – Very Few Answers, Martin Barfeld QC of the Victorian Bar

Applicant:

MS ARMITAGE

Respondent:

MR ARMITAGE

File Number:

TVC 1022 of 2013

Judgment of:

Judge Coker

Hearing dates:

10 & 11 August 2015

Date of Last Submission:

11 August 2015

Delivered at:

Townsville

Delivered on:

5 November 2015

REPRESENTATION

Counsel for the Applicant:

Ms Keegan

Solicitors for the Applicant:

Roberts Nehmer McKee

Respondent:

In Person

ORDERS

BY WAY OF FINAL PROPERTY SETTLEMENT

That the sum of $44,000 held in the trust account of Roberts Nehmer McKee Solicitors be released to the Wife as and for her sole property absolutely.
That the Husband forthwith take all necessary steps, at the direction of the Wife as to manner of sale and sale price, to effect the sale of the property situate at Property B more particularly described as Lot (omitted) on (omitted), in the County of (omitted), Parish of (omitted), Title Reference (omitted) and that following the payment of the current liability attaching to the property, as well as the payment of any outstanding rates or utilities, that the balance be paid to the Wife.
That an injunction issue restraining the Husband from dealing with the property at Property B, including but not limited to further encumbering, selling or otherwise dealing with the said property.
That the Wife otherwise retain the Motor Vehicle in her possession and all other property in her possession as and for her own property absolutely and indemnify the Husband in relation to any liability attaching to such property retained by her.
That the Husband otherwise retain the Motor Vehicles in his possession and all other property in his possession as and for his own property absolutely…

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 ARMITAGE & ARMITAGE

Details

AGLC: Armitage and Armitage [2015] FCCA 2974
Case: [2015] FCCA 2974
Decision Date: 5 November 2015

CaseChat Overview and Summary

In the matter of ARMITAGE & ARMITAGE, Judge Coker of the Federal Circuit and Family Court of Australia made orders concerning the property settlement between the parties. The dispute centred on the division of assets and liabilities following the breakdown of the marriage.

The court was required to determine how the parties' various assets, including a sum of money held in trust, a property identified as Property B, and several motor vehicles, along with associated liabilities, should be divided. The court also considered the need for an injunction to restrain the husband from dealing with Property B.

Judge Coker ordered that $44,000 held in a solicitor's trust account be released to the Wife absolutely. The Husband was directed to sell Property B under the Wife's direction as to manner and price, with the net proceeds, after payment of existing liabilities and rates, to be paid to the Wife. An injunction was granted to prevent the Husband from dealing with Property B. The Wife was to retain her motor vehicle and other possessions, indemnifying the Husband against any liabilities attaching to them. Similarly, the Husband was to retain his motor vehicles and other possessions, indemnifying the Wife against any liabilities, including taxation arising from his business. Provisions were also made for the determination of costs should any party seek them.

Orders

Orders of the court

BY WAY OF FINAL PROPERTY SETTLEMENT

That the sum of $44,000 held in the trust account of Roberts Nehmer McKee Solicitors be released to the Wife as and for her sole property absolutely.

That the Husband forthwith take all necessary steps, at the direction of the Wife as to manner of sale and sale price, to effect the sale of the property situate at Property B more particularly described as Lot (omitted) on (omitted), in the County of (omitted), Parish of (omitted), Title Reference (omitted) and that following the payment of the current liability attaching to the property, as well as the payment of any outstanding rates or utilities, that the balance be paid to the Wife.

That an injunction issue restraining the Husband from dealing with the property at Property B, including but not limited to further encumbering, selling or otherwise dealing with the said property.

That the Wife otherwise retain the Motor Vehicle in her possession and all other property in her possession as and for her own property absolutely and indemnify the Husband in relation to any liability attaching to such property retained by her.

That the Husband otherwise retain the Motor Vehicles in his possession and all other property in his possession as and for his own property absolutely and indemnify the Wife in relation to any liability attaching to such property retained by him, including but not limited to any taxation liability arising in respect of the operation of the business, (omitted).

That should there be any application for costs, then the party seeking costs shall within 28 days of the date of this Order file submissions in relation to costs and the other party shall respond within 21 days and determination, unless otherwise requested in writing, shall occur in Chambers.

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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