Baldwin and Baldwin - [2009] FamCA 207

FAMILY COURT OF AUSTRALIA

BALDWIN & BALDWIN

[2009] FamCA 207

FAMILY LAW – PROPERTY

APPLICANT:

Ms Baldwin

RESPONDENT:

Mr Baldwin

FILE NUMBER:

BRC

6089

2007

DATE DELIVERED:

26 February 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

23, 24, 25 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms J Brasch of Counsel

SOLICITOR FOR THE APPLICANT:

Hopgood Ganim Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr C A Cooper, Solicitor, of Charles Cooper Lawyers

Orders

Macfie Curlewis Spirio Solicitors do forthwith pay to the Applicant Wife the sum of $1,331,981 as and by way of property settlement.
The receipt of the solicitors for the Applicant Wife shall be good and sufficient discharge to the solicitors for the Respondent Husband.
The ownership of the property in the possession of each of the parties do vest in them.
That there be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Baldwin & Baldwin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6089 of 2007

MS BALDWIN

Applicant

And

MR BALDWIN

Respondent

REASONS FOR JUDGMENT

On 13 August 2007, the originating proceedings in this case were amended by the filing of an application on that day. That application sought, on behalf of the applicant, one Ms Baldwin (“the wife”), orders in relation to parenting and also property. There were other machinery provision orders including the appointment of a single expert and discovery and others. However, briefly the facts surrounding this application are that the mother was born in England but resided most of her life in Canada and a relationship developed between herself and the respondent, Mr Baldwin (“the husband”) which culminated in marriage in October 1989. She was resident in Toronto at or about the time of the commencement of the relationship and he was resident in Los Angeles, being an employee of an international Australian company in a managerial position. She was in an American company and in a managerial position.
They commenced cohabitation in or about the month of February 1989 and married, as I have said, in October 1989. As a result of the union as aforesaid, two children of the marriage were born, they being L in October 1991 and W, born in May 1995. They reside with the mother and consent parenting orders were made last year which enabled the father, should he so desire, to spend time with the children and, obviously, the children to spend time with him. It appears as though there may have been some breakdown of communication between the father and L and that unfortunately, the father does not see as much of L, the elder of the two. L now has left school and is working for the wife’s former employee [sic] as a telesales person or something.
This case is peculiar in a way in that it is quite clear on the evidence before…

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 Baldwin and Baldwin

Details

AGLC: Baldwin and Baldwin [2009] FamCA 207
Case: [2009] FamCA 207
Decision Date: 26 February 2009

CaseChat Overview and Summary

In *Baldwin and Baldwin*, Bell J of the Family Court of Australia considered a dispute concerning property settlement between a husband and wife. The case involved an application by the wife for a property settlement, with specific orders sought against the husband's solicitors.

The central legal issue before the court was whether the husband's solicitors should be ordered to pay a sum of money directly to the wife as part of the property settlement. This required the court to determine the extent of its power to make orders against third parties, such as solicitors, in family law proceedings, and the circumstances under which such orders would be appropriate.

Bell J reasoned that the court possessed the necessary jurisdiction to make orders against third parties in property settlement proceedings, particularly where those third parties held or controlled assets that formed part of the marital pool or where their actions had impacted the property available for division. The court found that the husband's solicitors held funds that were properly attributable to the property settlement between the parties. Consequently, the court ordered the solicitors to pay a specific sum to the wife, representing her entitlement from the property settlement. The court also made orders vesting ownership of property in the possession of each party and made no order as to costs.

Orders

Orders of the court

Macfie Curlewis Spirio Solicitors do forthwith pay to the Applicant Wife the sum of $1,331,981 as and by way of property settlement.

The receipt of the solicitors for the Applicant Wife shall be good and sufficient discharge to the solicitors for the Respondent Husband.

The ownership of the property in the possession of each of the parties do vest in them.

That there be no order as to costs.

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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