Benford and Benford - [2012] FMCAfam 8

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BENFORD & BENFORD

[2012] FMCAfam 8

FAMILY LAW – Property – disputed valuation of dogs – evaluation of contributions – sub-section 75(2) factors – just and equitable.

California Penal Code, s.491
Family Law Act 1975 (Cth), ss.75, 79, 90MC and 90MT

Bigelow & Reuter [2006] FamCA 1455
Clauson (1995) FLC 92-595
C v C (2005) FLC 93-220
Commonwealth v. Milledge (1953) 90 CLR 157
Ferraro (1993) FLC 92-335
Hickey (2003) FLC 93-143
Lee Steere (1985) FLC 91-626
Lenehan and Lenehan (1987) FLC 91-814
Mallet v Mallet (1984) FLC 91-507
OSF and OJK (2004) FLC 93-191
Parshen & Parshen (1996) FLC 92-720
Rolfe and Rolfe (1979) FLC 90-62
Russell v Russell (1999) FLC 92-877
Smith and Smith (1991) FLC 92-261

Applicant:

MR BENFORD

Respondent:

MS BENFORD

File Number:

LNC 592 of 2009

Judgment of:

Roberts FM

Hearing dates:

19, 20 and 21 July 2011

Date of Last Submission:

21 July 2011

Delivered at:

Launceston

Delivered on:

24 January 2012

REPRESENTATION

Counsel for the Applicant:

Mr P McVeity

Solicitors for the Applicant:

Grant Tucker

Counsel for the Respondent:

Mr D Lewis with Ms A Brunacci

Solicitors for the Respondent:

Rae & Partners, Lawyers

ORDERS

That within 30 days MR BENFORD (“the husband”) must transfer to MS BENFORD (“the wife”) all his right title and interest in the property situate and known as Property S in Tasmania and more particularly described in Certificate of Title Volume [omitted] (“the former matrimonial home”).
That contemporaneously with the transfer of the former matrimonial home referred to in Order No. 1 hereof the wife must pay to the husband the sum of one hundred and thirty one thousand dollars ($131,000).
That the wife is solely responsible for the payment of any liabilities and outgoings in relation to the former matrimonial home and she is to indemnify the husband in relation to any such liabilities and outgoings.
That the husband retain all of the following free from any further claim by the wife:
(a)any funds in any account in his name or control;
(b)a Holden Premier motor vehicle Registration Number [omitted];
(c)furniture and domestic chattels formerly used by the parties jointly but now in his possession or control; and
(d)any interest that he may have in any superannuation fund.
That the wife retain all of the following free from any further claim by the husband:
(a)any funds in any account in her name or control;
(b)a Toyota Landcruiser motor vehicle Registered Number [omitted];
(c)furniture and domestic chattels formerly used by the parties jointly but now in her possession or control;
(d)any dogs or other animals currently in her possession and control;
(e)dog trailers Registered Numbers [omitted];
(f)all [business omitted] equipment; and
(g)any interest that she may have in any superannuation fund.
That each of the parties is to do all such things and complete all transfer documentation that may be reasonably required to give effect to Orders No. 4 and 5 hereof.
That each party be solely liable for and indemnify…

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 Benford and Benford

Details

AGLC: Benford and Benford [2012] FMCAfam 8
Case: [2012] FMCAfam 8
Decision Date: 24 January 2012

CaseChat Overview and Summary

The case of Benford and Benford involved a dispute between a husband and wife concerning the division of their property following their separation. The matter was heard in the Family Court of Australia, where the primary judge was required to determine the equitable distribution of assets between the parties. The wife sought an order that the husband transfer his interest in the former matrimonial home to her, while the husband argued for an alternative property to be considered for transfer. Additionally, the wife requested an adjustment to the amount she was to pay the husband, and both parties contested the division of personal property and financial assets.

The court had to decide several legal issues, including the appropriate division of the former matrimonial home, the quantum of any financial contributions between the parties, and the allocation of personal property and financial assets. The court also had to consider the principle of equality in property division as per the Family Law Act, as well as the contributions made by each party during the marriage. The court had to weigh both the financial and non-financial contributions of the parties and make an equitable distribution of their property.

The court determined that the former matrimonial home should be transferred to the wife, and the husband was to be paid $131,000. The court found that this amount was a fair reflection of the husband’s interest in the property, taking into account various factors, including the husband's contributions to the property. The court also detailed the division of personal property and financial assets between the parties, ensuring that the distribution was equitable and reflected the contributions and needs of each party. The court made clear orders regarding the transfer of specific items of property and the financial responsibilities of each party moving forward.

The final orders of the court included the transfer of the former matrimonial home to the wife upon payment of $131,000 to the husband, the division of personal property and financial assets between the parties, and specific provisions for liabilities and outgoings. Each party was also required to indemnify the other against any debts or liabilities incurred in their sole name. The court ensured that both parties understood their responsibilities and the implications of the orders for their future financial independence.

Orders

Orders of the court

That within 30 days MR BENFORD (“the husband”) must transfer to MS BENFORD (“the wife”) all his right title and interest in the property situate and known as Property S in Tasmania and more particularly described in Certificate of Title Volume [omitted] (“the former matrimonial home”).

That contemporaneously with the transfer of the former matrimonial home referred to in Order No. 1 hereof the wife must pay to the husband the sum of one hundred and thirty one thousand dollars ($131,000).

That the wife is solely responsible for the payment of any liabilities and outgoings in relation to the former matrimonial home and she is to indemnify the husband in relation to any such liabilities and outgoings.

That the husband retain all of the following free from any further claim by the wife:

(a) any funds in any account in his name or control;

(b) a Holden Premier motor vehicle Registration Number [omitted];

(d) any interest that he may have in any superannuation fund.

That the wife retain all of the following free from any further claim by the husband:

(a) any funds in any account in her name or control;

(b) a Toyota Landcruiser motor vehicle Registered Number [omitted];

(d) any dogs or other animals currently in her possession and control;

(e) dog trailers Registered Numbers [omitted];

(f) all [business omitted] equipment; and

(g) any interest that she may have in any superannuation fund.

That each of the parties is to do all such things and complete all transfer documentation that may be reasonably required to give effect to Orders No. 4 and 5 hereof.

That each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders and be solely liable for and indemnify the other against any debt or liability incurred in that party’s sole name.

That all extant applications other than any applications for costs are otherwise 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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