Benson & Benson - [2012] FMCAfam 335

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BENSON & BENSON

[2012] FMCAfam 335

FAMILY LAW – Property – interim application for property distribution pending final hearing – matters to be considered – whether appropriate to make such an order.

Family Law Act 1975, ss.79(2), 79(4)

Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335
Clauson v Clauson (1995) FLC 92-595
Hickey v Hickey & Attorney General of the Commonwealth of Australia (Intervenor) 2003 FLC 93-143
Wardman & Hudson (1978) FLC 90-466
Biltoft & Biltoft (1995) FLC 92-614
Russell v Russell (1999) FamCA 187
Strahan v Strahan (2010) 42 Fam LR 203
Harris & Harris (1993) FLC 92-378
Wenz v Archer (2009) 40 Fam LR 212

Applicant:

MR BENSON

Respondent:

MS BENSON

File Number:

MLC 5232 of 2011

Judgment of:

Brown FM

Hearing date:

2 April 2012

Date of Last Submission:

2 April 2012

Delivered at:

Adelaide

Delivered on:

20 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr Constantinou

Solicitors for the Applicant:

Schetzer Constantinou

Counsel for the Respondent:

In Person

ORDERS

The application filed 29 March 2012 is dismissed.
The final hearing before Federal Magistrate Brown on 10 & 11 July 2012 at 10:00am NOTING 2 days is confirmed.
The applicant file and serve all affidavit evidence he proposes to rely on at trial together with an updated financial statement on or before close of Registry filing on 11 June 2012.
The respondent file and serve all affidavit evidence she proposes to rely on at trial together with an updated financial statement on or before close of Registry filing on 25 June 2012.
On or before 25 June 2012 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

MLC 5232 of 2011

MR BENSON

Applicant

And

MS BENSON

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Benson “the husband” and Ms Benson “the wife” were married on (omitted) 2008. They are both aged in their forties – he husband being forty-seven; the wife being forty-two.
The parties have one child. He is X born (omitted) 2007. X lives with the wife in suburban Adelaide. The husband lives in suburban Melbourne.
There is no dispute that the parties began to live together in (omitted) 2006 and separated in (omitted) 2010, when the wife and X left Melbourne. Accordingly, the relationship between the parties was one of around four years.
The parties’ major property acquisition, during their relationship, was the purchase of their former family home at S. This property has now been sold. There is no dispute between the parties that the net proceeds of sale are now well in excess of $700,000.00, given that the proceeds were invested in…

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 Benson & Benson

Details

AGLC: Benson & Benson [2012] FMCAfam 335
Case: [2012] FMCAfam 335
Decision Date: 20 April 2012

CaseChat Overview and Summary

The case of Benson & Benson involved a dispute between the parties in relation to a property settlement following their divorce. The case was heard in the Federal Circuit Court of Australia before Federal Magistrate Brown. The primary issue before the court was the division of the parties' property, specifically the valuation and distribution of a family home and associated assets. The court also had to consider the financial statements and evidence provided by both parties, as well as the application for an exemption from certain court fees.

The court examined the evidence provided by both parties, including financial statements and expert valuations of the family home. It was necessary for the court to determine the correct valuation of the property and whether the proposed division was fair and equitable. The court also had to consider the application by the applicant for an exemption from the setting down fee, which required the applicant to demonstrate financial hardship.

In its decision, the court dismissed the application for an exemption from the setting down fee, finding that the applicant had not provided sufficient evidence of financial hardship. The court confirmed the dates for the final hearing and ordered both parties to file and serve their affidavit evidence and updated financial statements by specific dates. The court also ordered the applicant to pay the setting down fee or file an exemption certificate by a certain date. The final orders of the court included the dismissal of the application, the confirmation of the final hearing dates, and the requirement for both parties to file their evidence and financial statements by specified dates.

Orders

Orders of the court

The application filed 29 March 2012 is dismissed.

The final hearing before Federal Magistrate Brown on 10 & 11 July 2012 at 10:00am NOTING 2 days is confirmed.

The applicant file and serve all affidavit evidence he proposes to rely on at trial together with an updated financial statement on or before close of Registry filing on 11 June 2012.

The respondent file and serve all affidavit evidence she proposes to rely on at trial together with an updated financial statement on or before close of Registry filing on 25 June 2012.

On or before 25 June 2012 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.

The applicant pay such daily hearing fee as required pursuant to the

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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