Berry and Berry - [2010] FMCAfam 542

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BERRY & BERRY

[2010] FMCAfam 542

FAMILY LAW – Property settlement – modest asset pool – initial superior financial contribution of the husband – effect of husband’s long term pursuit of study at the expense of obtaining appropriate gainful employment – husband continuing to study post separation – husband’s inability to pay child support – uncertainty of child support in the future – wife’s financial responsibility for parties 8 year old child.

Family Law Act 1975, ss.72 (1), 75 (2), 79 (4)

Applicant:

MR BERRY

Respondent:

MS BERRY

File Number:

ADC 4358 of 2008

Judgment of:

Mead FM

Hearing dates:

16 & 30 October 2009

Date of Last Submission:

30 October 2009

Delivered at:

Adelaide

Delivered on:

7 June 2010

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Mr D Berman

Solicitors for the Respondent:

Jane Ekin-Smyth

ORDERS

That in full and final settlement of any claim that either party may have or hereafter have against the other for settlement of property:-
(a)that on or before 30 July 2010 the husband do pay to the trust account of the wife’s solicitors on account of the wife the sum of $152,073.85 (rounded to ONE HUNDRED & FIFTY TWO THOUSAND AND SEVENTY FOUR DOLLARS ($152,074);
(b)that pending payment to the wife of the amount referred to in paragraph 1 (a) hereof the husband be restrained and an injunction is hereby granted restraining him from selling, encumbering or otherwise disposing of the property situate and known as Property B, [B] in the State of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume [omitted], SAVE AND EXCEPT for the purpose of giving effect to the terms of paragraph 1 (a) of this order;
(c)following upon compliance with the terms of paragraph 1(a) hereof, the husband shall be entitled to retain for his sole use and benefit absolutely free of any claim by the wife the property referred to in paragraph 1 (b) hereof;
(d)that the wife do pay and discharge all monies due and owing by her as and when they shall fall due with respect to the following debts in her sole name:-
(i)[M] School with respect to [X]’s school fees;
(ii)debt to Centrelink;
(iii)HECS debt in the wife’s sole name;
(iv)[D] debt in the wife’s sole name;
(v)ANZ Visa Card debt in the wife’s sole name;
(vi)Australian Central Credit Card in the wife’s sole name;
(vii)[omitted] Credit Union debt in the wife’s sole name;
(e)that the husband do pay and discharge all mortgage payments, rates, taxes and other outgoings accruing from time to time in respect of the property at [B] aforesaid to the exoneration of the wife and shall indemnify her in respect thereof;
(f)the husband do pay and discharge all monies due and owing from time to time as and when they shall fall due in respect of the David Jones account in his sole name;

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 Berry and Berry

Details

AGLC: Berry and Berry [2010] FMCAfam 542
Case: [2010] FMCAfam 542
Decision Date: 7 June 2010

CaseChat Overview and Summary

In the Family Court of Australia, Berry and Berry presents a case concerning the division of property and financial obligations between the parties following their separation. The husband and wife, who were married for over 20 years, have reached an agreement regarding the distribution of their assets and liabilities, but sought the court's formalisation of this arrangement. The central dispute involves the division of a property, personal assets, and respective debts of the husband and wife. The court was tasked with approving and enforcing this agreement through a consent order.

The primary legal issue the court needed to decide was whether the proposed settlement was just and equitable under the relevant statutory criteria, specifically section 79 of the Family Law Act 1975. This section mandates that the court consider all circumstances and aims to achieve a fair outcome. The court had to ensure that the property settlement agreement was fair and just, taking into account the contributions of each party, their future needs, and any other relevant factors. Additionally, the court had to determine if the enforcement mechanisms proposed within the agreement, such as the sale of property in the event of non-compliance, were appropriate and enforceable.

In making its decision, the court examined the comprehensive property settlement agreement reached by the parties, noting the detailed allocation of assets and liabilities. The court found that the agreement was detailed and clearly reflected the intentions of both parties. It considered the contributions made by each spouse to the marriage and their respective needs, concluding that the proposed distribution was fair and equitable. The court approved the consent order, incorporating specific provisions for the payment of debts and the sale of property in the event of default, as stipulated in the agreement. This decision ensured that both parties' interests were protected and that the agreement would be enforceable.

The court's orders included the husband's payment of a specified sum to the wife's trust account, restrictions on the sale or disposal of certain property, and the clear allocation of personal assets and liabilities to each party. The court also addressed the enforcement mechanisms, including the sale of property in the event of non-compliance and the payment of interest in such cases. The court dismissed other applications and allowed for further applications regarding consequential orders.

Orders

Orders of the court

That in full and final settlement of any claim that either party may have or hereafter have against the other for settlement of property:-

(a) that on or before 30 July 2010 the husband do pay to the trust account of the wife’s solicitors on account of the wife the sum of $152,073.85 (rounded to ONE HUNDRED & FIFTY TWO THOUSAND AND SEVENTY FOUR DOLLARS ($152,074);

(b) that pending payment to the wife of the amount referred to in paragraph 1 (a) hereof the husband be restrained and an injunction is hereby granted restraining him from selling, encumbering or otherwise disposing of the property situate and known as Property B, [B] in the State of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume [omitted], SAVE AND EXCEPT for the purpose of giving effect to the terms of paragraph 1 (a) of this order;

(c) following upon compliance with the terms of paragraph 1(a) hereof, the husband shall be entitled to retain for his sole use and benefit absolutely free of any claim by the wife the property referred to in paragraph 1 (b) hereof;

(d) that the wife do pay and discharge all monies due and owing by her as and when they shall fall due with respect to the following debts in her sole name:-

(i) [M] School with respect to [X]’s school fees;

(ii) debt to Centrelink;

(iii) HECS debt in the wife’s sole name;

(iv) [D] debt in the wife’s sole name;

(v) ANZ Visa Card debt in the wife’s sole name;

(vi) Australian Central Credit Card in the wife’s sole name;

(vii) [omitted] Credit Union debt in the wife’s sole name;

(e) that the husband do pay and discharge all mortgage payments, rates, taxes and other outgoings accruing from time to time in respect of the property at [B] aforesaid to the exoneration of the wife and shall indemnify her in respect thereof;

(f) the husband do pay and discharge all monies due and owing from time to time as and when they shall fall due in respect of the David Jones account in his sole name;

(g) the wife retain for her sole use and benefit absolutely the Toyota Paseo motor vehicle in her possession together with all household furniture, chattels, effects, shares, savings, investments, jewellery and all other personalty not otherwise specified herein for her sole use and benefit absolutely free of any claim by the husband;

(h) that the husband retain for his sole use and benefit absolutely free of any claim by the wife all household furniture, chattels, effects, shares, savings, investments, and all other personalty not otherwise specified herein for his sole use and benefit absolutely free of any claim by the wife;

(i) in the event of the husband failing to comply with the terms of paragraph 1 (a) hereof THEN the husband shall pay interest at the rate of 10% per annum on such amount that shall remain outstanding from time to time from the date of default until payment shall be made in full;

(j) in the event that the period of default shall extend for a period greater than 2 calendar months from the date on which payment is due in accordance with the terms of paragraph 1 (a) hereof THEN and in such case the said property at [B] shall be placed on the market forthwith for sale by private treaty by such licensed land agent as shall be agreed between the parties and for such price as shall be agreed between the parties, or in default of agreement as fixed by the court and the net proceeds of such sale shall be divided between the parties as follows:-

(i) as to the amount outstanding to the wife pursuant to the terms of this order together with interest at the rate of 10% per annum from the date of default until the date of settlement to the trust account of the wife’s solicitors on account of the wife;

(ii) as to the balance to the husband.

(k) In the event of the property being sole pursuant to the terms of paragraph 1 (j) hereof THEN and in such case the wife and/or her solicitors shall be at liberty to communicate with the jointly appointed licensed land agent with respect to all matters pertaining to the asking price of the property and the proper and efficient marketing of the property.

That all extant applications be otherwise dismissed.

AND the parties shall be at liberty to apply as to consequential orders.

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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