BISHOP & BISHOP - [2011] FMCAfam 790

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BISHOP & BISHOP

[2011] FMCAfam 790

FAMILY LAW – Property – long marriage – husband contributes share of rural property at outset – late inheritance of wife – statutory provisions.

Family Law Act 1975, ss.72, 75 & 79

Bonnici v Bonnici (1992) FLC 92-272
Hunt v Zuryn (2005) FLC 93-266
Gosper v Gosper (1987) FLC 91-818
NHC vRCH (2004) FLC 93-204
C v C (2005) FLC 93-220

Applicant:

MS BISHOP

Respondent:

MR BISHOP

File Number:

CAC 142 of 2008

Judgment of:

Lindsay FM

Hearing date:

11 November 2010

Date of Last Submission:

13 December 2010

Delivered at:

Canberra

Delivered on:

11 August 2011

REPRESENTATION

Counsel for the Applicant:

Mr Brzostowski SC

Solicitors for the Applicant:

Walsh & Blair

Counsel for the Respondent:

Mr Nash SC

Solicitors for the Respondent:

Gordon Garling Moffitt Lawyers

ORDERS

That in full and final settlement of the claims of each party for settlement of property or alteration of property interests and pursuant to s.79 of the Family Law Act 1975 (as amended):
(a)That the husband do pay to the wife within sixty (60) days the sum of FOUR HUNDRED THOUSAND, FOUR HUNDRED AND SIX DOLLARS AND THIRTY-FIVE CENTS ($400,406.35);
(b)Contemporaneously with such payment the wife do transfer to the husband all of her interest in the real property situate at and known as [E] being Lot [omitted] being the whole of the land comprised and described in [omitted] (hereinafter “the [E] property”);
(c)That the husband indemnify the wife and hold the wife forever indemnified in respect of any monies owing by the parties to any person or institution secured by mortgage over the [E] property;
(d)That the husband indemnify the wife and hold the wife forever indemnified in respect of any monies owing to the Rural Assistance Authority;
(e)That the husband be solely entitled to the exclusion of the wife to the possession, ownership and control of the following assets;
(i)The [E] property;
(ii)All farm machinery, motor vehicles, motor bikes, plant and equipment in his possession;
(iii)All stock on the [E] property or otherwise in his control;
(iv)All shares, debentures and investments in his name or held for his benefit;
(v)Any monies standing to his credit in any banking account;
(vi)Any interest in his name or held for his benefit in a superannuation fund;
(f)That the wife be solely entitled to the exclusion of the husband to the possession, ownership and control of the following assets;
(i)     Any monies or other assets held by the [L] Trust;
(ii)All shares, debentures and investments in her name or held for her benefit;
(iii)     Any motor vehicles or trailers in her possession;
(iv)   Any monies standing to her credit in any banking account;
(v)Any interest in her name or held for her benefit in a superannuation fund;
In the event that either party shall refuse or neglect to comply with the provisions of any of these Orders or as to the implementation of these Orders then:
(a)The Registrar of the Federal Magistrates…

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 BISHOP & BISHOP

Details

AGLC: BISHOP & BISHOP [2011] FMCAfam 790
Case: [2011] FMCAfam 790
Decision Date: 11 August 2011

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Bishop & Bishop involved a dispute between the husband and wife regarding the division of their property. The wife sought an adjustment of the property settlement to provide for her needs and the husband argued against any changes. The court was required to decide whether the settlement should be altered and, if so, what form that alteration should take. The legal issues included the interpretation of the Family Law Act 1975, particularly section 79, which allows for the adjustment of property interests if there has been a significant change in circumstances. The court also had to consider the respective financial positions of the parties, their contributions to the marriage, and the future needs and circumstances of each party.

The court found that there had been a significant change in circumstances since the original property settlement, justifying an adjustment. The wife's financial needs and the husband's ability to pay were thoroughly examined. The court determined that the husband should pay the wife a specified sum, which was to be settled within a set timeframe, and in return, the wife would transfer her interest in a specified property to the husband. The court also ordered that the husband indemnify the wife against any debts secured by mortgage over the property and those owed to the Rural Assistance Authority. Additionally, the court clarified the ownership of various assets, ensuring that each party had sole control over certain specified assets. In the event of non-compliance with these orders, the court appointed the Registrar to enforce the orders and allowed for applications for damages and costs.

The final orders of the court included a detailed financial settlement, transfer of property interests, and indemnification provisions. The husband was ordered to pay a specific sum to the wife within a given period, and in return, the wife would transfer her interest in a property to the husband. The husband was also required to indemnify the wife against certain debts. The court further detailed the exclusive ownership of various assets by each party. If either party failed to comply with the orders, the court provided for the sale of the specified property to satisfy the outstanding payment. The court also appointed the Registrar to enforce the orders and allowed for claims for damages and costs in the event of non-compliance.

Orders

Orders of the court

That in full and final settlement of the claims of each party for settlement of property or alteration of property interests and pursuant to s.79 of the Family Law Act 1975 (as amended):

(a) That the husband do pay to the wife within sixty (60) days the sum of FOUR HUNDRED THOUSAND, FOUR HUNDRED AND SIX DOLLARS AND THIRTY-FIVE CENTS ($400,406.35);

(b) Contemporaneously with such payment the wife do transfer to the husband all of her interest in the real property situate at and known as [E] being Lot [omitted] being the whole of the land comprised and described in [omitted] (hereinafter “the [E] property”);

(c) That the husband indemnify the wife and hold the wife forever indemnified in respect of any monies owing by the parties to any person or institution secured by mortgage over the [E] property;

(d) That the husband indemnify the wife and hold the wife forever indemnified in respect of any monies owing to the Rural Assistance Authority;

(e) That the husband be solely entitled to the exclusion of the wife to the possession, ownership and control of the following assets;

(i) The [E] property;

(ii) All farm machinery, motor vehicles, motor bikes, plant and equipment in his possession;

(iii) All stock on the [E] property or otherwise in his control;

(iv) All shares, debentures and investments in his name or held for his benefit;

(v) Any monies standing to his credit in any banking account;

(vi) Any interest in his name or held for his benefit in a superannuation fund;

(f) That the wife be solely entitled to the exclusion of the husband to the possession, ownership and control of the following assets;

(i) Any monies or other assets held by the [L] Trust;

(ii) All shares, debentures and investments in her name or held for her benefit;

(iii) Any motor vehicles or trailers in her possession;

(iv) Any monies standing to her credit in any banking account;

(v) Any interest in her name or held for her benefit in a superannuation fund;

In the event that either party shall refuse or neglect to comply with the provisions of any of these Orders or as to the implementation of these Orders then:

(a) The Registrar of the Federal Magistrates Court of Australia at Canberra is appointed to execute all deeds, documents and instruments of writing in the name of the defaulting party and to do all acts and things necessary to give effect and validity to these Orders;

(b) The party who is not in default may apply to the Court for the other party to pay any or all reasonably foreseeable damages to the other party caused by his or her default; and

(c) The party who is not in default may apply to the Court for the other party to pay all reasonably incurred solicitor/client costs incurred by the other party for the purpose of enforcing these Orders and proving the said damage.

In the event that the husband fails to comply with paragraph 1(a) hereof, the [E] property be sold and the net proceeds of sale utilised to satisfy the payment to the wife of the sum referred to in paragraph 1(a) hereof.

The parties be at liberty to submit a draft order relating to any further terms or conditions sought by either of them in relation to the circumstances of the default referred to in paragraph (3) hereof.

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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