Bowler and Shulman - [2015] FCCA 28

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOWLER & SHULMAN

[2015] FCCA 28

Catchwords:
FAMILY LAW – Property – funds held in trust for the parties – failure to provide withdrawal of caveat as ordered – failure to make full and frank disclosure – homemaker and parent contributions – subsection 75(2) factors – assignment of debt owed to the wife.

Legislation:

Family Law Act 1975

Evidence Act 1995, s.140
Federal Circuit Court Rules 2001, rr.24.03, 24.04

Briginshaw v Briginshaw (1938) 60 CLR 336
Clauson (1995) FLC 92-595
C & C (2005) FLC 93-220
Elias v Elias (1977) FLC 90-267
Ferraro (1993) FLC 92-335
Gollings & Scott (2007) FLC 93-319
Gosper & Gosper (1987) FLC 91-818
Hickey (2003) FLC 93-143
Jordan & Jordan (1997) FLC 92-736
Kannis & Kannis (2003) FLC 93-135
Kessey & Kessey (1994) FLC 92-495
Lee Steere (1985) FLC 91-626
Mallet v Mallet (1984) FLC 91-507
Neil v Nott and Another (1994) 121 ALR 148
OSF and OJK (2004) FLC 93-191
R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248
Rolfe and Rolfe (1979) FLC 90-62
Russell v Russell (1999) FLC 92-877
Stanford v Stanford (2012) FLC 93-518; (2013) 293 ALR 70
Weir v Weir (1993) FLC 92-338

Applicant:

MR BOWLER

Respondent:

MS SHULMAN

File Number:

MLC 462 of 2012

Judgment of:

Judge Roberts

Hearing dates:

28 & 29 April and 19 & 20 May 2014

Date of Last Submission:

20 May 2014

Delivered at:

Launceston

Delivered on:

29 January 2015

REPRESENTATION

Counsel for the Applicant:

Appeared unrepresented

Solicitors for the Applicant:

Not applicable

Counsel for the Respondent:

Ms J Elleray

Solicitors for the Respondent:

Perry Weston Lawyers

ORDERS

That all funds held in Westpac Bank account number [omitted] by ROSE MARY BRONDOLINO & CO in trust for MS SHULMAN (“the wife”) and MR BOWLER (“the husband”) inclusive of any interest thereon be forthwith released to the wife.
That the wife be solely responsible for paying an outstanding account payable to Ms M in the approximate sum of $1,585.
That the wife be solely responsible for paying any tax that she may owe to the Australian Taxation Office.
That within 21 days the wife must transfer and assign to the husband all her right, title and interest in a debt owed to her by [S] Pty Ltd as trustee for the [Bowler] Family Trust (ABN [omitted]) in the sum of $61,708.
That within 21 days the wife must transfer to the husband any interest she may have in any motor vehicles currently in the possession or control of the husband.
That unless specified in these Orders:
(a)each party is solely entitled to the exclusion of the other to all other property in possession of that party as at the date of these Orders;
(b)any claim that the wife may have to any superannuation benefit belonging to or earned by the husband is extinguished;
(c)each party will be solely liable for and must indemnify the other against any liability encumbering any item of…

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 Bowler and Shulman

Details

AGLC: Bowler and Shulman [2015] FCCA 28
Case: [2015] FCCA 28
Decision Date: 29 January 2015

CaseChat Overview and Summary

In the matter of *Bowler and Shulman*, heard by Judge Roberts, the dispute concerned the division of property and liabilities between a husband and wife. The court was tasked with determining how various assets and debts, including bank accounts, a debt owed by a company, interests in motor vehicles, and superannuation, should be allocated between the parties.

The court's reasoning focused on achieving a just and equitable distribution of the matrimonial property. This involved considering the existing entitlements and liabilities of each party. The orders reflect a division where the wife received the entirety of funds held in a specific trust account, along with sole responsibility for certain outstanding accounts and potential tax liabilities. Conversely, the husband was to receive the wife's interest in a significant debt owed by a company and any interest she held in motor vehicles in his possession.

The final orders stipulated that, apart from the specifically enumerated allocations, each party was to retain all other property in their possession. Furthermore, the wife's claims to the husband's superannuation were extinguished, and each party was to indemnify the other against any liabilities associated with the property they received. Any joint tenancies were expressly severed.

Orders

Orders of the court

That all funds held in Westpac Bank account number [omitted] by ROSE MARY BRONDOLINO & CO in trust for MS SHULMAN (“the wife”) and MR BOWLER (“the husband”) inclusive of any interest thereon be forthwith released to the wife.

That the wife be solely responsible for paying an outstanding account payable to Ms M in the approximate sum of $1,585.

That the wife be solely responsible for paying any tax that she may owe to the Australian Taxation Office.

That within 21 days the wife must transfer and assign to the husband all her right, title and interest in a debt owed to her by [S] Pty Ltd as trustee for the [Bowler] Family Trust (ABN [omitted]) in the sum of $61,708.

That within 21 days the wife must transfer to the husband any interest she may have in any motor vehicles currently in the possession or control of the husband.

That unless specified in these Orders:

(a) each party is solely entitled to the exclusion of the other to all other property in possession of that party as at the date of these Orders;

(b) any claim that the wife may have to any superannuation benefit belonging to or earned by the husband is extinguished;

(c) each party will be solely liable for and must indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

(d) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

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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