Brandow & Brandow - [2010] FMCAfam 1026

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRANDOW & BRANDOW

[2010] FMCAfam 1026

FAMILY LAW – Property – discussion of cases dealing with short marriages.

Family Law Act 1975, s.75(2)

Douglas & Douglas (2006) FLC 93-300
GBT & BJT [2005] FamCA 683
Goodwin& Goodwin Alpe (1991) FLC 92-192
Kennon & Kennon (1997) FLC 92-757
Lane v Wharton [2010] FamCA 18
P & P [2002] FamCA 1006
W & W (Full Court, unreported, 28 January 1997)

Applicant:

MR BRANDOW

Respondent:

MS BRANDOW

File Number:

CAC 1188 of 2009

Judgment of:

Brewster FM

Hearing date:

30 July 2010

Delivered at:

Canberra

Delivered on:

24 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr Dwyer

Solicitors for the Applicant:

Elrington Boardman Allport

Counsel for the Respondent:

Ms Godtschalk

Solicitors for the Respondent:

Nicholl & Co

ORDERS

That within 60 days the husband pay to the wife the sum of $185,500 by way of property settlement and $400 by way of costs.
That upon payment of this sum
(a)The wife is to transfer to the husband her interest in the property situated at Property M NSW.
(b)Any beneficial interest the wife may have in the property situated at Property R NSW is extinguished.
That if the husband is unable or unwilling to pay the amount referred to in Order 1 the husband is to satisfy the costs order by the due date and the parties are to take all steps to sell the property situated at

Property M and to divide the net proceeds between them such that, having regard to the findings in my judgment the wife receive 15 % of those monies.
That as against the other each party is entitled to the chattels in his or her possession and the choses in action in his or her name.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Canberra

CAC 1188 of 2009

MR BRANDOW

Applicant

And

MS BRANDOW

Respondent

REASONS FOR JUDGMENT

Introduction

This matter involves a dispute between the parties as to property division.

Background

The husband is aged 61 and the wife 50. The wife is of Filippino origin and came to Australia in 1999. The parties commenced to live together in May 2000. In September 2001 the wife returned to the Philippines to obtain a spouse visa to permit her to become a permanent resident of Australia. The husband travelled there in September 2002 and the parties were married [in] 2002. The husband returned to Australia on 5 October 2002. The wife returned to Australia in April 2003 and the parties lived together until their final separation on 12 December 2008. There are no children of the marriage.

The parties’ applications

The husband seeks an order which would split the parties’ property, including superannuation, 90% / 10% in his favour. The wife seeks an order which would split that property 80% / 20% in the husband’s…

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 Brandow & Brandow

Details

AGLC: Brandow & Brandow [2010] FMCAfam 1026
Case: [2010] FMCAfam 1026
Decision Date: 24 September 2010

CaseChat Overview and Summary

In the Family Court of Australia, the case of Brandow & Brandow involved a dispute between a husband and wife concerning the division of their property following their divorce. The wife sought a property settlement and the husband contested the amount and specific properties involved. The court was tasked with determining the appropriate property settlement and division of assets between the parties, considering the length of the marriage and the contributions made by each party.

The legal issues before the court encompassed the principles and factors to be considered in determining a property settlement, particularly in the context of a relatively short marriage. The court was required to assess the contributions of each party, both financial and non-financial, to the relationship and to the accumulation of assets. It was also necessary to consider the respective needs and future prospects of the parties.

The court delivered its judgment, ordering the husband to pay the wife a property settlement of $185,500 within 60 days, along with $400 in costs. Upon payment, the wife was to transfer her interest in the property situated at Property M, NSW, to the husband, while any beneficial interest the wife had in the property at Property R, NSW, was to be extinguished. If the husband was unable or unwilling to pay the settlement, the court mandated that he satisfy the costs order by the due date and that the parties take steps to sell the property at Property M, with the net proceeds to be divided between them, ensuring the wife received 15% of those proceeds. Each party was also entitled to retain the chattels in their possession and the choses in action in their name.

The court's final orders included the specific payment of the settlement and costs, the transfer of property interests, and the division of proceeds from the sale of the property at Property M, along with the retention of personal items by each party.

Orders

Orders of the court

That within 60 days the husband pay to the wife the sum of $185,500 by way of property settlement and $400 by way of costs.

That upon payment of this sum

(a) The wife is to transfer to the husband her interest in the property situated at Property M NSW.

(b) Any beneficial interest the wife may have in the property situated at Property R NSW is extinguished.

That if the husband is unable or unwilling to pay the amount referred to in Order 1 the husband is to satisfy the costs order by the due date and the parties are to take all steps to sell the property situated at

Property M and to divide the net proceeds between them such that, having regard to the findings in my judgment the wife receive 15 % of those monies.

That as against the other each party is entitled to the chattels in his or her possession and the choses in action in his or her name.

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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