BUCKNELL & BUCKNELL - [2008] FMCAfam 1152

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BUCKNELL & BUCKNELL

[2008] FMCAfam 1152

FAMILY LAW – Property orders – 8 year relationship – evaluating post-separation contributions – “global” versus “two-pools” approach – add-backs – periodic spouse maintenance.

Family Law Act 1975 (Cth), ss.75, 79

AJO & GRO (2005) FLC 93-218
NHC & RCH (2004) FLC 93-204
Challen & Challen [2007] FamCA 1292
Scott & Scott [2006] FamCA 1379
Farmer & Brambley (2000) FLC 93-060
C and C (2005) FLC 93-220
Clauson and Clauson (1995) FLC 92-595
Mitchell and Mitchell (1995) FLC 92-601

Applicant:

MR BUCKNELL

Respondent:

MS BUCKNELL

File number:

BRC 6576 of 2007

Judgment of:

Purdon-Sully FM

Hearing dates:

19 February & 21 April 2008

Date of last submission:

15 September 2008

Delivered at:

Brisbane

Delivered on:

3 November 2008

REPRESENTATION

Counsel for the Applicant:

Ms Hogan

Solicitors for the Applicant:

Barry & Nilsson Lawyers

Counsel for the Respondent:

Dr Sayers

Solicitors for the Respondent:

Harrington Family Lawyers

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 6576 of 2007

MR BUCKNELL

Applicant

And

MS BUCKNELL

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Bucknell and Ms Bucknell lived together for about eight years. They have one child, [X] who is now 3 years of age. [X] is described by Ms Bucknell as has having “been constantly sick since his birth”.[1]
[1] Para 68 Wife’s Affidavit of Evidence in Chief filed 8 February 2008.
Mr Bucknell and Ms Bucknell have agreed on a parenting arrangement that will see [X] remain in Ms Bucknell’s primary care in Brisbane. Mr Bucknell, who lives in Melbourne, will spend regular time with [X], including on alternate weekends.
Mr Bucknell and Ms Bucknell have been unable to agree on how to divide their property. They ask the court to make that decision for them. Ms Bucknell also seeks an order for spouse maintenance.
When they commenced their relationship Mr Bucknell was a graduate [occupation omitted] working in Brisbane. Ms Bucknell had a [beauty] business at [U]. Both were then earning a similar income.
Like many couples starting a life together they owned few assets.

Mr Bucknell’s career became their focus. For most of their relationship they were either travelling abroad or relocating within Australia as

Mr Bucknell pursued opportunities and experience in the telecommunications industry. Mr Bucknell said that until [X]’s birth in 2005, he and Ms Bucknell “travelled extensively”[2] with his work. They lived in Turkey, Hungary, the Czech Republic, Brazil and the United States. Ms Bucknell says that it was part of a “joint plan”, Mr Bucknell availing himself of work opportunities overseas and the ability to save for the purchase of their “first house and a car”.[3] She says that she “lived out of suit cases and in hotels” because she accepted

Mr Bucknell’s assurances that they were a “team

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 BUCKNELL & BUCKNELL

Details

AGLC: BUCKNELL & BUCKNELL [2008] FMCAfam 1152
Case: [2008] FMCAfam 1152
Decision Date: 3 November 2008

CaseChat Overview and Summary

Mr Bucknell and Ms Bucknell lived together for eight years and have one child, [X] who is now three years of age. The couple have been unable to agree on how to divide their property and Ms Bucknell also seeks an order for spouse maintenance. In assessing the contributions made by each party, the court adopted a global approach, finding that both parties made equal contributions pre and post-separation. In determining any adjustment under section 75(2) of the Family Law Act 1975, the court found that the wife deserved a 35% adjustment in her favour for income earning disparity and her ongoing care of [X]. In dividing the total net pool of assets and superannuation, the court ordered that the wife receive $116,450 or 85% of the pool and the husband $20,550 or 15%. The court also ordered that the husband pay to the wife the sum of $530 per week by way of spouse maintenance. The husband sought an order under s.77A of the Act however the court did not propose to make that order.

Orders