Burge & Burge - [2015] FamCA 178

FAMILY COURT OF AUSTRALIA

BURGE & BURGE

[2015] FamCA 178

FAMILY LAW – PROPERTY – Final – Where the parties propose property orders be made with the consent of each party – Where it is ordered that the parties equally share the cost of the expert witness attending Court to give evidence

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT:

Ms Burge

RESPONDENT:

Mr Burge

FILE NUMBER:

BRC

5514

2012

DATE DELIVERED:

10 March 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

10 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGregor

SOLICITOR FOR THE APPLICANT:

Carswell & Company

THE RESPONDENT:

In Person

Orders

IT IS ORDERED BY CONSENT THAT:

Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.
All outstanding applications be otherwise dismissed and removed from the pending cases list.

IT IS FURTHER ORDERED THAT:

Each party be equally responsible for the $450.00 fee for Mr B’s attendance to give oral evidence at the trial of these proceedings.

IT IS DIRECTED THAT:

The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

The wife retain as her sole property to the exclusion of the husband:
a.The balance proceeds of sale of the former matrimonial home held in the trust account of Carswell & Company solicitors (together with accretions , if any)
b.Her superannuation interest in Sunsuper
c.All the personal effects, furniture and household goods, motor vehicle, in her possession at the date of these orders
d.All banking and other accounts in her name.
The husband retain as his sole property to the exclusion of the wife:
a.All the personal effects, furniture and household goods, motor vehicle, in his possession at the date of these orders
b.All banking and other accounts in his name.
The parties will each be solely responsible for any liability in that party’s name.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burge & Burge has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5514 of 2012

Ms Burge

Applicant

And

Mr Burge

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This was to be the trial of property settlement proceedings between these parties, in circumstances where they married in 1993 and separated on a final basis on 24 June 2011. Their divorce was pronounced on 11 October 2012. There are two now adult children of the relationship: a daughter now aged 21 years and a son now aged 18 years.
The central focus of the property proceedings, in circumstances where there was little other in the way of capital held by the parties or either of them in terms of interests in property, was the husband’s receipt of an invalidity benefit by virtue of his former role with the Public…

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 Burge & Burge

Details

AGLC: Burge & Burge [2015] FamCA 178
Case: [2015] FamCA 178
Decision Date: 10 March 2015

CaseChat Overview and Summary

In the matter of *Burge & Burge*, the parties sought orders from Kent J of the Family Court of Australia. The dispute concerned the division of property and the resolution of financial matters between the husband and wife. The parties presented a document titled "Minutes of Consent" to the court, indicating an agreement had been reached.

The court was required to determine the terms of the consent orders and to dismiss any outstanding applications. Additionally, the court needed to make orders regarding the costs associated with a witness, Mr B, who was to give oral evidence at trial.

Kent J, by consent of the parties, made orders reflecting the terms of the Minutes of Consent. These orders stipulated that the wife would retain specific assets, including the balance of proceeds from the sale of the former matrimonial home, her superannuation interest, personal effects, furniture, household goods, motor vehicle, and all accounts in her name. Similarly, the husband was to retain his personal effects, furniture, household goods, motor vehicle, and all accounts in his name. Each party was also to be solely responsible for any liabilities in their respective names. Furthermore, the parties were ordered to share equally the fee for Mr B's attendance to give oral evidence, and all outstanding applications were dismissed. The Minutes of Consent were directed to remain on the court file.

Orders

Orders of the court

IT IS ORDERED BY CONSENT THAT:

Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

All outstanding applications be otherwise dismissed and removed from the pending cases list.

IT IS FURTHER ORDERED THAT:

Each party be equally responsible for the $450.00 fee for Mr B’s attendance to give oral evidence at the trial of these proceedings.

IT IS DIRECTED THAT:

The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

The wife retain as her sole property to the exclusion of the husband:

a. The balance proceeds of sale of the former matrimonial home held in the trust account of Carswell & Company solicitors (together with accretions , if any)

b. Her superannuation interest in Sunsuper

c. All the personal effects, furniture and household goods, motor vehicle, in her possession at the date of these orders

d. All banking and other accounts in her name.

The husband retain as his sole property to the exclusion of the wife:

a. All the personal effects, furniture and household goods, motor vehicle, in his possession at the date of these orders

b. All banking and other accounts in his name.

The parties will each be solely responsible for any liability in that party’s 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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