Campbell and Campbell - [2009] FMCAfam 518

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAMPBELL & CAMPBELL

[2009] FMCAfam 518

FAMILY LAW – Discharge spousal maintenance – inadequate financial disclosure – balancing exercise – wife’s interest in property and monies – wife successful in winning prize moneys on “[quiz show omitted]”.

Family Law Act1975 (Cth), ss.72, 74, 75(2) & 83

Bevan & Bevan (1995) FLC 92-600; 19 Fam LR 35
Brown v Brown (2007) 37 Fam LR 59
Collins & Collins (1990) FLC 92-149
Evans & Evans (1978) FLC 90-435
N & N (1997) 92-782
Waters & Jurek (1995) FLC 92-635

Applicant:

MR CAMPBELL

Respondent:

MS CAMPBELL

File Number:

SYC 1318 of 2007

Judgment of:

Kemp FM

Hearing dates:

23 November 2007, 13 & 14 August 2008, 27 & 28 January 2009, 1 April 2009

Date of Last Submission:

1 April 2009

Delivered at:

Sydney

Delivered on:

29 May 2009

REPRESENTATION

Counsel for the Applicant:

Mr Hodgson

Solicitors for the Applicant:

H.A. Miedzinski Lawyers

Counsel for the Respondent:

Mr Johnston (and subsequently self-represented)

ORDERS

That order 7 of the orders made by the Family Court of Australia at Sydney on 20 February 1997, namely:
"That the husband pay direct to the wife by way of maintenance for her the sum of $450 per week and that the first of those payments be made on the 27th day of February 1997 and weekly thereafter"
be vacated and discharged as and from 1 March 2010.
The husband to pay within 28 days any monies, up to the sum of $250.00, and to sign all documents reasonably required to enable the discharge of the mortgage in registrable form together with the title deeds to Property C (“the Property C property”) to be provided to the Executor of the Estate of the late Ms C mother or to the wife to be held by her on behalf of the said Executor pending the grant of Probate of the wife’s late mother’s last will and testament.
All exhibits tendered in these proceedings, be returned at the expiration of 1 (one) calendar month, unless an appeal is lodged.
The solicitor who issued any subpoena collect the subpoenaed material produced and return it to the owner in 14 (fourteen) days.
All outstanding applications (save as to costs, including any reserved costs) otherwise be dismissed and the matter be removed from the list of cases awaiting finalisation.
In the event that an application is made for an order for costs by either of the parties:
(a)Any applicant party is to file and serve an updated Financial Statement and any other necessary affidavit evidence with a submission in writing as to the basis upon which the orders for costs are sought by that party within 21 days.
(b)Any respondent party to any such application is to file and serve within a further 21 days of the service of such a submission and statement an updated Financial Statement, and a submission in writing in answer.
(c)Any applicant shall have a further 14 days in which to lodge…

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 Campbell and Campbell

Details

AGLC: Campbell and Campbell [2009] FMCAfam 518
Case: [2009] FMCAfam 518
Decision Date: 29 May 2009

CaseChat Overview and Summary

The parties involved in this case were the husband and wife, who had previously been the subject of a Family Court decision on 20 February 1997, which included an order for the husband to pay the wife a weekly maintenance sum of $450. The case was before the Family Court of Australia in Sydney, where the wife sought to vacate and discharge the maintenance order, and the husband contested this, as well as other aspects of the wife’s application. The wife also sought an order for the husband to transfer a property to her or her late mother’s executor, and for the discharge of a mortgage over that property. The husband opposed these requests.

The primary legal issue was whether the wife’s application should succeed in vacating the maintenance order and discharging it as of 1 March 2010, as well as whether the husband should be ordered to transfer the property in question and discharge the mortgage. The court needed to consider the current financial circumstances of both parties, the reasons for the wife’s application, and the implications of the proposed orders on both parties.

The court found that the wife’s application should be granted in part. The maintenance order was vacated and discharged as of 1 March 2010, due to changes in the husband's financial circumstances and the wife's current financial stability. The court ordered the husband to pay up to $250 and to sign documents necessary for the discharge of the mortgage over Property C. The court also outlined procedures for the return of exhibits and subpoenaed material, dismissed all other outstanding applications, and provided guidelines for any future applications for costs. The court’s decision was based on a detailed analysis of the financial statements and other evidence provided by both parties, and the implications of the proposed orders on their respective financial situations.

Orders

Orders of the court

That order 7 of the orders made by the Family Court of Australia at Sydney on 20 February 1997, namely:

"That the husband pay direct to the wife by way of maintenance for her the sum of $450 per week and that the first of those payments be made on the 27th day of February 1997 and weekly thereafter"

be vacated and discharged as and from 1 March 2010.

The husband to pay within 28 days any monies, up to the sum of $250.00, and to sign all documents reasonably required to enable the discharge of the mortgage in registrable form together with the title deeds to Property C (“the Property C property”) to be provided to the Executor of the Estate of the late Ms C mother or to the wife to be held by her on behalf of the said Executor pending the grant of Probate of the wife’s late mother’s last will and testament.

All exhibits tendered in these proceedings, be returned at the expiration of 1 (one) calendar month, unless an appeal is lodged.

The solicitor who issued any subpoena collect the subpoenaed material produced and return it to the owner in 14 (fourteen) days.

All outstanding applications (save as to costs, including any reserved costs) otherwise be dismissed and the matter be removed from the list of cases awaiting finalisation.

In the event that an application is made for an order for costs by either of the parties:

(a) Any applicant party is to file and serve an updated Financial Statement and any other necessary affidavit evidence with a submission in writing as to the basis upon which the orders for costs are sought by that party within 21 days.

(b) Any respondent party to any such application is to file and serve within a further 21 days of the service of such a submission and statement an updated Financial Statement, and a submission in writing in answer.

In the event that no such applications are made within 21 days from the date hereof, there will be no order as to costs.

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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