Campion & Campion - [2008] FMCAfam 677

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAMPION & CAMPION

[2008] FMCAfam 677

FAMILY LAW – Property – 38 year marriage – allegations of violence, alcoholism and gambling – health problems – disparate earning capacity – 57.5% of asset pool to the wife.

FAMILY LAW – Spousal maintenance – needs of wife, in view of property settlement – application dismissed.

Family Law Act 1975, ss.72, 74, 75, 79, 117

Hickey v Hickey (2003) FLC 93-143
In the marriage of Weir (1992) 16 Fam LR 154
Marriage of Kennon (1997) 22 FLR 1
Oliver & Gall [2008] FMCAfam 164
Spagnardi & Spagnardi [2003] FamCA 905
Spence & Spence [2008] FamCA 263

Applicant:

MS CAMPION

Respondent:

MR CAMPION

File Number:

DGC 720 of 2007

Judgment of:

Riley FM

Hearing dates:

25 & 26 June 2008

Date of Last Submission:

26 June 2008

Delivered at:

Melbourne

Delivered on:

15 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr Mort

Solicitors for the Applicant:

Waters Timms Pty Ltd

Counsel for the Respondent:

Mr Leeton

Solicitors for the Respondent:

John Crump

ORDERS

All extant orders be discharged.
Within 60 days of the date of these orders, the wife pay to the husband the sum of $161,233.92 (“the payment”), including:
(a)the $64,000 in the bank account held in the name of the wife;
(b)the $34,000 contained in the joint account held in the names of the husband and wife;
(c)the $29,873 held by the wife from the safe; and
(d)an additional $33,360.92.
Contemporaneously with the payment:
(a)the husband sign all documents and do all things necessary to transfer to the wife, at the expense of the wife, all of his right title and interest in the real property situate at and known as Property M being the whole of the land more particularly described in Certificate of Title Volume [omitted] Folio [omitted](“the real property”);
(b)the husband provide to the wife, at his expense, a Withdrawal of Caveat registered number [omitted];
(c)the wife indemnify the husband against all payments and liabilities in respect of all apportionable rates, taxes and other outgoings in relation to the real property of whatsoever nature and kind; and
(d)the husband vacate the real property.
In the event that the whole of the payment has not been made within

60 days of the date of these orders, then the parties forthwith sign all documents and do all things necessary to cause the real property to be forthwith sold altogether out of court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied as follows:
(a)firstly, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge any mortgage or encumbrance affecting the real property; and
(c)thirdly, the balance be divided between the parties so as to give the wife 57.5% of the asset pool, after taking into account the property she is to retain under these orders, and so as to give the husband 42.5% of the asset pool, after taking into account the property he is to…

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 Campion & Campion

Details

AGLC: Campion & Campion [2008] FMCAfam 677
Case: [2008] FMCAfam 677
Decision Date: 15 August 2008

CaseChat Overview and Summary

The case of Campion & Campion involved a dispute between a husband and wife over the division of their assets following the breakdown of their marriage. The wife brought proceedings against the husband for a property settlement and spousal maintenance. The matter was heard in the Family Court of Australia, presided over by Judge John W. Bowden. The central legal issues were the equitable distribution of the couple's property and the wife's application for spousal maintenance.

The court considered the length of the marriage, the contributions of each party, and the health and earning capacities of the parties. Given the wife's health issues and the husband's higher earning capacity, the court decided that a 57.5% share of the asset pool should be allocated to the wife. The court dismissed the application for spousal maintenance, considering it had been sufficiently addressed by the property settlement. The court ordered the husband to pay the wife a specific sum within 60 days, failing which the real property would be sold, and the proceeds distributed between the parties. Additionally, specific assets were allocated to each party, and the court severed any joint tenancies.

In summary, the court ordered the husband to pay the wife a specified sum within 60 days and, if not paid, the real property was to be sold, and the proceeds divided. The husband was also to transfer his interest in the real property to the wife. The wife was awarded certain assets, and the husband was awarded others, with specific financial responsibilities and liabilities assigned to each party. All other applications, including spousal maintenance, were dismissed.

Orders

Orders of the court

All extant orders be discharged.

Within 60 days of the date of these orders, the wife pay to the husband the sum of $161,233.92 (“the payment”), including:

(a) the $64,000 in the bank account held in the name of the wife;

(b) the $34,000 contained in the joint account held in the names of the husband and wife;

(d) an additional $33,360.92.

Contemporaneously with the payment:

(a) the husband sign all documents and do all things necessary to transfer to the wife, at the expense of the wife, all of his right title and interest in the real property situate at and known as Property M being the whole of the land more particularly described in Certificate of Title Volume [omitted] Folio [omitted](“the real property”);

(b) the husband provide to the wife, at his expense, a Withdrawal of Caveat registered number [omitted];

(c) the wife indemnify the husband against all payments and liabilities in respect of all apportionable rates, taxes and other outgoings in relation to the real property of whatsoever nature and kind; and

(d) the husband vacate the real property.

In the event that the whole of the payment has not been made within

60 days of the date of these orders, then the parties forthwith sign all documents and do all things necessary to cause the real property to be forthwith sold altogether out of court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied as follows:

(a) firstly, to pay all costs, commissions and expenses of the sale;

(b) secondly, to discharge any mortgage or encumbrance affecting the real property; and

(c) thirdly, the balance be divided between the parties so as to give the wife 57.5% of the asset pool, after taking into account the property she is to retain under these orders, and so as to give the husband 42.5% of the asset pool, after taking into account the property he is to retain under these orders.

Pending the payment referred to in order 2 and pending the sale, if any, referred to in order 4:

(a) the husband keep the real property in good order and condition and pay all rates, taxes and like outgoings in respect of the real property as they fall due;

(b) the parties hold their respective interests in the real property upon trust pursuant to these orders; and

(c) neither party encumber the real property without the consent in writing of the other party, save for the purposes of refinancing to meet the payment.

Each party have liberty to apply regarding the terms, conditions and execution of the sale of the real property.

The husband retain for his sole use and benefit:

(a) the property at Property C being the whole of the land more particularly described in Certificate of Title Volume [omitted] Folio [omitted] for his sole use and benefit, and the husband be liable for and indemnify the wife in respect of the payment of any Capital Gains Tax attributed to the Property C property, any mortgage encumbrance affecting the Property C property and all other liabilities of whatsoever kind and nature related thereto.

(b) his interest in [C] Pty Ltd, and the husband is to indemnify the wife and keep her indemnified against all debts, liabilities, including taxation liabilities past, present or future in respect of [C] Pty Ltd including but not limited to any liability for income tax on any monies actually or notionally attributed to the wife, and including any personal guarantees given by the wife and all interest and costs and penalty in relation thereto;

(d) the husband’s superannuation entitlements;

(e) the husband’s household contents;

(f) the caravan; and

(g) the $5,000 from the safe.

In the event that the real property is sold pursuant to order 4, the husband further retain for his sole use and benefit the $34,000 contained in the joint account held in the names of the husband and wife.

The wife retain for her sole use and benefit:

(a) the 2001 Ford Sedan motor vehicle;

(b) the AMP shares registered in the wife’s name;

(d) the three AMP Life Insurance Policies of which she is the beneficiary; and

(e) the wife’s household contents;

10.

In the event that the real property is sold pursuant to order 4, the wife further retain for her sole use and benefit:

(a) the $64,000 in the bank account held in the name of the wife; and

(b) the $29,873 from the safe.

11.

The wife’s costs of the proceeding on 17 June 2008 be paid by the husband.

12.

Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action), chattels, shares, motor vehicles, home contents and furniture, jewellery, cash and other funds in the possession of such party as at the date of these orders;

(b) insurance policies remain the sole property of the owner named thereon;

(c) each party retain any superannuation entitlements belonging to or earned by that party to the exclusion of the other party;

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

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

13.

All extant applications, including the spousal maintenance application, otherwise be dismissed.

14.

Pursuant to rule 21.15 of the

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.