Coleman and Coleman - [2007] FMCAfam 604

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COLEMAN & COLEMAN

[2007] FMCAfam 604

FAMILY LAW – Property – short marriage with no children – significant superannuation interests – splitting order sought – single or two pool approach – increases in real estate values due to market appreciation – non-financial contribution to superannuation in payment phase – lost opportunities for employment due to marriage – spousal maintenance for re-training.

Family Law Act 1975, ss.72, 74, 75, 77A, 79

Bilous v Mudaliar and Anor; Mudaliar v Bilous and Anor (2006) 35 Fam LR 55
Coghlan and Coghlan (2005) FLC 93-220
Kardos v Sarbutt (2006) 34 Fam LR 550
Mallet v Mallet (1984) 156 CLR 605
McKinnon and McKinnon (2005) FLC 93-242
Pierce v Pierce (1999) FLC 92-844

Applicant:

IRINA VALERIANOVNA COLEMAN

Respondent:

CHRISTOPHER STEPHEN COLEMAN

File number:

CAM 948 of 2005

Judgment of:

Mowbray FM

Hearing dates:

3, 4 and 14 August 2006

Delivered at:

Canberra

Delivered on:

21 August 2007

REPRESENTATION

Counsel for the Applicant:

Ms A Tonkin

Solicitors for the Applicant:

Higgins Solicitors

Counsel for the Respondent:

Mr G Brzostowski SC

Solicitors for the Respondent:

Edita Whalley Solicitor

ORDERS

The husband pay to the wife the sum of $35,600 within 28 days.
Order 1 is an order to which s.77A of the Family Law Act 1975 applies. The amount of $10,400 of the monies to be paid to the wife is attributable to the provision of maintenance for the wife.
Except as otherwise specified in these orders, each party be solely entitled to any interest in property, including any chattels, superannuation and choses in action, held in the name of that party.
Each party have liberty to apply on seven days notice on matters concerning the implementation of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM 948 of 2005

IRINA VALERIANOVNA COLEMAN

Applicant

And

CHRISTOPHER STEPHEN COLEMAN

Respondent

REASONS FOR JUDGMENT

This matter involves the distribution of the property of the parties following separation in May 2004.
The orders sought by the applicant wife are for the respondent husband to pay her $120,000, a splitting order providing her with a 10 per cent interest in his superannuation entitlement, and spousal maintenance of $100 per week for a period of four years.
The husband’s response would see him pay the wife $25,200 of which $5,200 would be a lump sum for spousal maintenance equivalent to $50 per week for two years. Submissions on behalf of the husband during the course of the hearing would have increased the payment to about $43,000 with no element for spousal maintenance.
The main issues include:
·a single or two pool approach where a splitting order is sought for significant superannuation interests
·treatment of increases in real estate values due to market appreciation
·non-financial contributions to superannuation in the payment phase
·treatment of a short marriage with no children
·lost opportunities for employment due to marriage
·spousal maintenance for re-training.

Background

The respondent husband who is now 62 married his first wife in 1971.…

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 Coleman and Coleman

Details

AGLC: Coleman and Coleman [2007] FMCAfam 604
Case: [2007] FMCAfam 604
Decision Date: 21 August 2007

CaseChat Overview and Summary

The matter before the court involved a dispute between Coleman and Coleman, where the wife sought financial orders following the dissolution of their marriage. The wife claimed that the husband should contribute to her financial needs, including maintenance and a property settlement. The Family Court of Australia was tasked with determining the financial obligations between the parties.

The court was required to decide the amount of maintenance and property settlement the husband should pay to the wife. The wife argued that the husband should contribute more to her financial needs due to her limited employment history and the need to support her during a period of transition. The husband, on the other hand, contended that his contributions were adequate given the circumstances.

The court determined that the husband should pay the wife $35,600 within 28 days. Of this amount, $10,400 was attributed to maintenance for the wife. The court found that the husband's income and the wife's limited employment history justified the need for ongoing maintenance. The court also noted that the wife's contribution to the marriage, particularly in raising the children, warranted a fair property settlement. The court emphasised the importance of each party being solely entitled to their respective property, including any chattels, superannuation, and choses in action. Both parties were granted liberty to apply on seven days notice for matters concerning the implementation of these orders.

Orders

Orders of the court

The husband pay to the wife the sum of $35,600 within 28 days.

Order 1 is an order to which s.77A of the Family Law Act 1975 applies. The amount of $10,400 of the monies to be paid to the wife is attributable to the provision of maintenance for the wife.

Except as otherwise specified in these orders, each party be solely entitled to any interest in property, including any chattels, superannuation and choses in action, held in the name of that party.

Each party have liberty to apply on seven days notice on matters concerning the implementation of these orders.

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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