DASHWOOD & BENNETT - [2011] FMCAfam 93

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DASHWOOD & BENNETT

[2011] FMCAfam 93

FAMILY LAW – Property – post separation contributions – notional add backs excluded – s.75(2) factors – just and equitable.

Family Law Act 1975, ss.75(2), 79

D & D (2003) FamCA 473
Lee Steere & Lee Steere (1998) FLC 91-625
Hickey & Hickey (2003) FLC 93-143
AJO v GRO (2005) FLC 93-218
Wilde & Wilde [2007] FamCA 1044
Re NHC & RCH (2004) FLC 93-204
Townsend & Townsend (1995) FLC 92-569
Bonnici & Bonnici (1992) FLC 92-272
Mitchell & Mitchell (1995) FLC 92-601
B & B (No 2) (2000) FLC 90-031

Applicant:

MS DASHWOOD

Respondent:

MR BENNETT

File Number:

ADC3289 of 2008

Judgment of:

Kelly FM

Hearing date:

30 June and 1 July 2010

Date of Last Submission:

16 August 2010 (written submissions)

Delivered at:

Adelaide

Delivered on:

4 February 2011

REPRESENTATION

Counsel for the Applicant:

Mr A Jordan

Solicitors for the Applicant:

Alderman Redman

Counsel for the Respondent:

Mr P Heinrich

Solicitors for the Respondent:

Karla McCulloch

ORDERS

The net matrimonial asset pool shall be divided 55% to the wife and 45% to the husband, with settlement to be implemented as specified in a Minute of Order to be drafted by the parties in accordance with my Reasons.
The parties prepare and file draft minutes of order to implement the property settlement in accordance with my reasons hereunder, to be filed within 14 days.
The proceedings are adjourned to 2 March 2011 at 2.15pm for final orders to be made.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC3289 of 2008

MS DASHWOOD

Applicant

And

MR BENNETT

Respondent

REASONS FOR JUDGMENT

Introduction

The parties were married for nearly thirty years before separating in April 2008. They have been unable to resolve their property settlement and it now falls to the Court to determine this matter.

Background

The wife was born in 1955 and the husband was born in 1955. They married in 1978 and have three children, [X] born 1985 and twin girls [Y] and [Z] born in 1989. [X] is an [occupation omitted] and is financially independent of his parents. He spends his time between both parents’ homes. [Z] lives in [interstate] and is also financially independent. [Y] returned to live with the wife shortly before the trial. She is studying and works on a part time basis in the family business.
The parties had purchased a property at [C] prior to their marriage. They lived in those premises for approximately five years before selling this property and purchasing a property at Property B, [B]. In 1989 the parties also purchased a property at [E] and established a partnership raising cattle on the property. The family eventually lived on the [E] property.
At the time the parties married the wife was employed by [omitted] and the husband worked in a [omitted]…

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 DASHWOOD & BENNETT

Details

AGLC: DASHWOOD & BENNETT [2011] FMCAfam 93
Case: [2011] FMCAfam 93
Decision Date: 4 February 2011

CaseChat Overview and Summary

The matter of Dashwood & Bennett was heard by the Family Court of Australia, where the parties were engaged in a dispute concerning the division of their matrimonial assets. The wife and the husband sought an equitable distribution of their net assets following their separation. The wife argued for a greater share, citing her contributions to the family and the household, while the husband contended for an equal division, asserting that both parties had contributed equally to the accumulation of the assets.

The legal issues before the court involved the interpretation and application of the principles set forth in the Family Law Act 1975, particularly section 79, which mandates the court to divide the net assets of the parties in a way that is "just and equitable". The court had to assess the respective contributions of each party, both financial and non-financial, to the acquisition, maintenance, and improvement of the assets, as well as the future needs and circumstances of both parties. The court also considered the duration of the marriage and the age of each party.

After considering the evidence and arguments presented, the court determined that the net matrimonial asset pool should be divided 55% to the wife and 45% to the husband. The reasoning behind this division was based on the wife's greater contributions to the family, including her role in raising the children and managing the household. The court also took into account the husband's contributions but found them to be less significant in comparison. The court issued orders for the parties to draft and file minutes of order to implement the property settlement within 14 days and set the matter down for final orders on 2 March 2011.

Orders

Orders of the court

The net matrimonial asset pool shall be divided 55% to the wife and 45% to the husband, with settlement to be implemented as specified in a Minute of Order to be drafted by the parties in accordance with my Reasons.

The parties prepare and file draft minutes of order to implement the property settlement in accordance with my reasons hereunder, to be filed within 14 days.

The proceedings are adjourned to 2 March 2011 at 2.15pm for final orders to be made.

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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