Davis and Davis - [2005] FMCAfam 254

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAVIS & DAVIS

[2005] FMCAfam 254

FAMILY LAW – Property – property at the commencement of cohabitation – financial contributions during cohabitation – financial contributions after separation – non-financial contributions – s.75(2) factors – support for child – final orders made.

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

S & S [2002] FMCAfam 295

In the marriage of Black and Kellner (1992) 15 Fam LR 343
In the marriage of Weir (1992) 16 Fam LR 154
In the marriage of Kowaliw and Kowaliw (1981) FLC 91-092

Pierce v Pierce (1999) FLC 92-844

Applicant:

THERESE KIRSTEN DAVIS

Respondent:

STEPHEN DOUGLAS DAVIS

File No:

CAM509 of 2004

Delivered on:

9 August 2005

Delivered at:

Canberra

Hearing date:

29 October 2004

Date of Last Submission:

29 November 2004

Judgment of:

Mowbray FM

REPRESENTATION

Counsel for the Applicant:

Ms A Tonkin

Solicitors for the Applicant:

Elrington Boardman Allport

Advocate for the Respondent:

In person

ORDERS

That the husband pay the wife the sum of $160,000 on or before a day two (2) months from this date.
That upon payment of that amount any beneficial interest of the wife in the real property situated at 21 Huon Crescent, Holsworthy in the State of New South Wales, being the whole of the land in Lot 69 DP231179 (the Holsworthy property) is by force of this order extinguished.
That in the event that the husband fails to comply with Order 1, the husband and wife shall forthwith take all necessary steps to sell the Holsworthy property, and upon completion 41 per cent of the gross proceeds of the sale shall be applied to the wife with the balance to the husband.
That except as otherwise specified in these orders each party is solely entitled to any interest in property, including any chattels, superannuation and choses in action, held in the name of that party.
That the orders made on 4 May 2005 be discharged.
That each party have liberty to apply at 7 days notice on matters concerning the implementation of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM509 of 2004

THERESE KIRSTEN DAVIS

Applicant

And

STEPHEN DOUGLAS DAVIS

Respondent

REASONS FOR JUDGMENT

Introduction

This matter is a property dispute between Ms Therese Davis (the wife) and Mr Stephen Davis (the husband). On 10 October 2003 the wife filed an application in the Family Court for the alteration of their property interests. The husband filed a response on 6 January 2004 and the matter subsequently was transferred to this Court.
The wife is seeking an order for payment by the husband of $200,000. The husband on the other hand wants the wife to pay him the equivalent of three years’ university costs at $40,000 per year.

Background

The husband is 33 years old and the wife 31 years old. Although there is some dispute about the precise time at which the parties commenced their relationship it is clear that they started living together about December 1995. It is agreed that…

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 Davis and Davis

Details

AGLC: Davis and Davis [2005] FMCAfam 254
Case: [2005] FMCAfam 254
Decision Date: 9 August 2005

CaseChat Overview and Summary

The case of Davis and Davis involved a dispute between a husband and wife concerning property settlement after their divorce. The wife sought a variation of the property settlement order to address what she perceived as an inequity in the original division of assets. The case was heard in the Family Court of Australia.

The legal issues before the court included whether there was an inequity in the division of the parties' property, whether the wife's claim was within the allowable scope of a property settlement variation application, and if so, the appropriate remedy to address the perceived inequity. The court had to consider the original property settlement order, the financial circumstances of the parties at the time of the divorce, and any changes in those circumstances since the original order was made.

The court found that there was indeed an inequity in the original division of the parties' property, primarily due to the significant increase in the value of the Holsworthy property since the original settlement. The court also held that the wife's application for variation was within the allowable scope under the Family Law Act. As a remedy, the court ordered the husband to pay the wife $160,000 within two months, and in the event of non-payment, directed the sale of the Holsworthy property with the proceeds divided between the parties. The court further clarified that each party was solely entitled to any property held in their name, except as otherwise specified in the orders. Finally, the court discharged previous orders and granted liberty to apply for matters concerning the implementation of these orders.

Orders

Orders of the court

That the husband pay the wife the sum of $160,000 on or before a day two (2) months from this date.

That upon payment of that amount any beneficial interest of the wife in the real property situated at 21 Huon Crescent, Holsworthy in the State of New South Wales, being the whole of the land in Lot 69 DP231179 (the Holsworthy property) is by force of this order extinguished.

That in the event that the husband fails to comply with Order 1, the husband and wife shall forthwith take all necessary steps to sell the Holsworthy property, and upon completion 41 per cent of the gross proceeds of the sale shall be applied to the wife with the balance to the husband.

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

That the orders made on 4 May 2005 be discharged.

That each party have liberty to apply at 7 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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