DH & RM - [2004] FMCAfam 74

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DH & RM

[2004] FMCAfam 74

FAMILY LAW – PROPERTY – Short marriage – parties cohabit for six months – analysis of contributions – asset by asset approach applied and cross-checked by using global approach.

Family Law Act 1975
Child Support (Assessment) Act 1989

Lee Steere and Lee Steere (1985) FLC 91-626
Ferraro and Ferraro (1993) FLC 92-335
Clauson and Clauson (1995) FLC 92-595
Russell and Russell (1999) FLC 92-877
Tuck and Tuck (1981) FLC 91-02
McMahon and McMahon (1995) FLC 92-606
Norbis and Norbis (1986) 161 CLR 513
Zyk and Zyk (1995) FLC 92-644
Quinn and Quinn (1979) FLC 90-677
Parshen (1996) FLC 92-720

Applicant:

D N H

Respondent:

R M

File No:

SYM90 of 2004

Delivered on:

19 March 2004

Delivered at:

Wollongong

Hearing dates:

18 & 19 February 2004

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr R. Maurice

Solicitors for the Applicant:

Kerry Johnson & Associates

Solicitor Advocate for the Respondent:

Mr J. David

Solicitors for the Respondent:

Hansons

ORDERS

Within eight (8) weeks of the date of these orders the wife shall pay to the husband the sum of $24,409 (minus any adjustment provided for in these orders).
In the event the husband is liable to repay any part of the mortgage at the same time as the wife makes the payment pursuant to Order 1, she shall provide him with a discharge of the Westpac mortgage secured against the Wollongong property or a release from the mortgagee of his liability pursuant to it.
Simultaneously, upon compliance by the wife with Order 1, the husband shall vacate the Wollongong property.
Pending compliance with Order 1, the husband shall keep the property in good repair and shall continue to pay, as and when they fall due, all regular instalments in respect of the mortgage, council rates, water rates, household insurance and strata levies in respect of the Wollongong property and shall indemnify and keep indemnified the wife in respect of any such amounts. If any such amounts remains unpaid as at the date of compliance with Order 1, the wife shall be entitled to deduct from the monies due to the husband pursuant to these orders the amount outstanding (including any penalties and interest that have accrued).
Within fourteen (14) days the husband shall make available to the wife for collection at her expense all items identified in annexure B to the wife’s affidavit sworn 4 February 2004.
In the event that the husband fails to make any of these items available he shall pay her the face value of comparable items. The face value shall be the selling price at Myer Wollongong store. Any adjustment pursuant to this order shall be deducted from the payment ordered pursuant to Order 1.
Within fourteen (14) days the husband shall make available for collection by the wife those items comprising annexure D to the wife’s affidavit sworn 4 February 2004 given by the wife’s family and friends as wedding gifts. The…

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 DH & RM

Details

AGLC: DH & RM [2004] FMCAfam 74
Case: [2004] FMCAfam 74
Decision Date: 19 March 2004

CaseChat Overview and Summary

The case of DH & RM involved a dispute between a husband and wife regarding financial contributions and property rights. The Federal Circuit and Family Court of Australia was tasked with resolving the matter. The primary legal issues that the court had to address included the division of assets and liabilities, particularly concerning a mortgage on a property in Wollongong, and the allocation of wedding gifts between the parties. Additionally, the court considered potential breaches of Commonwealth laws, particularly regarding taxation and Centrelink benefits.

The court's reasoning was based on the principles of fairness and equity in the division of matrimonial assets. The court ordered the wife to pay the husband a specified sum, which was to be adjusted by any payments made in relation to wedding gifts. The court also mandated the husband to vacate the Wollongong property upon the wife's payment and to provide her with a discharge of the mortgage or a release from liability. The court further detailed specific instructions for the collection and valuation of wedding gifts, ensuring that any disagreements would be resolved through a structured process. The court also considered potential legal breaches by both parties and referred them to the appropriate government department for further investigation.

The final orders included the payment by the wife to the husband, the provision of a mortgage discharge, the husband's vacating of the Wollongong property, and the handling of wedding gifts and other items. The court also directed the collection and return of exhibits and subpoenaed material within specified timeframes, and dismissed any outstanding applications. The court further made certifications under the Evidence Act 1995 and referred the parties to the Attorney General's Department for potential breaches of Commonwealth laws.

Orders

Orders of the court

Within eight (8) weeks of the date of these orders the wife shall pay to the husband the sum of $24,409 (minus any adjustment provided for in these orders).

In the event the husband is liable to repay any part of the mortgage at the same time as the wife makes the payment pursuant to Order 1, she shall provide him with a discharge of the Westpac mortgage secured against the Wollongong property or a release from the mortgagee of his liability pursuant to it.

Simultaneously, upon compliance by the wife with Order 1, the husband shall vacate the Wollongong property.

Pending compliance with Order 1, the husband shall keep the property in good repair and shall continue to pay, as and when they fall due, all regular instalments in respect of the mortgage, council rates, water rates, household insurance and strata levies in respect of the Wollongong property and shall indemnify and keep indemnified the wife in respect of any such amounts. If any such amounts remains unpaid as at the date of compliance with Order 1, the wife shall be entitled to deduct from the monies due to the husband pursuant to these orders the amount outstanding (including any penalties and interest that have accrued).

Within fourteen (14) days the husband shall make available to the wife for collection at her expense all items identified in annexure B to the wife’s affidavit sworn 4 February 2004.

In the event that the husband fails to make any of these items available he shall pay her the face value of comparable items. The face value shall be the selling price at Myer Wollongong store. Any adjustment pursuant to this order shall be deducted from the payment ordered pursuant to Order 1.

Within fourteen (14) days the husband shall make available for collection by the wife those items comprising annexure D to the wife’s affidavit sworn 4 February 2004 given by the wife’s family and friends as wedding gifts. The husband shall give the wife a copy of the Grace Bros Bridal Register within seven (7) days which identifies those items that the husband asserts came from his family or friends. The wife shall identify those items that she contends were given by members of her family. In the event that the parties disagree about the provenance of wedding gifts the husband shall prepare two lists of the contentious items of equal value. The wife will then select the list of items that she will have, which items shall thereafter become her property. The husband shall give the wife those items to which she is entitled pursuant to these orders no later than twenty eight (28) days from this day. In the event that the husband fails to make any of these items available he shall pay her the face value of comparable items. The face value shall be the selling price at Myer Wollongong store. Any adjustment pursuant to this order shall be deducted from the payment ordered pursuant to Order 1.

This Court certifies under s.128 of the Evidence Act 1995 of the Commonwealth that part of the evidence given in these proceedings by D N H, a record of which is attached to the s.128 certificate, is evidence to which subsection 128(7) of that Act applies.

This Court refers the husband to the Attorney Generals Department for consideration of whether he breached laws of the Commonwealth, particularly in relation to taxation and Centrelink benefits.

10.

This Court refers the wife to the Attorney General’s Department for consideration of whether she has breached laws of the Commonwealth, particularly in relation to taxation.

11.

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

12.

The solicitor who issued any subpoena shall collect that subpoenaed material and return it to the owner within seven (7) days.

13.

All outstanding applications are dismissed.

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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