DOCKLANDS & MARSHMAN - [2011] FamCA 144

FAMILY COURT OF AUSTRALIA

DOCKLANDS & MARSHMAN

[2011] FamCA 144

FAMILY LAW - DOMESTIC RELATIONSHIP – Exercise of jurisdiction of the Supreme Court of the Australian Capital Territory pursuant to the Jurisdiction of Courts (Cross-vesting) Acts – Property proceedings – Extent of contributions of the parties – Relationship of short duration – Assets and financial resources located both in the Australian Capital Territory and the State of New South Wales – Territorial application of the Domestic Relationships Act 1994 (ACT) – Consideration of principles enunciated by Murphy J in Hackshaw & Hackshaw [2010] FamCA 1123 on “add-backs”

Domestic Relationships Act 1994 (ACT): s 15(1), s 19(2)
Family Law Act 1975 (Cth): s 75(2)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth): s 5(1)
Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT): s 5(1)

Aldridge & Mazzotti [2009] FamCA 1048
Chorn & Hopkins (2004) FLC 93-204
Coghlan & Coghlan (2005) FLC 93-220
Docklands & Marshman [2010] FamCA 611
Hackshaw & Hackshaw [2010] FamCA 1123
Hallinan v Witynski (1999) DFC 92-219
Kouper v Kouper (No. 3) [2009] FamCA 1080
Kowaliw & Kowaliw (1981) FLC 91-092
Warnold & Bleauchamp [2010] FamCAFC 154
Wunderwald & Wunderwald (1992) FLC 92-315

APPLICANT:

Mr Docklands

RESPONDENT:

Ms Marshman

FILE NUMBER:

CAC

398

2009

DATE DELIVERED:

4 March 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Canberrra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

15 November 2010

10 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Self-represented litigant

COUNSEL FOR THE RESPONDENT:

Ms L. Keogh (15 November 2010)
Ms J. Godstchalk (10 December 2010)

SOLICITOR FOR THE RESPONDENT:

KJB Law

Orders

IT IS ORDERED THAT:

The applicant, Mr Docklands, forthwith provide vacant possession of the property known as the property at K, in the Australian Capital Territory and will provide forthwith all keys to the premises to the offices of KJB Law.
The applicant, Mr Docklands, be and is hereby restrained (other than for the purposes of compliance with any Orders made by this Court) from making any withdrawals or draw-downs from the St. George Bank Loan Account Numbers … and ….
The applicant, Mr Docklands, is enjoined from making any withdrawals or draw-downs from the St. George Bank Loan Account Number … except for the purposes of effecting the payment to the respondent set out hereunder in these Orders.
(a)      Once the payment has been effected to the respondent by the applicant, the Loan Account Number … may be used by the applicant as he seeks fits.
(b)      KJB Law will notify the Registrar of the Family Court of Australia in Canberra as to when the payment that is to be made by the applicant has been made to the respondent.
(c)      The Registrar of the Family Court of Australia in Canberra is to notify the St. George Bank that the payment has been made in accordance with these Orders as soon as practicable after receiving notice from KJB Law.
(d)      A copy of these Orders will be provided forthwith by the Registrar of the Family Court of Australia to 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 DOCKLANDS & MARSHMAN

Details

AGLC: DOCKLANDS & MARSHMAN [2011] FamCA 144
Case: [2011] FamCA 144
Decision Date: 4 March 2011

CaseChat Overview and Summary

In this matter before the Supreme Court of the Australian Capital Territory, the parties were Mr Docklands (applicant) and Ms Marshman (respondent). The dispute concerned property proceedings arising from a domestic relationship of short duration, involving assets and financial resources located in both the Australian Capital Territory and New South Wales. The Court's jurisdiction was exercised pursuant to the Jurisdiction of Courts (Cross-vesting) Acts.

The primary legal issues before the Court were to determine the extent of the parties' contributions to their property, considering the short duration of their relationship, and to make orders for the division of their assets and financial resources. The Court was also required to consider the territorial application of the *Domestic Relationships Act 1994* (ACT) and the principles relating to "add-backs" as enunciated in *Hackshaw & Hackshaw* [2010] FamCA 1123.

The Court reasoned that, given the short duration of the relationship, a significant proportion of the net property should be awarded to the respondent. The Court ordered that the respondent be declared Trustee for sale of the property at K in the ACT, with the sale proceeds to be disbursed first to cover sale costs, statutory charges, and any outstanding mortgages. The balance was to be distributed with 80 per cent to the respondent and 20 per cent to the applicant. The applicant was also ordered to provide vacant possession of the ACT property and was restrained from making withdrawals from specific bank loan accounts, except for the purpose of making a payment to the respondent. Furthermore, the applicant was ordered to return specific chattels to the respondent within 30 days.

Orders

Orders of the court

IT IS ORDERED THAT:

The applicant, Mr Docklands, forthwith provide vacant possession of the property known as the property at K, in the Australian Capital Territory and will provide forthwith all keys to the premises to the offices of KJB Law.

The applicant, Mr Docklands, be and is hereby restrained (other than for the purposes of compliance with any Orders made by this Court) from making any withdrawals or draw-downs from the St. George Bank Loan Account Numbers … and ….

The applicant, Mr Docklands, is enjoined from making any withdrawals or draw-downs from the St. George Bank Loan Account Number … except for the purposes of effecting the payment to the respondent set out hereunder in these Orders.

(a) Once the payment has been effected to the respondent by the applicant, the Loan Account Number … may be used by the applicant as he seeks fits.

(b) KJB Law will notify the Registrar of the Family Court of Australia in Canberra as to when the payment that is to be made by the applicant has been made to the respondent.

(c) The Registrar of the Family Court of Australia in Canberra is to notify the St. George Bank that the payment has been made in accordance with these Orders as soon as practicable after receiving notice from KJB Law.

(d) A copy of these Orders will be provided forthwith by the Registrar of the Family Court of Australia to the St. George Bank. A copy may also be provided by the respondent, Ms Marshman, to the St. George Bank.

Pursuant to s 25(1) of the Domestic Relationships Act 1994 (ACT), in relation to the property at K:

(a) The respondent, Ms Marshman, is declared the Trustee for sale of the property at K and shall proceed to sell the property as expeditiously as possible.

(b) The respondent or her legal representative(s) on her behalf will do all such things as may be necessary bring about the sale of the property at K until completion of the sale.

That upon the sale of the property at K, the respondent will cause the sale proceeds to be disbursed as set out hereunder:

(a) To meet the costs, commission and expenses of the sale;

(b) To pay any outstanding rates or other statutory charges owing with regard to the property at K;

(d) The balance to be distributed as to 80 per cent to the respondent, Ms Marshman, and as to 20 per cent to the applicant, Mr Docklands.

Within 14 days of the exchange of contracts on the property at K, the applicant, Mr Docklands, will pay to the respondent, Ms Marshman, such sum that may enable her to receive 80 per cent of the net property of the parties in accordance with the below formula:

(Gross sale price of property at K) – (Expenses and disbursements outlined in Order 4(a) to (c) above) + (Value of the applicant’s shareholdings as per the findings of this Judgment ($143,171)) multiplied by 0.80 = Amount due to the respondent.

For example:

$480,000 gross sale price of property at K

Less $102, 650 + $51,601 + $15,000 (used only as an example of “other” expenses)

Plus $143,171

Total = $453,920

Multiplied by 0.80

Payment to the respondent would be $363,137.

Pursuant to s 26(1) of the Domestic Relationships Act 1994 (ACT), a Registrar of the Family Court of Australia in Canberra is appointed to execute any Deed or Instrument in the name of the applicant, Mr Docklands, that is necessary to cause the property at K to be listed for sale, by way of private treaty and for the sale to be completed including, though not limited to, the discharge of any mortgage(s) secured by the property at K at the date of this Judgment.

(a) It shall be sufficient warrant and authorisation to a Registrar of the Family Court of Australia to execute any document that KJB Law certify to the Registrar that the applicant has failed to execute and document he was requested to sign within 48 hours of his being notified that such document is available at the Family Law Registry in Canberra for signature.

Within 30 days, the applicant at his own expense will return or cause to be returned all chattels listed hereunder to the respondent (at an address to be nominated by the respondent though her legal representatives):

(a) The Respondent’s clothing;

(b) The Respondent’s snorkel and mask;

(d) A white cane chair;

(e) A white cane table;

(f) Two brown cushions;

(g) Blue check woollen blanket;

(h) Christmas decorations other than lights;

(i) Dining Table and four chairs;

(j) Floral seat cushions for dining table;

(k) 8 floral placements that match dining chair cushions;

(l) White candle and metal stand;

(m) Cream sofa bed from Freedom Furniture;

(n) 2 cream cushions that match the cream sofa bed;

(o) 2 brown and cream stripy cushions;

(p) 3 black floral pillos;

(q) 8 person dinner set with green and white flowers;

(r) 3 piece enamel bowl and lid set;

(s) Small Christmas Bowl and pate knife set;

(t) Melamine dish with koala picture;

(u) Food processor and attachments;

(v) 7 piece glass dessert bowl set;

(w) Santa Sleigh;

(x) Wooden salt and pepper set with “Port Villa” written on it;

(y) Brown pottery fruit bowl;

(z) Teapot and coaster with hand-knitted tea cosy;

(aa) Coffee plunger and coaster;

(bb) Robert Gordon pottery kitchen utensil holder;

(cc) Green spice rack;

(dd) All cake pans;

(ee) Blue enamel jug;

(ff) Metal measuring container;

(gg) All “Tupperware” branded containers;

(hh) Small metal chimes made by the Respondent’s deceased sister-in-law L;

(ii) Red stripey cotton hammock.

Subject to these Orders, the applicant and the respondent are otherwise declared to be the owners in law and in equity of all items of property, real or otherwise, in their possession.

10.

All extant applications are dismissed, except as to costs.

(a) Any application by either party for costs will be made in writing (by application) accompanied by written submissions (if any) filed on or before 4.00 pm on 28 March 2011.

(b) If no such application for costs is made, the matter is removed from the Pending Cases Inventory.

(d) It is noted that an application for costs should properly be made with reference to Court Procedure Rules 2006 (ACT).

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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