Elwood and Fisher - [2012] FMCAfam 415

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ELWOOD & FISHER

[2012] FMCAfam 415

FAMILY LAW – Property – de facto relationship – definition of de facto – length of the relationship – contributions – monetary rather than percentage-based adjustment.

Bankruptcy Act 1966
Fair Work Act 2009
Family Law Act 1975, ss.4AA, 75(2), 79, 90SF(3), 90SM
Migration Act 1958
Social Security Act 1991

Baker & Landon [2010] FMCAfam 280
D & D [2006] Fam CA 245
Figgins & Figgins (2002) FLC 93-122
Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
In the Marriage of CK and I W Kennon (1997) 22 Fam LR 1
Moby & Schulter [2010] FamCA 748
Roy v Sturgeon (1986) DFC 95-031

Simonis v Perpetual Trustee Co. Limited (1987) DFC 95-052

Applicant:

MS ELWOOD

Respondent:

MR FISHER

File Number:

MLC 6175 of 2011

Judgment of:

Whelan FM

Hearing dates:

8 and 14 February 2012

Date of Last Submission:

14 February 2012

Delivered at:

Melbourne

Delivered on:

9 May 2012

REPRESENTATION

Counsel for the Applicant:

Ms Rosetta Stoikovska of Counsel

Solicitors for the Applicant:

Clancy & Triado

Counsel for the Respondent:

Mr Ackman, QC with Mr Atkinson of Counsel

Solicitors for the Respondent:

Scanlan Carroll

ORDERS

That within 90 days of the date of these Orders the Husband pay to the Wife the sum of $600,000.00.
The Husband is to indemnify the Wife against any capital gains tax liability associated with the sale of shares, held in his name, to give effect to the payment as described in Order 1.
Unless otherwise specified in these Orders, and except for the purpose of enforcing the payment of any money due under these or any subsequent Orders:
(a)Each party is to be solely entitled to the exclusion of the other to all other property including chose-in-action in the possession of such party as at the date of these Orders;
(b)Money standing to the credit of the parties in any bank accounts are the property of the account holder named therein;
(c)Each party is to forego any claims they may have of on any superannuation benefits belonging to or earned by the other;
(d)Insurance policies remain the sole property of the policy owner named therein;
(e)Each party is to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 6175 of 2011

MS ELWOOD

Applicant

And

MR FISHER

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for alteration of property interests under s.90SM of the Family Law Act 1975 (Cth) (“the Act”) brought by the de facto wife, MS ELWOOD, (“the Wife”) in the proceedings. The Wife seeks…

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.

Keep reading for free

Create a free CaseChat account to read Elwood and Fisher and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FMCAfam 415
Decision Date: 9 May 2012

CaseChat Overview and Summary

Elwood and Fisher was a case heard in the Family Court of Australia, involving a dispute between a husband and wife regarding financial arrangements following their divorce. The central issue was the division of assets, with the wife claiming a lump sum payment from the husband, among other claims. The court was required to determine the appropriate division of the parties' property and any financial orders necessary to ensure a fair outcome.

The primary legal issues before the court were whether the husband was required to pay the wife a lump sum of $600,000 and if he should indemnify her against any capital gains tax arising from the sale of shares to facilitate this payment. The court had to consider various factors, including the contributions made by each party to the acquisition of the assets, their future financial circumstances, and the principles of fairness and justice in the context of the Marriage Act.

In reaching its decision, the court meticulously examined the evidence presented and the contributions of each party. It determined that the husband should indeed pay the wife $600,000, and that he must indemnify her against any capital gains tax resulting from the sale of shares to meet this obligation. The court also addressed the distribution of other assets and liabilities, ensuring that each party's entitlements and responsibilities were clearly defined. The orders included provisions for the exclusive ownership of specific assets, the severing of joint tenancies, and the waiver of claims on certain benefits.

The final orders mandated that the husband pay the wife $600,000 within 90 days and indemnify her against any capital gains tax related to the sale of shares. Additionally, the court specified the exclusive ownership of various assets, the severance of joint tenancies, and the waiver of claims on superannuation benefits and insurance policies. Each party was to be solely responsible for any liabilities associated with the assets they received.

Orders

Orders of the court

That within 90 days of the date of these Orders the Husband pay to the Wife the sum of $600,000.00.

The Husband is to indemnify the Wife against any capital gains tax liability associated with the sale of shares, held in his name, to give effect to the payment as described in Order 1.

Unless otherwise specified in these Orders, and except for the purpose of enforcing the payment of any money due under these or any subsequent Orders:

(a) Each party is to be solely entitled to the exclusion of the other to all other property including chose-in-action in the possession of such party as at the date of these Orders;

(b) Money standing to the credit of the parties in any bank accounts are the property of the account holder named therein;

(c) Each party is to forego any claims they may have of on any superannuation benefits belonging to or earned by the other;

(d) Insurance policies remain the sole property of the policy owner named therein;

(e) Each party is to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.