F and F - [2002] FMCAfam 256

FEDERAL MAGISTRATES COURT OF AUSTRALIA

F & F

[2002] FMCA fam 256

FAMILY LAW – Parenting orders in relation to contact – Property settlement in relation to marriage and consideration given to both financial and non-financial contributions – Spousal maintenance payable to the wife.

Family Law Act 1975 (Cth), ss.75, 75(2), 79, 79(4)(a) to (c)

Lee Steere and Lee Steere (1985) FLC 91-626;
Ferraro (1993) FLC 92-33;
Clauscen (1995) FLC 92-595;
Russell and Russell (1999) FLC92-877;
Kennon v Kennon (1997) FLC 92-757;
Doherty v Doherty (1996) FLC 92-652;
Pierce v Pierce (1999) FLC 92-844;
Quaresimi v Quaresimi (1999) FamCA 1314

Applicant:

T L F

Respondent:

T P F

File No:

(P)MLM4255 of 2002

Delivered on:

15 August 2002

Delivered at:

Melbourne

Hearing Date:

31 July, 2 August 2002

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr A Combes

Solicitors for the Applicant:

NM Mantello & Associates

Counsel for the Respondent:

In person

Solicitors for the Respondent:

ORDERS

PROPERTY ORDERS

IT IS ORDERED THAT:

On or before 30 September 2002 the husband pay to the wife the following sums:
(a)$49,960;
(b)$2100;
(c)$800
being a total of $52,860 (“the payment”).
Upon payment to the wife of the payment the wife do all things necessary to withdraw at her expense any caveat lodged by her over the former matrimonial home at 158 F L, M, N S W being the land in CT folio identified, the former matrimonial home.
Except as otherwise specified in these orders:
(a)any interest of the husband in and to any property in the name of or possession of or under control of the wife vest in the wife absolutely;
(b)any interest of the wife in any property in the name of or possession of or under the control of the husband vest in the husband absolutely;
(c)each party retain insurance policies and superannuation policies in their respective possession;
(d)each party pay and indemnify the other in respect of any liability that may arise in relation to any item of property that vests in him or her pursuant to these orders.
The wife deliver up to the husband contemporaneously with the payment a painting to be agreed between the parties, but not “The Hayshed Next To The Pond”, “The Gumtree” or “Frog's Hollow”.
The husband indemnify the wife against:
(a)any taxation liability incurred during the course of the marriage;
(b)any liability she may have to him arising from any action or proceedings arising out of the deed of indemnity and also the deed acknowledging debt between the husband and wife dated 24 September 1991.
There be liberty to apply in the event that the parties are unable to agree upon the painting to be provided to the husband.
The husband indemnify the wife against all liabilities in relation to the former matrimonial home, including any liability in relation to the mortgage registered there on.
In the event that the payment is not made to the wife on or before the due date for payment:
(a)the husband do…

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 F and F

Details

AGLC: F and F [2002] FMCAfam 256
Case: [2002] FMCAfam 256
Decision Date: 15 August 2002

CaseChat Overview and Summary

In the matter of F and F, the court was tasked with making various property, spousal maintenance, and parenting orders in the context of a dissolution of marriage. The husband and wife, who had been married for a significant period, were now separated and had entered into negotiations regarding the division of their assets and the care of their two children. The dispute centred on the distribution of their property, the payment of spousal maintenance, and the arrangements for parenting the children.

The court had to address several key legal issues, including the equitable division of the matrimonial property, the appropriate amount and duration of spousal maintenance, and the best interests of the children in terms of their care and contact arrangements. In making its determinations, the court considered the contributions made by each party to the marriage, the needs of the wife in light of the duration of the marriage and her ability to support herself, and the welfare of the children.

The court ordered that the husband pay the wife a specified amount, which was to be used to purchase a new residence for the wife and children. Additionally, the court mandated that the husband indemnify the wife against certain liabilities and that the wife withdraw any caveats over the former matrimonial home upon receipt of the payment. The court also directed that the husband transfer a trust account to the wife and pay spousal maintenance. Regarding the children, the court determined that they would live with the wife, who would have sole responsibility for their day-to-day care, while the husband would have contact as agreed. The court dismissed the remaining applications and directed the removal of the case from the list of awaiting finalisation.

Orders

Orders of the court

PROPERTY ORDERS

IT IS ORDERED THAT:

On or before 30 September 2002 the husband pay to the wife the following sums:

(a) $49,960;

(b) $2100;

being a total of $52,860 (“the payment”).

Upon payment to the wife of the payment the wife do all things necessary to withdraw at her expense any caveat lodged by her over the former matrimonial home at 158 F L, M, N S W being the land in CT folio identified, the former matrimonial home.

Except as otherwise specified in these orders:

(a) any interest of the husband in and to any property in the name of or possession of or under control of the wife vest in the wife absolutely;

(b) any interest of the wife in any property in the name of or possession of or under the control of the husband vest in the husband absolutely;

(d) each party pay and indemnify the other in respect of any liability that may arise in relation to any item of property that vests in him or her pursuant to these orders.

The wife deliver up to the husband contemporaneously with the payment a painting to be agreed between the parties, but not “The Hayshed Next To The Pond”, “The Gumtree” or “Frog's Hollow”.

The husband indemnify the wife against:

(a) any taxation liability incurred during the course of the marriage;

(b) any liability she may have to him arising from any action or proceedings arising out of the deed of indemnity and also the deed acknowledging debt between the husband and wife dated 24 September 1991.

There be liberty to apply in the event that the parties are unable to agree upon the painting to be provided to the husband.

The husband indemnify the wife against all liabilities in relation to the former matrimonial home, including any liability in relation to the mortgage registered there on.

In the event that the payment is not made to the wife on or before the due date for payment:

(a) the husband do all things and execute all documents necessary to transfer his interest in the property to the wife as trustee for sale to sell the property by public auction or private treaty and to disperse the proceeds as follows:

(b) in payment of costs and expenses of sale;

(d) in payment of 60 per cent of the balance then remaining to the wife, plus the sum of $2900;

(e) in payment of the balance remaining to the husband.

There be liberty to apply to the parties in relation to the terms and conditions of sale.

10.

In the event of a sale, pursuant to section 106A of the Family Law Act, the Registrar of the Federal Magistrates Court be empowered to sign any documents on behalf of the husband pursuant to these orders in the event that the husband fails or refuses to do so.

11.

In the event that the payment is made to the wife but later than the due date for payment interest is to be paid by the husband to the wife at the rate applicable from time to time in the Family Law Rules.

12.

The husband sign all documents and do all things necessary to transfer to the wife the trust account in relation to the child B.

SPOUSAL MAINTENANCE ORDERS

IT IS ORDERED THAT:

13.

The husband pay to the wife spousal maintenance in the sum of $118 per week.

PARENTING ORDERS

IT IS ORDERED THAT:

14.

The parties have joint responsibility for the long-term care, welfare and development of the children B L F born 16 October 1989 and T A F born 6 December 1990 (‘the children”).

15.

The children live with the wife and the wife have the sole responsibility for the day-to-day care, welfare and development of the children.

16.

The husband have contact with the said children as agreed between the parties from time to time.

17.

The applications otherwise be dismissed.

IT IS DIRECTED THAT:

18.

The Applications be removed from the list of cases awaiting finalisation.

19.

All subpoenaed documents be returned to the party tendering such documents at the expiration of 30 days from the date 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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