Farmer and Naidoo - [2011] FMCAfam 975

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARMER & NAIDOO

[2011] FMCAfam 975

FAMILY LAW – Property – considerations as to waste – valuations regarding overseas properties – procedural issues when party’s solicitor faces disciplinary proceedings leading to party becoming unrepresented in course of trial – intervention by local Law Society in proceedings – duties in relation to obtaining valuation – ‘child of the relationship’ acting as interpreter in course of proceedings – long marriage – how to treat property in long marriage where there are no valuations or highly contested valuations.

Family Law Act 1975, ss.79(4), 75(2)
Federal Magistrates Court Rules 2001, rr.24.03, 24.04

In the Marriage of Browne & Green (1999) 25 Fam LR 482
In the Marriage of Chang & Su (2002) 29 Fam LR 406
In the Marriage of De Angelis (2003) 30 Fam LR 304
AJO v GRO (2005) 33 Fam LR 134
Doherty & Doherty (1996) FLC ¶92-652
Garrett & Garrett (1984) FLC ¶91-539
Gould & Gould (2007) FLC ¶93-333
K & K (2003) FLC ¶93-135
Kiefer v Kiefer (2009) 40 Fam LR 295
Kowaliw & Kowaliw (1981) FLC ¶90-097
Mallet v Mallet (1984) 156 CLR 605
Mezzacappa & Mezzacappa (1987) FLC ¶91-853
AJO v GRO (2005) FLC ¶93-218
Oriolo & Oriolo (1985) FLC ¶91-653
Phillips & Phillips (2002) FLC ¶93-104
Spencer v Commonwealth (1907) 5 CLR 418
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259

Family Law Council, Best practice guidelines for lawyers doing family law work (2004)

Applicant:

MS FARMER

Respondent:

,MR NAIDOO

File Number:

CAC 166 of 2009

Judgment of:

Neville FM

Hearing dates:

24, 25 & 26 February 2010, 11 March 2011

Date of Last Submission:

4 April 2011

Delivered at:

Canberra

Delivered on:

14 September 2011

REPRESENTATION

Counsel for the Applicant:

Ms J Haughton

Solicitors for the Applicant:

Ray Swift Moutrage & Associates

Counsel for the Respondent:

Mr G Brzostowski SC on 24-26 February 2010, then Self-Represented Litigant

Solicitors for the Respondent:

Mamdouh Elmaraazey (until 21 June 2010)

ORDERS

In the absence of written agreement between the parties within 28 days:
(a)The former marital residence is to be sold and the net proceeds be divided in accordance with the percentage split of 59% – 41% in favour of the Applicant Wife;
(b)Each of the Iranian properties (Property [O], [D] and the Property [S]) be transferred to the Respondent Husband, and the Applicant Wife shall renounce any and all right, title or interest in them and do all things necessary to effect such transfer;
(c)
Pursuant to section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of MR NAIDOO in the [P] Superannuation Scheme,

MS FARMER shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $269,205.50 and there is to be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been…

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 Farmer and Naidoo

Details

AGLC: Farmer and Naidoo [2011] FMCAfam 975
Case: [2011] FMCAfam 975
Decision Date: 14 September 2011

CaseChat Overview and Summary

In the Family Court of Australia, the case of Farmer v Naidoo involved a dispute between the parties over the division of their assets following their divorce. The Applicant, Ms Farmer, sought a determination of property interests and spousal maintenance. The Respondent, Mr Naidoo, opposed the claims. The legal issues before the court included the division of property, spousal maintenance, and the allocation of superannuation benefits. The court was required to determine the appropriate division of assets, including the former marital home, properties in Iran, and superannuation entitlements. Additionally, the court had to decide on the spousal maintenance for Ms Farmer and the allocation of personal assets.

The court found that there was no written agreement between the parties concerning the division of their assets. It held that the net proceeds from the sale of the former marital residence should be divided in a 59% - 41% split in favour of Ms Farmer. The Iranian properties were to be transferred to Mr Naidoo, with Ms Farmer renouncing any interest in them. Regarding superannuation, the court ordered that Ms Farmer would receive a payment calculated under the Family Law (Superannuation) Regulations 2001 based on the base amount of $269,205.50. The court also ruled that the Respondent was to retain the gold jewellery, silverware, Persian rugs, furniture in Iran, a motor vehicle, and certain shares. Lastly, Ms Farmer was held liable for a debt of $21,500 to her daughter, Ms N.

The court's decision was based on a comprehensive analysis of the evidence presented, including financial statements, expert testimony, and the parties' respective contributions to the marriage. The court considered the need for fairness and equity in the division of assets, as well as the need to provide for Ms Farmer's ongoing financial needs. The orders reflect the court's determination to achieve a just and equitable outcome for both parties.

Orders

Orders of the court

In the absence of written agreement between the parties within 28 days:

(a) The former marital residence is to be sold and the net proceeds be divided in accordance with the percentage split of 59% – 41% in favour of the Applicant Wife;

(b) Each of the Iranian properties (Property [O], [D] and the Property [S]) be transferred to the Respondent Husband, and the Applicant Wife shall renounce any and all right, title or interest in them and do all things necessary to effect such transfer;

(c)

Pursuant to section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of MR NAIDOO in the [P] Superannuation Scheme,

MS FARMER shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $269,205.50 and there is to be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders;

(d) The amount payable pursuant to Order 1(c) is to be paid to the Applicant Wife 28 days after the expiration of the period of notice to the Trustee of the [P] Superannuation Scheme;

(e) The Respondent Husband is to retain as his own the gold jewellery, the silverware, the Persian rugs, the furniture in Iran, the motor vehicle and the [omitted] shares; and

(f) The Applicant Wife is liable for the debt of $21,500 to her daughter, Ms N.

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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