Faulkner and Faulkner - [2011] FMCAfam 955

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAULKNER & FAULKNER

[2011] FMCAfam 955

FAMILY LAW – Section 75(2) adjustment.

Family Law Act 1975, ss.75(2), 106A
Child Support (Assessment) Act 1989
Federal Magistrates Court Rules 2001

Norbis & Norbis (1986) FLC 91-712
Ferraro & Ferraro (1993) FLC 92-335
AJO v GRO [2005] FamCA 707
Burgoyne & Burgoyne (1978) FLC 90 - 467
Farmer & Bramley (2000) FLC 93-060
Milankov & Milankov [2002] FamCA 195
Bonnici (1992) FLC 92-272
Z & Z (2005) FLC 93-241;
McMahon & McMahon (1995) FLC 92-600
C & C (2005) FLC 93-220
Bania & Jacopo (No 2) [2011] FamCAFC 139
Pierce & Pierce [1998] FamCA 74
SJS & NS (2005) FLC 93-214
Clauson (1995) FLC 92-595

Applicant:

MS FAULKNER

Respondent:

MR FAULKNER

File Number:

PAC 3518 of 2009

Judgment of:

Harman FM

Hearing dates:

1 – 3 August 2011

Date of Last Submission:

3 August 2011

Delivered at:

Parramatta

Delivered on:

4 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr Batey

Solicitors for the Applicant:

Mark Brown & Associates

Counsel for the Respondent:

Ms Druitt

Solicitors for the Respondent:

Rowlandson & Co Solicitors

ORDERS

That each of the parties shall forthwith do all things, sign all documents and give all consent and authorities necessary to cause the funds presently held on behalf of the parties in a solicitors controlled monies account to be distributed as follows and in the following priority:
a)In payment to Ms F of a sum of $23,756;
b)As to the balance then remaining to be distributed as to 75% thereof to the wife Ms Faulkner and as to the remaining 25% to the husband Mr Faulkner.
That pursuant to s.78 Family Law Act 1975 that each of the parties shall be and are hereby declared, as against the other, to be the sole and absolute owner of:
c)Any interest in real estate registered in the name of that party and including, in the case of the husband, the property Property G in the State of NSW;
d)All shares held by each party;
e)All motor vehicles in the possession of that party;
f)All monies in the possession custody or control of each party;
g)All contributions to or benefits or entitlements arising from membership of any fund of superannuation;
h)All chattels, personalty and furniture and furnishings held by each party.
That pursuant to s.106A of the Act and in the event that either party should fail, neglect or refuse to sign any document or instrument required by or to give effect to these orders then the Registrar of this Court shall be and is hereby authorised to sign all such documents and instruments in the place and instead of such party and to thereafter do all acts and things necessary to give full force, validity and operation to same.
That all outstanding applications and responses are dismissed.
That all issues be removed from the list of cases awaiting hearing.
That all exhibits and all material produced on subpoena shall, at the expiration of the Appeal period…

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 Faulkner and Faulkner

Details

AGLC: Faulkner and Faulkner [2011] FMCAfam 955
Case: [2011] FMCAfam 955
Decision Date: 4 November 2011

CaseChat Overview and Summary

The case of Faulkner and Faulkner involved the resolution of property settlement issues following a divorce. The matter was heard in the Family Court of Australia. The primary dispute centred on the division of assets and financial entitlements between the former spouses, Mr Faulkner and Ms Faulkner. The court was tasked with determining the equitable distribution of their shared funds and assets, including real estate, shares, motor vehicles, and personal belongings.

The legal issues addressed by the court included the interpretation and application of the Family Law Act 1975. Specifically, the court needed to decide on the allocation of the funds held in a solicitor’s controlled account, the ownership of specific assets such as real estate and shares, and the division of personal property and superannuation entitlements. The court also considered the implications of section 106A of the Act, which addresses situations where parties fail to comply with court orders.

In reaching its decision, the court meticulously reviewed the evidence and submissions from both parties. It determined that Ms Faulkner was entitled to a specific sum of $23,756 from the controlled account, with the remaining balance to be divided in a 75/25 ratio in favour of Ms Faulkner. The court further declared the sole ownership of various assets by each party, ensuring clarity and finality in their respective entitlements. The court also authorised the Registrar to intervene if either party failed to comply with the orders, ensuring enforcement of the settlement.

The final orders mandated the immediate distribution of funds, clarified the ownership of specific assets, and provided mechanisms for compliance enforcement. The court dismissed all remaining applications and responses, removed the case from the list of awaiting hearings, and specified the handling of exhibits and subpoenaed materials post-appeal period.

Orders

Orders of the court

That each of the parties shall forthwith do all things, sign all documents and give all consent and authorities necessary to cause the funds presently held on behalf of the parties in a solicitors controlled monies account to be distributed as follows and in the following priority:

a) In payment to Ms F of a sum of $23,756;

b) As to the balance then remaining to be distributed as to 75% thereof to the wife Ms Faulkner and as to the remaining 25% to the husband Mr Faulkner.

That pursuant to s.78 Family Law Act 1975 that each of the parties shall be and are hereby declared, as against the other, to be the sole and absolute owner of:

c) Any interest in real estate registered in the name of that party and including, in the case of the husband, the property Property G in the State of NSW;

d) All shares held by each party;

e) All motor vehicles in the possession of that party;

f) All monies in the possession custody or control of each party;

g) All contributions to or benefits or entitlements arising from membership of any fund of superannuation;

h) All chattels, personalty and furniture and furnishings held by each party.

That pursuant to s.106A of the Act and in the event that either party should fail, neglect or refuse to sign any document or instrument required by or to give effect to these orders then the Registrar of this Court shall be and is hereby authorised to sign all such documents and instruments in the place and instead of such party and to thereafter do all acts and things necessary to give full force, validity and operation to same.

That all outstanding applications and responses are dismissed.

That all issues be removed from the list of cases awaiting hearing.

That all exhibits and all material produced on subpoena shall, at the expiration of the Appeal period and upon no Appeal having been filed, be returned to the person or agency tendering or producing same or securely destroyed by the Court if such a request was made.

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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