Fergus & Fergus

Case [2023] FedCFamC2F 1353

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fergus & Fergus [2023] FedCFamC2F 1353

File number(s): NCC 837 of 2021
Judgment of: JUDGE BETTS
Date of judgment: 20 October 2023
Catchwords: FAMILY LAW – Property settlement proceedings – nine and half year relationship, married for seven – where the parties had no children – where the parties rented accommodation throughout the relationship – where the parties mostly kept their income and assets separate – where the husband was loaned money by the wife during the relationship – where after separation the husband’s valuable items were “stolen” – where the wife asserts that the husband fraudulently hid the valuable items or that the storage arrangements were so negligent that it warrants a wastage argument – where the husband seeks no property division but wife does – where the court considers that the husband orchestrated or knew the circumstances that lead to the disappearance of the valuable items – where the court considers that the just and equitable outcome is for the husband to pay back the wife the money she loaned him during the relationship – just and equitable outcome.
Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth) Pt VIII

Federal Circuit Court Rules 2001
Cases cited:

Anaya & Anaya [2019] FCCA 1048

Bassett [2021] NSWSC 207

Baumgartner & Baumgartner (1987) 164 CLR 137

Bosanac v Commissioner for Taxation & Anor [2022] HCA 34

Briginshaw & Briginshaw (1930) 60 CLR 336

Cosola & Moretto [2023] FedCFamC1A 61

Koprivnjak [2023] NSWCA 2

Kowaliw & Kowaliw (1981) FLC 91-092

Meagher, Gummow & Lehane’s Equity Doctrines & Remedies, 5th edition (2015)

Moretto & Cosola (No.2) [2022] FedCFamC1F 924

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449

Stanford & Stanford (2012) 247 CLR 108
Division: Division 2 Family Law
Number of paragraphs: 243
Date of last submission/s: 28 June 2023
Date of hearing: 26, 27 and 28 June 2023
Place: Newcastle
Counsel for the Applicant: Mr Bithrey
Solicitors for the Applicant: Turnbull Hill Lawyers
Counsel for the Respondent: Mr Weightman
Solicitors for the Respondent: Lucy Urach & Associates

ORDERS

NCC 837 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MS FERGUS

Applicant
AND:

MR FERGUS

Respondent

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

20 OCTOBER 2023

THE COURT ORDERS THAT:

1.Within thirty (30) days, the Husband is to pay to a bank account nominated in writing by the Wife or her solicitors, an amount of money in AUD which comprises the sum of:

(a)$1,700.00; and

(b)The amount of money in AUD which is equal to $25,000 USD at the date of payment.  In the event that the Husband converts USD to AUD in order to make this payment, there is to be no deduction for any associated fees, charges or costs in respect of that conversion.

2.Each party is to otherwise retain all assets, financial resources and liabilities in that party’s name, possession or control as at the date of this…

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AGLC
Fergus & Fergus [2023] FedCFamC2F 1353
Case
[2023] FedCFamC2F 1353
Decision Date

CaseChat Overview and Summary

Ms Fergus and Mr Fergus were before the Federal Circuit and Family Court of Australia in property settlement proceedings. The couple had been in a relationship for nine and a half years, married for seven, and had no children together. Throughout their relationship, the couple rented their accommodation and largely kept their finances separate. Ms Fergus had loaned Mr Fergus money during their relationship, and after their separation, valuable items belonging to Mr Fergus were reported stolen. Ms Fergus claimed that Mr Fergus either fraudulently concealed the items or was negligent in their storage, which would warrant a wastage argument. Mr Fergus did not seek any property division, but Ms Fergus did. The court needed to determine whether the husband had orchestrated or knew about the disappearance of the valuable items, and what would be a just and equitable outcome in this case.

The court found that Mr Fergus had either orchestrated or knew about the circumstances that led to the disappearance of his valuable items. Given the circumstances, the court ruled that a just and equitable outcome would be for Mr Fergus to repay Ms Fergus the money she had loaned him during their relationship. The court did not consider it appropriate to make any further orders regarding the division of property between the parties, as the husband had not sought any property division and the wife's claim for wastage was not substantiated.

The court ordered that within thirty days, Mr Fergus must pay Ms Fergus the sum of $1,700 and an amount equal to $25,000 USD at the date of payment, converted to AUD without any deductions for conversion fees. The court also requested that a copy of the reasons for judgment be provided to the Commissioner of Police NSW. Each party was to retain all assets, financial resources, and liabilities in their name, possession, or control as at the date of the order. This decision is subject to review to correct any minor errors or to record a variation to the order.

Orders

Orders of the court

NCC 837 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS FERGUS

Applicant

AND:

MR FERGUS

Respondent

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

20 OCTOBER 2023

THE COURT ORDERS THAT:

1. Within thirty (30) days, the Husband is to pay to a bank account nominated in writing by the Wife or her solicitors, an amount of money in AUD which comprises the sum of:

(a) $1,700.00; and

(b) The amount of money in AUD which is equal to $25,000 USD at the date of payment. In the event that the Husband converts USD to AUD in order to make this payment, there is to be no deduction for any associated fees, charges or costs in respect of that conversion.

2. Each party is to otherwise retain all assets, financial resources and liabilities in that party’s name, possession or control as at the date of this order.

3. The Registrar of this Court is requested to provide a copy of these reasons to the Commissioner of Police NSW.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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