Finton and Finton - [2011] FamCA 384

FAMILY COURT OF AUSTRALIA

FINTON & FINTON

[2011] FamCA 384

FAMILY LAW - PROPERTY - Weight to be given to each party’s initial contributions - Weight to be given to each party’s contributions as homemaker and parent - Weight to be given to each party’s other non-financial contributions - Wife’s financial contribution from her income - Whether there should be add back entries in the balance sheet for the funds received by the wife from the sale of two properties post-separation

Family Law Rules 2004 (Cth)
Family Law Act 1975 (Cth)

Ferraro and Ferraro (1993) FLC 92-335
McLay and McLay (1996) FLC 92-667
Hickey and Hickey (2003) FLC 93-143
Chorn and Hopkins [2005] FamCA 334
Kennon & Kennon (1997) 139 FLR 118

APPLICANT:

Ms Finton

RESPONDENT:

Mr G Finton

FILE NUMBER:

SYC

3535

2008

DATE DELIVERED:

27 May 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

2, 3 and 4 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT:

Redmond Hale Simpson

THE RESPONDENT:

Mr G Finton In Person

Orders

(1)On or before the 27 September 2011 the husband is to pay to the wife the sum of $1,474,202.00. In the event of the husband failing to make the said payment by that time then he is to pay interest on any unpaid portion of the said sum as and from that date at the rate calculated pursuant to the Family Law Rules 2004(Cth).
(2)In the event of the husband failing to pay to the wife all of the money owing to her pursuant to order 1 hereof by 27 November 2011, then the wife has leave to apply to the court for enforcement orders including the sale of any asset of the husband.
(3)Pending the husband fully satisfying the payment required by order 1 hereof, he is not to sell any real estate or interest in any business, company or trust without first obtaining the wife’s consent in writing.
(4)Pending the husband fully satisfying the payment required by order 1 hereof, he is not to encumber any of his assets or interests other than for the purpose of paying to the wife the money owing to her pursuant to order 1 hereof. Should the husband propose to encumber any asset or interest of his for this purpose he is to notify the wife in writing of his intention to do so prior to entry into any loan agreement.
(5)The injunctions made herein do not prevent the husband from continuing to trade all of his businesses including the farming business which may involve the sale and purchase of livestock.
(6)Each party is otherwise to retain as their absolute property any assets standing in their name.
(7)I note that the matter has now concluded in the court and all outstanding applications are dismissed, other than any costs applications.

IT IS NOTED that publication of this judgment under the pseudonym Finton & Finton is approved pursuant to s 121(9)(g)…

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 Finton and Finton

Details

AGLC: Finton and Finton [2011] FamCA 384
Case: [2011] FamCA 384
Decision Date: 27 May 2011

CaseChat Overview and Summary

In the matter of *Finton and Finton*, Le Poer Trench J considered a dispute between a husband and wife concerning financial matters. The proceedings concluded with the court making orders regarding the division of property and the payment of a sum by the husband to the wife.

The court was required to determine the appropriate financial orders to be made between the parties, including the quantum of any payment to be made by the husband to the wife, the timeframe for such payment, and the consequences of non-compliance. Additionally, the court considered the need for interim orders to preserve assets pending the satisfaction of the financial obligations.

Le Poer Trench J ordered the husband to pay a specific sum to the wife by a set date, with provision for interest on any unpaid portion thereafter. The court also granted the wife leave to apply for enforcement orders, including the sale of assets, should the husband fail to meet the payment deadline. To safeguard the wife's interests, the court imposed injunctions preventing the husband from selling or encumbering his real estate, business interests, or other assets without the wife's written consent or for the purpose of satisfying the ordered payment. These injunctions were carefully crafted to allow the husband to continue trading his businesses, including the sale and purchase of livestock. The court noted that all outstanding applications, save for costs, were dismissed as the matter had concluded.

Orders

Orders of the court

(1) On or before the 27 September 2011 the husband is to pay to the wife the sum of $1,474,202.00. In the event of the husband failing to make the said payment by that time then he is to pay interest on any unpaid portion of the said sum as and from that date at the rate calculated pursuant to the Family Law Rules 2004(Cth).

(2) In the event of the husband failing to pay to the wife all of the money owing to her pursuant to order 1 hereof by 27 November 2011, then the wife has leave to apply to the court for enforcement orders including the sale of any asset of the husband.

(3) Pending the husband fully satisfying the payment required by order 1 hereof, he is not to sell any real estate or interest in any business, company or trust without first obtaining the wife’s consent in writing.

(4) Pending the husband fully satisfying the payment required by order 1 hereof, he is not to encumber any of his assets or interests other than for the purpose of paying to the wife the money owing to her pursuant to order 1 hereof. Should the husband propose to encumber any asset or interest of his for this purpose he is to notify the wife in writing of his intention to do so prior to entry into any loan agreement.

(5) The injunctions made herein do not prevent the husband from continuing to trade all of his businesses including the farming business which may involve the sale and purchase of livestock.

(6) Each party is otherwise to retain as their absolute property any assets standing in their name.

(7) I note that the matter has now concluded in the court and all outstanding applications are dismissed, other than any costs applications.

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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