Fitzpatrick and Griffin - [2008] FMCAfam 555

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FITZPATRICK & GRIFFIN

[2008] FMCAfam 555

FAMILY LAW – Property – binding financial agreement – failure to receive independent legal advice.

Family Law Act 1975, Part VIII, ss.75 (2), (2)(g), (k), (o), 79 (2), (4), 85A, 90G, 90G (1)(b) & (c)

AJO v GRO (2005) FLC ¶93-218
Bester v Perpetual Trustee Co Ltd (1970) 3 NSWR 30
B & B (2008) 38 Fam LR 503; (2008) FLC ¶93-357
Garcia v National Australia Bank Ltd (1998) 194 CLR 395
GBT & BJT [2005] FamCA 683
In the Marriage of Hickey (2003) 30 Fam LR 355
J and J [2006] FamCA 442
McFarlane v Tayside Health Board [2000] 2 AC 59
Pierce v Pierce (1999) FLC ¶92-844
Powell v Powell [1900] 1 Ch 243
Watkins v Combes (1922) 30 CLR 180
Woodcock v Woodcock (1997) FLC ¶92-739
Yerkey v Jones (1940) 63 CLR 649

Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (Fourth Edition) (R.P. Meagher, J. D. Heydon, M.J. Leeming) (Sydney: LexisNexis, 2002)
P. Staindl & L. Bradley, “Financial agreements: Risks, responsibilities and rewards,” (2008) 13 Current Family Law 64

Applicant:

MR FITZPATRICK

Respondent:

MS GRIFFIN

File Number:

CAC 620 of 2007

Judgment of:

Neville FM

Hearing dates:

8 & 9 May 2008

Date of Last Submission:

9 May 2008

Delivered at:

Canberra

Delivered on:

27 August 2008

REPRESENTATION

Counsel for the Applicant:

Ms Godtschalk

Solicitors for the Applicant:

Rachel Bird & Co

Counsel for the Respondent:

Mr Kearney

Solicitors for the Respondent:

Anne Marie Proctor and Associates

ORDERS

The Husband be entitled, to the exclusion of the Wife, to the following property:-
(a)Superannuation entitlements in his name including those with the PSS and AGEST;
(b)All motor vehicles in his name, in particular motor vehicle ACT registration [omitted]; and
(c)His personal wine collection.
The Wife be entitled, to the exclusion of the Husband, to the following:-
(a)Superannuation entitlements in her name including those with the Australian Retirement Fund; and
(b)All motor vehicles in her name, in particular motor vehicle registration [omitted].
The Wife shall do all things and sign all documents necessary to transfer all of her right, title, and interest in the property known as Property [B] in the Australian Capital Territory to the Husband.
The Husband shall, within 60 days of these Orders, pay to the Wife the sum of $64,400.
In the event that the sum pursuant to Order 4 is not paid within 60 days, the [B] Property is to be sold and the net proceeds divided so that the Wife receives $64,400.
The Wife retain the monies advanced to her by the Husband in the sum of $5,450.
The Wife return to the Husband the personal items belonging to the Husband as set out in his affidavit of 3 March 2008 at paragraph 29.
Each party pay their own costs.

NOTATION:

The parties note that this order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on…

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 Fitzpatrick and Griffin

Details

AGLC: Fitzpatrick and Griffin [2008] FMCAfam 555
Case: [2008] FMCAfam 555
Decision Date: 27 August 2008

CaseChat Overview and Summary

The case of Fitzpatrick and Griffin involved a dispute between a husband and wife regarding the division of their assets, including superannuation entitlements, motor vehicles, and personal property. The matter was heard in the Family Court of Australia. The central issue before the court was the equitable division of the assets between the parties following their separation.

The legal issues that the court had to address included the characterisation and valuation of various assets, such as superannuation funds and motor vehicles, and the determination of whether any of these assets should be considered as separate property. Additionally, the court needed to decide on the financial contributions that each party should make to the other post-separation.

The court's reasoning involved a detailed examination of the contributions made by each party to the acquisition of the assets, as well as the respective needs and future prospects of the parties. The court found that certain superannuation entitlements and motor vehicles were to be considered as separate property of the respective owners, while other assets were to be divided equitably. The court also determined that the husband should make a financial contribution to the wife to achieve an equitable outcome. The court noted that the orders made would be subject to the effects of recent legislative changes to superannuation laws under family law.

The final orders included the allocation of specific assets to each party, a financial payment from the husband to the wife, and provisions for costs. The orders also took into account the potential impact of the new superannuation legislation on the division of assets.

Orders

Orders of the court

The Husband be entitled, to the exclusion of the Wife, to the following property:-

(a) Superannuation entitlements in his name including those with the PSS and AGEST;

(b) All motor vehicles in his name, in particular motor vehicle ACT registration [omitted]; and

The Wife be entitled, to the exclusion of the Husband, to the following:-

(a) Superannuation entitlements in her name including those with the Australian Retirement Fund; and

(b) All motor vehicles in her name, in particular motor vehicle registration [omitted].

The Wife shall do all things and sign all documents necessary to transfer all of her right, title, and interest in the property known as Property [B] in the Australian Capital Territory to the Husband.

The Husband shall, within 60 days of these Orders, pay to the Wife the sum of $64,400.

In the event that the sum pursuant to Order 4 is not paid within 60 days, the [B] Property is to be sold and the net proceeds divided so that the Wife receives $64,400.

The Wife retain the monies advanced to her by the Husband in the sum of $5,450.

The Wife return to the Husband the personal items belonging to the Husband as set out in his affidavit of 3 March 2008 at paragraph 29.

Each party pay their own costs.

NOTATION:

The parties note that this order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations which together provide for a separate superannuation interest to be created for the non member spouse and for consequential effects on payments.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.