Forster and Forster (No. 7) - [2013] FamCA 522

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO. 7)

[2013] FamCA 522

FAMILY LAW – PROPERTY – Protracted and many hearings where parties had limited resources.

Family Law Act 1975 (Cth)
Superannuation Industry (Supervision) Act 1993 (Cth)

Chang & Su [2002] FamCA 156
Crapp & Crapp (1979) FLC 90-615
K & K [2002] FamCA 1150
Re F: Litigants in Person Guidelines (2001) FamCA 348
Stanford v Stanford [2012] HCA 52
Weir & Weir (1993) FLC 92-338

APPLICANT:

Ms Forster

RESPONDENT:

Mr Forster

FILE NUMBER:

ADC

3359

2007

DATE DELIVERED:

2 July 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Cronin J

HEARING DATE:

2 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms West

SOLICITOR FOR THE APPLICANT:

Catherine Hicks & Co

THE RESPONDENT:

In Person

Orders

That the wife have the proceeds held in trust in her name.
That the wife retain and the husband have no further interest in the motor vehicle in the wife’s name.
That the husband indemnify the wife in relation to all outstanding litigation in the United States of America.
That the husband pay the wife’s costs fixed in the sum of $48,050 of which $42,200 is satisfied by paragraph 1 of these orders.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That all outstanding proceedings are dismissed.
That the oral injunctions otherwise made this day are discharged.
That the costs orders of 1 November 2010, 30 November 2012, 15 January 2013, 25 January 2013 and 22 February 2013 are all satisfied by paragraph 1 of these orders.
That the wife’s costs schedule is marked as Exhibit W1 and shall remain on the court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster (No. 7) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3359 of 2007

Ms Forster

Applicant

And

Mr Forster

Respondent

REASONS FOR JUDGMENT

This modest property dispute has an extraordinary history for reasons which will be obvious from the many court events. In simple terms, the Federal Magistrates Court proceeded to hear and determine the property dispute at a time when the husband’s interests were represented by a case guardian. Much later, and after a significant expenditure of the parties’ money and, in particular the wife’s money, was spent on costs, the Full Court set aside the case guardian order. A little later again, Strickland J discharged the orders that were made under s 79 of the Family Law Act 1975 (Cth) (“the Act”). A variety of appeals, “stay” applications and other interlocutory hearings occurred both before and after the orders of Strickland J. Indeed the husband made an application for special leave to the High Court of Australia. About a week ago Hayne and Crennan JJ refused the husband’s special leave application.
In March 2013,…

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 Forster and Forster (No. 7)

Details

AGLC: Forster and Forster (No. 7) [2013] FamCA 522
Case: [2013] FamCA 522
Decision Date

CaseChat Overview and Summary

The Family Court of Australia, in the matter of Forster & Forster (No. 7), heard a property dispute between Ms. Forster (the applicant wife) and Mr. Forster (the respondent husband). The dispute had a protracted and complex history, involving numerous hearings and significant expenditure of the parties' limited resources. The case concerned the division of the parties' property following their separation in May 2007, after an 18-year marriage.

The court was required to determine the appropriate orders for the division of property, specifically addressing the proceeds of the former matrimonial home held in trust, a motor vehicle registered in the wife's name, and the husband's obligation to indemnify the wife for outstanding litigation in the United States. A key legal issue was how to achieve a just and equitable outcome under section 79 of the *Family Law Act 1975* (Cth), particularly in light of the husband's limited participation in the final hearing and his history of non-disclosure. The court also considered the principles of identifying legal and equitable interests in property and the discretionary power to alter those interests, as outlined in *Stanford v Stanford* [2012] HCA 52.

The court reasoned that simply returning the trust funds to the parties in proportion to their initial ownership of the former matrimonial home would not be just and equitable, especially given the wife's financial position and the husband's lack of articulation regarding his interests. The court noted the husband's history of persistent litigation, including unsuccessful appeals and applications, and his failure to make full and frank financial disclosure, which justified a robust approach. The court found that the wife's financial position remained precarious, with significant debts and substantial outstanding legal costs exacerbated by the husband's actions. The husband, a retired US government agency employee, was found to have a secure government pension.

The court ordered that the wife receive the proceeds held in trust in her name, retain the motor vehicle in her name, and be indemnified by the husband for all outstanding litigation in the United States. The husband was ordered to pay the wife's costs fixed at $48,050, with $42,200 of this amount satisfied by the wife receiving the trust proceeds. All outstanding proceedings were dismissed, and previously made costs orders were deemed satisfied by the primary costs order.

Orders