FORSTER & FORSTER - [2015] FamCA 57

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER

[2015] FamCA 57

FAMILY LAW – PROPERTY – Third property hearing following a long history of litigation – issues as to credit – issues as to add-backs and liabilities – evaluation of past contributions and future needs – how to treat the husband’s entitlement to a United States government agency pension

Family Law Act 1975 (Cth) ss 75(2), 79(2), 79(4)

Stanford v Stanford [2012] HCA 52, (2012) 293 ALR 70

Bevan & Bevan (2013) FLC 93-545
Chapman and Chapman [2014] FamCAFC 91

APPLICANT:

Ms Forster

RESPONDENT:

Mr Forster

FILE NUMBER:

ADC 2007

3359

DATE DELIVERED:

10 February 2015

PLACE DELIVERED:

Hobart

PLACE HEARD:

Adelaide

JUDGMENT OF:

Benjamin J

HEARING DATE:

15, 16, 17, 18, 19 and 26 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs West

SOLICITOR FOR THE APPLICANT:

Catherine Hicks

COUNSEL FOR THE RESPONDENT:

Mr Finlayson (solicitor) for the first half of day one and thereafter the respondent in person

SOLICITOR FOR THE RESPONDENT:

Orders

These Orders are by way of full and final settlement of the parties’ respective claims for settlement and/or adjustment of property under Part VIII of the Family Law Act 1975 (‘the Act’).
Within sixty days (60) from the date of this Order Mr Forster (‘the husband’) shall pay to Ms Forster (‘the wife’) the sum of $151,379.50.
Subject to these Orders; as between the husband and the wife it is declared that the following property is the wife’s property;
3.1the proceeds of sale of P Street, Suburb N property previously held in interest bearing account with CBA Netbank Saver in the wife’s name,
3.2the wife’s interest in property I Street, Suburb A (owned by wife jointly with Mr E),
3.3the wife’s savings and investments held in any bank accounts in her name,
3.4the wife’s interest in and entitlements in her F Superannuation Fund, and
3.5the wife’s chattels and personal effects in her possession and/or control.
Subject to these Orders; as between the husband and the wife it is declared that the following is the husband’s property;
4.1the husband’s interest in any of the bank accounts in his name including all bank accounts in the United States and/or Australia,
4.2the husband’s Pontiac and Toyota motor vehicles and his camper van,
4.3the husband’s chattels and personal effects in his possession or control,
4.4the husband’s entitlements to his Government Agency Pension Fund and/or other entitlements arising from his employment with the United States government agency;
4.5the amount payable to the husband and the wife or either of them pursuant to any satisfaction of judgment in the following actions in the United States District Court Civil Number … and Civil Number … and a CONSEQUENTIAL ORDER that the husband shall indemnify the wife and hold the wife indemnified in respect to any costs or other liabilities arising out of the conduct of any litigation in the United States by the husband whether on his own behalf or on behalf of himself and the wife being any action instituted…

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 & FORSTER

Details

AGLC: FORSTER & FORSTER [2015] FamCA 57
Case: [2015] FamCA 57
Decision Date: 10 February 2015

CaseChat Overview and Summary

The case of *Forster & Forster* involved orders made by Benjamin J concerning the property settlement and adjustment claims between Mr Forster (the husband) and Ms Forster (the wife) under Part VIII of the *Family Law Act 1975* (Cth). The dispute was resolved by way of full and final settlement, with specific directions regarding the division of assets and liabilities.

The court was required to determine the terms of the settlement, including the financial payment to be made by the husband to the wife, and to declare the respective property of each party. This involved identifying and allocating various assets such as bank accounts, real estate, superannuation interests, vehicles, and personal chattels. Additionally, the court needed to address the husband's indemnification of the wife concerning litigation in the United States and the disposition of specific documents.

Benjamin J ordered that the husband pay the wife a sum of $151,379.50 within sixty days. The court then declared certain assets as the wife's sole property, including the proceeds of sale of a specific property, her interest in another property, her savings and investments, her superannuation fund, and her personal effects. Conversely, the husband's property was declared to include his bank accounts, vehicles, personal chattels, and entitlements from his United States government employment. The husband was also ordered to indemnify the wife against any costs or liabilities arising from litigation in the United States. Further orders mandated the exchange and deletion of specific medical records and powers of attorney, and the return of the wife's United States Government Agency Identification Card to the US Consulate. All extant applications, except for costs, were dismissed, with costs applications to be made in accordance with the *Family Law Rules 2004* (Cth).

Orders

Orders of the court

These Orders are by way of full and final settlement of the parties’ respective claims for settlement and/or adjustment of property under Part VIII of the Family Law Act 1975 (‘the Act’).

Within sixty days (60) from the date of this Order Mr Forster (‘the husband’) shall pay to Ms Forster (‘the wife’) the sum of $151,379.50.

Subject to these Orders; as between the husband and the wife it is declared that the following property is the wife’s property;

3.1 the proceeds of sale of P Street, Suburb N property previously held in interest bearing account with CBA Netbank Saver in the wife’s name,

3.2 the wife’s interest in property I Street, Suburb A (owned by wife jointly with Mr E),

3.3 the wife’s savings and investments held in any bank accounts in her name,

3.4 the wife’s interest in and entitlements in her F Superannuation Fund, and

3.5 the wife’s chattels and personal effects in her possession and/or control.

Subject to these Orders; as between the husband and the wife it is declared that the following is the husband’s property;

4.1 the husband’s interest in any of the bank accounts in his name including all bank accounts in the United States and/or Australia,

4.2 the husband’s Pontiac and Toyota motor vehicles and his camper van,

4.3 the husband’s chattels and personal effects in his possession or control,

4.4 the husband’s entitlements to his Government Agency Pension Fund and/or other entitlements arising from his employment with the United States government agency;

4.5 the amount payable to the husband and the wife or either of them pursuant to any satisfaction of judgment in the following actions in the United States District Court Civil Number … and Civil Number … and a CONSEQUENTIAL ORDER that the husband shall indemnify the wife and hold the wife indemnified in respect to any costs or other liabilities arising out of the conduct of any litigation in the United States by the husband whether on his own behalf or on behalf of himself and the wife being any action instituted at the present time.

Within six weeks from the date of this Order the husband shall forward to the wife’s solicitors (if in paper form) or otherwise permanently delete (if in electronic form) the original and copies of all and any medical records and powers of attorney that he has in his possession or control as to the wife’s psychiatric or psychological condition (including copies and/or originals of the records contained in pages 10 to 25 of Exhibit W8 in these proceedings),

Within six weeks from the date of this Order the wife shall forward to the office of the Consulate General of the United States 553 St. Kilda Road Melbourne Victoria 3000 the original/s of her or any of her United States Government Agency Identification Card/s in the wife’s possession or control.

All extant applications (except costs applications) are otherwise dismissed.

Any application for costs of all or part of the first instance proceedings (and including any reserved costs not otherwise dealt with in these proceedings) to be made in accordance with the Family Law Rules 2004 (Cth).

Following the expiration of the appeal period, all subpoenaed documents (except for the parties’ case summaries and expert reports) shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

10.

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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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