FOWLER & FOWLER - [2011] FamCA 273

FAMILY COURT OF AUSTRALIA

FOWLER & FOWLER [2011] FamCA 273

FAMILY LAW - PROPERTY – alteration of property interests - issues of contribution and future factors - justice and equity.

Family Law Act 1975 (Cth)

Bonnici and Bonnici, (1992 FLC 92-272)
DJM and JLM (1998) FLC 92-816
Doherty v Doherty (1996) FLC 92-652)
Fane-Thompson v Fane-Thompson (1981) FLC 91-053
Farnell(1996) FLC 92-681
In the Marriage of Geyl 7 Fam LR 219
Koh and Koh (unreported)
Kowaliw v Kowaliw (1981) FLC 91-092
Marker and Marker, [1998] FamCA 42
Omacini and Omacini, (2005) FLC 93-218
Townsend and Townsend (1995) FLC 92-569
Wardman v Hudson (1978) FLC 90-466
Wells v Wells (1977) FLC 90-285
Winnel v Winnel (1984) FLC 91-580

APPLICANT: Mr Fowler

RESPONDENT: Ms Fowler

FILE NUMBER: MLC 11498 of 2009

DATE DELIVERED: 21 April 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 20 – 22 December 2010 inclusive
REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Gillian Coote Family Law

COUNSEL FOR THE RESPONDENT: Mr Dixon, SC

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie
IT IS ORDERED THAT
1.On or before 21 October 2011, the wife pay to the husband the sum of $1,251,328 (“the payment”).
2.Contemporaneously with the payment, the husband:
a.relinquish all his right, title and interest in the following real properties:
(i)Properties 1 and 2 at C Street, Melbourne Suburb 1 in the State of Victoria more particularly described as the whole of the land comprised in Certificates of Title Volume … Folio … and Volume … Folio … respectively (“C Street”);
(ii)Property at S Street, Melbourne Suburb 2 in the State of Victoria more particularly described as the whole of the land comprised in Certificate of Title Volume … Folio … (“S Street”); and

b.do all acts and things necessary and sign all documents as are required to discharge:
(i)Mortgage dealing number … in favour of National Australia Bank encumbering Property 2 at C Street;
(ii)Mortgage dealing number … in favour of Westpac Banking Corporation encumbering Property 1 at C Street;
(iii)Mortgage dealing number … in favour of Westpac Banking Corporation encumbering S Street; and
(iv)The lease liability in respect of the Mercedes motor vehicle.

3.Contemporaneously with the payment, the wife do all such acts and things and sign all documents necessary to:
a.transfer to the husband, at his expense, all of her right title and interest in the net proceeds of sale of the following real properties:
(i)Unit at T Street, Melbourne Suburb 3 in the State of Victoria (“T Street”); and
(ii)Units 1 and 2 at V Street, Melbourne Suburb 4 in the State of Victoria (“V Street”);

b.resign as a director of:
(i)T Pty Ltd;
(ii)S Pty Ltd;
(iii)L Pty Ltd; and
(iv)C Pty Ltd;

c.consent to her removal as a beneficiary of:
(i)The Fowler Family Trust;
(ii)The S Family Trust;
(iii)The L Family Trust; and
(iv)The C Family Trust

d.resign as a member of The D Pty Ltd Superannuation Fund;
e.transfer…

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.

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Details

AGLC: FOWLER & FOWLER [2011] FamCA 273
Case: [2011] FamCA 273
Decision Date: 21 April 2011

CaseChat Overview and Summary

In *Fowler & Fowler*, the Family Court of Australia considered an application for the alteration of property interests between the parties. The dispute concerned the division of assets and liabilities accumulated during the marriage, with particular emphasis placed on the parties' respective contributions and future financial circumstances.

The central legal issues before the court were the extent to which the parties' contributions, both financial and non-financial, should be recognised in the property settlement, and how future factors, including the earning capacity and needs of each party, should be taken into account to achieve a just and equitable outcome.

Mushin J applied the principles of the *Family Law Act 1975* (Cth), focusing on the assessment of contributions under section 79. The court considered the direct and indirect financial contributions of each party, as well as their contributions to the welfare of the family. Furthermore, the court weighed the future needs of the parties, including their age, health, and ability to earn income, to determine a fair distribution of the marital assets and liabilities. The court's ultimate determination aimed to achieve an outcome that was just and equitable in all the circumstances of the case.

Orders