GILBERT & GILBERT - [2013] FCCA 667

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILBERT & GILBERT

[2013] FCCA 667

Catchwords:
FAMILY LAW – Application for spousal maintenance – in the alternative application for interim or partial property settlement –wife has limited income but is currently fully employed – husband PAYG taxpayer – wife seeks orders to enable her to remain living in property registered in husband’s sole name – parties have no direct equity in property – husband continues to occupy former matrimonial home which is subject to mortgage for which he retains liability – husband asserts that when child support issues and other financial issues are considered he has no capacity to continue to pay mortgage on subject property – husband further contends that the wife has no capacity to acquire his interest in property given parties’ other liabilities – wife seeks immediate sale of motor vehicle and boat to discharge arrears in mortgage payments – husband seeks to retain these items on final settlement of matrimonial property matters – husband seeks sale of subject property which wife ultimately wishes to retain – matters to be considered – urgency – parties have not yet attended conciliation conference – nature of interim hearing – meaning of adequately – reasonableness in all the circumstances – justice and equity – interests of justice – whether appropriate to make such an order.

Legislation:
Family Law Act 1975, ss:74; 75; 75(2); 77; 79(1) 79(2) 79(4) 80

In re: Watson: ex parte Armstrong (1976) FLC 90-059
C & C (1996) FLC 92-651
Chapman & Chapman (1979) FLC 90-671
Ashton & Ashton (1982) FLC 91-285
Bevan & Bevan (1995) FLC 92-600
Redman v Redman (1987) FLC 91-805
Stanford v Stanford [2012] HCA 52
Mallet v Mallet[1984] HCA 21; (1984) 156 CLR 605
R v Watson; Ex parte Armstrong[1976] HCA 39; (1976) 136 CLR 248
Strahan v Strahan (2010) 42 Fam LR 203
Harris & Harris (1993) FLC 92-378
Wenz v Archer (2009) 40 FamLR 212
Mitchell & Mitchell (1995) FLC 92-601
Brown & Brown (2007) FLC 93-316
Benson & Benson [2012] FMCAfam 335

Applicant:

MS GILBERT

Respondent:

MR GILBERT

File Number:

ADC 1244 of 2013

Judgment of:

Judge Brown

Hearing date:

24 June 2013

Date of Last Submission:

24 June 2013

Delivered at:

Adelaide

Delivered on:

27 June 2013

REPRESENTATION

Counsel for the Applicant:

Ms Kari

Solicitors for the Applicant:

David Burrell & Co

Counsel for the Respondent:

Mr Howe

Solicitors for the Respondent:

Howe Martin & Associates

ORDERS

That pursuant to Section 26 of the Federal Circuit Court of Australia Act1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 29 August 2013 at 9:15am.
Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee of $350 in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.
Should the Applicant fail to comply with Order 2 herein the conciliation conference is to be vacated and the matter…

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: GILBERT & GILBERT [2013] FCCA 667
Case: [2013] FCCA 667
Decision Date: 27 June 2013

CaseChat Overview and Summary

In the matter of *Gilbert & Gilbert*, heard by Judge Brown of the Federal Circuit Court of Australia, the parties were engaged in a dispute concerning property division. The court issued a series of orders aimed at facilitating the resolution of these property matters.

The court was required to determine the procedural steps necessary for the parties to progress their property dispute. This included setting a date for a conciliation conference, outlining the financial obligations associated with that conference, and establishing a framework for the exchange of crucial financial and valuation documents. The court also needed to manage the listing of the matter for further directions.

Judge Brown ordered that the parties attend a conciliation conference before a Registrar on 29 August 2013. The applicant was directed to pay the conference fee within 28 days, with failure to do so resulting in the vacation of the conference and the matter being listed for mention. The parties were also ordered to exchange appraisals, valuations, and relevant financial documents 14 days prior to the conference, and to undertake informal discovery within 28 days. A previous directions hearing was vacated and a new one scheduled for 3 September 2013. By consent, the parties were ordered to take all necessary steps to place a specified property on the market for sale, with agreement on terms to be reached between them or, failing that, as directed by the Court.

Orders

Orders of the court

That pursuant to Section 26 of the Federal Circuit Court of Australia Act 1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 29 August 2013 at 9:15am.

Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee of $350 in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.

Should the Applicant fail to comply with Order 2 herein the conciliation conference is to be vacated and the matter is to be listed for mention before the Court.

The parties exchange all appraisals or valuations of all items in dispute between them both real and personal and exchange all relevant financial documents 14 days prior to the conciliation conference.

The parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules within 28 days.

The directions hearing of 8 July 2013 be vacated and the matter be listed for further directions on 3 September 2013 at 9.30 am.

By consent it is ordered

The parties take all necessary steps to place the property known as and situate at Property G, (omitted)on the market for sale at a price and on such terms and conditions and by such means as the parties agree and failing such agreement as directed by the Court.

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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