GILMARTIN & GILMARTIN

Case [2016] FCCA 3135


FEDERAL CIRCUIT COURT OF AUSTRALIA

GILMARTIN & GILMARTIN [2016] FCCA 3135

Catchwords:
FAMILY LAW – Property – application by the Wife for property settlement – where the Husband submits it would not be just and equitable for the Court to make orders adjusting the parties’ property interests – where the Wife asserts an interest in the Husband’s future inheritance from his late mother’s estate – where the Husband denies the Wife holds an interest in his mother’s estate.

HELD – It is just and equitable for the Court to make orders dealing with the property of the parties – the Husband’s inheritance to be included in the asset pool for division between the parties.

Legislation:

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

Cases cited:

Bonnici v Bonnici (1992) FLC 92-272
Stanford & Stanford [2012] HCA 52
Bishop v Bishop [2013] FamCAFC 138

Applicant: MS GILMARTIN
Respondent: MR GILMARTIN
File Number: MLC 6664 of 2016
Judgment of: Judge Bender
Hearing date: 18 October 2016
Date of Last Submission: 18 October 2016
Delivered at: Melbourne
Delivered on: 8 December 2016

REPRESENTATION

Counsel for the Applicant: Ms Teicher
Solicitors for the Applicant: Mirabellas Solicitors
Counsel for the Respondent: Mr Stanley
Solicitors for the Respondent: Plaza Legal

ORDERS

  1. The Application of the Husband that the Wife’s Initiating Application filed 18 July 2016 be dismissed and that the Wife pay the Husband’s costs is hereby dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gilmartin & Gilmartin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6664 of 2016

MS GILMARTIN

Applicant

And

MR GILMARTIN

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This judgment relates to the Wife’s Application seeking orders adjusting the property between the parties pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”).

  2. At the time of the filing of that Application on 18 July 2016, the Registry acquiesced to the Wife’s request for an urgent abridgment with respect to interim orders whereby she sought that the Husband be restrained from dealing with the parties’ self-managed superannuation fund as well as the proceeds from the estate of the Husband’s mother, Ms W.

  3. The Wife’s Application first came before the Court on 2 August 2016. Solicitors appeared on behalf of the Respondent but had not prepared responding material at that time given the urgent abridgment of the matter. The matter was adjourned to allow responding material to be filed and an interim order was made restraining the Husband by injunction from receiving, transferring, withdrawing or dealing with any of the proceeds from the estate of the Husband’s mother.

  4. On 24 August 2016 the Husband filed a Response, Answering Affidavit and Financial Statement. In his Response the Husband seeks that the Wife’s Application be dismissed and that the Wife pay his costs on an indemnity basis.

  5. The matter returned to Court on 31 August 2016, at which time it became apparent there existed a threshold issue between…

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AGLC
GILMARTIN & GILMARTIN [2016] FCCA 3135
Case
[2016] FCCA 3135
Decision Date

CaseChat Overview and Summary

In *Gilmartin & Gilmartin*, the Wife sought property settlement orders from the Family Court of Australia. The Husband contended that it would not be just and equitable for the Court to make any adjustments to the parties' property interests. Central to the dispute was the Wife's assertion of an interest in the Husband's future inheritance from his late mother's estate, an interest the Husband denied.

The primary legal issue before the Court was whether it was just and equitable to make orders adjusting the parties' property interests, and specifically, whether the Husband's prospective inheritance should be included in the asset pool for division.

Judge Bender held that it was indeed just and equitable for the Court to make orders dealing with the property of the parties. The Court reasoned that the Husband's inheritance was to be included in the asset pool for division. Consequently, the Husband's application to dismiss the Wife's Initiating Application and for the Wife to pay his costs was dismissed.

Orders

Orders of the court

1.

The Application of the Husband that the Wife’s Initiating Application filed 18 July 2016 be dismissed and that the Wife pay the Husband’s costs is hereby dismissed.

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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