GILMARTIN & GILMARTIN - [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

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

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

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: GILMARTIN & GILMARTIN [2016] FCCA 3135
Case: [2016] FCCA 3135
Decision Date: 8 December 2016

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

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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