GOULD & CHRISTIE - [2011] FMCAfam 1230

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GOULD & CHRISTIE

[2011] FMCAfam 1230

FAMILY LAW – Property – date of separation – contributions – asset-by-asset or global approach – section 75(2) factors.

Family Law Act 1975, ss.75(2), 79
Evidence Act 1995, s.140

Hurst & Weber [2009] FamCAFC 137
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC ¶93-143
Russell v Russell (1999) FLC ¶92-877

Townsend and Townsend (1995) FLC ¶92-569

Todd and Todd (No.2) (1976) FLC ¶90-008
Falk and Falk (1977) FLC ¶90-247
Pavey and Pavey (1976) FLC ¶90-051
Fenech and Fenech (1976) FLC ¶90-035
Elias and Elias (1977) FLC ¶90-267
Norbis v Norbis (1986) FLC ¶91-712
McMahon and McMahon (1995) 92-606
Collins and Collins (1990) FLC ¶92-149
Waters and Jurek (1995) FLC ¶92-635
Clauson and Clauson (1995) FLC ¶92-595
Mallet v Mallet (1984) FLC ¶91-507

Applicant:

MR GOULD

Respondent:

MS CHRISTIE

File number:

MLC 11509 of 2009

Judgment of:

McGuire FM

Hearing dates:

22 & 23 December 2010, 17 & 18 March 2011,
8, 23 & 24 June 2011 and 15 August 2011

Date of last submission:

15 August 2011

Delivered at:

Melbourne

Delivered on:

18 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr G. Thompson

Solicitors for the Applicant:

Hayes & Associates

Counsel for the Respondent:

Mr D. Staindl

Solicitors for the Respondent:

Clancy & Triado

ORDERS

That within 60 days of the date of these orders the husband pay to the wife a lump sum of $144,257.
That contemporaneously with the payment referred to in paragraph (1) hereof, the husband shall:
(a)Transfer and/or vest all his right, title and interest in the following to the wife absolutely:
(i)the 2003 [omitted] motor vehicle in the possession of the wife;
(ii)the wife’s [omitted] boat;
(iii)the wife’s superannuation policy and entitlement;
(iv)all personalty and chattels in the possession of or under the control of the wife as at the date of these orders;
(v)the balances of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these orders.
(b)Be solely responsible for and indemnify the wife in respect of the following:
(i)any and all liabilities attaching to any of the assets retained by the husband pursuant to these orders;
(ii)any and all liabilities incurred by the husband since separation in either joint names or in his name alone.
That contemporaneously with the payment referred to in paragraph (1) hereof the wife shall:
(a)Transfer and/or vest all her right, title and interest in the following to the husband absolutely:
(i)the property situate at Property F in the State of Victoria;
(ii)the assets of the husband’s [business];
(iii)the husband’s [omitted] motor vehicle;
(iv)the husband’s berth at [M];
(v)all personalty and chattels in the possession of or under the control of the husband as at the date of these orders;
(vi)the balances of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these orders.

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 GOULD & CHRISTIE

Details

AGLC: GOULD & CHRISTIE [2011] FMCAfam 1230
Case: [2011] FMCAfam 1230
Decision Date: 18 November 2011

CaseChat Overview and Summary

The case of Gould & Christie was heard in the Family Court of Australia. The dispute between the parties centred around the division of assets and liabilities following their separation. The wife sought a lump sum payment and the transfer of specific assets to her, while the husband argued for a different allocation of property. The court had to decide on the appropriate division of assets and liabilities, considering the contributions of each party, their respective needs, and the principles set out in the Family Law Act 1975.

The court examined the evidence presented regarding the contributions of each party, both financial and non-financial, to the relationship. It considered the future needs and earning capacities of both parties, along with the principles of equality and just and equitable outcomes as prescribed by the Act. The court also looked at the assets and liabilities of each party, including property, superannuation, and personal belongings, to ensure a fair and reasonable division.

After careful consideration of the evidence and legal principles, the court ordered the husband to pay a lump sum of $144,257 to the wife and transfer various assets to her. The court also outlined specific liabilities each party would be responsible for post-separation. This decision was made to achieve a just and equitable outcome, considering the unique circumstances of the case and the statutory framework governing family law in Australia.

The court's final orders included the payment of a lump sum, the transfer of specific assets, and the assumption of liabilities by each party. These orders were intended to conclusively determine the financial relationships between the parties under the Family Law Act 1975, ensuring both parties' needs and contributions were fairly considered.

Orders

Orders of the court

That within 60 days of the date of these orders the husband pay to the wife a lump sum of $144,257.

That contemporaneously with the payment referred to in paragraph (1) hereof, the husband shall:

(a) Transfer and/or vest all his right, title and interest in the following to the wife absolutely:

(i) the 2003 [omitted] motor vehicle in the possession of the wife;

(ii) the wife’s [omitted] boat;

(iii) the wife’s superannuation policy and entitlement;

(iv) all personalty and chattels in the possession of or under the control of the wife as at the date of these orders;

(v) the balances of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these orders.

(b) Be solely responsible for and indemnify the wife in respect of the following:

(i) any and all liabilities attaching to any of the assets retained by the husband pursuant to these orders;

(ii) any and all liabilities incurred by the husband since separation in either joint names or in his name alone.

That contemporaneously with the payment referred to in paragraph (1) hereof the wife shall:

(a) Transfer and/or vest all her right, title and interest in the following to the husband absolutely:

(i) the property situate at Property F in the State of Victoria;

(ii) the assets of the husband’s [business];

(iii) the husband’s [omitted] motor vehicle;

(iv) the husband’s berth at [M];

(v) all personalty and chattels in the possession of or under the control of the husband as at the date of these orders;

(vi) the balances of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these orders.

(b) Be solely responsible for and indemnify the husband in respect of the following liabilities:

(i) any and all liabilities attaching to any of the assets retained by the wife pursuant to these orders;

(ii) any and all liabilities incurred by the wife since separation in either joint names or in her name alone.

THE COURT DECLARES

(A) That these orders are intended to finally determine the financial relationships between the parties with respect to Part VIII of the Family Law Act 1975.

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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