GRIFFITH & GRIFFITH - [2015] FCCA 1811

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRIFFITH & GRIFFITH

[2015] FCCA 1811

Catchwords:
FAMILY LAW – Alteration of property interests – paid and unpaid legal costs – question of “add-backs” to property pool not of substantial value – section 75(2) considerations.

Legislation:

Family Law Act 1975

Beklar & Beklar [2013] FamCA 327
Bevan & Bevan [2013] FamCAFC 116
NHC v RCH (2004) FLC 93-204
Clausen & Clausen (1995) FLC 92-595
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
OSF & OJK (2004) FLC 93-191
Stanford v Stanford [2012] HCA 52

Applicant:

MS GRIFFITH

Respondent:

MR GRIFFITH

File Number:

MLC 6392 of 2012

Judgment of:

Judge McGuire

Hearing dates:

18 & 19 June 2015

Date of Last Submission:

19 June 2015

Delivered at:

Melbourne

Delivered on:

23 July 2015

REPRESENTATION

Counsel for the Applicant:

Mr Wraith

Solicitors for the Applicant:

Mills Oakley Lawyers Pty Ltd

Counsel for the Respondent:

Mr Hannan

Solicitors for the Respondent:

Rng Lawyers

ORDERS

AWithin 60 days of the date of these orders, the husband shall:

Pay to the wife a lump sum of $309,505;
Transfer and/or vest all his right, title and interest in the following to the wife absolutely:
(i)The wife’s Tarago motor vehicle;
(ii)The balance proceeds of sale of the former matrimonial home of Property W, Victoria in the sum of $5,081 (with agreement noted between the parties that this amount is to be paid to the husband in respect of an outstanding costs order against the wife);
(iii)All personalty and chattels in the possession of or under the control of the wife as at the date of these orders;
(iv)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; and
(v)The wife’s superannuation policy and entitlement.
Be solely responsible for and indemnify the wife in respect of the following:
(i) Any and all liabilities incurred by the husband since separation either in his name alone or in joint names;
(ii) Any or all liabilities attaching to the assets to be retained by the husband pursuant to the these orders including but not limited to:
A.The loan in respect of the Mercedes van; and
B.The husband’s credit card liability.

BThe wife shall contemporaneously with the payment referred to in order A(1) herein;

Transfer and/or vest all her right, title and interest in the following to the husband absolutely:
(i)     The property situate at Property R in Victoria and registered in the joint names of the parties;
(ii)    The Mercedes van motor vehicle in possession of the husband;
(iii)     The (vehicle omitted) motor vehicle in the possession of the husband;
(iv)   The excavator in the possession of the husband;
(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…

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 GRIFFITH & GRIFFITH

Details

AGLC: Griffith and Griffith [2015] FCCA 1811
Case: [2015] FCCA 1811
Decision Date: 23 July 2015

CaseChat Overview and Summary

In *Griffith & Griffith*, Judge McGuire of the Federal Circuit Court of Australia was tasked with determining the financial relationship between a husband and wife following their separation. The dispute centred on the division of assets and liabilities, particularly concerning post-separation expenditures and liabilities incurred by the wife.

The court was required to determine whether certain liabilities incurred by the wife post-separation, including credit card debt, personal loans, and advances, should be included in the matrimonial property pool for division. The wife argued these liabilities were reasonably incurred for her support and that of the children, especially given the husband's continued benefit from the former partnership business and his superior financial position post-separation. Conversely, the husband contended that these liabilities should be disregarded as they were incurred by the wife after the parties had separated.

Judge McGuire reasoned that the husband had maintained a reasonably satisfactory financial situation post-separation, enabling him to fund home improvements, support adult children, and meet his legal costs. In contrast, the wife's financial position was considered inferior, as she did not secure employment for a significant period and experienced a weekly shortfall after her expenses. The court noted the wife's contributions to the financial support of the children and found no evidence of an extravagant lifestyle. Considering the length of separation and the parties' respective financial circumstances, the court was satisfied that the wife's expenditure on her credit card, personal loans, and advances was reasonably incurred for her and the children's support. Consequently, these liabilities were to be included in the property pool.

The court ordered the husband to pay the wife a lump sum of $309,505 and transfer certain assets to her, including her motor vehicle and superannuation. The wife was ordered to transfer her interest in the jointly owned property and other assets to the husband. Both parties were to be solely responsible for and indemnify each other in respect of specified liabilities, including legal costs and debts attaching to assets retained by each party. The orders were intended to finally determine the financial relationship between the parties, pursuant to section 81 of the *Family Law Act 1975*.

Orders

Orders of the court

A Within 60 days of the date of these orders, the husband shall:

Pay to the wife a lump sum of $309,505;

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

(i) The wife’s Tarago motor vehicle;

(ii) The balance proceeds of sale of the former matrimonial home of Property W, Victoria in the sum of $5,081 (with agreement noted between the parties that this amount is to be paid to the husband in respect of an outstanding costs order against the wife);

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

(iv) 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; and

(v) The wife’s superannuation policy and entitlement.

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

(i) Any and all liabilities incurred by the husband since separation either in his name alone or in joint names;

(ii) Any or all liabilities attaching to the assets to be retained by the husband pursuant to the these orders including but not limited to:

A. The loan in respect of the Mercedes van; and

B. The husband’s credit card liability.

B The wife shall contemporaneously with the payment referred to in order A(1) herein;

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

(i) The property situate at Property R in Victoria and registered in the joint names of the parties;

(ii) The Mercedes van motor vehicle in possession of the husband;

(iii) The (vehicle omitted) motor vehicle in the possession of the husband;

(iv) The excavator in the possession of the husband;

(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; and

(vii) The husband’s superannuation policy and entitlement.

Be solely responsible for and indemnify the husband in respect of the following:

(i) The wife’s outstanding legal costs liability in respect of the parties’ VCAT proceedings;

(ii) The wife’s credit card liability;

(iii) The wife’s loan liability to (omitted);

(iv) The wife’s loan liability to Ms C;

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

(vi) Any or all liabilities otherwise incurred by the wife since separation either in her name alone or in joint names.

C There be liberty to the parties or either of them to apply should the payment to the wife in order A(1) hereof not be made on the due date.

AND THE COURT NOTES THAT:

D Pursuant to Section 81 of the Family Law Act 1975 the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Treatment of the wife’s credit card liability ($37,709.00), her loans from (omitted) and her sister ($12,200.00) and advances to her since separation ($45,000.00). The credit card and loan liabilities, which the wife claims as liabilities to be included in the property pool, total approximately $49,900.00. The advances by Court order were made on the basis of being categorised at Trial. The wife says that these advances should not be included in the pool as having been used on her reasonable living expenses since separation. She applies the same argument in urging the inclusion of the loans and the credit card liability. She justifies this position by arguing that the husband has had the ongoing benefit of the former partnership business since separation. The husband says that these liabilities should be disregarded in the property pool as being incurred by the wife post-separation. The parties’ post-separation financial circumstances are set out above. I am comfortably satisfied that the husband has continued in a reasonably satisfactory financial situation. He has been able to make substantial expenditure on improvements to the home in which he lives. He has provided support for the adult children. He has met his legal costs set out above. The wife’s position, in my view, has been inferior to that of the husband. She did not obtain actual employment until some 20 months following separation. In her financial statement she deposes to an income of $830.00 per week (although there was a suggestion of a slightly higher sum) with a shortfall after her expenditure of $737.00 each week. She has paid $450.00 a week in rent since November 2013. The husband has during that same period enjoyed mortgage/rent-free accommodation in the parties’ jointly owned property at Property R. I am satisfied that the wife, in so far that she is able, has contributed to the actual and extra-curricular financial support of the children. Whilst the wife’s evidence of spending “$30-$40 per week on alcohol” is perhaps incongruous with her being hospitalised because of alcoholism, there is no evidence before me of the wife living an extravagant lifestyle post-separation. The parties have been separated for some three years and three months. Taking all of these matters into account, the wife’s expenditure of some $94,900.00 during that time in addition to her income would not, in my view, seem unreasonable. Consequently, and when viewed against the husband’s financial position, I am satisfied that the wife’s expenditure on her credit card, the personal loans and the advances to her has been reasonably incurred in the support of herself and the children. As such, I propose to include those liabilities in the property pool. I do not intend to categorise the $45,000.00 advanced to the wife as “property in her hands” but am satisfied that it has been used on sensible expenditure. I take this position, however, noting that I must deal with the wife’s unpaid and paid legal costs below.