H & L - [2007] FMCAfam 125

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & L

[2007] FMCAfam 125

FAMILY LAW – Property settlement – short marriage – spousal maintenance.

COSTS – Whether certificate should be granted pursuant to s.10(3) Federal Proceedings (Costs) Act 1981.

Family Law Act 1975, ss.72, 74, 75, 79
Federal Magistrates Act 1999, s.59
Federal Proceedings (Costs) Act 1981, s.10

In the Marriage of Lee Steere (1985) 10 Fam LR 431
In the Marriage of LJ Russell & SC Russell (1999) 25 Fam LR 629
In the Marriage of FA & DG Clauson (1995) 18 Fam LR 693
In the Marriage of Bushby, AL & Bushby, DE (1988) FLC 91 – 919
AER & AG [2004] FMCA 641
In the Marriage of Bevan (1993) 120 FLR 283
Chorn and Hopkins (2004) FLC 93 – 240
Aleksovski v Aleksovski (1996) FLC 92 – 705
Parshen v Parshen (1996) 92 – 720
In the Marriage of JG and HJ McMahon (1995) 19 FamLR 99
Norbis and Norbis (1985 – 86) 161 CLR 513
Ward v Schembri (2005) 33 Fam LR 546

Applicant:

DJH

Respondent:

File Number:

SYM 4894 of 2004

Judgment of:

Cameron FM

Hearing date:

13 October 2006

Date of Last Submission:

13 October 2006

Delivered at:

Sydney

Delivered on:

12 March 2007

REPRESENTATION

Counsel for the Applicant:

Mr R M Galloway

Solicitors for the Applicant:

Pippa Colman & Associates Solicitors

Counsel for the Respondent:

Mr Livingstone

Solicitors for the Respondent:

Macedone Christie Willis

ORDERS

Within 60 days of the date of these orders the wife pay to the husband by way of property settlement the sum of $55,602.
There be no alteration to the interests of the husband or wife in their respective superannuation funds.
The parties retain all items of property currently in the possession or control of each of them respectively.
The husband’s application for spousal maintenance be dismissed.
The parties’ applications for orders under the Federal Proceedings (Costs) Act1981 be dismissed.
The parties have liberty to apply on three days’ notice in respect of the implementation of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

SYM 4894 of 2004

DJH

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to an application for property settlement and lump sum spouse maintenance by the husband. The applicant is DJH (“the husband”) and the respondent is SL (“the wife”). The wife does not make an application for maintenance against the husband and, in respect of property interests, simply seeks the dismissal of the husband’s application with costs.
The marriage was one of short duration. There was disagreement between the parties as to when cohabitation commenced. The husband says it was in August 2000 and the wife says it was in October or November 2000.
The parties were married on 22 April 2001. The parties separated on

7 April 2003 and were divorced on 6 September 2004.
During the marriage the wife was employed by ANZ (not the real organisation) and the husband was an information…

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: H & L [2007] FMCAfam 125
Case: [2007] FMCAfam 125
Decision Date: 12 March 2007

CaseChat Overview and Summary

In the case before the court, the parties were a husband and a wife, who had been married for a short duration, and the primary issue was the division of their property and the potential for spousal maintenance. The matter was heard and determined by the Family Court of Australia. The wife sought a property settlement, while the husband sought spousal maintenance. The court was tasked with determining the appropriate division of the parties' property and whether spousal maintenance should be awarded to the husband.

The legal issues before the court involved interpreting and applying the relevant provisions of the Family Law Act 1975, specifically in relation to property settlements and spousal maintenance. The court needed to consider the factors outlined in section 79 of the Act, such as the contributions made by each party to the marriage, including non-financial contributions, and the future needs and circumstances of each party. Additionally, the court had to assess whether spousal maintenance was appropriate in light of the short duration of the marriage and the respective financial circumstances of the parties.

In determining the property settlement, the court considered the evidence presented by both parties regarding their financial contributions and circumstances. The court found that the wife should pay the husband $55,602 within 60 days as a property settlement. The court also considered the parties' respective superannuation funds and decided that there should be no alteration to their interests in those funds. The court concluded that spousal maintenance was not warranted given the short duration of the marriage and the parties' financial circumstances. Furthermore, the court dismissed the parties' applications for orders under the Federal Proceedings (Costs) Act 1981, determining that the certificate should not be granted. The parties were granted liberty to apply on three days' notice in respect of the implementation of these orders.

Orders

Orders of the court

Within 60 days of the date of these orders the wife pay to the husband by way of property settlement the sum of $55,602.

There be no alteration to the interests of the husband or wife in their respective superannuation funds.

The parties retain all items of property currently in the possession or control of each of them respectively.

The husband’s application for spousal maintenance be dismissed.

The parties’ applications for orders under the Federal Proceedings (Costs) Act 1981 be dismissed.

The parties have liberty to apply on three days’ notice in respect of the implementation of these orders.

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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