Herbert and Herbert - [2006] FMCAfam 254

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HERBERT & HERBERT

[2006] FMCAfam 254

FAMILY LAW – Property – marriage of approximately fifteen years in duration – parties separated in excess of seven years – assessment of contributions post separation – children of marriage currently aged 20 and 15 resident with wife since separation – relevance of absence of child support determination between separation and December 2003 (5 years) – payment of private school fees – valuation issues – Red Book values for motor vehicles – s.75(2) factors – relevance of child support assessment when husband has left workforce to pursue tertiary studies – relevance of income earning capacity – disparity of income and superannuation – application for certificate pursuant to Federal Proceedings (Costs) Act 1981.

Family Law Act 1975 – ss.75, 79
Federal Proceedings (Costs) Act 1981 – s.10
Family Law (Superannuation) Regulations 2001 – s.90
Federal Magistrates Court Act 2000 – s.42
Child Support (Assessment) Act 1989

Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335
Clauson v Clauson (1995) FLC 92-595
Wardman & Hudson (1978) FLC 90-466
Russell v Russell (1999) FamCA 187
Waters & Jurek (1995) FLC 92-635
Smith & Smith (1991) FLC 92-261
Commonwealth v Milledge (1953) 90CLR 157
E & E [2005] FMCAfam 204
C v C (2005) FLC 93-220
Pierce &Pierce (1999) FLC 92-844
Norbis v Norbis (1986) FLC 91-712
Williams & Williams (1985) FLC 91-628
Spiteri & Spiteri (2005) FLC 93-214
Mallet v Mallet (1984) 156 CLR 605
D & D [2003] FamCA 473
DJM v JLM (1998) FLC 92-816
Paradine & Paradine (1981) FLC 91-056
Levick and Levick unreported decision of Moore J delivered 31 January 2003

Applicant:

MS HERBERT

Respondent:

MR HERBERT

File number:

ADM 40 of 2004

Judgment of:

Brown FM

Hearing dates:

24 and 26 April 2006

Delivered at:

Alice Springs

Delivered on:

31 May 2006

REPRESENTATION

Counsel for the Applicant:

Ms Ross

Solicitors for the Applicant:

David Peacock

Counsel for the Respondent:

Mr Morcombe

Solicitors for the Respondent:

Marssons Family Lawyers

ORDERS

That within 60 days of the date of these orders the wife pay to the husband the sum of $35,000.00.
That contemporaneously with the payment referred to in Order 1 hereof the husband transfer to the wife, at the wife’s expense, the whole of his right, title and interest in the property known as and situate at Property B in the State of South Australia and being the whole of the land comprised in Certificate of Title Register Book Volume [omitted].
That upon the transfer of the property referred to in Order 2 hereof the wife shall forthwith discharge the mortgage to the Adelaide Bank secured against the aforesaid property and shall obtain the removal of the husband’s liability to pay any and all liabilities pursuant to the same.
That contemporaneously with the payment referred to in Order 1 hereof the parties shall each pay the sum of $5,422.05 to the Business Manager of [S] School being monies owed for tuition fees…

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 Herbert and Herbert

Details

AGLC: Herbert and Herbert [2006] FMCAfam 254
Case: [2006] FMCAfam 254
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the case of Herbert and Herbert involved property proceedings following the dissolution of the parties' marriage. The major issues were the division of the parties' property and the financial support of their children. The court had to determine the value of the parties' assets, including their former matrimonial home and motor vehicles, and assess the financial contributions of each party post-separation. The court also considered the future financial needs of the parties, particularly the wife's responsibility for supporting their children. The wife sought a departure order under the Child Support (Assessment) Act 1989, but the court dismissed this application due to its late stage and lack of proper pleading. The court ordered the wife to pay the husband a sum of money and transfer her interest in the former matrimonial home to him, while also considering the parties' superannuation interests and the payment of school fees. The court did not grant a costs certificate to the wife under the Federal Proceedings (Costs) Act 1981 as the proceedings had not been rendered abortive.

Orders