HILTON & LONGHURST - [2013] FamCA 511

FAMILY COURT OF AUSTRALIA

HILTON & LONGHURST

[2013] FamCA 511

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Determination of the property of the parties or either of them – Whether it is just and equitable to make an order altering the parties’ interests in property – Assessment of the parties’ respective contributions – Assessment of factors relevant to section 75(2) of the Family Law Act 1975 (Cth) – Where the Court determined that it was just and equitable for the wife to receive 80 per centum of the parties’ net asset pool
FAMILY LAW – PRACTICE AND PROCEDURE – EX PARTE HEARING – Where the husband failed to file a response and failed to appear in the proceedings – Where orders had previously been made for substituted service – Where the wife’s evidence and submissions were uncontested
FAMILY LAW – COSTS – Where the Court determined that it was just in the circumstances to make an order for costs against the husband – Where an order was made for costs on an indemnity basis with respect to the wife’s application for substituted service – Where the Court otherwise made an order for costs in favour of the wife on a party-party basis

Family Law Act 1975 (Cth)

Cases considered:
Hitch & Hitch [2012] FamCAFC 124

APPLICANT:

Ms Hilton

RESPONDENT:

Mr Longhurst

FILE NUMBER:

SYC

4615

2011

DATE DELIVERED:

8 July 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

14 June 2013 and written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Jervis

RESPONDENT:

No appearance

Orders

The husband shall forthwith pay to the wife the sum of $699,455.
Upon payment by the husband to the wife of the sum referred to in Order (1), the wife is to transfer to the husband all of her right, title and interest in and to the property owned by the parties and situated at Town B in District C, Thailand and described by the wife as “The Compound [District C] (Interest in 3 Rai (4500sqm) of Development Land in [Distict C], Thailand” (hereafter referred to as “the Thai property”).
Simultaneously with the transfer of the Thai property in accordance with Order (2), the husband is to pay all such monies as are necessary to discharge the debt due to the wife’s parents of $8,607 and any interest accruing thereon. If such debt is in the meantime paid by the wife to her parents, then the sum stipulated herein as being payable to the wife’s parents shall be paid by the husband to the wife instead.
Except as otherwise provided for in these Orders, the husband and the wife shall retain the right, title and interest in all property including superannuation presently in their name, possession or control.
Except as otherwise provided for in these Orders, the husband and the wife shall remain liable for and indemnify the other party against any liabilities presently in their name.
The Court notes that the wife’s…

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: HILTON & LONGHURST [2013] FamCA 511
Case: [2013] FamCA 511
Decision Date: 8 July 2013

CaseChat Overview and Summary

In the matter of Hilton & Longhurst, Fowler J of the Federal Circuit Court of Australia determined the financial settlement between a husband and wife. The dispute concerned the division of property and liabilities, including a property located in Thailand.

The court was required to determine how the parties' assets and debts should be divided, and to make orders regarding the payment of costs. Specifically, the court had to consider the wife's interest in the Thai property and a debt owed to her parents, as well as the general division of other assets and liabilities. The wife's application for spouse maintenance was not pressed.

Fowler J ordered the husband to pay the wife a sum of $699,455. Upon this payment, the wife was to transfer her interest in the Thai property to the husband. The husband was also ordered to discharge a debt of $8,607 owed to the wife's parents, including any accrued interest, or pay this sum to the wife if she had already settled the debt. Each party was to retain their existing property and remain liable for their own debts, except as otherwise ordered. The husband was also ordered to pay the wife's costs of and incidental to applications for substituted service on an indemnity basis, and her other costs on a party-party basis.

Orders

Orders of the court

The husband shall forthwith pay to the wife the sum of $699,455.

Upon payment by the husband to the wife of the sum referred to in Order (1), the wife is to transfer to the husband all of her right, title and interest in and to the property owned by the parties and situated at Town B in District C, Thailand and described by the wife as “The Compound [District C] (Interest in 3 Rai (4500sqm) of Development Land in [Distict C], Thailand” (hereafter referred to as “the Thai property”).

Simultaneously with the transfer of the Thai property in accordance with Order (2), the husband is to pay all such monies as are necessary to discharge the debt due to the wife’s parents of $8,607 and any interest accruing thereon. If such debt is in the meantime paid by the wife to her parents, then the sum stipulated herein as being payable to the wife’s parents shall be paid by the husband to the wife instead.

Except as otherwise provided for in these Orders, the husband and the wife shall retain the right, title and interest in all property including superannuation presently in their name, possession or control.

Except as otherwise provided for in these Orders, the husband and the wife shall remain liable for and indemnify the other party against any liabilities presently in their name.

The Court notes that the wife’s application with respect to spouse maintenance was not pressed.

With respect to the wife’s applications to the Court for orders for substituted service (namely the wife’s Application in a Case dated 12 June 2012 and her Amended Application in a Case dated 13 August 2012), the husband is to pay the wife’s costs of and incidental to those applications on an indemnity basis.

Except as otherwise provided for in Order (6), the husband is to pay the wife’s costs of and incidental to the proceedings on a party-party basis.

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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