I and I

Case [2004] FMCAfam 203 6 May 2004

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

I & I

[2004] FMCAfam 203

FAMILY LAW – Property – global or asset by asset approach – long marriage – focussing on one asset only has the potential to do a grave injustice – global approach applied – wife asserts that through effluxion of time husband tacitly relinquished his interest in former matrimonial home – no actual or implied agreement to abandon interest in the home – wife claims Kennon adjustment – nature of redundancy – difficulty with formulaic apportionment of redundancy entitlement pre and post separation discussed – evaluation of contributions – future needs.

Family Law Act 1975

Lee Steere (1985) FLC 91-626
Ferraro (1993) FLC 92-335

Clauson (1995) FLC 92-595
Russell v Russell (1999) FLC92-877

Tuck and Tuck (1981) FLC 91-021
McMahon and McMahon (1995) FLC 92-606
Norbis v Norbis (1986) 161 CLR 513
Zyk v Zyk (1995) FLC 92-644
Quinn (1979) FLC 90-677
Danielan v Danielian [2003] FamCA 473
Brown v Green (1999) 25 Fam LR 483
Harris (1991) FLC 92-698
Neneke (1996) FLC 92-698
Judkins and Santamaria [2003] FamCA 618
Kennon (1997) FLC 92-757
Jones v Dunkel (1959) 101 CLR 298
Farnell (1996) FLC 92-681
Weir v Weir (1993) FLC 92-338
Black v Kellner (1992) FLC 92-287
Junti (1986) FLC 91-759
Mezzacappa (1987) FLC 91-853
Jenkins v Livesey (1985) 1 All ER 106
Luciano (2000) FamCA 401
Townsend (1995) FLC 92-569
Kennon (1997) FLC 92-757
Burke (1993) FLC 92-356
Woodcock v Woodcock 1997 FLC 92-739
In the Marriage of Dupont (3) (1981) FLC 91-103
Candlish and Pratt (1980) FLC 90-123

Applicant:

N I

Respondent:

D I

File No:

SYM403 of 2002

Delivered on:

6 May 2004

Delivered at:

Parramatta

Hearing date:

5 and 20 April 2004

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Autore

Solicitors for the Applicant:

Autore & Associates

Counsel for the Respondent:

Mr G. Roberts

Solicitors for the Respondent:

Philip Lewis

ORDERS

Within three months of the date of these orders the wife pay to the husband the sum of fifty five thousand three hundred and forty nine dollars ($55,349.00).
Simultaneously upon compliance by the wife with Order 1 the husband shall do all acts and execute all documents as are necessary to transfer to the wife the whole of his right, title and interest in (“the property”) situate at and known as the Oak Flats property.
In the event the wife fails to comply with Order 1 the parties do all such acts and execute all such documents as may be required to effect a sale of the former matrimonial home situate and known as
the Oak Flats property to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.
Upon the completion of the sale proceeds of the sale be applied as follows:
(a)To pay all costs, commissions and expenses of the sale in respect of…

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: I and I [2004] FMCAfam 203
Case: [2004] FMCAfam 203
Decision Date: 6 May 2004

CaseChat Overview and Summary

The case between the husband and wife involves a dispute over the division of assets following the termination of their marriage. The Federal Circuit and Family Court of Australia was tasked with determining the financial implications of the divorce, specifically regarding the distribution of a property known as the Oak Flats property and the payment of a sum of money by the wife to the husband. The court was required to decide on the appropriate division of assets, the timing and method of property transfer, and the consequences if the wife failed to make the specified payment.

The legal issues before the court included the valuation and division of the matrimonial property, the enforceability of the terms of the property transfer, and the consequences of the wife's non-compliance with the court's orders. The court had to consider the evidence presented by both parties regarding the financial status and contributions to the marriage, and the implications of these factors on the division of assets. Additionally, the court needed to address the practicalities of property transfer and the potential for alternative methods of asset distribution if the primary terms were not met.

The court determined that the wife should pay the husband a sum of $55,349.00 within three months. If the wife complied, the husband would transfer his interest in the Oak Flats property to her. If the wife did not make the payment, the property would be sold by private treaty or, if necessary, by public auction. The proceeds from the sale would be applied to cover costs, and then 45% of the remaining balance would go to the wife, with the rest going to the husband, minus an adjusting sum of $104,151.00. The court also outlined the procedure for handling exhibits, subpoenas, and any further applications for costs.

The final orders of the court included specific timelines for the wife's payment and property transfer, detailed instructions for the sale of the property if the wife did not comply, and provisions for the distribution of sale proceeds. The court also addressed the handling of exhibits, the return of subpoenaed material, and the dismissal of outstanding applications. Any application for costs was to be listed by arrangement with the court's associate within one month.

Orders

Orders of the court

Within three months of the date of these orders the wife pay to the husband the sum of fifty five thousand three hundred and forty nine dollars ($55,349.00).

Simultaneously upon compliance by the wife with Order 1 the husband shall do all acts and execute all documents as are necessary to transfer to the wife the whole of his right, title and interest in (“the property”) situate at and known as the Oak Flats property.

In the event the wife fails to comply with Order 1 the parties do all such acts and execute all such documents as may be required to effect a sale of the former matrimonial home situate and known as

the Oak Flats property to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.

Upon the completion of the sale proceeds of the sale be applied as follows:

(a) To pay all costs, commissions and expenses of the sale in respect of the matrimonial home.

(b) 45 per cent of the balance to the wife, from which the wife shall pay any outstanding rates.

In the event that the property has not been sold by or before a date three (3) months from the date Order 3 becomes operative then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally necessary to procure a sale by public auction of the matrimonial home upon the following terms:

(a) The auctioneer shall be a real estate agent;

(b) The reserve price shall, unless agreed upon by the parties, be as proposed by the Auctioneer.

All exhibits tendered in these proceedings be returned at the expiration of one calender month unless an appeal is lodged.

The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.

All outstanding applications are dismissed.

Any application for costs to be listed by arrangement with my associate within one month.

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

Full text does not contain this section.

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Citations

I and I [2004] FMCAfam 203

Most Recent Citation

Lawson and Lawson [2004] FMCAfam 674

Cases Citing This Decision

Lawson and Lawson [2004] FMCAfam 674
Citation 1 (Para 26)

…o deal with the husband’s behaviour. I do not accept the husband’s counsel’s submissions that this matter compares with I & I [2004] FMCAfam 203 , where there was no course of conduct as applies here. The cases also referred to me of C &C [2003] FMCAfam 145 and KK & KG [2003] FMCAfam 609 where an adjustment was made…

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Cases Cited

Weir v Weir [2016] NZHC 1920
Citation 1 (Para 3)

…Both parties had a clear obligation to make full and frank disclosure, which means that they are required to disclose all material facts. In Weir v Weir (1993) FLC 92-338, the Full Court said at 79,593: “This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black v Kelln…
Woodcock v Woodcock [2000] QSC 153
Citation 2 (Para 3)

…s a tacit agreement that the wife would have the home and its contents and the husband would have his superannuation and workplace entitlements. In Woodcock v Woodcock (1997) FLC 92-739 the Full Court held: “ that the court’s jurisdiction to grant relief under s.74 or s.79 can only be ousted by court order or by agreement ap…
Norbis v Norbis [1986] HCA 17
Citation 3 (Para 3)

…h involves a determination of the parties’ interests in individual items of property. McMahon and McMahon (1995) FLC 92-606. In Norbis v Norbis (1986) 161 CLR 513 the High Court held that either approach is legitimate, and that in some cases either approach may be adopted in part or in whole. An examination of the re…
Russell v Russell [1976] HCA 23
Citation 4 (Para 2)

…ircumstances that it is just and equitable to do so [Section 79(2)]. It is the justice and equity of the actual orders that the court must consider . Russell v Russell (1999) FLC 92-877.…
Jones v Dunkel [1959] HCA 9
Citation 5 (Para 7)

…was available to give evidence on this important issue. The wife’s failure to adduce available corroborative evidence attracts the rule in Jones v Dunkel (1959) 101 CLR 298. I am not satisfied that the wife has fully disclosed the extent of her relationship with SJ. Although the wife claimed that she would like to repa…
Jones v Dunkel [1959] HCA 8
Citation 6 (Para 7)

…to give evidence on this important issue. The wife’s failure to adduce available corroborative evidence attracts the rule in Jones v Dunkel (1959) 101 CLR 298. I am not satisfied that the wife has fully disclosed the extent of her relationship with SJ. Although the wife claimed that she would like to repay the advanc…
Brown v Green [1951] HCA 76
Citation 7 (Para 6)

…here was no finding that she had deliberately contrived to dissipate or minimise her assets. Their Honours referred the decision of the Full Court in Brown v Green (1999) 25 Fam LR 483 where it was noted that absent the application of waste principles it would be just and equitable to expect spouses to share the brunt…
D & D [2003] FAMCA 473
Citation 8 (Para 5)

…This issue arose again recently in Danielan v Danielian [2003] FamCA 473. There the marriage lasted two years. At the time of marriage the wife had a share portfolio and the husband had an investment apartment. The wife contributed $304,000 and the husband contributed $254,000 towards their home. As well as being r…
J and S [2003] FAMCA 618
Citation 9

…677 Danielan v Danielian [2003] FamCA 473 Brown v Green (1999) 25 Fam LR 483 Harris (1991) FLC 92-698 Neneke (1996) FLC 92-698 Judkins and Santamaria [2003] FamCA 618 Kennon (1997) FLC 92-757 Jones v Dunkel (1959) 101 CLR 298 Farnell (1996) FLC 92-681 Weir v Weir (1993) FLC 92-338 Black v Kellner (1992) FLC 92-287…
Jenkins v Livesey (1985) AC 424
Citation 10 (Para 3)

…nion the obligation of full and frank disclosure applies because of the duty of the Court to consider all of the circumstances of the case. See Jenkins v Livesey (1985) 1 All ER 106. This is particularly important in cases where the financial circumstances of the parties may be relevant. It is not sufficient for a party to…

Legislation Cited

Child Support (Assessment) Act 1989 (Cth)
1 mention (from Para 1)
Family Law Act 1975 (Cth)
1 mention (from Para 1)