JPDJ v DADJ - [2005] FMCAfam 86

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JPDJ & DADJ

[2005] FMCAfam 86

FAMILY LAW – Property – contributions – full and frank disclosure – valuation of family company based on future maintainable earnings discussed – insufficient evidence to value on future maintainable earnings – Elias principle discussed – where husband has greater earning capacity and the child resides with him – where party legally represented court need not be overly cautious in accepting concession made on their behalf.

Family Law Act 1975, ss.75, 79
Child Support (Assessment) Act 1989

Nelson v Nelson 184 CLR 538
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335

In the Marriage of Clauson (1995) FLC 92-595

Weir v Weir (1993) FLC 92-338
Elias (1997) FLC 90-267
In the Marriage of Jordan (1997) FLC 92-736
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

Applicant:

JPDJ

Respondent:

DADJ

File Number:

PAM1809 of 2004

Judgment of:

Ryan FM

Hearing date:

2 March 2005

Delivered at:

Parramatta

Delivered on:

23 March 2005

REPRESENTATION

Counsel for the Applicant:

Mr D. Roberts

Solicitors for the Applicant:

FD Hammond & Associates

Counsel for the Respondent:

Mr S. Cairns

Solicitors for the Respondent:

Dooley & Associates

ORDERS

Within ten (10) weeks of the date of these orders the wife pays to the husband the sum of one hundred and sixty four thousand three hundred and forty eight dollars ($164,348.00).
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 property at Parklea in the State of New South Wales 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 are applied as follows:
(a)To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the matrimonial home.
(b)Thirty eight (38) per cent to the husband from which he shall immediately pay the wife eighty two thousand six hundred and fifty one dollars ($82,651.00).
(c)Balance then remaining to the wife.
In the event that the matrimonial home has not been sold by or before a date three (3) months from the date order (3) becomes operative then 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 nominated by the wife;
(b)The reserve price shall, unless agreed upon by the parties, be as proposed by the…

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 JPDJ v DADJ

Details

AGLC: JPDJ v DADJ [2005] FMCAfam 86
Case: [2005] FMCAfam 86
Decision Date: 23 March 2005

CaseChat Overview and Summary

The case of JPDJ v DADJ involved a dispute between a husband and wife concerning the division of their matrimonial property and personal assets following their separation. The matter was heard in the Family Court of Australia, where the presiding judge was required to determine the fair distribution of the couple's assets, including a residential property at Parklea and a Mazda Tribute vehicle.

The central legal issues addressed by the court involved the principles of equitable distribution of assets under the Family Law Act 1975. Specifically, the court needed to determine the appropriate division of the matrimonial home, the payment of a lump sum by the wife to the husband, and the transfer of the Mazda Tribute to the wife. Additionally, the court had to address ancillary issues such as the payment of outstanding rates, the management of insurance and maintenance of the property, and the respective liabilities of the parties concerning their personal property and superannuation.

In delivering the judgment, the court considered various factors, including the contributions of each party to the acquisition and maintenance of the assets, the future needs of both parties, and the need for any party to have a reasonable home. The court ordered that the wife pay the husband a specified sum of money within a defined timeframe. If the payment was not made, the court mandated a sale of the matrimonial home either by private treaty or public auction, with the proceeds to be distributed between the parties in a prescribed manner. The court also ordered the transfer of the Mazda Tribute to the wife and outlined the conditions under which this transfer would occur, including the handling of any taxation issues that might arise. Furthermore, the court addressed the occupation rights of the wife over the matrimonial home until the sale or transfer was completed, and clarified the ownership and liabilities concerning other personal property and chattels.

The court's orders also included provisions for the return of exhibits, the handling of subpoenaed material, and the dismissal of any outstanding applications. This comprehensive approach ensured that the division of assets was equitable and that both parties' rights and obligations were clearly defined.

Orders

Orders of the court

Within ten (10) weeks of the date of these orders the wife pays to the husband the sum of one hundred and sixty four thousand three hundred and forty eight dollars ($164,348.00).

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 property at Parklea in the State of New South Wales 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 are applied as follows:

(a) To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the matrimonial home.

(b) Thirty eight (38) per cent to the husband from which he shall immediately pay the wife eighty two thousand six hundred and fifty one dollars ($82,651.00).

In the event that the matrimonial home has not been sold by or before a date three (3) months from the date order (3) becomes operative then 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 nominated by the wife;

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

(d) Each party has the right to bid at the auction.

(e) The proceeds of sale of the auction shall be distributed in accordance with order (3).

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 in registrable form the Mazda Tribute currently in her possession. In the event that the ATO requires payment of taxation because of the transfer by either party or the husbands company the taxation levied shall be paid by the husband or company in the first instance. The wife shall reimburse the husband or the company within fourteen (14) days of receiving the ATO notice of assessment. In the event that the wife fails to pay the money due under this order interest calculated in accordance with the Family Law Rules shall accrue on the balance outstanding from the date reimbursement was first due.

Until completion of the sale or transfer to her of the husband’s interest the wife has the right to occupy the property to the exclusion of the husband subject to wife paying the council and water rate instalments; household building and contents insurances; as they fall due, keeping the property tidy, clean and in repair having regard to its present condition and permitting inspection by agents and prospective purchasers at all reasonable times:

Unless otherwise specified in these orders:

(a) Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the banks’ record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.

(b) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

All exhibits tendered in these proceedings shall be returned at the expiration of one calendar 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.

10.

All outstanding applications are dismissed.

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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