Lindholm & Lindholm - [2022] FedCFamC2F 1353

Federal Circuit and Family Court of Australia
(DIVISION 2)
Lindholm & Lindholm [2022] FedCFamC2F 1353

File number(s): BRC 6043 of 2019

Judgment of: JUDGE YOUNG

Date of judgment: 21 September 2022

Catchwords: FAMILY LAW - property - application for alteration of property interests - where the parties have one child together -where the husband suffered a serious injury at work - where the husband was awarded personal injury compensation - where a large portion of the compensation funds have been dissipated through gambling by the husband - court satisfied the wife will primarily financially responsible for the child

Legislation: Family Law Act 1975 (Cth) ss 75, 79

Cases cited:
Aleksovski & Aleksovski [1996] FamCA 111

Griffiths & Kerkemeyer [1977] 139 CLR

Weir & Weir [1992] FamCA 69

Division: Division 2 Family Law

Number of paragraphs: 30

Date of hearing: 19, 20 and 21 September 2022

Place: Darwin

Counsel for the Applicant: Mr George

Solicitor for the Applicant: Browns Lawyers

Counsel for the Respondent: Mr Clutterbuck

Solicitor for the Respondent: Turnbull Mylne
ORDERS

BRC 6043 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS LINDHOLM

Applicant

AND:
MS LINDHOLM

Respondent

order made by:

JUDGE YOUNG

DATE OF ORDER:

21 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.The Respondent is to pay the Applicant the sum of $350,000 with such monies to be paid from the monies presently held in the trust account of Turnbull Mylne Lawyers, the husband’s solicitors, and this order is sufficient discharge of their liability to the husband for that sum. The balance of the monies may be paid to the husband.
2.The parties are to otherwise retain for their benefit any other property in their possession or name.
3.The wife is to retain all of her right title and interest in any superannuation fund in her name.
4.All extant applications are otherwise dismissed and the matter removed from the active pending cases list.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Lindholm & Lindholm has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Ex Tempore
JUDGE YOUNG
Background

This is an application for alteration of property interests pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”). The applicant wife is 40 years old. The respondent husband is 44 years…

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 Lindholm & Lindholm

Details

AGLC: Lindholm & Lindholm [2022] FedCFamC2F 1353
Case: [2022] FedCFamC2F 1353
Decision Date

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia was an application for an alteration of property interests under section 79 of the Family Law Act 1975 (Cth). The applicant wife sought a re-evaluation of the property pool and financial contributions made by both parties, particularly in light of the husband's serious work injury and subsequent dissipation of a significant personal injury settlement through gambling. The central legal issues revolved around determining the appropriate division of the property pool, considering the husband's dissipation of funds, and assessing the respective contributions of each party, both financial and non-financial, to the relationship and the well-being of their child.

Judge Young concluded that the husband's gambling and dissipation of the settlement funds were significant factors to be considered in the property division. The court found the wife to be a credible witness, particularly regarding the husband's gambling habits and her substantial contributions following his injury. Conversely, the husband's credibility was undermined due to his failure to adhere to court orders prohibiting gambling and his unreliability in providing accurate information about his financial activities. The court's reasoning underscored the husband's substantial dissipation of funds, estimated to be around $656,314, which included money from his superannuation and the personal injury settlement. This dissipation significantly impacted the property pool, leading to a rough estimate of total assets and liabilities, with the wife retaining a smaller portion of the overall assets.

Ultimately, the court ordered the husband to pay the wife $350,000 from the funds held in trust by his solicitors. The total property pool, including dissipation and superannuation, was divided at a ratio of 31% to the wife and 69% to the husband, adjusted by $150,000 in favor of the wife to account for future financial responsibilities related to their child's care. The wife was also granted the retention of her superannuation fund. All other property was to be retained by the parties as per their possession or name. The court dismissed all other applications and removed the case from the active pending list.

The final orders mandated that the husband pay the wife $350,000 from the trust account held by his solicitors. The wife retained all rights, titles, and interests in her superannuation fund. The court’s decision recognized the wife’s significant contributions and future responsibilities, adjusting the property division to reflect these factors equitably.

Orders