LORNE & TROTT - [2012] FamCA 976

FAMILY COURT OF AUSTRALIA

LORNE & TROTT [2012] FamCA 976

FAMILY LAW – PROPERTY - DE FACTO RELATIONSHIP – Assessment of value of property pool – Contribution – Section 90SF(3) matters – Just and equitable order – Wife awarded 60 per cent and husband 40 per cent of the parties’ property and assets – Contribution assessment 60 per cent husband 40 per cent wife – Section 90SF(3) matters assessed 20 per cent in favour of wife – Weir and Weir – Wife alleged non disclosure by husband – Not established

FAMILY LAW – INTERIM SPOUSAL MAINTENANCE – DE FACTO RELATIONSHIP – REVIEW OF INTERIM ORDER OF PRINCIPAL REGISTRAR – Original hearing – Principal Registrar’s interim spousal maintenance order confirmed

Family Law Act 1975 (Cth) s 37A(9), s 37A(10), s 90SE, s 90SF, s 90SM
Child Support (Assessment) Act 1989 (Cth)

Family Law Rules 2004 rr 13.07(b), 18.10

Chang and Su (2002) FLC 93-117
Farmer and Bramley (2000) FLC 93-060
Figgins and Figgins (2002) FLC 93-122
Franklin & Franklin [2010] FamCAFC 131
Gould & Gould [2007] FamCA 609
Harris v Caladine (1991) 172 CLR 84
Kannis and Kannis [2002] FamCA 1150
Kessey and Kessey (1994) FLC 92-495
Parrott v The Public Trustee of New South Wales (1994) FLC 92-473
Phillips and Phillips (2002) FLC 93-104
Pierce and Pierce (1999) FLC 92-844
Weir and Weir (1993) FLC 92-338

APPLICANT: Ms Lorne

RESPONDENT: Mr Trott

FILE NUMBER: BRC 11460 of 2010

DATE DELIVERED: 27 November 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 1, 2 and 4 May 2012
(Further written submissions
28 September 2012 and 9 October 2012; further evidence 30 October 2012; further written submissions
1 November 2012)
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gordon

SOLICITORS FOR THE APPLICANT: Universal Law

COUNSEL FOR THE RESPONDENT: Mr Blond

SOLICITORS FOR THE RESPONDENT: Okamoto Lawyers
Orders
IT IS ORDERED
Property
Pursuant to s 90SM of the Family Law Act 1975 (Cth) (the Act) the property and assets of the parties and either of them be divided as follows so as to effect so far as may be possible a 60 per cent division to the wife and a 40 per cent division to the husband:
1.The husband have:
a.      item 1, the property at 1 B Street, Suburb C, valued at $460,000
b.      item 4A, the chattels listed in exhibit 3 with no marking, valued at $56,000
c.      item 5, the business B Pty Ltd, valued at nil.
Total value: $516,000.
2.The wife have:
a.      item 6, her motor vehicle 1, valued at $1000
b.      item 7, her motor vehicle 2, valued at $5000
c.      item 8, her home contents, valued at $2000
d.      item 9, her shipping container, valued at $2650.
Total value: $10,650.
3.The husband immediately must list items 2 and 3, the properties at 2 and 3 B Street, Suburb C (the properties) for sale with each of:
a.      Ray White Commercial
b.      The Professionals Suburb C and

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: LORNE & TROTT [2012] FamCA 976
Case: [2012] FamCA 976
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Ms Lorne (the wife) and Mr Trott (the husband) for a just and equitable property settlement following their de facto relationship. The husband also sought a review of an interim spousal maintenance order. The parties had three children, with parenting orders in place that involved shared parental responsibility and specific time arrangements.

The court was required to determine the division of the parties' property and assets, taking into account the contributions of each party and other relevant matters under section 90SF(3) of the *Family Law Act 1975* (Cth). Additionally, the court needed to review the Principal Registrar's interim spousal maintenance order and decide whether to confirm or vary it. The wife had also alleged non-disclosure by the husband regarding assets, which the court had to assess.

In its judgment, the court ordered a division of the property pool, awarding the wife 60% and the husband 40%. This division was based on an assessment of contributions, with the court finding the husband's contributions to be 60% and the wife's 40%. Further adjustments were made under section 90SF(3) of the Act, favouring the wife by 20%. The court found that the wife's allegation of non-disclosure by the husband was not established.

The court confirmed the Principal Registrar's interim spousal maintenance order, dismissing the husband's application for review. However, the interim spousal maintenance order was discharged upon the wife's receipt of the full cash amount payable to her under the property settlement orders. The judgment detailed specific directions for the sale of properties and chattels, the application of sale proceeds, and ongoing financial obligations pending the final division of assets.

Orders