M and W - [2002] FMCAfam 318

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & W

[2002] FMCAfam 318

FAMILY LAW – Property – agreement – effect of agreement on subsequent application for s.79 settlement – post-separation contributions – nature of s.79(2) discretion – s.75(2), s.79(4), s.79(2) Family Law Act 1975.

Family Law Act 1975, ss.79, 75
Evidence Act 1995

Jones v Dunkel (1959) 101 CLR 298

Chazal v GIO (NSW) (1992) NSWLR 336
Australian Securities Commission v AS Nominees (1995) 133 ACR 1 at 12
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
Russell v Russell (1999) FLC 92-877
Woodcock v Woodcock (1997) FLC 92-739
Burgoyne (1978) FLC 90-467
Dupont No3 (1981) FLC 91-103
Candish & Pratt (1980) FLC 90-123
White v Tulloch & White (1995) FLC 92-640
Tomasetti (2000) FLC 93-023
Sanders v Sanders (1967) 116 CLR 366 at pp379-380
Schoker & Edwards (supra)

Applicant:

H M

Respondent:

A G W

File No:

PAM1719 of 2002

Delivered on:

22 November 2002

Delivered at:

Parramatta

Hearing Dates:

4 & 5 September 2002

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr P Campton

Solicitors for the Applicant:

Harpers

Counsel for the Respondent:

Mr G Roberts

Solicitors for the Respondent:

Springwood Lawyers

ORDERS

That within twelve weeks of the date of these orders the respondent husband pay the applicant wife the sum of $22,400.00.
That upon payment by the respondent husband to the applicant wife, the wife shall transfer to the husband the whole of her right, title and interest in the property situate at and known as 19 M Street, Villawood.
In the event that the husband does not comply with Order 1, the parties shall forthwith do all acts and things and sign all documents necessary to sell the property situate at and known as 19 M Street, Villawood for sale by private treaty with a real estate agent at a price to be agreed upon between the parties and failing agreement to be determined by the president of the Real Estate Institute of New South Wales or his nominee.
That the proceeds of sale pursuant to Order (3) above be disbursed as follows:
(a)firstly, in payment of the costs of sale including the real estate agents and legal fees;
(b)in payment of any outstanding rates and charges;
(c)in payment of 7 per cent of the net balance to the wife;
(d)the remaining 93 per cent to the husband.
That unless otherwise specified in these Orders each party shall 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 at the date of the making of these orders and for this purpose bank accounts are deemed to be in the possession of the person who’s name appears on the banks record thereof, insurance polices are deemed to be in the possession of the party who is named as…

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 M and W

Details

AGLC: M and W [2002] FMCAfam 318
Case: [2002] FMCAfam 318
Decision Date: 22 November 2002

CaseChat Overview and Summary

The case of M and W involved a dispute between a husband and wife regarding the division of their property following their divorce. The matter was heard in the Family Court of Australia. The wife applied for a property settlement, seeking financial compensation and the transfer of her interest in a property located at 19 M Street, Villawood. The husband contested the application, arguing that the wife was not entitled to the relief sought.

The court was required to determine the appropriate division of the parties' property, including the value of the wife's interest in the property at 19 M Street, Villawood, and whether the wife was entitled to financial compensation. The court also needed to consider the implications of the parties' failure to agree on the sale of the property and the appropriate division of the proceeds.

The court found that the wife was entitled to a property settlement of $22,400.00, payable within twelve weeks by the husband. The wife was also entitled to the transfer of her interest in the property at 19 M Street, Villawood, upon payment of the settlement. In the event that the husband failed to pay the settlement, the court ordered that the property be sold by private treaty, with the proceeds divided between the parties. The court also made orders regarding the division of other property and liabilities between the parties.

The court made a number of orders to give effect to its decision, including orders regarding the payment of the settlement, the transfer of the wife's interest in the property, the sale of the property in the event of non-payment, and the division of other property and liabilities. The court also made orders regarding the return of exhibits and the dismissal of outstanding applications. The husband was given 14 days to sign any documents necessary to give effect to the orders, with a Registrar or other appointed person authorised to execute the documents on his behalf if he failed to do so.

Orders

Orders of the court

That within twelve weeks of the date of these orders the respondent husband pay the applicant wife the sum of $22,400.00.

That upon payment by the respondent husband to the applicant wife, the wife shall transfer to the husband the whole of her right, title and interest in the property situate at and known as 19 M Street, Villawood.

In the event that the husband does not comply with Order 1, the parties shall forthwith do all acts and things and sign all documents necessary to sell the property situate at and known as 19 M Street, Villawood for sale by private treaty with a real estate agent at a price to be agreed upon between the parties and failing agreement to be determined by the president of the Real Estate Institute of New South Wales or his nominee.

That the proceeds of sale pursuant to Order (3) above be disbursed as follows:

(a) firstly, in payment of the costs of sale including the real estate agents and legal fees;

(b) in payment of any outstanding rates and charges;

(d) the remaining 93 per cent to the husband.

That unless otherwise specified in these Orders each party shall 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 at the date of the making of these orders and for this purpose bank accounts are deemed to be in the possession of the person who’s name appears on the banks record thereof, insurance polices are deemed to be in the possession of the party who is named as the life insured, 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.

That unless otherwise specified in these Orders each party shall 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.

That if either party refuses or neglects to sign within 14 days of a written request to do so any document necessary to give effect to the terms of these Orders a Registrar or such other officer or person as may be appointed by the Federal Magistrates Court of Australia is hereby appointed pursuant to the provisions of section 106A of the Family Law Act to execute such documents on behalf of that party.

That all exhibits tended in these proceedings be returned at the expiration of one calender month unless an Appeal in lodged.

That all outstanding Applications are otherwise 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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