M & M - [2006] FMCAfam 424

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & M

[2006] FMCAfam 424

FAMILY LAW – Property – marriage of 25 years in duration – assessment of contributions – parties primary producers – relevance of husband’s failure to make full and frank disclosure of his financial position – relevance of financial contributions made by husband to children not of the marriage – parties both suffering health limitations and having limited employment skills – assessment of s.75(2) factors – just and equitable.

Family Law Act 1975 – ss.75(2), 79
Federal Magistrates Court Act 2000 – s.42

Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335
Clauson v Clauson (1995) FLC 92-595
Wardman & Hudson (1978) FLC 90-466
Robb & Robb (1995) FLC 92-555
Russell v Russell (1999) FamCA 187
Danielian & Danielian [2003] FamCA 473
Waters & Jurek (1995) FLC 92-635
Briese & Briese (1986) FLC 91-713
Black & Kellner (1992) FLC 92-287
Weir & Weir (1993) FLC 92-338
Kennon & Kennon (1997) FLC 92-757
Townsend & Townsend (1995) FLC 92-569
England & England [2005] FMCAfam 204
Smith & Smith (1991) FLC 92-261

Applicant:

G M M

Respondent:

G M

File number:

DNM345 of 2005

Judgment of:

Brown FM

Hearing date:

9 and 14 August 2006

Delivered at:

Darwin

Delivered on:

23 August 2006

REPRESENTATION

Counsel for the Applicant:

Ms Terry

Solicitors for the Applicant:

Janet Terry Barrister & Solicitor

Counsel for the Respondent:

Ms Davis

Solicitors for the Respondent:

Davis Norman

ORDERS

That within 60 days of the date of these orders the husband pay to the wife the sum of $215,000.00.
That contemporaneously with Order 1 hereof the wife transfer to the husband, at the husband’s expense, the whole of her right, title and interest in the following properties:
(i)**** C P Road T W being Lot * Hundred of C from Plan LTO **/*** and being the whole of the land contained in Certificate of Title Volume ** Folio ***
(ii)**** C P Road T W being Section **** Hundred of C in Registered Plan LTO **/*** and being the whole of the land contained in Certificate of Title Volume *** Folio ***.
That upon the transfer of the properties referred to in Order 2 hereof the husband shall forthwith discharge the mortgage to Northern Territory Housing Commission and the Commonwealth Bank of Australia secured against the aforesaid properties and shall obtain the removal of the wife’s liability to pay any and all liabilities pursuant to the said mortgages.
That the wife is declared the owner to the exclusion of the husband of:
(i)the 2002 Kia Rio Reg No. ******
(ii)the AXA shares in her name
(iii)the AXA Flexipol Benefit Progress Policy.
That the husband is declared the owner to the exclusion of the wife of:
(i)the 1986 Toyota Hilux 4WD.
That the husband within 28 days of the date hereof:
(a)pay direct to the Australian Taxation Office the sum of $3,201.25 owing by the wife for her tax for the 2004/5 financial year;

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: M & M [2006] FMCAfam 424
Case: [2006] FMCAfam 424
Decision Date: 23 August 2006

CaseChat Overview and Summary

The case involved a dispute between a husband and wife, heard by the Family Court of Australia. The husband and wife were seeking a final property settlement following their divorce. The court was tasked with determining the division of their assets, which included various real properties, motor vehicles, bank accounts, shares, and other personal belongings. Additionally, the court had to decide on the dissolution of a partnership and address certain financial obligations.

The legal issues before the court included the equitable distribution of the parties' assets, the resolution of their respective financial liabilities, and the dissolution of their partnership. The court had to determine the value of the assets and decide on the most equitable way to divide them. It also had to address the outstanding tax liabilities and debts owed by the wife and the partnership. The court needed to consider the contributions made by each party to the acquisition of the assets, their future needs, and any other relevant factors.

The court considered the evidence presented and determined that the wife should receive $215,000, along with specific properties and assets. The husband was required to transfer certain properties to his name, discharge existing mortgages, and settle specific debts owed by the wife and the partnership. The court declared ownership of specific assets to each party, dissolved the partnership, and allocated responsibility for certain financial obligations. The court also outlined the consequences for non-compliance with the orders and appointed the Registrar to enforce the orders if necessary.

The final orders included the payment of $215,000 by the husband to the wife, the transfer of specific properties, the discharge of mortgages, and the resolution of outstanding debts. The court declared ownership of specific assets to each party and ordered the dissolution of their partnership. The husband was also required to indemnify the wife for certain taxation liabilities and indemnify her against liabilities encumbering any property to which she was entitled. The court appointed the Registrar to enforce the orders if either party failed to comply.

Orders

Orders of the court

That within 60 days of the date of these orders the husband pay to the wife the sum of $215,000.00.

That contemporaneously with Order 1 hereof the wife transfer to the husband, at the husband’s expense, the whole of her right, title and interest in the following properties:

(i) **** C P Road T W being Lot * Hundred of C from Plan LTO **/*** and being the whole of the land contained in Certificate of Title Volume ** Folio ***

(ii) **** C P Road T W being Section **** Hundred of C in Registered Plan LTO **/*** and being the whole of the land contained in Certificate of Title Volume *** Folio ***.

That upon the transfer of the properties referred to in Order 2 hereof the husband shall forthwith discharge the mortgage to Northern Territory Housing Commission and the Commonwealth Bank of Australia secured against the aforesaid properties and shall obtain the removal of the wife’s liability to pay any and all liabilities pursuant to the said mortgages.

That the wife is declared the owner to the exclusion of the husband of:

(i) the 2002 Kia Rio Reg No. ******

(ii) the AXA shares in her name

(iii) the AXA Flexipol Benefit Progress Policy.

That the husband is declared the owner to the exclusion of the wife of:

(i) the 1986 Toyota Hilux 4WD.

That the husband within 28 days of the date hereof:

(a) pay direct to the Australian Taxation Office the sum of $3,201.25 owing by the wife for her tax for the 2004/5 financial year;

(b) procure the wife’s release from liability for all debts owing to CBFC Limited.

That the partnership trading under the name or style “G and G M” be dissolved effective 1 July 2006.

That the husband indemnify the wife in respect of all taxation due by her arising from the partnership referred to in the preceding order hereof for the financial year ending 30 June 2006.

That the husband is declared the owner to the exclusion of the wife of the contents of the joint Commonwealth Bank of Australia account.

10.

The wife is declared the owner to the exclusion of the husband of the joint National Australia Bank account.

11.

That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:-

(a) each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date;

(b) Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;

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

12.

That in the event that either party refuses or neglects to comply with the provisions of these orders:

(a) the Registrar of the Family Court of Australia at Darwin is hereby appointed to execute all deeds and documents in the name of the defaulting party.

13.

That all applications do otherwise stand 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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