Magee and Magee - [2008] FMCAfam 856

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAGEE & MAGEE

[2008] FMCAfam 856

FAMILY LAW – Property settlement – dissipation of joint assets – waste by one party – consideration of “add backs” – principles to be followed – special circumstances of the case – nothing to show for the monies dissipated – consideration of payment greater than 100% of equity – inappropriate in circumstances – consideration of basis for an adjournment – factors to consider – need for finality.

Family Law Act 1975 (Cth), ss.75(2), 79(1),(2), (5), 79A, 106B, 81

Kowaliw & Kowaliw (1981) FLC 91-092
Walters & Walters (1986) FLC 91-733
Milankov & Milankov(2002) FLC 93-095

Applicant:

MS MAGEE

Respondent:

MR MAGEE

File number:

TVM 2867 of 2004

Judgment of:

Coker FM

Hearing dates:

21 & 22 May 2008

Date of last submission:

11 June 2008

Delivered at:

Townsville

Delivered on:

14 August 2008

REPRESENTATION

Counsel for the Applicant:

Ms Demack

Solicitors for the Applicant:

Madden Solicitors

Counsel for the Respondent:

Mr Betts

Solicitors for the Respondent:

The Brad Robins Legal Centre

ORDERS

The Husband forthwith do all acts and things necessary and sign all documents to transfer to the Wife all his right, title and interest in and to the properties situated at Property F[J]'sMr JMr JMr JMr J and Property G, subject to the existing mortgages (paid to the date of this order) and that all rates in relation to the said properties be paid to the date of transfer.
The Wife retain, to the exclusion of the Husband, the Daewoo motor vehicle in her possession.
The Wife retain, to the exclusion of the Husband, her chattels and personal effects presently in storage in Richmond and Charters Towers with the wife to have access to the storage shed/s at a time of her nomination to collect that property and the husband to arrange for the shed/s to be open and entitled to have an agent present during the removal.
The Husband forthwith do all acts and things necessary and sign all documents to transfer to the Wife any interest held by him or on his behalf in Coles/Myer shares.
Pursuant to paragraph 90MT(1)(a) of the Family Law Act, whenever a splittable payment becomes payable in respect of the Husband’s interest in the BT Funds Management Superannuation Fund and the Commonwealth Life Personal Superannuation Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, at the date of these Orders, in the sum of 100% and that there be a corresponding reduction to the entitlement the Husband would have had in the BT Funds Management Superannuation Fund and the Commonwealth Life Personal Superannuation Fund but for this Order.
The preceding paragraph have effect from the operative time and for the purposes of these orders the operative time shall be four days after the service of this order upon the Trustees of the BT Funds Management Superannuation Fund and the Commonwealth Life Personal…

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 Magee and Magee

Details

AGLC: Magee and Magee [2008] FMCAfam 856
Case: [2008] FMCAfam 856
Decision Date: 14 August 2008

CaseChat Overview and Summary

In the matter of Magee and Magee, the court was tasked with making decisions regarding the division of assets following a separation. The dispute involved a range of assets including properties, personal effects, shares, and superannuation funds. The Family Court of Australia was the forum for resolving these matters. The legal issues before the court encompassed the equitable distribution of assets, the handling of debts and liabilities, and the enforcement of orders to ensure compliance.

The court was required to determine how to equitably distribute the assets between the parties, taking into account their respective contributions and needs. This included the division of jointly-owned properties, personal effects, and shares. Additionally, the court had to decide how to address the superannuation entitlements and ensure that any future payments were distributed in accordance with the court's orders. The court also needed to consider the implications of any existing debts, such as the tax debt owed by the husband, and how these would be managed post-separation.

In reaching its decision, the court emphasised the importance of ensuring an equitable outcome that considered the contributions and needs of both parties. The court ordered the immediate transfer of certain properties and assets to the wife, while allowing her to retain specific personal items and vehicles. Regarding the superannuation funds, the court mandated that a percentage of future payments be directed to the wife. The court also addressed the husband's tax debt, requiring him to indemnify the wife against any liabilities arising from this debt. The court further specified the timeframes for these orders and granted both parties the right to seek clarification if needed.

The final orders included the transfer of specified properties and assets to the wife, the retention of personal items and vehicles by the wife, the indemnification of the wife against the husband's tax debt, and the division of future superannuation payments. Each party was also required to retain their other assets and indemnify the other party against liabilities associated with those assets. The court allowed both parties to apply for clarification of the orders within a specified period and addressed the matter of costs.

Orders

Orders of the court

The Husband forthwith do all acts and things necessary and sign all documents to transfer to the Wife all his right, title and interest in and to the properties situated at Property F[J]'sMr JMr JMr JMr J and Property G, subject to the existing mortgages (paid to the date of this order) and that all rates in relation to the said properties be paid to the date of transfer.

The Wife retain, to the exclusion of the Husband, the Daewoo motor vehicle in her possession.

The Wife retain, to the exclusion of the Husband, her chattels and personal effects presently in storage in Richmond and Charters Towers with the wife to have access to the storage shed/s at a time of her nomination to collect that property and the husband to arrange for the shed/s to be open and entitled to have an agent present during the removal.

The Husband forthwith do all acts and things necessary and sign all documents to transfer to the Wife any interest held by him or on his behalf in Coles/Myer shares.

Pursuant to paragraph 90MT(1)(a) of the Family Law Act, whenever a splittable payment becomes payable in respect of the Husband’s interest in the BT Funds Management Superannuation Fund and the Commonwealth Life Personal Superannuation Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, at the date of these Orders, in the sum of 100% and that there be a corresponding reduction to the entitlement the Husband would have had in the BT Funds Management Superannuation Fund and the Commonwealth Life Personal Superannuation Fund but for this Order.

The preceding paragraph have effect from the operative time and for the purposes of these orders the operative time shall be four days after the service of this order upon the Trustees of the BT Funds Management Superannuation Fund and the Commonwealth Life Personal Superannuation Fund, provided however that if the Trustees have not been afforded procedural fairness then the operative time be 28 days from the date of service of this order.

This order be binding upon the Trustees of the BT Funds Management Superannuation Fund and the Commonwealth Life Personal Superannuation Fund.

The Husband indemnify and keep the Wife indemnified, in relation to his tax debt currently outstanding to the Australian Taxation Office.

Each party otherwise retain all other assets and property currently in their respective possession, power or control at the date of these orders as and for their own property absolutely and that each party indemnify and keep indemnified the other in relation to any liability attaching to said property.

10.

Each party have liberty to apply within 28 days of the date of this order in relation to any point of clarification in relation to the orders and in respect of costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.