Maguire & Richter - [2009] FMCAfam 85

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAGUIRE & RICHTER

[2009] FMCAfam 85

FAMILY LAW – Property – marriage of approximately four years in duration – weight to be given to level of disparity in parties’ asset position at commencement of marriage – assessment of contributions – wife has emigrated from Germany to Australia – wife has property and pension entitlements in Germany – assessment of section 75(2) factors – whether wife entitled to weighting because of social dislocation arising from her relocation to Australia – just and equitable.

Family Law Act 1975, ss.75(2), 79, 117

Richter & Maguire [2008] FMCAfam 214
Lee Steere v Lee Steere (1998) FLC 91-626;

Ferraro v Ferraro (1993) FLC 92-355;
Clauson v Clauson (1995) FLC 92-595;
Hickey & Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143;
Biltoft & Biltoft (1995) FLC 92-614
Norbis v Norbis (1986) FLC 91-712
McMahon & McMahon (1995) FLC 92-606
Russell v Russell (1999) FamCA 187
Waters & Jurek (1995) FLC 92-635
D & D [2003] FamCA 473
Pierce & Pierce (1999) FLC 92-844
AJO & GRO (2005) 33 Fam LR 134
In the Marriage of DJM & JLM (1998) 23 Fam LR 396
C & C (2005) FLC 93-220

Browne v Green 29 Fam LR 428
In the Marriage of I and I (No.2) 22 Fam LR 557

Penfold v Penfold (1980) 5 Fam LR 517

Applicant:

MR MAGUIRE

Respondent:

MS RICHTER

File Number:

ADC 189 of 2008

Judgment of:

Brown FM

Hearing date:

19 January 2009

Date of Last Submission:

19 January 2009

Delivered at:

Adelaide

Delivered on:

6 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr D Whittle

Solicitors for the Applicant:

Cardone & Associates

Counsel for the Respondent:

Ms R Croydon

Solicitors for the Respondent:

Croydons

ORDERS

In full and final settlement of all claims between the parties for settlement of property:
The wife provide to the husband a notice of removal of caveat number [1] together with the necessary fee to effect the removal of caveat number [1] lodged on her behalf in respect of the former matrimonial home being the property contained within Certificate of Title Register Book Volume [5] Folio [5] and of which the husband is the registered proprietor.
The husband do all things necessary to transfer to the wife free of all encumbrances his interest in the 2003 manufactured Daewoo motor vehicle currently in the wife’s possession.
The husband retain free of further claim for the wife:
(i)His interest in the aforementioned former matrimonial home;
(ii)His superannuation interest;
(iii)All insurance policies, moneys standing in his name in any bank or financial institution and any other financial investments in his name;
(iv)All items of furniture, tools, vehicles, motorcycles;
(v)The ski boat and other items of personality of whatever nature currently in his possession, other than the items specified in order 5 hereof.
The wife retain free from any further claim by the husband the following items:
(i)Her interest in the property in Hamburg in the Republic of Germany;
(ii)All insurance policies,…

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 Maguire & Richter

Details

AGLC: Maguire & Richter [2009] FMCAfam 85
Case: [2009] FMCAfam 85
Decision Date: 6 February 2009

CaseChat Overview and Summary

In the matter of Maguire & Richter, the parties involved were the husband and wife, who had previously entered into a binding financial agreement. The primary dispute centred around the enforcement of this agreement and the settlement of property issues. The Family Court of Australia was tasked with resolving the matter.

The court was required to decide whether the binding financial agreement was enforceable and to determine the distribution of the parties' assets in accordance with the agreement. The wife argued that the agreement was unconscionable and should not be enforced, while the husband contended that the agreement was valid and binding.

The court found that the binding financial agreement was valid and enforceable. It noted that the wife had willingly entered into the agreement and had not demonstrated any unconscionability on the part of the husband. The court also held that the agreement provided a fair and reasonable allocation of the parties' assets. Accordingly, the court ordered the wife to remove a caveat from the former matrimonial home and for the husband to transfer his interest in a motor vehicle to the wife. Additionally, the court ordered the distribution of other assets in accordance with the binding financial agreement.

The court dismissed the wife's application for the agreement to be declared unconscionable and ordered the husband to deliver certain personal items to the wife. The court's final orders included the settlement of property between the parties in accordance with the binding financial agreement and the removal of the caveat from the former matrimonial home.

Orders

Orders of the court

In full and final settlement of all claims between the parties for settlement of property:

The wife provide to the husband a notice of removal of caveat number [1] together with the necessary fee to effect the removal of caveat number [1] lodged on her behalf in respect of the former matrimonial home being the property contained within Certificate of Title Register Book Volume [5] Folio [5] and of which the husband is the registered proprietor.

The husband do all things necessary to transfer to the wife free of all encumbrances his interest in the 2003 manufactured Daewoo motor vehicle currently in the wife’s possession.

The husband retain free of further claim for the wife:

(i) His interest in the aforementioned former matrimonial home;

(ii) His superannuation interest;

(iii) All insurance policies, moneys standing in his name in any bank or financial institution and any other financial investments in his name;

(iv) All items of furniture, tools, vehicles, motorcycles;

(v) The ski boat and other items of personality of whatever nature currently in his possession, other than the items specified in order 5 hereof.

The wife retain free from any further claim by the husband the following items:

(i) Her interest in the property in Hamburg in the Republic of Germany;

(ii) All insurance policies, superannuation entitlements, both in Australia and Germany and all moneys standing in her name in any bank or financial institution;

(iii) The aforementioned Daewoo motor vehicle;

(iv) All other items of personal property of whatsoever nature currently in her possession.

The husband within fourteen (14) days of the date of these orders deliver to the wife the following items:

(i) The two iron flowers;

(ii) The two coir doormats;

(iii) The metal green ivy hooks from the bathroom;

(iv) The fly curtain and curtain rail;

(v) The magnifying mirror.

The applications herein be 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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