Malphas and Grier - [2013] FamCA 324

FAMILY COURT OF AUSTRALIA

MALPHAS & GRIER

[2013] FamCA 324

FAMILY LAW – PROPERTY – Application for property settlement orders – Whether it is just and equitable to alter property interests and rights – Stanford v Stanford [2012] HCA 52 considered – Where the parties agreed that there was no disparity in initial contributions – Where the husband made significant financial contribution during the marriage – Where the totality of the wife’s contributions cannot match the significant contribution on the part of the husband – Consideration of factors under s 79 and s 75(2) of the Family Law Act 1975 (Cth) – Where the outcome of the assessment of contributions and other factors has resulted in the husband receiving 60 per cent of the assets compared to the wife’s 40 per cent – Where an adjustment, pursuant to s 75(2), of 10% in the wife’s favour is appropriate – Where it was determined to be just and equitable that the parties interest and rights in property is altered.

Family Law Act 1975 (Cth)

Chorn & Hopkins (2004) FLC 93-204
Mayne & Mayne (2011) FamCAFC 192
Stanford & Stanford (2012) HCA 52
Townsend & Townsend (1995) FLC 92-569

APPLICANT:

Mr Malphas

RESPONDENT:

Ms Grier

FILE NUMBER:

SYC

2810

2009

DATE DELIVERED:

27 February 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

17, 18 & 19 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

Gayle Meredith & Associates

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

Orders

That each of the parties do all acts and execute all documents required to effect:
1.1the transfer of the whole of the husband’s right title to and interest in the property situate at and known as B Street, Suburb C in the State of New South Wales to the wife; and
1.2to distribute the funds held in the controlled monies account in the parties’ joint names as to $262,763 to the husband and the balance to the wife.
By consent that, if and upon any further distribution is received by or on behalf of the husband pursuant to the Company D sales agreement dated 4 February 2008 for 2012 and 2013, the husband shall pay to the wife within 28 days of receipt of any such payment an amount equivalent to “X”% of such sum and the husband shall be and hereby is restrained from dealing in any way with such payment until payment is made to the wife in accordance with the order.
For the purpose of this order, “X” shall be calculated as follows:
2.1the amount of the payment less any taxation impost or amount payable by the husband on the receipt of such payment multiplied (X) the percentage of the s.79 pool of property to be adjusted to the wife at the conclusion of the trial; and
2.2by way of example and for clarification, if the court determines the wife is to receive 40% of the…

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 Malphas and Grier

Details

AGLC: Malphas and Grier [2013] FamCA 324
Case: [2013] FamCA 324
Decision Date

CaseChat Overview and Summary

In *Malphas & Grier* [2013] FamCA 324, the Family Court of Australia considered an application for property settlement orders between Mr Malphas (the applicant husband) and Ms Grier (the respondent wife). The parties' dispute encompassed disagreements regarding their respective contributions to the matrimonial property pool, the overall balance sheet, and the extent of any adjustment in favour of the wife under section 75(2) of the *Family Law Act 1975* (Cth). The wife also sought a child support departure order, which the husband opposed. The Commissioner of Taxation had intervened in the proceedings due to substantial tax debts incurred by the parties and their corporate entities in relation to the sale of a business.

The court was required to determine whether it was just and equitable to alter the parties' interests in their property. This involved assessing their initial contributions, financial contributions during the marriage, and other relevant factors under sections 79 and 75(2) of the *Family Law Act 1975* (Cth). The court also had to consider the impact of significant financial contributions made by the husband during the marriage, which were found to outweigh the totality of the wife's contributions. The court's determination of these matters would then inform the final division of the property.

Stevenson J found that while the parties agreed there was no disparity in their initial contributions, the husband had made significant financial contributions throughout the marriage. The court determined that the totality of the wife's contributions could not match the husband's substantial financial input. Applying the principles from cases such as *Stanford v Stanford* [2012] HCA 52, the court concluded that an adjustment of 10% in the wife's favour, pursuant to section 75(2), was appropriate. This adjustment, when combined with the assessment of contributions, resulted in the husband receiving 60% of the assets and the wife receiving 40%. The court ultimately determined that it was just and equitable to alter the parties' interests and rights in their property. The final orders, made by consent in many respects, detailed the transfer of specific properties, the distribution of funds, and the respective entitlements and obligations of each party concerning various assets, companies, and trusts.

Orders