MANION & MANION (No.2)

Case [2020] FCCA 1458


FEDERAL CIRCUIT COURT OF AUSTRALIA

MANION & MANION (No.2) [2020] FCCA 1458

Catchwords:
FAMILY LAW – Property settlement – assessment of contributions – where Court found greater contributions by Husband – where Husband received Total Permanent Disability insurance payout – where significant gambling losses by Wife – where gambling losses assessed as factor under section 75(2)(o).

FAMILY LAW – Property settlement – assessment of future needs of the parties – where Husband has diagnosis of A Syndrome – where common between the parties that an adjustment of 10% be made in Husband’s favour on the parties’ percentage contributions as assessed by the Court.

EVIDENCE LAW – Credit – where Court makes finding as to credit – where finding as to credit limited to evidence as to gambling. 

Legislation:

Family Law Act 1975 (Cth), ss.75, 79, 79A

Family Law Rules 2004 (Cth), r.19.04

Federal Circuit Court Rules 2001 (Cth), rr.24.03, 24.04

Cases cited:

Livesey (formerly Jenkins) v Jenkins [1985] All ER 106
Briese & Briese (1986) FLC 91-713
In the Marriage of Harris (1991) 104 FLR 458
In the Marriage of Weir (1992) 110 FLR 403
Aleksovski & Aleksovski [1996] FamCA 111
In the Marriage of Kannis (2002) 172 FLR 464
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395
NHC & RCH [2004] FamCA 633
AJO & GRO (2005) 191 FLR 317
T & T [Pension Splitting] [2006] FamCA 207
Schmidt & Schmidt [2009] FamCA 1386
Darcy & Darcy [2011] FMCAfam 126
Stanford & Stanford (2012) 247 CLR 108
Dickons & Dickons [2012] FamCAFC 154
Bevan v Bevan (2013) 279 FLR 1
Fane & Lemott [2013] FamCA 604
Linch & Linch [2014] FamCAFC 69
Vass & Vass [2015] FamCAFC 51
Fields & Smith [2015] FamCAFC 57
Talbot & Talbot [2015] FamCAFC 132
Masoud & Masoud [2016] FamCAFC 24
Jarvis & Seymour [2016] FCCA 1676
Grier & Malphas (2017) 55 Fam LR 107
Beckett & Beckett [2017] FCCA 608
Shan & Prasad [2018] FamCAFC 12
Fontana & Fontana [2018] FamCAFC 63
Perrin & Perrin (No. 2) [2018] FamCAFC 122
Trevi & Trevi [2018] FamCAFC 173
Jabour & Jabour [2019] FamCAFC 78
Netis & Kipling [2019] FamCA 363

Applicant: MR MANION
Respondent: MS MANION
File Number: SYC 6204 of 2017
Judgment of: Judge Morley
Hearing date: 15 April 2019
Date of Last Submission: 15 May 2019
Delivered at: Sydney
Delivered on: 10 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Schonell SC
Solicitors for the Applicant: Landerer & Company Solicitors
Counsel for the Respondent: Dr Barnett
Solicitors for the Respondent: Linden Legal

ORDERS

  1. That the Court make an order under section 79 of the Family Law Act 1975 (Cth) as follows:

    (a)That within two (2) months from the date of this order, the Husband pay to the Wife the sum of $47,969.75;

    (b)That simultaneously with payment by the Husband to the Wife of the sum referred to in paragraph (1)(a) hereof, the Wife sign all documents and instruments and do all things necessary to transfer to the Husband…

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AGLC
MANION & MANION (No.2) [2020] FCCA 1458
Case
[2020] FCCA 1458
Decision Date

CaseChat Overview and Summary

This matter concerned a property settlement dispute between the Husband and Wife, heard by Judge Morley in the Family Court of Australia. The core of the dispute involved the assessment of the parties' contributions and future needs to determine an equitable division of their assets, particularly the former matrimonial home.

The court was required to determine the extent of each party's financial and non-financial contributions to the marriage, considering factors such as the Husband's receipt of a Total Permanent Disability insurance payout and the Wife's significant gambling losses. Additionally, the court had to assess the future needs of the parties, taking into account the Husband's diagnosis of "A Syndrome," and whether an adjustment to their assessed contributions was warranted on this basis. The court also made findings regarding the Wife's credit in relation to evidence concerning her gambling activities.

Judge Morley found that the Husband had made greater contributions to the marriage. The Wife's gambling losses were assessed as a factor under section 75(2)(o) of the *Family Law Act 1975* (Cth). The court also noted that there was common ground between the parties that a 10% adjustment in the Husband's favour was appropriate based on their future needs, specifically in light of his medical condition.

The court ordered that the Husband pay the Wife a sum of $47,969.75 within two months, and simultaneously, the Wife was to transfer her interest in the former matrimonial home to the Husband, who would then be solely responsible for all outgoings related to the property. Provisions were made for the sale of the property by private treaty or public auction if the Husband failed to make the payment within the specified timeframe, with detailed arrangements for the application of sale proceeds and dispute resolution regarding sale terms. The orders also clarified the sole ownership of various personal property and vehicles between the parties.

Orders

Orders of the court

1.

That the Court make an order under section 79 of the Family Law Act 1975 (Cth) as follows:

(a) That within two (2) months from the date of this order, the Husband pay to the Wife the sum of $47,969.75;

(b) That simultaneously with payment by the Husband to the Wife of the sum referred to in paragraph (1)(a) hereof, the Wife sign all documents and instruments and do all things necessary to transfer to the Husband the whole of her right title and interest in the former matrimonial home property at B Street, Town C in the State of Queensland being the whole of the land in Lot ... Registered Plan ...01 (‘the property’) and simultaneously with such payment the Husband shall be solely responsible as between the Husband and the Wife for all outgoings payable in relation to the property and the Husband shall indemnify and keep indemnified the Wife in relation to all and any such payments.

(c) That in the event that the Husband does not pay to the Wife the sum referred to in paragraph (1)(a) herein within two (2) months from the date of this order, then the parties shall sign all documents and instruments and do all things necessary to list for sale the property at a listing price agreed upon between them with a real estate agent agreed upon between them and shall proceed to a sale of the property at a sale price agreed upon between them and following such sale the proceeds of sale shall be applied as follows:

(i) In adjustment of rates on settlement;

(ii) In payment of agent’s commission (if any) on sale;

(iii) In payment of legal and all other proper costs of sale;

(iv) In payment to the Wife of the sum of $47,969.75 together with any interest payable thereon pursuant to the terms of the Family Law Act 1975 (Cth);

(v) In payment of the balance to the Husband.

(d) That in the event that paragraph (1)(c) operates and the property does not sell by private sale within five (5) months from the date of this order then the parties shall sign all documents and instruments and do all things necessary to list the property for sale by public auction with an auction agent agreed upon between them at a reserve price agreed upon between them and shall proceed to a sale at a sale price agreed upon between them and the parties shall be equally responsible for all costs and expenses of the auction payable prior to the auction sale and following such sale the proceeds of sale be applied as provided in paragraph (1)(c) hereof.

(e) That in the event that paragraph (1)(d) operates and the property does not sell by public auction in accordance with paragraph (1) (d) hereof then the property shall be resubmitted for sale by private treaty in accordance with the provisions of paragraph (1) (c) hereof and the property shall be resubmitted for sale by public auction at six (6) monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the property shall be sold and upon such sale either by public auction or private treaty the proceeds of sale shall be applied as provided in paragraph (1) (c) hereof.

(f) That in the event that the parties are unable to reach agreement in relation to an auction agent, a real estate agent, a listing price, a reserve price, or a sale price whether for a sale by public auction or by private treaty, then the parties shall and do hereby appoint the President for the time being of the Real Estate Institute of Queensland or his or her nominee to determine such disputed matter or matters and the parties shall thereafter act in accordance with that determination and the parties shall be equally responsible for the costs and expenses of the President or his or her nominee in making such determination.

(g) That the Husband is the sole owner in law and in equity as between himself and the Wife of:

(i) All personal property now in his possession or control;

(ii) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his own name;

(iii) All interests in life insurance policies, total and permanent disablement benefits, disability support pension and superannuation funds standing in his own name; and

(iv) All furniture, furnishings and effects presently situate in the property.

(h) That the Wife is the sole owner in law and in equity as between herself and the Husband of:

(i) All personal property now in her possession or control;

(ii) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name;

(iii) All interests in life, trauma and total and permanent disablement insurance policies and superannuation funds standing in her sole name;

(iv) All furniture, furnishings and effects presently situate in the property at D Street, Suburb E, NSW; and

(v) All interests in the company and business known as F Pty Ltd.

(i) That the Husband is the sole owner in law and in equity as between himself and the Wife of the Motor Vehicle 1 registration number ... and the Husband shall indemnify and keep indemnified the Wife in relation to all liabilities in respect of the said motor vehicle, whenever and howsoever arising.

(j) That the Wife is the sole owner in law and in equity as between herself and the Husband of the Motor Vehicle 2 registration number ... and the Wife shall indemnify and keep indemnified the Husband in relation to all liabilities in respect of the said motor vehicle, whenever and howsoever arising.

2.

That in the event that either party refuses or neglects to comply with any part of these orders in relation to the execution of any deed, instrument or document, the Court appoints and authorises the Registrars of the Federal Circuit Court of Australia, Sydney Registry, to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints those Registrars to do all acts and things necessary to give validity and operation to the deed, instrument or document.

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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