Manson and Manson - [2016] FCCA 3485

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANSON & MANSON

[2016] FCCA 3485

Catchwords:
FAMILY LAW – The use and keeping of firearms by a parent – general property proceedings – power of the Court to compel parties to expend monies on significant repair work to former matrimonial home.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 75, 79, 106A, 117, Part VIII

Firearms Act 1996 (NSW), ss.33, 40, 41, 42

Cases cited:
Stanford & Stanford (2002) 293 ALR 70
Hickey & Hickey (2003) FLC 93

Bevan & Bevan [2013] fam CAFC 116
In the marriage of Lestere (1995) FLC 91-626
In the marriage of Ferrero (1993) FLC 92-335
In the marriage of Klausen (1995) FLC 92-595
Whinton & Whinton (2014) FamCA 102
Kowaliw (1981) FLC 91-092

Applicant:

MS MANSON

Respondent:

MR MANSON

File Number:

NCC 2114 of 2013

Judgment of:

Judge Myers

Hearing dates:

14 December 2015, 15 December 2015,

17 February 2016 and 18 February 2016

Date of Last Submission:

18 February 2016

Delivered at:

Newcastle

Delivered on:

9 September 2016

REPRESENTATION

Solicitors for the Applicant:

Byrnes Lawyers

The Respondent appearing in person:

Mr Manson

ORDERS

PARENTING

The father shall not keep upon his premises at which the children X born (omitted) 2006 and Y born (omitted) 2008 spend time, any firearm unless he holds a license entitling him to possess that firearm.
The father shall cause all firearms in his possession to be registered in accordance with the Firearms Act 1996 (NSW).
The father shall ensure that all firearms the father has in his possession at premises at which the children spend time shall be stored in accordance with sections 40 and 41 of the Firearms Act 1996 (NSW).
The father shall not remove from storage any firearm in the presence of the children other than as agreed between the parties in writing.

PROPERTY

Within 42 days the husband pay to the wife the sum of $267,363.52.
Simultaneously with the husband’s compliance with Order 5 above the wife do all acts and things and sign all documents necessary to transfer to the husband her right, title and interest in Property B.
The husband shall simultaneously with Orders 5 and 6 above refinance or pay out the mortgage over the Property B property so as to remove the wife as borrower or guarantor of the loan secured by way of mortgage over the said property.
Within 42 days the husband do all acts and things to list for sale his trailer and camping equipment for sale by auction on Ebay. The husband and wife shall be entitled to bid upon the said items. Upon the sale of the said items on Ebay the proceeds of the sale shall be divided 62% to the wife and 38% to the husband.
Should the husband fail to make payment to the wife in accordance with Order 5 above the parties shall be at liberty to relist the matter so that the Court can make Orders for the sale of the Property B property.
A…

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 Manson and Manson

Details

AGLC: Manson and Manson [2016] FCCA 3485
Case: [2016] FCCA 3485
Decision Date: 9 September 2016

CaseChat Overview and Summary

This matter concerned parenting and property orders made by Judge Myers. The dispute involved the father's possession and storage of firearms in circumstances where the children spent time at his premises, and the division of various assets between the husband and wife.

The court was required to determine the appropriate conditions to be imposed on the father regarding the storage and handling of firearms to ensure the safety of the children. Additionally, the court had to make orders for the division of property, including a sum of money to be paid by the husband to the wife, the transfer of interests in a property, the sale of personal items, and the division of superannuation entitlements.

In relation to parenting, the court ordered that the father must hold a licence for any firearm kept on his premises where the children spend time, ensure all firearms are registered and stored in accordance with the *Firearms Act 1996* (NSW), and not remove firearms from storage in the presence of the children unless agreed in writing. For property, the husband was ordered to pay a specific sum to the wife within 42 days, simultaneously transferring her interest in a property and refinancing the mortgage. The husband was also to list his trailer and camping equipment for sale on eBay, with proceeds divided 62% to the wife and 38% to the husband. The wife was allocated a base amount from the husband's superannuation fund, with provisions for its calculation and transfer. The orders also stipulated that each party would retain sole beneficial ownership of other assets not specifically dealt with, and the Registrar was empowered to execute documents if a party failed to do so.

Orders

Orders of the court

PARENTING

The father shall not keep upon his premises at which the children X born (omitted) 2006 and Y born (omitted) 2008 spend time, any firearm unless he holds a license entitling him to possess that firearm.

The father shall cause all firearms in his possession to be registered in accordance with the Firearms Act 1996 (NSW).

The father shall ensure that all firearms the father has in his possession at premises at which the children spend time shall be stored in accordance with sections 40 and 41 of the Firearms Act 1996 (NSW).

The father shall not remove from storage any firearm in the presence of the children other than as agreed between the parties in writing.

PROPERTY

Within 42 days the husband pay to the wife the sum of $267,363.52.

Simultaneously with the husband’s compliance with Order 5 above the wife do all acts and things and sign all documents necessary to transfer to the husband her right, title and interest in Property B.

The husband shall simultaneously with Orders 5 and 6 above refinance or pay out the mortgage over the Property B property so as to remove the wife as borrower or guarantor of the loan secured by way of mortgage over the said property.

Within 42 days the husband do all acts and things to list for sale his trailer and camping equipment for sale by auction on Ebay. The husband and wife shall be entitled to bid upon the said items. Upon the sale of the said items on Ebay the proceeds of the sale shall be divided 62% to the wife and 38% to the husband.

Should the husband fail to make payment to the wife in accordance with Order 5 above the parties shall be at liberty to relist the matter so that the Court can make Orders for the sale of the Property B property.

10.

A base amount of $34,401.00 is allocated to the wife out of the husband’s interest in the Australian (omitted) Fund (“(omitted) Super fund”).

In accordance with section 90MT(1)(a) of the Family Law Act 1975:

11.

The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount referred to in Order 10 above; and

12.

The husband’s entitlement (and the entitlement of such other person to whom splittable payments may be made) to payments out of the husband’s interest in the Australian (omitted) Fund, is correspondingly reduced.

13.

Orders 10 to 12 of these orders have effect from the operative time and the operative time is 4 business days from the date of service of sealed orders on the trustee and the trustee shall be at liberty to apply to the Court in relation to these orders within that 4 day period.

14.

The wife exercise a request pursuant to the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband’s interest in the Australian (omitted) Fund to a fund of the wife’s choosing.

15.

Otherwise than as provided for in these Orders, each party shall be declared to be the sole beneficial order of all real property, monies in bank accounts, shares in public or private companies, superannuation, furniture and furnishings, motor vehicles and the like that stand in that party’s name or that are in that party’s possession as at the date of these Orders.

16.

In the event that either party refuses or neglects to execute any deed or instrument that may be required to give effect to these Orders, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party or parties and do all acts necessary to give validity to the operation to the deed or instrument. The registrar be empowered to sign documents on behalf of either party to effect orders.

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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