Markson and Markson - [2016] FCCA 925

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARKSON & MARKSON

[2016] FCCA 925

Catchwords:
FAMILY LAW – Property – Interim Orders – application for interim property orders – whether amounts claimed are debts arising from the parties’ marriage – res judicata – where some claims considered and rejected in earlier decision – where no appeal lodged in respect of earlier decision – a party’s legal costs incurred during the proceedings cannot be classified as a joint debt owing at separation.

Legislation

Family Law Act 1975 (Cth), ss.75, 79, 80

Cases cited:
Markson & Markson [2014] FCCA 3040
Strahan & Strahan (Interim Property Orders) (2009) 241 FLR 1; 42 Fam LR 203; (2011) FLC 93-466; [2009] FamCAFC 166

Applicant:

MS MARKSON

Respondent:

MR MARKSON

File Number:

SYC 3742 of 2014

Judgment of:

Judge Scarlett

Hearing date:

6 July 2015

Date of Last Submission:

6 July 2015

Delivered at:

Sydney

Delivered on:

18 April 2016

REPRESENTATION

Applicant:

In person

Respondent:

In person

ORDERS

UNTIL FURTHER ORDER

Within 21 days of the date of these Orders the Applicant and the Respondent are to do all acts and things and sign all such documents necessary to authorise Sage Solicitors to pay the following amounts out of the funds currently held by them in a controlled monies account on behalf of the parties:
(a)As to the amount of $4,387.62 being an amount owing to Energy Australia for power supplied to Property C;
(b)As to the amount of $27,676.46 owing to (omitted) Bank for (omitted) Visa Card (omitted);
(c)As to the amount of $14,620.41 owing to (omitted) Bank for (omitted) Bank Account Number (omitted);
(d)As to the amount of $10,317.05 owing to (omitted) Bank Credit Card Account Number (omitted);
(e)As to the amount of $16,181.17 owing to (omitted) Bank for Account Number (omitted);
(f)As to the amount of $1,206.00 owing to (school omitted) of (omitted) New South Wales; and
(g)As to the amount of $21,671.01 to (omitted) Finance in respect of amounts owing on a (omitted) motor vehicle.
The parties are to direct Sage Solicitors to pay the above amounts to the payees on behalf of the parties within 21 days.
Within 21 days of the date of these Orders the Applicant and the Respondent are to do all acts and things and sign all necessary documents to authorise Sage Solicitors to pay out of the funds currently held by them in a controlled monies account on behalf of the parties the amount of $17,548.18 to Sarah Bevan Family Lawyers of Post Office Box 1159 Parramatta New South Wales 2124 such amount of $17,548.18 to be regarded as an interim property distribution to the husband.
Within 21 days of the date of these Orders the Applicant and the Respondent are to do all acts and things and sign all necessary documents to authorise Sage Solicitors to cause the amount of $37,500.00 to be released to the husband Mr Markson out of the funds currently held by them in a controlled monies account on behalf of the parties such…

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 Markson and Markson

Details

AGLC: Markson and Markson [2016] FCCA 925
Case: [2016] FCCA 925
Decision Date: 18 April 2016

CaseChat Overview and Summary

In the matter of Markson and Markson, Judge Scarlett of the Federal Circuit and Family Court of Australia made orders concerning the distribution of funds held in a controlled monies account. The dispute involved the Applicant and the Respondent, who were required to authorise their solicitors, Sage Solicitors, to disburse specific sums from these funds.

The court was required to determine how outstanding debts and interim property distributions should be settled from the jointly held funds. This included payments for utilities, credit card debts, bank accounts, school fees, and a motor vehicle loan, as well as interim property distributions to the husband.

Judge Scarlett ordered that within 21 days, both parties were to take all necessary steps to authorise Sage Solicitors to pay a total of $83,536.25 to various creditors, including Energy Australia, multiple banks, a school, and a finance company for a motor vehicle. Additionally, the court ordered that $17,548.18 be paid to Sarah Bevan Family Lawyers as an interim property distribution to the husband, and a further $37,500.00 be released directly to the husband, Mr Markson, also as an interim property distribution. These payments were to be made by Sage Solicitors within the same 21-day timeframe.

Orders

Orders of the court

UNTIL FURTHER ORDER

Within 21 days of the date of these Orders the Applicant and the Respondent are to do all acts and things and sign all such documents necessary to authorise Sage Solicitors to pay the following amounts out of the funds currently held by them in a controlled monies account on behalf of the parties:

(a) As to the amount of $4,387.62 being an amount owing to Energy Australia for power supplied to Property C;

(b) As to the amount of $27,676.46 owing to (omitted) Bank for (omitted) Visa Card (omitted);

(d) As to the amount of $10,317.05 owing to (omitted) Bank Credit Card Account Number (omitted);

(e) As to the amount of $16,181.17 owing to (omitted) Bank for Account Number (omitted);

(f) As to the amount of $1,206.00 owing to (school omitted) of (omitted) New South Wales; and

(g) As to the amount of $21,671.01 to (omitted) Finance in respect of amounts owing on a (omitted) motor vehicle.

The parties are to direct Sage Solicitors to pay the above amounts to the payees on behalf of the parties within 21 days.

Within 21 days of the date of these Orders the Applicant and the Respondent are to do all acts and things and sign all necessary documents to authorise Sage Solicitors to pay out of the funds currently held by them in a controlled monies account on behalf of the parties the amount of $17,548.18 to Sarah Bevan Family Lawyers of Post Office Box 1159 Parramatta New South Wales 2124 such amount of $17,548.18 to be regarded as an interim property distribution to the husband.

Within 21 days of the date of these Orders the Applicant and the Respondent are to do all acts and things and sign all necessary documents to authorise Sage Solicitors to cause the amount of $37,500.00 to be released to the husband Mr Markson out of the funds currently held by them in a controlled monies account on behalf of the parties such amount of $37,500.00 to be regarded as an interim property distribution to the husband.

The parties are to direct Sage Solicitors to pay the amounts referred to in Orders (3) and (4) above to the payees within 21 days.

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.