Marsden and Marsden - [2011] FMCAfam 924

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MARSDEN & MARSDEN

[2011] FMCAfam 924

FAMILY LAW – Property adjustment – consent orders – application to enforce – application to vary orders pursuant to s79A – non-disclosure of a change of position at the time of the making of the consent orders – delay in enforcing consent orders.

Family Law Act 1975, s.79A

In the Marriage of Suiker (1993) 17 Fam LR 236

Applicant:

MR MARSDEN

Respondent:

MS MARSDEN

File Number:

BRC 6118 of 2007

Judgment of:

Lapthorn FM

Hearing dates:

16 & 17 May 2011

Date of Last Submission:

17 May 2011

Delivered at:

Brisbane

Delivered on:

8 September 2011

REPRESENTATION

Counsel for the Applicant:

Mr Jordan

Solicitors for the Applicant:

McPhee Lawyers

Counsel for the Respondent:

Mr Baston

Solicitors for the Respondent:

Hopgood Ganim

ORDERS

That pursuant to s79A(1)(a) of the Family Law Act 1975 Order (30) of the Orders made 24 April 2007 be set aside and in lieu thereof:
(30) That the parties each be responsible for, and do all such acts and sign all such things as might be required to pay capital gains tax assessed as payable in respect of the real property situate at Property W consequent upon its sale in accordance with the following proportions between the parties:
(i)That the Wife’s liability be limited to and not exceed the sum of $11,488; and
(ii)That the Husband be liable for the balance in the sum of $39,466 to be paid to the Wife within 7 days of the date of this Order from the funds in trust in the joint names of the parties with McPhee Lawyers and the husband indemnify and keep indemnified the wife in respect of such liability.”
That upon compliance with order (1) herein any remaining funds in trust in the joint names of the parties with McPhee Lawyers be dispersed to the husband or at his direction.
That save as to the question of costs all outstanding applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Marsden & Marsden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 6118 of 2007

MR MARSDEN

Applicant

And

MS MARSDEN

Respondent

REASONS FOR JUDGMENT

Introduction

I have been asked to determine a dispute in relation to orders made by consent in the Family Court of Australia on 24 April 2007. These orders provided for parenting and property settlement between the parties. On 23 June 2010 the husband brought proceedings in this court to enforce part of the property orders. In response to his application the wife sought to have the original property orders varied.
The dispute between the parties centres around the capital gains tax liability that has arisen as a result of the sale of a property pursuant to those orders. I will refer to that property as ‘the townhouse’ throughout this judgment.
As a consequence of orders made by Federal Magistrate Slack on

18 August 2010…

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 Marsden and Marsden

Details

AGLC: Marsden and Marsden [2011] FMCAfam 924
Case: [2011] FMCAfam 924
Decision Date: 8 September 2011

CaseChat Overview and Summary

Marsden and Marsden was a case before the Family Court of Australia concerning the division of capital gains tax liability between the parties following the sale of jointly owned real property. The dispute arose out of a property settlement agreement between the parties, which was made an order of the Court in 2007. The wife sought an order setting aside the existing property settlement order and substituting it with a new order apportioning the capital gains tax liability between the parties. The husband opposed the wife's application.

The central legal issue before the Court was whether the existing property settlement order could be set aside and replaced with a new order apportioning the capital gains tax liability between the parties. The Court had to determine whether the wife's application was an application under section 79A of the Family Law Act 1975, which allows for the modification of a property settlement order. The Court also had to consider the principles of fairness and justice in determining the apportionment of the capital gains tax liability between the parties.

The Court found that the wife's application was an application under section 79A of the Family Law Act 1975, and that it was appropriate to set aside the existing property settlement order and substitute it with a new order apportioning the capital gains tax liability between the parties. The Court considered the principles of fairness and justice in determining the apportionment of the liability and found that it was appropriate to limit the wife's liability to $11,488 and require the husband to pay the remaining balance of $39,466. The Court also ordered that any remaining funds in trust be dispersed to the husband or at his direction, and that all outstanding applications be dismissed except for the question of costs.

The Court made an order setting aside the existing property settlement order and substituting it with a new order apportioning the capital gains tax liability between the parties. The wife's liability was limited to $11,488, and the husband was ordered to pay the remaining balance of $39,466 to the wife within 7 days of the date of the order. Any remaining funds in trust were to be dispersed to the husband or at his direction. All outstanding applications were dismissed except for the question of costs.

Orders

Orders of the court

That pursuant to s79A(1)(a) of the Family Law Act 1975 Order (30) of the Orders made 24 April 2007 be set aside and in lieu thereof:

(30) That the parties each be responsible for, and do all such acts and sign all such things as might be required to pay capital gains tax assessed as payable in respect of the real property situate at Property W consequent upon its sale in accordance with the following proportions between the parties:

(i) That the Wife’s liability be limited to and not exceed the sum of $11,488; and

(ii) That the Husband be liable for the balance in the sum of $39,466 to be paid to the Wife within 7 days of the date of this Order from the funds in trust in the joint names of the parties with McPhee Lawyers and the husband indemnify and keep indemnified the wife in respect of such liability.”

That upon compliance with order (1) herein any remaining funds in trust in the joint names of the parties with McPhee Lawyers be dispersed to the husband or at his direction.

That save as to the question of costs all outstanding applications be 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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