Marsh & Marsh & Anor - [2014] FamCA 325

FAMILY COURT OF AUSTRALIA

MARSH & MARSH AND ANOR

[2014] FamCA 325

FAMILY LAW – PROPERTY – Application by the wife for property settlement orders pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the wife did not appear at the hearing – Where the hearing had been previously vacated upon the wife’s application – Where the court was satisfied that the wife was aware of the dates for hearing – Where the court determined, given that the wife had proper notice of the hearing, that it was the second date fixed for hearing, the debt outstanding to the Commissioner of Taxation and the accruing interest along with the general desirability of finalising the litigation, that it proceed with the hearing, notwithstanding the absence of the wife – Whether just and equitable to alter property interests and rights – Consideration of factors under s 79 and s 75(2) of the Act – Where the court found that the husband’s initial financial contribution was significantly greater than the wife’s – Where the court found that the financial and non-financial contributions of the parties to their property and their contributions to their welfare of the family are regarded as equal – Where an adjustment, pursuant to s 75(2), of 15 per cent in the wife’s favour would be appropriate but having regard to the partial property settlement received by the wife, in the circumstances of this case, a division of the remaining assets as to fifty-five per cent to the wife and forty-five per cent to the husband is appropriate.

FAMILY LAW – SPOUSE MAINTENANCE – Where the wife sought an order for spousal maintenance in the sum of $30 000 per month – Where there is no evidence that would support the making of such an application – Where the wife’s application for spousal maintenance is dismissed – Where the court was not prepared to discharge the current order for spousal maintenance.

Family Law Act 1975 (Cth) ss 75(2), 79

Beven & Beven [2013] FamCAFC 116

Commissioner of Taxation & Worsnop (2009) FLC 93-392

Deputy Commission of Taxation v Kliman & Kliman (2002) FLC 93-113

Johnson and Johnson [1999] FamCA 369,

NHC & RCH (2004) FLC 93-204

APPLICANT:

Ms Marsh

RESPONDENT:

Mr Marsh

INTERVENER:

Commissioner of Taxation

FILE NUMBER:

SYC

3464

2009

DATE DELIVERED:

20 May 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

13 May 2014

REPRESENTATION

THE APPLICANT IN PERSON:

No Appearance

COUNSEL FOR THE RESPONDENT:

Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT:

Champion Legal

COUNSEL FOR THE INTERVENER:

Mr Kasep

SOLICITOR FOR THE INTERVENER:

ATO Legal Services Branch

Orders

That the orders sought by the wife in any application filed by her seeking a division of matrimonial property shall hereby be dismissed.
That the husband shall do all acts and things and sign all such deeds, documents and instruments as are necessary to transfer to the wife all of his right, title and interest in the property…

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 Marsh & Marsh & Anor

Details

AGLC: Marsh & Marsh [2014] FamCA 325
Case: [2014] FamCA 325
Decision Date: 20 May 2014

CaseChat Overview and Summary

Aldridge J considered an application by the wife for property settlement orders pursuant to s 79 of the *Family Law Act 1975* (Cth) and for spousal maintenance. The wife did not appear at the hearing, which had been previously vacated at her request. The court was satisfied the wife had proper notice of the hearing dates and, given this, that it was the second date fixed for hearing, the outstanding debt to the Commissioner of Taxation and accruing interest, and the general desirability of finalising the litigation, the court determined to proceed with the hearing in her absence.

The primary legal issues before the court were whether it was just and equitable to alter the property interests and rights of the parties, and to consider the factors under s 79 and s 75(2) of the Act. The court was also required to determine the wife's application for spousal maintenance.

In relation to property, the court found that the husband's initial financial contribution was significantly greater than the wife's, but that their financial and non-financial contributions to their property and their contributions to the welfare of the family were equal. An adjustment of 15 per cent in the wife's favour pursuant to s 75(2) was considered appropriate. However, having regard to a partial property settlement already received by the wife, the court determined that a division of the remaining assets as to 55 per cent to the wife and 45 per cent to the husband was appropriate. Regarding spousal maintenance, the court found there was no evidence to support the wife's application for $30,000 per month and dismissed this application, while also stating it was not prepared to discharge the current order for spousal maintenance.

The court made orders dismissing the wife's application for property settlement, transferring the G Town property to the wife, and confirming the wife's retention of OO Company Limited and the CC Town property, subject to her indemnifying the husband against liabilities of the company. The K Town property was ordered to be sold by public auction, with the wife to occupy it pending sale under specific conditions. Sale proceeds were to be applied in a defined order, with the balance to be divided 47 per cent to the wife and 53 per cent to the husband. The wife's spousal maintenance application was dismissed, and the husband was to retain distributions from the PP Group. Each party was to retain other property in their possession. The Registrar was appointed to execute documents if a party refused or neglected to do so.

Orders

Orders of the court

That the orders sought by the wife in any application filed by her seeking a division of matrimonial property shall hereby be dismissed.

That the husband shall do all acts and things and sign all such deeds, documents and instruments as are necessary to transfer to the wife all of his right, title and interest in the property situate at and known as PP Street, G Town (‘the G Town property’) being all that land in Certificate of Title Folio Identifier … .

That the wife shall retain as her own property, absolutely, the company incorporated in New Zealand OO Company Limited and the asset of the company NN Street, CC Town, New Zealand (‘the CC Town property’).

That the wife shall indemnify the husband and keep him indemnified in respect to all liabilities of OO Company Limited to any bank or financial institution.

That the parties shall forthwith do all acts and things and sign all such deeds, documents and instruments as are necessary to place for sale and sell by public auction the property situate at and known as MM Street, K Town (‘the K Town property’) being all that land described in Certificate of Title Folio Identifier … .

That Mr TT of BBB Real Estate shall act on the parties’ behalf in respect to the marketing of the K Town property for sale and the parties shall do all acts and things and sign all deeds, documents and instruments as are required to place the property for sale by public auction.

That the parties shall agree within three (3) days hereof on the solicitor to act on the parties’ behalf on the sale of the K Town property and if there is no agreement within three (3) days thereafter, the husband shall be at liberty to nominate the solicitor to act on the parties’ behalf on the sale.

That the wife shall occupy the K Town property pending its sale, subject to:

8.1 maintaining the property in a neat, fit and proper state;

8.2 making the property available at all times as requested by the agent; and

8.3 not to do any act or thing designed or likely to affect the sale of the property.

That the wife shall vacate the K Town property at least seven (7) days prior to the settlement of the sale.

10.

That upon the sale of the K Town property the sale proceeds be applied in the following order and priority:

10.1 such adjustment of rates, taxes and charges as is required to be paid on the settlement of the sale;

10.2 agent’s costs and commissions;

10.3 auction fees;

10.4 legal costs and disbursements incurred on the sale;

10.5 the payment of any land tax liability in the name of the husband;

10.6 such sum as required to discharge all liability in the husband’s name to the Australian Taxation Office however arising; and

10.7 the balance to be divided as to forty-seven per cent to the wife and fifty-three per cent to the husband.

11.

That the wife’s application for spouse maintenance in the sum of $30 000 per month shall be and is hereby dismissed.

12.

That the husband shall retain for his own use and benefit all and any distributions of payments received or to be received from the PP Group.

13.

That each party shall otherwise retain such other property as is in their possession or their power and control at the date of the making of these Orders as their own property absolutely, including any bank accounts, motor vehicles, furniture, furnishings and the like.

14.

That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

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.