Martin and Wilson - [2016] FCCA 235

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARTIN & WILSON

[2016] FCCA 235

Catchwords:
FAMILY LAW − Whether respondent’s superannuation lost in failed business after separation should be added back – whether relevant to s.90SF(3) considerations.

Legislation:

Family Law Act 1975 (Cth), ss.90SF(3), 90SM(3), 90SM(4)

Miller & Miller [2009] FamCAF 121

Applicant:

MR MARTIN

Respondent:

MS WILSON

File Number:

DGC 3293 of 2013

Judgment of:

Judge Phipps

Hearing date:

16 September 2015

Date of Last Submission:

16 September 2015

Delivered at:

Dandenong

Delivered on:

11 February 2016

REPRESENTATION

Counsel for the Applicant:

Ms Croxford

Solicitors for the Applicant:

Elisa Rothschild Lawyer

The Respondent:

Appearing on their own behalf

ORDERS

That each party do all things necessary and sign all necessary documents to sell the land known as Property D.
Upon completion of the sale the proceeds be applied as follows:
(a)Firstly in payment of the costs and expenses of the sale;
(b)Secondly in satisfaction of any mortgage or other encumbrance over the land;
(c)Lastly by paying 40% of the balance to the applicant and 60% to the respondent.
That unless otherwise specified in these orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action and superannuation) in the possession of such party as at the date of these orders;
(b)Money standing to the credit of the parties in any bank account in their sole name remain the property of the party;
(c)Any insurance policies become the sole property of the owner named therein;
(d)Each party is solely liable for and indemnifies the other party against liability encumbering any item of property to which that party is entitled pursuant to these orders.
Otherwise all extant applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3293 of 2013

MR MARTIN

Applicant

And

MS WILSON

Respondent

REASONS FOR JUDGMENT

Introduction and proposals

The applicant (the de facto husband) and the respondent (the de facto wife) lived in a de facto relationship from July 2002 until April 2013, an 11 year relationship. The only existing assets are a block of land at Property D and the respondent’s superannuation of approximately $50,000. The parties agree the value of the block of land is $80,000.
The issues are:
a)Whether an amount of $90,000 should be added back into the property pool against the respondent. This is an amount she withdrew from her superannuation at separation and after this proceeding was commenced. She used the money to establish a (business omitted). The (business omitted) failed. The respondent relinquished possession of the premises to the landlord and may still have a liability for rent;
b)How contributions and adjustments under s.90SF(3) of the Family Law Act 1975 (Cth) should be assessed.
The applicant proposes that the matrimonial property be assessed as:
(a)Property D $80,000;
(b)Applicant’s superannuation $50,000;
(c)Respondents superannuation (added back) $90,000,
He proposes that these…

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 Martin and Wilson

Details

AGLC: Martin and Wilson [2016] FCCA 235
Case: [2016] FCCA 235
Decision Date: 11 February 2016

CaseChat Overview and Summary

In the matter of *Martin and Wilson*, heard before Judge Phipps, the dispute concerned the division of property between the parties. The court was tasked with determining how the parties' assets, including a specific property known as Property D, should be distributed.

The central legal issues before the court were the equitable distribution of the parties' property, particularly the sale of Property D and the apportionment of its proceeds, and the general division of all other assets and liabilities held by each party. The court also had to consider the terms under which each party would retain sole ownership of their respective possessions and liabilities.

Judge Phipps ordered that Property D be sold, with the proceeds first applied to the costs of sale, then to any encumbrances, and finally distributed with 40% to the applicant and 60% to the respondent. The court further ordered that, unless otherwise specified, each party would retain sole ownership of property in their possession as at the date of the orders, including bank accounts and insurance policies in their sole name. Each party was also ordered to be solely liable for and indemnify the other against any liabilities encumbering property they were entitled to under these orders. All other extant applications were dismissed.

Orders

Orders of the court

That each party do all things necessary and sign all necessary documents to sell the land known as Property D.

Upon completion of the sale the proceeds be applied as follows:

(a) Firstly in payment of the costs and expenses of the sale;

(b) Secondly in satisfaction of any mortgage or other encumbrance over the land;

That unless otherwise specified in these orders:

(a) Each party be solely entitled to the exclusion of the other to all property (including choses-in-action and superannuation) in the possession of such party as at the date of these orders;

(b) Money standing to the credit of the parties in any bank account in their sole name remain the property of the party;

(d) Each party is solely liable for and indemnifies the other party against liability encumbering any item of property to which that party is entitled pursuant to these orders.

Otherwise all extant applications are 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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