Martin & Martin - [2012] FamCA 869

FAMILY COURT OF AUSTRALIA

MARTIN & MARTIN

[2012] FamCA 869

FAMILY LAW ─ PROPERTY SETTLEMENT ─ Application of the wife and the husband for the making of consent final orders for settlement of property ─ Where the making of those orders was opposed by the wife’s former solicitors, and a corporation, who both sought to intervene in the proceedings, and both asserted that they were creditors of the wife ─ Where orders were made on 12 September 2011 which conferred an entitlement upon the wife’s former solicitors to receive all or any part of the sum of money owed ─ Where the Court found that the making of the orders for settlement of property in the terms sought by the husband and the wife would effect the ability of the wife’s former solicitors and the corporation to recover their indebtedness from the wife ─ Where the Court was ultimately unable to make the necessary findings of fact, particularly in relation to the competing priorities as between the wife, the wife’s former solicitors and the corporation, that it would be just and equitable to make the orders for settlement of property in the terms sought by the wife and the husband ─ Leave granted to the wife’s former solicitors and the corporation to intervene in the proceedings ─ Application of the husband and the wife that orders for settlement of property be made by consent was refused.

Family Law Act 1975 (Cth) Part VIII; ss 75(2), 75(2)(ha), 79, 79(2), 79(6), 79(10)

Chorn & Hopkins (2004) FLC 93-204
Gabel & Yardley (2008) FLC 93-386
Gadens Ridgeway (a firm) v Paroulakis (1992) FLC 92-311
Manolis & Manolis (No 2) [2011] FamCAFC 105
Parker & Parker (2012) 47 Fam LR 122
Trustee of the property of GLemnos, a bankrupt & Lemnos and Anor (2009) FLC 93-394

APPLICANT:

Ms Martin

RESPONDENT:

Mr Martin

FIRST INTERVENOR:

X Firm

SECOND INTERVENOR:

QF Pty Ltd

FILE NUMBER:

MLC

9829

2007

DATE DELIVERED:

17 October 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney via video link with Melbourne

JUDGMENT OF:

Coleman J

HEARING DATE:

14 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ambrose

SOLICITOR FOR THE APPLICANT:

Cahill & Rowe Family Law

COUNSEL FOR THE RESPONDENT:

Mr Puckey

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

COUNSEL FOR THE FIRST INTERVENOR:

Mr Brown SC with Mr McKillop

SOLICITOR FOR THE FIRST INTERVENOR:

Nedovic & Co Lawyers

COUNSEL FOR THE SECOND INTERVENOR:

Mr Davis

SOLICITOR FOR THE SECOND INTERVENOR:

Hopkins Lawyers

Orders

That pursuant to s 92 of the Family Law Act 1975 (Cth) X Firm and QF Pty Ltd are granted leave to intervene as the first and second intervenors in the proceedings.
That the application of the husband and the wife that orders for settlement of property be made by consent be refused.
That such application be adjourned to a date to be fixed for hearing on the merits.
That written submissions in support of any application for costs be filed and served within 21 days…

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 & Martin

Details

AGLC: MARTIN & MARTIN [2012] FamCA 869
Case: [2012] FamCA 869
Decision Date: 17 October 2012

CaseChat Overview and Summary

In *Martin & Martin*, heard by Coleman J, the husband and wife sought consent orders for the settlement of their property. Two entities, X Firm and QF Pty Ltd, applied for and were granted leave to intervene in the proceedings as first and second intervenors, respectively, pursuant to section 92 of the *Family Law Act 1975* (Cth).

The primary legal issue before the court was whether to grant the parties' application for consent orders regarding property settlement. The court was also required to determine the future course of the proceedings, including whether to proceed to a hearing on the merits and to consider applications for costs.

Coleman J refused the application for consent orders, indicating that the matter required a full hearing on its merits. The court did not provide detailed reasons for this refusal in the provided text, but the decision to adjourn the matter for a hearing suggests that the proposed consent orders did not meet the court's satisfaction or that there were unresolved issues requiring judicial determination. The court also directed the parties to file written submissions concerning any applications for costs.

Orders

Orders of the court

That pursuant to s 92 of the Family Law Act 1975 (Cth) X Firm and QF Pty Ltd are granted leave to intervene as the first and second intervenors in the proceedings.

That the application of the husband and the wife that orders for settlement of property be made by consent be refused.

That such application be adjourned to a date to be fixed for hearing on the merits.

That written submissions in support of any application for costs be filed and served within 21 days hereof.

That written submissions in opposition to any such application be filed and served within 14 days thereafter.

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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