Martin & Newton

Case [2011] FamCAFC 233

FAMILY COURT OF AUSTRALIA

MARTIN  & NEWTON [2011] FamCAFC 233

FAMILY LAW – APPEAL – PROPERTY – appeal by the husband from property settlement and adult child maintenance orders – where the trial Judge included in the pool of assets for division all of the funds of a company in which the husband was the sole shareholder and director – where the bulk of the assets of the company were derived from grants provided by a pharmaceutical company and a philanthropic foundation in support of the husband’s research – where the husband had intermingled the financial affairs of the company with his own personal finances – the trial Judge failed to have regard to the husband’s substantial contributions of personal funds to the company and hence his entitlement to use some funds for personal purposes– appellable error found.  

FAMILY LAW – APPEAL – PROPERTY – where the husband contended that he was legally and/or morally obliged to expend the funds of the company on the research purposes for which they were provided, and that they should therefore have been excluded from the pool of assets – it was open to the trial Judge to conclude that there was no specific legal obligation requiring the husband to expend the funds in a specific way – in circumstances where the trial Judge accepted the husband had a moral obligation to expend the funds on research his Honour erred by failing to consider the probability of the husband doing so – the legislation is cast sufficiently wide to allow the court to take into account moral obligations – the trial Judge erred by failing to consider whether the funds remaining in the company would be expended by the husband on the research purposes for which they were provided – appellable error found.  

FAMILY LAW – APPEAL – PROPERTY – s 75(2) factors – whether the trial Judge erred in making a s 75(2) adjustment on account of the significant financial benefit of the company available to the husband – the trial Judge erred in treating the retention of the company assets as part of the husband’s settlement as constituting an advantage to be weighed in the balance of the s 75(2) factors – appellable error found.

FAMILY LAW – APPEAL – appeal allowed – remitted for rehearing – costs submissions ordered.

Family Law Act 1975 (Cth) s 4(1), s 75(2), s 79

Clauson and Clauson (1995) FLC 92‑595
Duff & Duff (1977) FLC 90-217
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Kelly and Kelly (No. 2) (1981) FLC 91-108

Kennon v Spry (2008) 238 CLR 366
Norman & Norman [2010] FamCAFC 66
Teal & Teal [2010] FamCAFC 120
APPELLANT: Mr Martin  
RESPONDENT: Ms Newton
FILE NUMBER: PTW 402 of 2006
APPEAL NUMBER: WA 15 of 2010
DATE DELIVERED: 9 December 2011
PLACE DELIVERED: Perth
PLACE HEARD: Perth
JUDGMENT OF: Bryant CJ, Thackray and Strickland JJ
HEARING DATE: 11 April 2011
LOWER COURT JURISDICTION: Family Court…

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AGLC
Martin & Newton [2011] FamCAFC 233
Case
[2011] FamCAFC 233
Decision Date

CaseChat Overview and Summary

Martin and Newton were the parties involved in an appeal concerning the division of property and maintenance for an adult child. The husband contested the trial judge's decision to include all funds of a company in which he was the sole shareholder and director in the pool of assets for division. The husband argued that the majority of the company's assets came from grants provided by a pharmaceutical company and a foundation in support of his research. The husband also argued that he had intermingled the company's financial affairs with his own personal finances and that his substantial personal contributions to the company entitled him to use some funds for personal purposes.

The court had to determine whether the trial judge erred by not considering the husband's substantial contributions to the company and his entitlement to use some funds for personal purposes. The court also had to decide whether the trial judge erred by not considering the husband's moral obligation to expend the funds on research purposes for which they were provided. The court found that the trial judge erred by not taking into account the husband's substantial contributions to the company and his entitlement to use some funds for personal purposes. The court also found that the trial judge erred by not considering the probability of the husband expending the funds on research purposes for which they were provided.

The court found that the trial judge erred by treating the retention of the company assets as part of the husband's settlement as constituting an advantage to be weighed in the balance of the section 75(2) factors. The appeal was allowed, and the matter was remitted for re-hearing by a Judge of the Family Court of Western Australia other than the Honourable Justice Moncrieff. The parties were ordered to file and serve submissions in support of any application for costs within the specified timeframes.

Orders

Orders of the court

1.

The application in an appeal filed by the appellant on 1 April 2011 seeking to adduce further evidence be dismissed.

2.

The appeal be allowed.

3.

Orders 3 and 11 of the orders made by the Honourable Justice Moncrieff on 5 August 2010 be set aside.

4.

Orders 12, 13 and 14 of the orders made by the Honourable Justice Moncrieff on 5 August 2010 be set aside, this order to take effect upon the commencement of the rehearing.

5.

The matter is remitted for re-hearing as soon as possible by a Judge of the Family Court of Western Australia other than the Honourable Justice Moncrieff.

6.

Within twenty-one (21) days the appellant file and serve submissions in support of any application for costs.

7.

Within twenty-one (21) days thereafter the respondent file and serve submissions in response to the submissions filed on behalf of the appellant in relation to costs.

8.

Within seven (7) days thereafter the appellant file and serve submissions, if any, in response to the submissions filed on behalf of the respondent in relation to costs.

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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