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 Act 1975 (Cth) s 4(1), s 75(2), s 79 |
| Clauson and Clauson (1995) FLC 92‑595 Kennon v Spry (2008) 238 CLR 366 |
| 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
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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