Masland and Eaton (No.2) - [2012] FMCAfam 407

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MASLAND & EATON (No.2)

[2012] FMCAfam 407

FAMILY LAW – Property – undefended proceedings – conduct of proceedings to date – failure to conduct proceedings with due diligence – small asset pool – non-disclosure – assessment of contributions – weight to be given to initial contributions – special recognition – waste – assessment of section 75(2) factors – just and equitable.

Family Law Act 1975, ss.72, 74, 75(2), 79(4)

Masland & Eaton [2012] FMCAfam 373
Taylor v Taylor (1979) 143 CLR 1
Briese & Briese (1986) FLC 91-713
Black & Kellner (1992) FLC 92-287
Weir & Weir (1993) FLC 92-338
Luciano & Luciano (2000) FamCA 701
Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335
Clauson v Clauson (1995) FLC 92-595
Hickey v Hickey & Attorney General of the Commonwealth of Australia (Intervenor) 2003 FLC 93-143
Wardman & Hudson (1978) FLC 90-466
Biltoft & Biltoft (1995) FLC 92-614
Russell v Russell (1999) FamCA 187
Bevan & Bevan (1995) FLC 92-600
Pierce & Pierce (1999) FLC 92-844

Applicant:

MR MASLAND

Respondent:

MS EATON

File Number:

ADC 4675 of 2009

Judgment of:

Brown FM

Hearing dates:

18, 19 and 20 April 2012

Date of Last Submission:

20 April 2012

Delivered at:

Adelaide

Delivered on:

7 May 2012

REPRESENTATION

Counsel for the Applicant:

Mr Berman SC

Solicitors for the Applicant:

Mark Esau

Counsel for the Respondent:

In person

ORDERS

In full and final settlement of all claims for the settlement of matrimonial property:

That the moneys held in the joint account of the parties with Bank SA (account number (omitted)) be divided equally between the parties and the account closed.
That the moneys held in the trust account of (omitted) of, (omitted), South Australia, in the sum of $51,392.00 being the proceeds of sale of the property located at Property A, be declared to be the sole property of the husband.
In order to give effect to order (2) hereof the wife sign, execute and deliver al necessary deeds, instruments or documents to authorise the appropriate officer at (omitted) to transfer to the husband the monies held by (omitted), being the proceeds of sale of the property located at Property A, in whatever manner the husband or his solicitor directs.
Pursuant to section 90MT(1)(a) of the Family Law Act 1975 there be a splitting order in respect of the husband’s AMP Life Limited Superannuation (account number (omitted) and pursuant to section 90MT(4) of the Act a base amount in the sum of $15,200.00 be allocated to the wife out of the husband’s interest in such sum.
The solicitor for the husband serve a copy of these orders on the Trustee of the AMP Life Limited Superannuation by (omitted) and thereafter the aforesaid Trustee has liberty to relist the matter in the event that the trustee is unable to comply with order (4) hereof but otherwise the operative time for the aforesaid splitting order shall be 25 May 2012.
The Trustee of the…

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.

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Details

Case: [2012] FMCAfam 407
Decision Date: 7 May 2012

CaseChat Overview and Summary

The case of Masland and Eaton (No.2) was heard in the Family Court of Australia. The dispute between the parties centred on the division of matrimonial assets, including bank accounts, trust accounts, superannuation funds, and personal property. The court was tasked with determining how these assets should be divided between the husband and the wife as part of their property settlement following the dissolution of their marriage.

The legal issues before the court included the equitable division of jointly held assets, the allocation of superannuation entitlements, and the implementation of splitting orders as per the Family Law Act 1975. Additionally, the court had to consider how to enforce compliance with the orders, particularly in relation to the transfer of superannuation funds and the execution of necessary documents.

In its judgment, the court detailed the division of the assets, ensuring that each party retained certain personal and financial assets free from any further claims. The court also addressed the allocation of superannuation funds, issuing a splitting order and a base amount allocation. Furthermore, the court granted an injunction to prevent either party from using the other's credit and required each party to independently discharge their own debts. The court appointed the Registrar of the Family Court at Adelaide to execute any necessary deeds or instruments if either party failed to comply with the orders. Finally, the court ordered the service of the judgment and orders on the wife and dismissed all other applications.

The final orders included the equal division of a joint bank account, the declaration of a trust account as the sole property of the husband, a splitting order for the husband's superannuation fund, and specific injunctions to prevent the use of each other's credit. Each party was also required to retain their personal property and financial assets independently. The court also provided mechanisms to enforce compliance with the orders, including the service of the judgment and the appointment of the Registrar to execute necessary deeds.

Orders

Orders of the court

In full and final settlement of all claims for the settlement of matrimonial property:

That the moneys held in the joint account of the parties with Bank SA (account number (omitted)) be divided equally between the parties and the account closed.

That the moneys held in the trust account of (omitted) of, (omitted), South Australia, in the sum of $51,392.00 being the proceeds of sale of the property located at Property A, be declared to be the sole property of the husband.

In order to give effect to order (2) hereof the wife sign, execute and deliver al necessary deeds, instruments or documents to authorise the appropriate officer at (omitted) to transfer to the husband the monies held by (omitted), being the proceeds of sale of the property located at Property A, in whatever manner the husband or his solicitor directs.

Pursuant to section 90MT(1)(a) of the Family Law Act 1975 there be a splitting order in respect of the husband’s AMP Life Limited Superannuation (account number (omitted) and pursuant to section 90MT(4) of the Act a base amount in the sum of $15,200.00 be allocated to the wife out of the husband’s interest in such sum.

The solicitor for the husband serve a copy of these orders on the Trustee of the AMP Life Limited Superannuation by (omitted) and thereafter the aforesaid Trustee has liberty to relist the matter in the event that the trustee is unable to comply with order (4) hereof but otherwise the operative time for the aforesaid splitting order shall be 25 May 2012.

The Trustee of the AMP Life Limited Superannuation, the husband and the wife in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all necessary documents as are required to calculate the payment entitlements of the wife in accordance with order (4) hereof.

That as and from the date of this order, each party shall retain all assets which each now has when so ever or how so ever required; including but without limiting the effect hereto the husband shall retain for his sole use and benefit absolutely free from any further claim or demand of the wife:

(a) furniture and effects in his possession, power and control.

(b) any motor vehicle in his possession.

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits.

(e) his personal effects.

(f) any other real and/or personal property and/or financial resources of the husband in the husband’s name and/or possession not otherwise specified herein.

Including but without limiting the effect hereof, the wife shall retain for her sole use and benefit absolutely free from any further claim or demand of the husband:

(a) the furniture and furnishings in her possession, power and control.

(b) any motor vehicle in her possession.

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits.

(e) personal effects.

(f) her interest in her Property C and Property T properties.

(g) any other real and/or personal property and/or financial resources of the wife or in the wife’s name and/or possession not otherwise specified herein.

That hereafter each party is restrained and an injunction granted restraining each of them from pledging the credit of the other.

10.

That hereafter each party shall discharge without calling upon the other to contribute thereto their several debts contracted by or for them.

11.

That each party shall do all such things and acts and sign all such necessary documents to give effect to the terms of this order.

12.

Pursuant to section 106A of the Family Law Act 1975 the Registrar of the Family Court at Adelaide is appointed to execute any necessary deeds or instrument required to be completed to give effect to these orders in event either party refuses or neglects to comply with order (11) hereof.

13.

A copy of this judgment and the orders made today and a copy of the judgment and orders made on 20 April 2012 are to be served on the respondent by pre-paid post at her last known address and also on her electronically at her last known email address.

14.

All applications be otherwise 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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