Mason and Hammett - [2011] FMCAfam 1004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MASON & HAMMETT

[2011] FMCAfam 1004

FAMILY LAW – Limited and discrete issue concerning declaration in which defacto relationship terminated – interpretation of the term “separated” in law.

Family Law Act 1975, ss.4AA, 9RD, 90RB, Part VIIIAB
Federal Magistrates Court Rules 2001, rr.14.09, 14.06, 24.04

Aitken & Deakin [2010] FMCAfam 35
Todd & Todd (1976) FLC 90 – 008
Pavey & Pavey (1976) FLC 90 – 051
Fenech & Fenech (1976) FLC 90 – 035

Applicant:

MS MASON

Respondent:

MR HAMMETT

File Number:

AYC 461 of 2010

Judgment of:

Harman FM

Hearing date:

31 March 2011

Date of Last Submission:

31 March 2011

Delivered at:

Parramatta

Delivered on:

31 March 2011

REPRESENTATION

Counsel for the Applicant:

Mr Blank

Solicitors for the Applicant:

Skinner & Associates

Counsel for the Respondent:

Mr Thistleton

Solicitors for the Respondent:

Kell Moore Solicitors

ORDERS

Pursuant to s.9RD, a de facto relationship existed between parties to these proceedings as at 1 March 2009.
The Court is satisfied that the separation of the parties occurred no earlier than 20 March 2009, but in all probability occurred between 26 July 2010 and 19 August 2010.
That the parties are to attend a conciliation conference with a Registrar at the Albury Registry at 9am on the 29 June 2011.
That pursuant to Rules 14.06 and 24.04 of the Federal Magistrates Court Rules 2001 and within 35 days the parties and each of them are to ensure that copies of the following documents are provided to all other parties, namely:
(a)Copies of income tax returns, assessment notices and BASs for the last 3 completed financial years for that party personally and for any entity in which that party has an interest (such as a private company, trust or partnership);
(b)An up to date statement with respect to any superannuation interest of that party together with a valuation of the fund if not an accumulation interest;
(c)Copies of bank statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest such as a private company, trust or partnership;
(d)Copies of credit card statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest;
(e)Market appraisals with respect to any parcel of real estate in which any party has an interest;
(f)Any document proving or tending to prove any allegation contained in that party’s Financial Statement or Affidavit;
(g)Copies of market appraisals or computer site print outs as to value of:
(i)Any motor vehicle the value of which is not agreed;
(h)Copies of the following documents:
(i)Any other documents as may be requested within 14 days;
In the event that…

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 Mason and Hammett

Details

AGLC: Mason and Hammett [2011] FMCAfam 1004
Case: [2011] FMCAfam 1004
Decision Date: 31 March 2011

CaseChat Overview and Summary

In the matter of Mason and Hammett, the Federal Circuit Court was tasked with determining the existence of a de facto relationship between the parties, the date of their separation, and other related financial matters. The case involved complex evidence and required detailed examination of financial records and personal testimonies.

The central legal issues before the court were whether a de facto relationship existed between the parties as of a specific date, the exact date of their separation, and the division of assets and liabilities upon dissolution of the relationship. The court needed to assess the credibility and sufficiency of the evidence provided by both parties and apply the relevant legal principles to reach a decision.

The court examined the evidence meticulously, considering both documentary and testimonial submissions. It found that the de facto relationship commenced prior to 1 March 2009 and concluded that the separation occurred between 26 July 2010 and 19 August 2010. The court also outlined detailed procedural directives, including the production of financial documents, preparation of spreadsheets, and the requirement for parties to attend a conciliation conference. The court emphasised strict compliance with these directives and warned of potential cost implications for non-compliance.

In summary, the court declared the existence of a de facto relationship and determined the separation date, while also mandating a conciliation conference to facilitate resolution. The detailed orders included specific timelines for document disclosure, preparation of financial spreadsheets, and the provision of fee statements to clients.

Orders

Orders of the court

Pursuant to s.9RD, a de facto relationship existed between parties to these proceedings as at 1 March 2009.

The Court is satisfied that the separation of the parties occurred no earlier than 20 March 2009, but in all probability occurred between 26 July 2010 and 19 August 2010.

That the parties are to attend a conciliation conference with a Registrar at the Albury Registry at 9am on the 29 June 2011.

That pursuant to Rules 14.06 and 24.04 of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

A list particularising all documents provided pursuant to order 2 above hereof shall be served with the documents so produced and an Affidavit attaching that list (being an Affidavit of documents) shall be filed with the Court within 28 days and pursuant to Rule 14.09 of the Federal Magistrates Court Rules no party shall be entitled thereafter to put a document (whether original or copy) into evidence unless that document was disclosed and listed in the Affidavit of documents filed pursuant to this direction.(Please ensure that particular attention is paid to this order as leave will, in all probability, be refused to put a document into evidence at Trial in the event of non-compliance with this order) Inspection of all documents produced by a party as above shall occur within 7 days of production (and being no more than 35 days from the date hereof). No later than 7 days after inspection of documents pursuant to the above order the parties and each of them are to ensure that any request for the provision of addition documents is made of the other parties and any documents requested shall be provided, with an addition list particularising documents produced, within a further 7 days. 7 days prior to the Conciliation Conference each party shall produce and provide to the other parties and the Registrar’s section (preferably by email) a spreadsheet (in Excel format) setting out:(a)The assets, liabilities and financial resources alleged by them to comprise the present pool;(b)Any asset, liability or resource disposed of or acquired post separation;(c)The financial consequences of the orders proposed by them in their Application or Response. and those spreadsheets are to be retained on the Court file. Not less than 7 days prior to the Conciliation Conference each lawyer for a party shall provide to their client a written statement of fees incurred to that time; expected to be incurred for the Conference and likely to be incurred in preparation for and conduct of a trial if the matter is not resolved. The Conciliation Conference appointed is not to be administratively adjourned and save in the event of illness or misadventure the parties and their legal representatives are expected to attend the conference and make a genuine effort to resolve issues. In the event that the matter is resolved prior to the above mention date but other than at the Conciliation Conference then leave is granted to file Terms of Settlement (together with proof of procedural fairness to any Trustee or person affected by the proposed orders) and orders will then be made in Chambers and any future dates vacated. In the event that it is apparent at the Conciliation Conference that a party has failed to comply with the above direction or any of them and in the event that the matter is not resolved then the Registrar conducting the Conference is requested to place on the file a written note of same (in the form of an order and/or notations) of that fact and so as to ensure that the Court is informed of same and, further, to order costs or to reserve the costs of the Conference (which costs will be determined by the Court on the next listing).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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