MASON & MASON (NO.2) - [2013] FMCAfam 195

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MASON & MASON (NO.2)

[2013] FMCAfam 195

FAMILY LAW – Property – application for property settlement – asset pool – contributions by the parties – post separation contributions – whether superannuation splitting order to be made – whether just and equitable.

COSTS – Applications for costs – written submissions required.

Family Law Act 1975 (Cth), ss.75, 79, 90MT, 106A, 117

Erdem & Ozsoy [2012] FMCAfam 1323
Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; FLC 93-143
Kennon v Kennon (1997) 22 Fam LR 1; FLC 92-757
Mason & Mason [2013] FMCAfam 99
Stanford v Stanford [2012] HCA 52
Williams v Williams (1985) 10 Fam LR 335; FLC 91-628

Applicant:

MS MASON

Respondent:

MR MASON

File Number:

SYC 373 of 2011

Judgment of:

Scarlett FM

Hearing dates:

5 & 6 February 2013

Date of Last Submission:

6 February 2013

Delivered at:

Sydney

Delivered on:

14 March 2013

REPRESENTATION

Counsel for the Applicant:

Mr Christoff

Solicitors for the Applicant:

M.J. Woods & Co

Respondent:

The Respondent appeared in person

ORDERS

Within three (3) months of the date of these Orders, the following shall simultaneously occur:
(a)The Applicant Wife must transfer to the Respondent Husband all of her right title and interest in the property situate and known as Property W in the State of New South Wales being Lot [omitted] and the whole of the land in Folio Identifier [omitted];
(b)The Husband and the Wife must do all acts and things and sign all documents necessary at the Husband’s expense to cause to be discharged and refinanced into the Husband’s sole name the mortgage secured against the title to the property at Property W aforesaid in favour of the Commonwealth Bank of Australia and arrange for any such mortgage to be registered solely in the name of the Husband;
(c)The Husband must pay to the Wife by way of settlement of property the sum of $7,767.00.
As and from the date of the parties’ compliance with Order (1) above the Husband is to be solely responsible for repayment of any loan secured by any mortgage over the property at Property W and is to indemnify and keep indemnified the wife in relation to all liability under any such mortgage.
As and from the date of the parties’ compliance with Order (1) above the Husband is to be solely responsible for payment of all other outgoings including council rates livestock rates and other expenses and charges in relation to the property at Property W and indemnify and keep the Wife indemnified in relation to all such rates, charges and expenses.
In the event that the Husband is unable to pay to the Wife the sum of $7,767.00 within three (3) months of the date of these Orders or such further time as the Wife shall agree in writing then the parties are to do all things and execute all documents and instruments necessary to place the property at Property W on the market for…

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 & MASON (NO.2)

Details

AGLC: MASON & MASON (NO.2) [2013] FMCAfam 195
Case: [2013] FMCAfam 195
Decision Date: 14 March 2013

CaseChat Overview and Summary

The case of MASON & MASON (NO.2) involved a dispute between a husband and wife concerning the division of their assets and liabilities following their separation. The wife filed an application for a property settlement, which included a request for a superannuation splitting order. The court had to determine whether it was just and equitable to make such an order, considering the contributions made by both parties during and after their marriage. Additionally, the court needed to decide on the specific division of their assets, including real property, motor vehicles, and personal property.

The court deliberated on the nature and extent of the husband's and wife's contributions to their joint assets, including post-separation financial contributions. It considered the legal principles and statutory provisions governing property settlements under the Family Law Act 1975. The court found that the wife's request for a superannuation splitting order was not warranted, given the evidence presented regarding their respective contributions. It was determined that the division of their assets, as outlined in the court's orders, was fair and equitable under the circumstances.

The court ordered the wife to transfer her interest in the family home to the husband, while the husband was to pay the wife a settlement sum of $7,767.00 within three months. The husband was also to take over the mortgage repayments and other outgoings related to the property. If the husband could not make the payment within the stipulated timeframe, the property was to be sold, with the proceeds divided between the parties according to a specified priority. The court further directed that each party retain their respective superannuation interests, bank accounts, motor vehicles, and personal property. The court also stipulated that each party would be responsible for their own credit card debts and indemnify the other party against any claims arising from those debts.

The court mandated that written submissions on any application for costs be filed within 21 days, with any opposing submissions to be filed within an additional 14 days. These orders provided a comprehensive settlement of the property and financial matters between the parties, ensuring a fair and equitable outcome based on the evidence and legal principles applicable to their case.

Orders

Orders of the court

Within three (3) months of the date of these Orders, the following shall simultaneously occur:

(a) The Applicant Wife must transfer to the Respondent Husband all of her right title and interest in the property situate and known as Property W in the State of New South Wales being Lot [omitted] and the whole of the land in Folio Identifier [omitted];

(b) The Husband and the Wife must do all acts and things and sign all documents necessary at the Husband’s expense to cause to be discharged and refinanced into the Husband’s sole name the mortgage secured against the title to the property at Property W aforesaid in favour of the Commonwealth Bank of Australia and arrange for any such mortgage to be registered solely in the name of the Husband;

As and from the date of the parties’ compliance with Order (1) above the Husband is to be solely responsible for repayment of any loan secured by any mortgage over the property at Property W and is to indemnify and keep indemnified the wife in relation to all liability under any such mortgage.

As and from the date of the parties’ compliance with Order (1) above the Husband is to be solely responsible for payment of all other outgoings including council rates livestock rates and other expenses and charges in relation to the property at Property W and indemnify and keep the Wife indemnified in relation to all such rates, charges and expenses.

In the event that the Husband is unable to pay to the Wife the sum of $7,767.00 within three (3) months of the date of these Orders or such further time as the Wife shall agree in writing then the parties are to do all things and execute all documents and instruments necessary to place the property at Property W on the market for sale by a licensed real estate agent practising in the local area at a price to be agreed upon by the parties and in default of agreement at a price to be determined by the real estate agent and the parties are to cause the proceeds of the sale of the property to be dealt with in the following manner and priority:

(a) the costs, expenses, commissions, advertising fees, and disbursements of the real estate agent conducting the sale;

(b) the costs and fees of any lawyer or conveyancer acting for the parties in respect of the sale;

(d) 60 per cent (60%) of the balance to the Wife; and

(e) 40 per cent (40%) of the balance to the Husband.

If either party refuses or neglects to execute any deed document or instrument necessary to give effect to these Orders within seven (7) days of being requested in writing to do so by the other party then the Registrar or a Deputy Registrar of this Court is empowered in accordance with section 106A of the Family Law Act 1975 to sign and execute such deed document or instrument on behalf of the party who fails or neglects to do so as may be necessary to give full force and effect to these Orders.

Each party is to retain any superannuation interest in his or her own name.

Each party is to retain any account in any bank, building society or credit union standing in his or her own name.

The Wife is to retain and is to be solely entitled to Toyota motor car registered number [omitted].

The Husband is to retain and is to be solely entitled to Holden motor car registered number [omitted].

10.

Each party is entitled to retain any other item of personal property standing in his or her own name or possession.

11.

Each party is to be solely responsible for any credit card debt standing in his or her own name and is to indemnify the other party against all or any claims arising from such debt.

12.

Written submissions in support of any application for costs are to be filed and served within 21 days and any written submissions in opposition to any such application are to be filed and served within a further period of 14 days.

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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