FAMILY LAW – PROPERTY- settlement in relation to a marriage – main asset the former matrimonial home - whether it is just and equitable to make a property order – whether contributions made more onerous by family violence – Waste of combined asset pool—Two pool approach to assessing marital assets.
Legislation:
Family Law Act 1975 (Cth), Part VIII, ss. 75(2), 79(1), 79(4), 79(8), 90SF, 90SM
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MASSEY
Applicant
AND:
MS DUVAL
Respondent
order made by:
JUDGE TURNBULL
DATE OF ORDER:
10 February 2023
THE COURT ORDERS THAT:
1.That within forty-two (42) days of the making of these orders the Wife is to:
(a)Take all steps and do all acts and things and make all payments of principal and interest and costs necessary to obtain the discharge of the mortgage registered number … (“the mortgage”) held by Bank B over the former matrimonial home situated at and known as C Street, Suburb D in the State of New South Wales and being the whole of the land contained in Certificate of Title Folio Identifier … (“the former matrimonial home”) as security for monies advanced under Bank E account number …32; and to remove any caveat registered against the former matrimonial home; and
(b)Pay to the Husband the sum of $177,886.77 by way of adjustment of property settlement.
2.That immediately upon the above order having been complied with, the Husband is to:
(a)Execute all documents necessary to allow the mortgage to be discharged; and
(b)Execute all documents and do all…
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
AGLC
Massey & Duval [2023] FedCFamC2F 115
Case
[2023] FedCFamC2F 115
Decision Date
CaseChat Overview and Summary
Massey and Duval was a property settlement proceeding between former spouses, Mr Massey and Ms Duval. The parties had been married in 2008, separated in 2018, and their divorce was finalised in 2020. They had no children together. The primary dispute was the division of their property, including a matrimonial home and superannuation interests. The court had to determine whether the parties' superannuation and non-superannuation assets should be included in one pool, whether any add-backs should be made to the asset pool, whether either party had wasted the parties' resources, how the Wife’s failure to pay the mortgage and rates should be considered when assessing parties contributions, the impact of the Wife’s care of the Husband's children during the marriage, and whether the Court should regard the Wife’s contributions as having been made more arduous due to her experiences of family violence from the Husband. The court also had to decide whether the Husband should be allowed to enter the matrimonial home and undertake works to that property. The court found that the Wife’s engagement ring should not be included in the asset pool. The court adopted a two pool approach to the superannuation and non-superannuation assets. The court determined that there should be no add-back to the asset pool. The court found that neither party had wasted the parties' resources. The court considered the Wife’s failure to pay the mortgage and rates when assessing parties contributions. The court found that the Wife’s care of the Husband's children during the marriage should be taken into account under s 75(2)(o). The court found that the Wife’s contributions were not made more arduous due to her experiences of family violence from the Husband. The court decided that the Husband should not be allowed to enter the matrimonial home and undertake works to that property. The court ordered that the Wife was to obtain the discharge of the mortgage registered over the former matrimonial home and pay the Husband $177,886.77 by way of adjustment of property settlement. If the Wife did not comply with this order, the former matrimonial home was to be sold and the proceeds divided between the parties. The court also ordered that there be a division of all property of the parties (excluding superannuation) in the proportion 59% to the Wife and 41% to the Husband. The court further ordered that a base amount of $57,359.35 be allocated to Ms Duval out of the interest held by Mr Massey in Super Fund 1.