Maxwell and Maxwell - [2008] FMCAfam 969

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAXWELL & MAXWELL

[2008] FMCAfam 969

FAMILY LAW – Property settlement – proceedings brought 12 years after divorce – hardship – exercise of discretion – contribution – future needs – just and equitable order.

Family Law Act 1975 ss.44, 75, 79

DW and GT [2005] FamCA 161
Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Norbis v Norbis (1986) 161 CLR 513
Pierce v Pierce (1998) FLC 92-844
Whitford and Whitford (1979) FLC 90-612
Williams & Williams [2007] FamCA 313

Applicant:

MS MAXWELL

Respondent:

MR MAXWELL

File Number:

SYC 3289 of 2007

Judgment of:

Altobelli FM

Hearing date:

22 July 2008

Date of Last Submission:

22 July 2008

Delivered at:

Sydney

Delivered on:

10 September 2008

REPRESENTATION

Counsel for the Applicant:

Mr Davidson

Solicitors for the Applicant:

JSM Lawyers

Respondent:

Self-represented

ORDERS

THAT leave be granted to the Wife pursuant to s.44 of the Family Law Act (“the Act”) to bring property proceedings against the Husband pursuant to s.79 out of time.
THAT the Wife, within twenty-eight (28) days from the date of these Orders, will do all acts and things and sign all documents necessary to transfer all her right, title and interest in the property known as Property [X] in the State of New South Wales and being folio identifier [1] (“the [X] Property”) to the Husband.
THAT upon the transfer of the [X] Property to the Husband, the Husband be declared the sole legal and equitable owner of the [X] Property.
THAT the Husband and the Wife do all things and sign all documents necessary to refinance the Property and to release and discharge the Wife from any and all liability to Communication Credit Union Ltd pursuant to mortgage [Z] in respect of the [X] Property.
THAT the Husband, from the date of these Orders and by this order hereby indemnify the Wife from and in respect of any and all liabilities, actions, claims, suits and demands for council rates, water rates, strata levies and mortgage repayments relating to the [X] Property.
THAT the Husband, simultaneously with Order 2, will do all acts and things and sign all documents necessary to transfer all his right, title and interest in the property known as Property [Y],in the State of New South Wales, being folio identifier [2] (“the [Y] Property”) to the Wife.
THAT upon the transfer of the [Y] Property to the Wife, the Wife be declared the sole legal and equitable owner of the [Y] Property.
That no later than twelve (12) months from the date of this Order, the wife pay the Husband $122,899. Pending payment the husband’s entitlement to payment from the wife in accordance with these Orders shall be charged against the property and he will be entitled to lodge a caveat in respect of the same, such caveat to be withdrawn at the time of payment.
THAT the Wife, from the date of these Orders and by this Order hereby indemnify 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.

Continue reading Maxwell and Maxwell

Details

AGLC: Maxwell and Maxwell [2008] FMCAfam 969
Case: [2008] FMCAfam 969
Decision Date: 10 September 2008

CaseChat Overview and Summary

Maxwell and Maxwell involved a dispute between a husband and wife over the division of property following their divorce. The wife sought to bring property proceedings against the husband out of time, under section 44 of the Family Law Act. The Federal Circuit and Family Court of Australia heard the case. The court had to decide whether to grant the wife leave to bring her property claim out of time, and if so, how to divide the property between the parties.

The court found that the wife had made a genuine and reasonable attempt to bring her property claim within the prescribed time period and granted her leave to do so out of time. The court then proceeded to divide the property between the parties. The court ordered that the husband and wife transfer their respective interests in two properties to each other, and that the husband indemnify the wife from certain liabilities relating to one of the properties, and the wife indemnify the husband from certain liabilities relating to the other property. The court also ordered that the wife pay the husband a sum of money, and that each party be declared the sole legal and beneficial owner of certain items of property in their possession or control.

The final orders of the court included directions for the parties to execute deeds and documents necessary to give effect to the orders, and appointed the Registrar of the Court to execute any necessary deeds or instruments on behalf of a party who refused or neglected to do so. The court's orders aimed to provide a fair and practical division of the parties' property, taking into account the circumstances of the case.

Orders

Orders of the court

THAT leave be granted to the Wife pursuant to s.44 of the Family Law Act (“the Act”) to bring property proceedings against the Husband pursuant to s.79 out of time.

THAT the Wife, within twenty-eight (28) days from the date of these Orders, will do all acts and things and sign all documents necessary to transfer all her right, title and interest in the property known as Property [X] in the State of New South Wales and being folio identifier [1] (“the [X] Property”) to the Husband.

THAT upon the transfer of the [X] Property to the Husband, the Husband be declared the sole legal and equitable owner of the [X] Property.

THAT the Husband and the Wife do all things and sign all documents necessary to refinance the Property and to release and discharge the Wife from any and all liability to Communication Credit Union Ltd pursuant to mortgage [Z] in respect of the [X] Property.

THAT the Husband, from the date of these Orders and by this order hereby indemnify the Wife from and in respect of any and all liabilities, actions, claims, suits and demands for council rates, water rates, strata levies and mortgage repayments relating to the [X] Property.

THAT the Husband, simultaneously with Order 2, will do all acts and things and sign all documents necessary to transfer all his right, title and interest in the property known as Property [Y],in the State of New South Wales, being folio identifier [2] (“the [Y] Property”) to the Wife.

THAT upon the transfer of the [Y] Property to the Wife, the Wife be declared the sole legal and equitable owner of the [Y] Property.

That no later than twelve (12) months from the date of this Order, the wife pay the Husband $122,899. Pending payment the husband’s entitlement to payment from the wife in accordance with these Orders shall be charged against the property and he will be entitled to lodge a caveat in respect of the same, such caveat to be withdrawn at the time of payment.

THAT the Wife, from the date of these Orders and by this Order hereby indemnify the Husband from and in respect of any and all liabilities, actions, claims, suits and demands for council rates, water rates, strata levies and mortgage repayments relating to the [Y] Property.

10.

THAT unless specified in these Orders and except for the purposes of enforcing the payment of any moneys due under or any subsequent orders;

(i) Each party be declared the sole legal and beneficial owners of all items of property presently in their respective possession or control including but not limited to money, shares, real property, entitlement to superannuation, financial resources, motor vehicles and personal effects; and,

(ii) Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other.

11.

THAT all parties shall promptly do all acts and things and give all consents and execute all documents in writing necessary to give effect to these Orders.

12.

THAT in the event that either party refuses or neglects to execute any Deed or instrument necessary to give effect to all or any of the Orders made herein the Registrar of the Court be appointed pursuant to section 106A to execute such Deed or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the said Deed or instrument.

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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