Mayne and Mayne - [2009] FMCAfam 559

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAYNE & MAYNE

[2009] FMCAfam 559

FAMILY LAW – Property – long marriage – contributions - non-disclosure – waste – just and equitable order.

Family Law Act 1975, ss.75(2), (2)(b), (k), (o), 79

Barker v Barker (2007) Fam LR 650
In the Marriage of Black & Kellner (1992) 15 Fam LR 343
In the Marriage of Bonnici (1991) 105 FLR 102
In the Marriage of Briese (1985) 10 Fam LR 642
In the Marriage of Burke (1992) 16 Fam LR 324
In the Marriage of Chang & Su (2002) 29 Fam LR 406
Ferrero and Ferrero (1993) FLC¶92-335
In the Marriage of Figgins (2002) 29 Fam LR 544
Foda v Foda (1997) FLC ¶92-753
Gould & Gould (2007) FLC ¶93-333
Hickey and Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC ¶93-143
Jenkins v Livesey [1985] AC 424 (also Livesey v Jenkins [1985] 1All ER 665)
Kannis & Kannis (2003) FLC ¶93-135
Kennon & Kennon (1997) FLC ¶92-757
Kowaliw & Kowaliw (1981) FLC ¶91-092
Leggero v Jagger (2008) 38 Fam LR 561
Luciano & Luciano [2000] FamCA 401
Mezzacappa & Mezzacappa (1987) FLC ¶91-853
Mitchell & Mitchell (1995) FLC ¶92-601
AJO v GRO (2005) 33 Fam LR 134
Pierce v Pierce (1999) FLC ¶92-844
Powell v Supresencia (2003) 30 Fam LR 463
PS & MA [2005] FMCAfam 486
Russell v Russell (1999) FLC ¶92-877
Schirmer v Sharpe (2005) 32 Fam LR 575
SDJ v FWR [2008] QSC 256 (24^th October 2008)
Townsend & Townsend (1995) FLC ¶92-569
In the Marriage of Weir (1992) 16 Fam LR 154
Woollams & Woollams (2004) FLC ¶93-195
Worsnop v Worsnop (No 2) (2008) 39 Fam LR 202
Zyk & Zyk (1995) FLC ¶92-644

Applicant:

MS MAYNE

Respondent:

MR MAYNE

File Number:

CAC 114 of 2007

Judgment of:

Neville FM

Hearing dates:

13 & 14 October 2008

Date of Last Submission:

27 May 2009

Delivered at:

Canberra

Delivered on:

5 June 2009

REPRESENTATION

Counsel for the Applicant:

Mr Watkins

Solicitors for the Applicant:

Strong Law Pty Ltd
(formerly Lessli Strong & Associates)

Counsel for the Respondent:

Mr Nash

Solicitors for the Respondent:

Farrar Gesini & Dunn

ORDERS

The Wife pay to the Husband the sum of $230,369.26 (“The Payment”) within 60 days of the date of these Orders (“The Due Date”).
If the whole of the Payment has not been made by the Due Date:-
(a)The Wife do such things necessary to transfer to the Husband at the expense of the Husband a portion of her interest in the Property known as “Property A” at Property A, New South Wales being the whole of the land contained in the Certificate of Title Lots [omitted] Deposited Plan [omitted] and Lot [omitted] Deposited Plan [omitted] (“Property A”).
(i)That the portion referred to in Order (2)(a) be equivalent in value to the Payment as referred to in Order (1).
(ii)In the event that there is a dispute as to the value of the portion that Colin Davies & Associates…

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 Mayne and Mayne

Details

AGLC: Mayne and Mayne [2009] FMCAfam 559
Case: [2009] FMCAfam 559
Decision Date: 5 June 2009

CaseChat Overview and Summary

In the matter of Mayne and Mayne, the dispute centered around financial and property settlement issues between the parties. The Family Court of Australia was tasked with resolving these matters following the breakdown of the marriage. The Wife was ordered to make a payment to the Husband within a specified timeframe. Should this payment not be made, the Wife was required to transfer a portion of her interest in a property, with the value of this portion equating to the unpaid sum. Additionally, if the Wife failed to transfer this portion within a stipulated period, she was to pay interest on the outstanding amount and facilitate the sale of the property. The proceeds from this sale were to be used to settle outstanding debts and distribute the remaining balance between the parties.

The court examined the obligations of the Wife to make the payment and transfer property interests. It was determined that if these obligations were not met, the Wife was to be liable for interest on the outstanding amount and had to facilitate the sale of the property. The court further outlined the method of distributing the proceeds from the sale, ensuring that all costs and encumbrances were settled before any remaining balance was paid to the Wife. The court also addressed the division of personal property, allowing the parties to agree on the division or apply to the court if necessary. Finally, the court addressed the ownership and liability of superannuation, bank accounts, insurance policies, and other personal property, ensuring each party was solely liable for any liabilities associated with their respective properties.

The court's orders provided a clear framework for resolving the financial and property disputes between the parties. The Wife was mandated to make a specific payment to the Husband within a defined period. If this payment was not made, she had to transfer a portion of her property interest equivalent to the unpaid sum. Failure to do so within the specified timeframe resulted in additional interest payments and required the Wife to sell the property and distribute the proceeds according to the court's directives. The orders also addressed the division of personal property and clarified the ownership and liabilities of various assets, ensuring that each party was solely responsible for any encumbrances on their respective properties. These orders provided a structured approach to the financial and property settlement, ensuring that both parties were aware of their obligations and the consequences of non-compliance.

Orders

Orders of the court

The Wife pay to the Husband the sum of $230,369.26 (“The Payment”) within 60 days of the date of these Orders (“The Due Date”).

If the whole of the Payment has not been made by the Due Date:-

(a) The Wife do such things necessary to transfer to the Husband at the expense of the Husband a portion of her interest in the Property known as “Property A” at Property A, New South Wales being the whole of the land contained in the Certificate of Title Lots [omitted] Deposited Plan [omitted] and Lot [omitted] Deposited Plan [omitted] (“Property A”).

(i) That the portion referred to in Order (2)(a) be equivalent in value to the Payment as referred to in Order (1).

(ii) In the event that there is a dispute as to the value of the portion that Colin Davies & Associates be appointed as a joint valuer.

If the Wife has not transferred a portion of her interest in “Property A” within 42 days of Order 2 coming into effect:-

(a) The Wife shall, in addition to the Payment, pay to the Husband interest on the payment or the amount outstanding from time to time at the rate prescribed by the Family Law Rules to be calculated from the Due Date to the date of Payment.

(b) The Wife shall do all things necessary to effect the sale of the Properties known as “Property A” situated at and known as Property A in the state of New South Wales and “Property S” situated at and known as Property S in the state of New South Wales.

(c) That the Husband and Wife do all things necessary to cause the proceeds of the sale of the Property to be distributed as follows:-

(i) To pay all costs, commissions and expenses of the sale.

(ii) To pay all the usual rates adjustments.

(iii) To pay the amount required to discharge any encumbrances secured over the property.

(iv) To pay so much of the Payment as is then outstanding together with interest in accordance with Order (3)(a) to the Husband.

(v) To pay the balance to the Wife.

(d) Liberty be reserved to either party to apply to the Court on seven days’ notice to the other with respect to the terms and conditions of the sale.

If either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 14 days after being requested to do so, and any such refusal, failure or neglect is proved by affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court at Canberra be and is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such document in the name of such party.

The furniture and chattels in the home situated on the “Property S” property and the farm machinery, tools and stock situated on that property or the “Property A” property be divided by agreement between the parties or, in default of agreement, either party have liberty to apply on 7 days notice to the other about a method of dividing those furniture and chattels.

Unless otherwise specified in these Orders, each party will be the sole legal and beneficial owner of the following:-

(a) Their superannuation entitlements;

(b) All bank accounts or accounts with other financial institutions in their own name;

(d) All other property (including choses-in-action) in the possession of such party at the date of these Orders.

Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

Pursuant to rule 21.02 of the

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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