Miller & Miller

[2009] FamCAFC 121

FAMILY COURT OF AUSTRALIA

MILLER & MILLER [2009] FamCAFC 121

FAMILY LAW - APPEAL – APPEAL FROM FEDERAL MAGISTRATE – PROPERTY SETTLEMENT - whether the Federal Magistrate erred in the treatment of the husband’s motor vehicles and related debts where vehicle was purchased after separation – whether Federal Magistrate erred in the amount of the husband’s taxation liability considered to be a matrimonial debt – whether Federal Magistrate erred in adjustment on s75(2) factors.

FAMILY LAW - PROPERTY SETTLEMENT – add backs - whether Federal Magistrate erred in failing to add back whole of insurance payout – if proceeds were still intact they would be included in asset pool – premature distribution of an asset of the parties – amount should notionally have been added back unless husband was able to demonstrate the amount was used to meet reasonably incurred living expenses – payment not windfall and parties did not equally contribute to this payout – appeal allowed on this ground – re-exercise of discretion.

Bonnici and Bonnici (1992) FLC 92-272
Farmer and Bramley (2000) FLC 93-060
Gronow and Gronow (1979) FLC 90-716
House v The King (1936) 55 CLR 499
Omacini and Omacini (2005) FLC 92-218
M and M (1998) FamCA 42
Farmer and Bramley (2000) FLC 93-060
Cavanaugh and Thrum (2002) FamCA 196
Chorn and Hopkins (2004) FLC 93-204

Family Law Act 1975 (Cth), ss75, 79

APPELLANT: MS MILLER

RESPONDENT: MR MILLER

FILE NUMBER: ADC 508 of 2007

APPEAL NUMBER: SA 15 of 2008

DATE DELIVERED: 14 May 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland

HEARING DATE: 20 August 2008

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 27 February 2008

LOWER COURT MNC: [2008] FMCAfam 370

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mrs V West

SOLICITOR FOR THE APPELLANT: Ann Bills & Associates

COUNSEL FOR THE RESPONDENT: Mr D Berman

SOLICITOR FOR THE RESPONDENT: David De Sciscio & Associates

Orders

1. That the appeal be allowed.

2. That order 1(b) of the orders made by Federal Magistrate Kelly on 27 February 2008 be varied to read as follows:

   “(b)pay to the wife as she directs the sum of ONE HUNDRED AND THREE THOUSAND FIVE HUNDRED AND SIXTY ONE DOLLARS [$103,561.00].”

IT IS NOTED that publication of this judgment under the pseudonym Miller & Miller is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA  AT ADELAIDE

Appeal Number: SA 15 of 2008
File Number: ADC 508 of 2007

MS MILLER

Appellant

And

MR MILLER

Respondent

REASONS FOR JUDGMENT

Introduction

1. By her Amended Notice of Appeal filed 7 May 2008, the wife appeals against order 1(b) of the orders made by Federal Magistrate Kelly on 27 February 2008.  That order provides:

   1Within 56 days of the date of these orders, the husband do all things necessary to:

   (a)…

   (b)     pay to the wife as she directs the sum of NINETY ONE THOUSAND EIGHT HUNDRED AND SIXTY DOLLARS ($91,860.00)

   …

2. The husband seeks…