Miller & Miller

Case [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…

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Details
AGLC
Miller & Miller [2009] FamCAFC 121
Case
[2009] FamCAFC 121
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Miller & Miller involved an appeal against the property settlement orders made by a Federal Magistrate. The husband contested the Federal Magistrate's treatment of his motor vehicles, related debts, the taxation liability considered a matrimonial debt, and the adjustments on s75(2) factors. The wife argued that the Federal Magistrate's decisions were incorrect, and she sought variations to the orders.

The court needed to determine whether the Federal Magistrate erred in several areas. Firstly, whether the Federal Magistrate correctly considered the husband's motor vehicles and related debts when the vehicle was purchased after separation. Secondly, whether the Federal Magistrate correctly assessed the husband's taxation liability as a matrimonial debt. Lastly, whether the Federal Magistrate appropriately adjusted the s75(2) factors.

The court found that the Federal Magistrate erred in failing to add back the whole of the insurance payout to the asset pool. The insurance payout should have been notionally added back unless the husband could demonstrate that the amount was used to meet reasonably incurred living expenses. The court found that the payment was not a windfall and that the parties did not equally contribute to this payout. The court also found that the Federal Magistrate erred in the adjustment on s75(2) factors. The appeal was allowed on these grounds, and the discretion was re-exercised.

The court ordered that the appeal be allowed, and the orders made by the Federal Magistrate on 27 February 2008 be varied. Specifically, the husband was to pay the wife the sum of ONE HUNDRED AND THREE THOUSAND FIVE HUNDRED AND SIXTY ONE DOLLARS [$103,561.00] as she directs.

Orders

Orders of the court

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].”

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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