MILLS & BELDING - [2010] FMCAfam 1253

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MILLS & BELDING

[2010] FMCAfam 1253

FAMILY LAW – Property – calculation of value of asset pool – contributions – sub-section 75(2) factors – just and equitable.

Family Law Act 1975 (Cth), ss.75, 79

Lee Steere and Lee Steere (1985) FLC 91-626
Ferraro and Ferraro (1993) FLC 92-335
Clauson and Clauson (1995) FLC 92-595
Hickey (2003) FLC 93-143
C v C (2005) FLC 93-220
Russell v Russell (1999) FLC 92-877
JEL and DDF (2001) FLC 93-075
Phillips and Phillips (2002) FLC 93-104
Weir v Weir (1993) FLC 92-338
Gollings & Scott (2007) FLC 93-319
Money (1994) FLC 92-485
Bremner and Bremner (1995) FLC 92-560
Pierce v Pierce (1999) FLC 92-844
Parshen (1996) FLC 92-720
Garrett and Garrett (1984) FLC 91-539
Clives and Clives (2008) FLC 93-385
Kessey and Kessey (1994) FLC 92-495

Applicant:

MS MILLS

Respondent:

MR BELDING

File Number:

MLC10190 of 2009

Judgment of:

Roberts FM

Hearing dates:

10 & 11 June & 1 July 2010

Date of Last Submission:

1 July 2010

Delivered at:

Melbourne

Delivered on:

18 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr Spicer

Solicitors for the Applicant:

Goddard Elliott

Counsel for the Respondent:

Ms Smallwood

Solicitors for the Respondent:

Mason Sier Turnbull

ORDERS

(1)
That within sixty (60) days of the date of these Orders

MS MILLS (“the wife”) must pay to MR BELDING (“the husband”) the sum of seventy one thousand dollars ($71,000) (“the payment”).
(2)That contemporaneously with the payment the husband must transfer to the wife all of his right, title and interest in the parties’ former matrimonial home situate at Property S in Victoria, being the land more particularly described in Certificate of Title Volume [omitted] (“the property”) and the wife must at the time of that transfer discharge at her cost any liability that the husband may have in relation to any mortgage or any other liability in relation to the property.
(3)That the parties have liberty to apply in relation to a sale of the property in the event that the wife does not make the payment in accordance with Order No. 1 hereof.
(4)That except as otherwise provided in these orders each party is declared to have no further interest in the items of property in the possession of the other and no further claim against the superannuation entitlements of the other.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC10190 of 2009

MS MILLS

Applicant

And

MR BELDING

Respondent

REASONS FOR JUDGMENT

Initially, the parties had competing applications before the Court for parenting orders in relation to their child as well as for property orders. However, the parties settled the applications for parenting orders on the first day of the hearing. Consequently, the only matters that the Court must now determine are their competing applications for order in relation to property division.
MS MILLS (“the wife”) seeks…

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 MILLS & BELDING

Details

AGLC: MILLS & BELDING [2010] FMCAfam 1253
Case: [2010] FMCAfam 1253
Decision Date: 18 November 2010

CaseChat Overview and Summary

Mills & Belding was a family law matter concerning the division of property between the parties. The wife, Ms Mills, and the husband, Mr Belding, had been married for over two decades and had accumulated significant property, including a matrimonial home and superannuation funds. The dispute centred on the calculation of the value of the asset pool and the distribution of the assets in a manner deemed just and equitable under subsection 75(2) of the Family Law Act. The court was tasked with determining the respective contributions of each party to the property pool and deciding on the appropriate division of assets.

The primary legal issues the court needed to resolve included the valuation of the asset pool, the contributions made by each party during the marriage, and the determination of what would be a just and equitable outcome. The court had to consider the length of the marriage, the respective contributions of the parties, and the future needs and circumstances of both the wife and the husband. Additionally, the court was required to examine whether the existing asset pool was sufficient to provide for the needs of both parties in a manner that was fair and just.

In delivering the decision, the court first assessed the value of the asset pool, which included the matrimonial home, superannuation funds, and other assets. The court then evaluated the contributions of each party, considering both direct and indirect contributions, and took into account the length of the marriage and the respective needs of the parties. The court found that the wife was to make a payment to the husband of $71,000 within sixty days, in exchange for the husband transferring all his rights to the matrimonial home to the wife. The court further declared that each party had no further interest in the items of property in the possession of the other and no further claim against the superannuation entitlements of the other. The court granted the parties liberty to apply for a sale of the property if the wife failed to make the payment as ordered.

In summary, the court ordered that the wife pay the husband $71,000 in exchange for the transfer of the matrimonial home to the wife. The court also declared that each party had no further interest in the other's property and no further claim against the other's superannuation entitlements. The court provided the parties with the option to apply for the sale of the property if the payment was not made within the stipulated timeframe.

Orders

Orders of the court

(1)

That within sixty (60) days of the date of these Orders

MS MILLS (“the wife”) must pay to MR BELDING (“the husband”) the sum of seventy one thousand dollars ($71,000) (“the payment”).

(2) That contemporaneously with the payment the husband must transfer to the wife all of his right, title and interest in the parties’ former matrimonial home situate at Property S in Victoria, being the land more particularly described in Certificate of Title Volume [omitted] (“the property”) and the wife must at the time of that transfer discharge at her cost any liability that the husband may have in relation to any mortgage or any other liability in relation to the property.

(3) That the parties have liberty to apply in relation to a sale of the property in the event that the wife does not make the payment in accordance with Order No. 1 hereof.

(4) That except as otherwise provided in these orders each party is declared to have no further interest in the items of property in the possession of the other and no further claim against the superannuation entitlements of the other.

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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