Minterly & Minterly - [2013] FamCA 418

FAMILY COURT OF AUSTRALIA

MINTERLY & MINTERLY

[2013] FamCA 418

FAMILY LAW – PROPERTY – LUMP SUM MAINTENANCE – where the parties had a volatile relationship characterised by some incidents of violence – where the wife regularly consumes alcohol to excess – where the wife asserts she should receive an 8 per cent adjustment on contributions because the husband’s violence made her contributions significantly more arduous – where it was held there was no systemic family violence perpetrated by the husband on the wife – where orders were to be made for alteration of property which were less than the wife’s claim – alternatively, in the event the wife was not wholly successful in her property claim, she sought lump sum maintenance – where it was not proper to make an order for lump sum maintenance

Family Law Act 1975 (Cth)

Kennon & Kennon (1997) FLC 92-757
McMahon & McMahon (1995) FLC 92-606

Spagnardi & Spagnardi [2003] FamCA 905

APPLICANT:

Ms Minterly

RESPONDENT:

Mr Minterly

FILE NUMBER:

CSC

498

2011

DATE DELIVERED:

4 June 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Cairns

JUDGMENT OF:

Watts J

HEARING DATE:

30 - 31 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fellows

SOLICITOR FOR THE APPLICANT:

Cope Family Law

COUNSEL FOR THE RESPONDENT:

Mr Jacobs

SOLICITOR FOR THE RESPONDENT:

Murray Lyons Solicitors

Orders

Pursuant to s 79 Family Law Act 1975 (Cth) orders be made in accordance with paragraphs 2 - 5 below.
Within 90 days the husband pay to the wife the sum of $246,081.
In default of the payment by the husband in accordance with Order 2, the husband sign all documents and do all such acts and things as are required to sell the real property at … S Street, Suburb T (“the property”) and upon the settlement of the sale of the property, the proceeds be applied as follows:
3.1.Payment of costs of sale including agent’s commission and legal costs;
3.2.Discharge of any encumbrance on the property;
3.3.Payment of $246,081 to the wife together with interest on that sum calculated in accordance with the Family Law Rules 2004 (Cth) from 90 days from the date of these orders;
3.4.Balance to the husband.
Each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.
Each party be responsible for any liabilities currently in their own name and indemnify the other party against any responsibility for those liabilities.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Cairns Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of section 106A of the Family Law Act1975

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.

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Details

AGLC: Minterly & Minterly [2013] FamCA 418
Case: [2013] FamCA 418
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered a property dispute between Ms Minterly (the wife) and Mr Minterly (the husband). The parties' relationship was described as volatile, marked by periods of separation and reconciliation, and the wife's excessive alcohol consumption. The wife sought a significant adjustment to their property interests, arguing her contributions were more arduous due to the husband's alleged violence, and alternatively, sought lump sum maintenance. The husband conceded that an alteration of property interests was warranted but sought a lesser adjustment in the wife's favour.

The court was required to determine whether it was just and equitable to alter the parties' property interests, assess their respective contributions, consider the matters outlined in section 79(4)(d)-(g) of the *Family Law Act 1975* (Cth), and ultimately decide on a just and equitable adjustment of their property, assets, and liabilities. A key issue was the wife's claim for an adjustment based on alleged violence, which the court noted was not found to be systemic family violence. The court also had to consider the wife's alternative claim for lump sum maintenance.

In its reasoning, the court adopted a global approach to valuing and dividing the parties' assets, deeming it more appropriate given the length of their cohabitation and marriage. While acknowledging inconsistencies in the wife's evidence, particularly regarding her alcohol consumption and incidents of violence, the court found it unnecessary to make definitive findings on credit to resolve the property division. The court determined that it was just and equitable to make an order altering the property interests. The court ultimately ordered the husband to pay the wife a lump sum of $246,081 within 90 days, with provisions for the sale of a property if payment was not made. Each party was to retain other assets and be solely responsible for their respective debts. The court found it was not proper to make an order for lump sum maintenance.

Orders