Monfort & Bade - [2018] FamCAFC 163

FAMILY COURT OF AUSTRALIA

MONFORT & BADE

[2018] FamCAFC 163

FAMILY LAW – APPEAL – PROPERTY – Just and equitable – Treatment of credit card debt – Whether the primary judge erred by ordering that the husband’s credit card debt be paid from the net assets available for division – Where the debt was reasonably incurred for the benefit of both parties and the husband did not have the means to reduce it – No error demonstrated.

FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Whether the primary judge erred by dismissing the wife’s application for lump sum spousal maintenance – Where the wife’s financial position was in a state of flux – Where the husband did not have the capacity to pay spousal maintenance – No error demonstrated – Appeal dismissed.

Family Law Act 1975 (Cth)

Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8
House v The King (1936) 55 CLR 499; [1936] HCA 40
Semperton v Semperton (2012) 47 Fam LR 626; [2012] FamCAFC 132

APPELLANT:

Ms Monfort

RESPONDENT:

Mr Bade

FILE NUMBER:

BRC

4638

2014

APPEAL NUMBER:

NOA

2017

DATE DELIVERED:

24 August 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ryan, Aldridge & Kent JJ

HEARING DATE:

2 August 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

13 October 2017

LOWER COURT MNC:

[2017] FCCA 1673

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Galloway

SOLICITOR FOR THE APPELLANT:

Dixie Anne Middleton & Associates

COUNSEL FOR THE RESPONDENT:

Mr Galea solicitor

SOLICITOR FOR THE RESPONDENT:

Porter Galea Lawyers

Orders

The wife’s Application in an Appeal filed on 25 June 2018 to adduce further evidence is dismissed.
The wife’s Application in an Appeal filed on 6 July 2018 to file a Further Amended Notice of Appeal is granted.
The appeal is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Monfort & Bade has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 54 of 2017
File Number: BRC 4638 of 2014

Ms Monfort

Appellant

And

Mr Bade

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Monfort (“the wife”) appeals from property and spousal maintenance orders made by Judge Willis in proceedings between her and Mr Bade (“the husband”).
The orders effected a division of the parties’ property so that the wife received 75 per cent and the husband 25 per cent. The primary judge crafted the orders so as to permit the wife to…

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 Monfort & Bade

Details

AGLC: Monfort & Bade [2018] FamCAFC 163
Case: [2018] FamCAFC 163
Decision Date: 24 August 2018

CaseChat Overview and Summary

The appeal in Monfort & Bade involved the husband and wife who were before the Family Court. The wife sought to appeal the primary judge’s orders regarding the division of property and spousal maintenance. The wife argued that the primary judge was incorrect in ordering that the husband’s credit card debt be paid from the net assets available for division, and that the primary judge should have granted her application for lump sum spousal maintenance.

The court was required to decide whether the primary judge erred in ordering that the husband’s credit card debt be paid from the net assets available for division, and whether the primary judge erred by dismissing the wife’s application for lump sum spousal maintenance. The court had to consider the reasonable incurring of the debt for the benefit of both parties and the husband's inability to reduce it. The court also had to assess the wife's financial position and the husband's capacity to pay spousal maintenance.

The court found that there was no demonstrated error in the primary judge's orders. The credit card debt was reasonably incurred for the benefit of both parties, and the husband did not have the means to reduce it. Additionally, the wife's financial position was in a state of flux, and the husband did not have the capacity to pay spousal maintenance. Therefore, the appeal was dismissed. The wife's applications to adduce further evidence and to file a Further Amended Notice of Appeal were dismissed and granted, respectively.

Orders

Orders of the court

The wife’s Application in an Appeal filed on 25 June 2018 to adduce further evidence is dismissed.

The wife’s Application in an Appeal filed on 6 July 2018 to file a Further Amended Notice of Appeal is granted.

The appeal is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.