Mulray and Gordon - [2009] FamCA 65

FAMILY COURT OF AUSTRALIA

MULRAY & GORDON

[2009] FamCA 65

FAMILY LAW – PROPERTY SETTLEMENT –argument about composition of the net assets, including whether paid legal fees are included as notional assets – notwithstanding those issues contributions agreed 70:30 in husband’s favour – argument about the 75(2) adjustment in wife’s favour

Family Law Act 1975 (Cth)

APPLICANT:

Ms Mulray

RESPONDENT:

Mr Gordon

FILE NUMBER:

SYF

2750

2004

DATE DELIVERED:

6 February 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

29 & 30 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Foster

SOLICITOR FOR THE APPLICANT:

Marks Griffiths & Bova

COUNSEL FOR THE RESPONDENT:

Mr Hodgson

SOLICITOR FOR THE RESPONDENT:

Bryan Kain Solicitors

Orders

On or before three (3) months from this date the husband is to:
(i)do all things and sign all documents necessary to transfer to the wife unencumbered all his right title and interest in the property known as 10 R Street in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier …;
(ii)pay to the wife the sum of $146,000.
Until 14 days after the expiration of the current lease on 10 R Street the wife is entitled to exclusive occupancy of the property known as 12 R Street provided she maintains it in the same good order and condition.
The husband is to pay as and when they fall due all mortgage instalments and rates and like charges related to the property at 10 R Street pending the transfer to the wife pursuant to order 1 and to pay all mortgage instalments secured against the property at 12 R Street and rates and like charges related to that property during the wife’s occupation of it pursuant to order 2.
Subject to these orders, each party is entitled to retain absolutely the property they now own or to which they have a current entitlement.
Subject to order 6 hereof, until 30 March 2010 the husband is to pay to the wife by way of spouse maintenance the sum of $1,000 per week.
Pending the expiration of the period referred to in order 5, the wife is to inform the husband forthwith if she obtains employment and if the employment is at a gross salary of $35,000 the sum referred to in order 6 is reduced to $500 per week and if at a gross salary of $60,000 per annum then the sum referred to in order 6 is reduced to nil.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2750 of 2004

MS MULRAY

Applicant

And

MR GORDON

Respondent

REASONS FOR JUDGMENT

Proceedings

For determination are proceedings for property settlement and spouse maintenance. The orders sought by the wife are to be found in an amended application filed 24 December 2008 and…

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 Mulray and Gordon

Details

AGLC: Mulray and Gordon [2009] FamCA 65
Case: [2009] FamCA 65
Decision Date: 6 February 2009

CaseChat Overview and Summary

This matter concerned orders made by Moore J in the Federal Circuit Court of Australia concerning property settlement and spousal maintenance. The dispute involved the division of assets and the provision of financial support between a husband and wife.

The court was required to determine the appropriate orders for the transfer of property, the payment of a lump sum, the exclusive occupancy of a residence, the payment of ongoing expenses related to properties, and the quantum and duration of spousal maintenance, including conditions for its reduction or cessation based on the wife's employment.

Moore J ordered the husband to transfer his interest in the property at 10 R Street to the wife, unencumbered, and to pay her a sum of $146,000. The wife was granted exclusive occupancy of the property at 12 R Street until 14 days after the expiration of its current lease, provided she maintained its condition. The husband was directed to meet mortgage instalments and rates for 10 R Street pending its transfer, and the wife was to meet these expenses for 12 R Street during her occupation. Each party was otherwise entitled to retain their existing property. The husband was ordered to pay spousal maintenance of $1,000 per week until 30 March 2010, with provisions for this amount to be reduced to $500 per week if the wife earned a gross salary of $35,000 per annum, or to nil if she earned $60,000 per annum, requiring her to inform the husband of any employment.

Orders

Orders of the court

On or before three (3) months from this date the husband is to:

(i) do all things and sign all documents necessary to transfer to the wife unencumbered all his right title and interest in the property known as 10 R Street in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier …;

(ii) pay to the wife the sum of $146,000.

Until 14 days after the expiration of the current lease on 10 R Street the wife is entitled to exclusive occupancy of the property known as 12 R Street provided she maintains it in the same good order and condition.

The husband is to pay as and when they fall due all mortgage instalments and rates and like charges related to the property at 10 R Street pending the transfer to the wife pursuant to order 1 and to pay all mortgage instalments secured against the property at 12 R Street and rates and like charges related to that property during the wife’s occupation of it pursuant to order 2.

Subject to these orders, each party is entitled to retain absolutely the property they now own or to which they have a current entitlement.

Subject to order 6 hereof, until 30 March 2010 the husband is to pay to the wife by way of spouse maintenance the sum of $1,000 per week.

Pending the expiration of the period referred to in order 5, the wife is to inform the husband forthwith if she obtains employment and if the employment is at a gross salary of $35,000 the sum referred to in order 6 is reduced to $500 per week and if at a gross salary of $60,000 per annum then the sum referred to in order 6 is reduced to nil.

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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