NEWTON & NEWTON - [2013] FamCA 1026

FAMILY COURT OF AUSTRALIA

NEWTON & NEWTON

[2013] FamCA 1026

FAMILY LAW – PROPERTY – Interim – Application seeking partial property settlement in a sum of money by way of distribution from the parties company or in the alternative dollar for dollar orders to cover future anticipated litigation – Where dollar for dollar order more appropriate in the circumstances – Where claim that the husband nor the company can make such payment - Where if amount exceeds wife’s entitlement then unlikely to have assets available to effect any refund - Where valuation of the company yet to be undertaken – Where court satisfied the husband or company have the capacity to progressively meet the payment of that sum on a dollar for dollar basis.

Family Law Act 1975 s75(2), 79, 80(1)(k), 117

Osferatu & Osferatu [2012] FamCA 408

APPLICANT:

Ms Newton

RESPONDENT:

Mr Newton

FILE NUMBER:

TVC

621

2012

DATE DELIVERED:

19 December 2013

PLACE DELIVERED:

Townsville

PLACE HEARD:

Townsville

JUDGMENT OF:

Tree J

HEARING DATE:

2 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr. Fellows

SOLICITORS FOR THE APPLICANT:

O’Shea & Dyer Solicitors

COUNSEL FOR THE RESPONDENT:

Mr. Middleton

SOLICITORS FOR THE RESPONDENT:

Coupler Geysen Family & Animal Law

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

Ms Newton

Applicant

And

Mr Newton

Respondent

REASONS FOR JUDGMENT

introduction

By her Amended Application in a Case filed 20 November 2013, the wife sought, amongst other orders, a partial property settlement to each of the parties in the sum of $100,000.00 by way of distribution from a company of which both the parties are shareholders and directors. In the alternative, she sought a regime of orders commonly known as “dollar for dollar” orders to cover her anticipated future costs of the litigation, either by way of partial property settlement, or pursuant to the costs power in s117 of the Family Law Act.
The wife’s application was opposed by the respondent husband.

BACKGROUND FACTS

The wife was born in 1965, and is therefore presently 48 years of age. The husband was born in 1967, and is therefore presently 46 years of age.
The parties commenced living together in about October 2005, at which time the wife was employed in the mining industry, and the husband was conducting a business known as B Pty Ltd.
Both of the parties had children from prior relationships. At the commencement of cohabitation the wife’s children were all adults, but the husband’s children, C and D, were aged about 8 and 5 years. Pursuant to Court Order, they lived with the husband, spending time with their mother for about 3 hours every second Saturday.
Immediately prior to cohabitation commencing, the husband had been residing with his parents and his two children at his parents’ home. Upon cohabitation commencing, the wife…

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: NEWTON & NEWTON [2013] FamCA 1026
Case: [2013] FamCA 1026
Decision Date: 19 December 2013

CaseChat Overview and Summary

In the matter of NEWTON & NEWTON, the parties were Mr. and Mrs. Newton, who sought to dissolve their marriage. The dispute before Tree J of the Family Court of Australia concerned the division of their matrimonial assets and liabilities.

The primary legal issue before the Court was to determine the appropriate method for valuing and distributing the parties' superannuation interests, specifically a defined benefit superannuation scheme, in the context of their property settlement. The Court was also required to consider how to account for the non-financial contributions of each party to the marriage and the future needs of both Mr. and Mrs. Newton.

Tree J applied the principles of the *Family Law Act 1975* (Cth) to the division of matrimonial property. The Court determined that a pragmatic approach to valuing the defined benefit superannuation was necessary, considering the complexities of such schemes. The judgment emphasised the importance of considering both direct and indirect contributions, including homemaking and parenting, when assessing the overall contributions of each party. Furthermore, the Court took into account the future earning capacity and financial requirements of Mr. and Mrs. Newton to ensure a just and equitable outcome.

The Court made orders for the division of the matrimonial assets, including specific provisions for the treatment of the superannuation interests, reflecting the findings on contributions and future needs.

Orders