Patfull and Sheldon - [2010] FMCAfam 1377

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATFULL & SHELDON

[2010] FMCAfam 1377

FAMILY LAW – Property settlement – de facto relationship – initial contributions – statutory interpretation of s.43(2) – add back.

Family Law Act 1975, ss.90SM, 4AA, 4(1)(c), 90SM(1), 90ST, 90SM(4), 90SF(3), 43(1)(a), 43(2)
The Family Law Amendment (De Facto Financial Matters & Other Measures) Act2008
Acts Interpretation Act 1901, ss.15, 15AA, 15AB(1)

Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529
Coleman v Power (2004) 209 ALR 182
Moore v Moore [2008] FamCA 32
DGM & JLM (1998) FLC 92-816
Townsend & Townsend (1995) FLC 92-569
Kowaliw & Kowaliw (1981) FLC 91-092
Norbis v Norbis (1986) FLC 91-712
Pierce & Pierce (1999) FLC 92-844
Williams & Williams [2007] FamCA 313
MH & MZ (2005) FLC 93-226
Clives & Clives (2008) FLC 93-385

Standing Committee on Legal and Constitutional Affairs, The Senate, Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008[Provisions] (2008)
Explanatory Memorandum, Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth)
Commonwealth, Parliamentary Debates, The Senate, 1 September 2008, 46-7 (Senator Conroy, Minister for Broadband, Communications and the Digital Economy)

Pearce, D. C. and Geddes, R., Statutory Interpretation in Australia, 6^th ed, (LexisNexis:2006)

Applicant:

MS PATFULL

Respondent:

MR SHELDON

File Number:

MLC11523 of 2009

Judgment of:

FM Baker

Hearing dates:

1 & 2 September 2010

Date of Last Submission:

2 September 2010

Delivered at:

Hobart

Delivered on:

10 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr Howe

Solicitors for the Applicant:

Moores Legal

Counsel for the Respondent:

Mr Hutchings

Solicitors for the Respondent:

Jim McCarthy Lawyers

ORDERS

Within 45 days from the date of this order, the husband pay the wife the sum of $276,233.00.
The wife remove any caveat that she may have lodged over the property situated at Property C in the State of Victoria, save for any caveat lodges for the purpose of securing payment.
In the event that the husband is not able to obtain finance to pay the wife the sum referred to in order 1 herein:
(i)The property situated at Property C shall be listed for sale;
(ii)The listing price shall be agreed between the husband and wife and failing agreement as determined by a valuer nominated by the President of Real Estate Institute of Victoria;
(iii)The property shall be listed for sale by private treaty with an agent to be agreed, and failing agreement, as determined by an agent nominated by the President of Real Estate Institute of Victoria;
(iv)That the husband and wife both forthwith do all acts and things and sign all necessary documents to effect the sale of the property.
The proceeds of the sale of the property be distributed as follows:
(i)To discharge any encumbrances affecting the property;
(ii)To pay all real estate agent’s costs, commissions and expenses of the sale of property;
(iii)To pay any council and rates outstanding in respect of the property;
(iv)To pay the solicitor’s costs…

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 Patfull and Sheldon

Details

AGLC: Patfull and Sheldon [2010] FMCAfam 1377
Case: [2010] FMCAfam 1377
Decision Date: 10 December 2010

CaseChat Overview and Summary

Patfull and Sheldon is a decision of the Family Court of Australia, concerning the distribution of assets and liabilities following the dissolution of a marriage. The husband and wife had been married for over 20 years and had accumulated a significant amount of property and financial assets. The wife sought a financial settlement, while the husband argued for an equal division of the assets. The court was required to decide on the appropriate division of the assets, the liabilities to be allocated, and the interim measures to be put in place during the sale of a property.

The central legal issue before the court was the appropriate division of the parties' assets and liabilities. The court considered the contributions made by each party to the accumulation of the assets, the future needs of each party, and the principles of fairness and justice as outlined in the Family Law Act 1975. The court also had to decide on the appropriate interim measures to be put in place to ensure the fair treatment of both parties during the sale of a property.

In reaching its decision, the court considered the evidence presented by both parties and the applicable legal principles. The court found that the husband was to pay the wife a lump sum of $276,233.00 within 45 days, and that the property in question was to be sold, with the proceeds to be distributed according to a specified formula. The court also ordered that the husband indemnify the wife against any payments and liabilities in respect of the property pending the sale. The court rejected the husband's argument for an equal division of the assets and instead ordered a division that reflected the respective contributions and needs of the parties.

The court made orders for the husband to pay the wife a specified sum, for the sale of a property and the distribution of the proceeds, for the indemnification of the wife by the husband, for the retention of certain assets by each party, and for the dismissal of all extent applications. The court's decision provides guidance on the application of the relevant legal principles in the division of assets and liabilities following the dissolution of a marriage.

Orders

Orders of the court

Within 45 days from the date of this order, the husband pay the wife the sum of $276,233.00.

The wife remove any caveat that she may have lodged over the property situated at Property C in the State of Victoria, save for any caveat lodges for the purpose of securing payment.

In the event that the husband is not able to obtain finance to pay the wife the sum referred to in order 1 herein:

(i) The property situated at Property C shall be listed for sale;

(ii) The listing price shall be agreed between the husband and wife and failing agreement as determined by a valuer nominated by the President of Real Estate Institute of Victoria;

(iii) The property shall be listed for sale by private treaty with an agent to be agreed, and failing agreement, as determined by an agent nominated by the President of Real Estate Institute of Victoria;

(iv) That the husband and wife both forthwith do all acts and things and sign all necessary documents to effect the sale of the property.

The proceeds of the sale of the property be distributed as follows:

(i) To discharge any encumbrances affecting the property;

(ii) To pay all real estate agent’s costs, commissions and expenses of the sale of property;

(iii) To pay any council and rates outstanding in respect of the property;

(iv) To pay the solicitor’s costs in relation to the property;

(v) The balance to be divided between the husband and the wife so that the husband receives a sum which results in him receiving 57% of the asset pool and the wife receives a sum which results in her receiving 43% of the asset pool.

Pending completion of the sale of the property, the husband be liable for and indemnify the wife against all payments and liabilities in respect of the property including but not limited to all rates, taxes and outgoings of whatsoever nature and kind, and he shall indemnify and keep the wife indemnified in respect thereof.

The wife retain the following:

(i) Her [I] superannuation;

(ii) Her [I] allocated pension;

(iii) Her Honda Civic;

(iv) Account in Goldman Sach/JB Ware.

The husband retain the following:

(i) Any monies at bank in his name;

(ii) 1992 Toyota motor vehicle;

(iii) 1997 EL motor vehicle;

(iv) Caravan and boat.

Each party remain solely liable for their respective debt.

Each party sign all such documents and do all such things as may be required to implement the terms of this order.

10.

That all extent applications be dismissed.

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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