Preston and Baker (No.2) - [2012] FMCAfam 341

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PRESTON & BAKER (No.2)

[2012] FMCAfam 341

FAMILY LAW – Property – de facto relationship of 11 months – one child of the relationship – one infant child brought into relationship by the applicant – where applicant brought the vast majority of the assets into the relationship – where applicant supported infant child of relationship – where the respondent’s financial contributions consisted of assistance with mortgage repayments – where respondent had exclusive use of the residence for 14 months whilst the applicant paid for all costs associated with the property including mortgage rates insurances and some utilities – where children are now living with the applicant and respondent having supervised time – order that the respondent receive 5% of the asset pool.

Family Law Act 1975, Part VIIIAB

Johnson & Johnson (2000) 201 CLR 488
Hickey v Hickey & Attorney-General of the Commonwealth (Intervener)
Norbis and Norbis (1986) 161 CLR 513
Russell & Russell (1999) FLC 92-877
VAK and AK [2005] FamCA 803
Mallett and Mallett (1984) 156 CLR 605
In the Marriage of Clausen (1995) 18 Fam LR 693

Applicant:

MR PRESTON

First Respondent:

MS BAKER

File Number:

DNC 169 of 2011

Judgment of:

L.Turner FM

Hearing dates:

19 & 20 March 2012

Date of Last Submission:

20 March 2012

Delivered at:

Darwin

Delivered on:

17 April 2012

REPRESENTATION

Counsel for the Applicant:

Ms Farmer

Solicitors for the Applicant:

Withnalls Lawyers

The Respondent:

In Person

PROPERTY ORDERS

That within 60 days from the date hereof the applicant pay to the respondent the sum of $20,150 less:-
(a)Any monies paid by the applicant for outstanding child care fees for the child [X]; and /or
(b)Any monies currently outstanding as of 4 April 2012 for child care fees for the child [X].
That each party is solely entitled to the exclusion of the other to all property and chattels of whatsoever kind and nature including real estate, shares, bank accounts, insurance policies and superannuation in their name.
That each party be solely liable for and indemnify the other against any liabilities in their names, including any credit cards and any liabilities encumbering any item of property to which that party is entitled to pursuant to these orders.

IT IS NOTED that publication of this judgment under the pseudonym Preston & Baker (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNC 169 of 2011

MR PRESTON

Applicant

And

MS BAKER

Respondent

REASONS FOR JUDGMENT

Introduction

The parties commenced cohabitation in October 2009 with a finding in the children’s matters that separation occurred in September 2010.
There are two children. The parties have one child of the relationship, [X] who turns two in June. [Y], a child from the respondent’s previous relationship is aged three and a half.
From separation until April 2012 the children lived with the respondent.
The children as per court orders now live with the applicant and spend supervised time with…

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 Preston and Baker (No.2)

Details

AGLC: Preston and Baker (No.2) [2012] FMCAfam 341
Case: [2012] FMCAfam 341
Decision Date: 17 April 2012

CaseChat Overview and Summary

The case of Preston v Baker (No.2) involves a de facto relationship between the applicant, Mr Preston, and the respondent, Ms Baker, who were in a relationship for 11 months and have one child together. The case was heard by Federal Magistrate L.Turner, with submissions concluding on 20 March 2012, and the judgment delivered on 17 April 2012. The primary issues were the division of property and the financial contributions made by each party during the relationship.

The court was tasked with determining the property pool available for distribution, the appropriate division of that pool, the impact of such division on the parties, and whether the division was just and equitable. The court also considered additional issues such as the non-payment of child care fees and the division of household items. The court adopted a four-step approach as outlined in relevant case law and statutory provisions, taking into account the contributions of each party, both financial and non-financial, to the relationship.

The court found that the property pool available for distribution was significantly smaller than initially presented due to assets and liabilities acquired post-separation. The court determined that Ms Baker was entitled to 5% of the asset pool, which amounted to a payment of $20,150 by Mr Preston. This decision was based on several factors, including the short duration of the relationship, the substantial assets brought into the relationship by Mr Preston, and the financial support provided by Mr Preston to both children during and after the relationship. The court also considered the care and welfare contributions of both parties and the future care of the children.

The final orders included provisions for the payment of $20,150 by Mr Preston to Ms Baker, with certain deductions for child care fees, and that each party would retain all property in their possession. The court did not make specific findings regarding the return of household items, as the respondent had not provided sufficient evidence or submissions on the matter.

Orders