PS & MA

Case [2005] FMCAfam 486 12 October 2005

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

PS & MA

[2005] FMCAfam 486

FAMILY LAW – Property – obligation to give full and frank disclosure of material facts – where party fails to give full and frank disclosure the court need not be overly cautious – gifts and advances considered – notional add backs – contributions to workers compensation commutation discussed.

Family Law Act 1975, ss.75, 79
Child Support (Assessment) Act 1989

In the Marriage of Lee Steere (1985) FLC 91-626 In the Marriage of Ferraro (1993) FLC 92-335 In the Marriage of Clauson (1995) FLC 92-593 Russell v Russell (1999) FLC 92-877 Weir v Weir (1993) FLC 92-338 Black v Kellner (1992) FLC 92-287 Junti (1986) FLC 91-759 Mezzacappa (1987) FLC 91-853 Jenkins v Livesey (1985) 1 All ER 106 Luciano (2000) FamCA 401 Townsend v Townsend (1995) FLC 92-569 Bell and Bell [2000] FamCA 1301 Marker [1998] FamCA 42 Wells v Wells (1977) FLC 90-285 Wardman v Hudson (1978) FLC 90-466 In the Marriage of Geyl 7 Fam LR 219 Kowaliw v Kowaliw (1981) FLC 91-092 Fane-Thompson v Fane-Thompson (1981) FLC 91-053 Winnel v Winnel (1984) FLC 91-580 Doherty v Doherty (1996) FLC 92-652 Cerini [1998] FamCA 143 Omacini (2005) FLC 93-218 Farmer & Bramley (2000) FLC 93-060 Norbis (1986) FLC91-712 Parshen v Parshen (1996) FLC 92-720 Aleksovski (1996) FLC 92-705 Figgins (2002) FLC 93-122 Kessey (1994) FLC 92-495 Pellegrino (1997) FLC 92-789 Hauff and Hauff (1986) FLC 91-747 Tomasetti (2000) FLC 93-023
Applicant:	PS

Respondent:

File Number:

PAM2758 of 2003

Judgment of:

Ryan FM

Hearing dates:

14 & 15 September 2005

Delivered at:

Parramatta

Delivered on:

12 October 2005

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr M. Brown

Solicitors for the Applicant:

Browns The Family Lawyers

Counsel for the Respondent:

Mr J. Jobson

Solicitors for the Respondent:

John Cunningham Solicitors

Counsel for the Children’s Representative:

Ms R. Druitt

Solicitors for the Children’s Representative:

Legal Aid Commission of New South Wales

ORDERS

Within two months of the date of these orders the husband pays to the wife the sum of One hundred and thirty six thousand two hundred and ten dollars ($136,210).
At the same time as the husband complies with order (1), he shall give the wife a discharge of mortgage from the Commonwealth Bank of Australia secured on the property at Mt Pritchard or alternatively a release from the Commonwealth Bank in registrable form, whereby the wife is released from any liability pursuant to the mortgage.
Simultaneously thereupon compliance by the husband with orders (1) and (2) the wife shall do all acts and execute all documents as are necessary to transfer to the husband the whole of her right, title and interest in the property situation at Mt Pritchard in the state of New South Wales being the whole of the land in Certificate of Title Folio Identifier 56/730785.
In the event the husband fails to comply with orders (1) and (3) the parties do all such acts and execute all such documents as…

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: PS & MA [2005] FMCAfam 486
Case: [2005] FMCAfam 486
Decision Date: 12 October 2005

CaseChat Overview and Summary

In the matter of PS & MA, the parties were engaged in a dispute concerning the division of property and financial settlement following their divorce. The Federal Circuit Court of Australia was tasked with determining the allocation of the former matrimonial home and the division of other assets between the husband and the wife. The court was required to decide the respective entitlements of the parties regarding the matrimonial home, the discharge of the mortgage, and the division of other assets and liabilities.

The court considered the contributions made by each party to the acquisition and maintenance of the property, as well as their respective financial situations post-divorce. It was established that the wife had a significant contribution to the property's value through her work and maintenance efforts. The court found that the husband was to pay the wife a sum of $136,210 and provide a discharge of the mortgage from the Commonwealth Bank of Australia. In turn, the wife was to transfer her interest in the property to the husband. If the husband failed to meet these obligations, the court ordered a sale of the property, with specific provisions for the allocation of the sale proceeds and the method of sale.

The court further outlined the conditions under which the husband could occupy the property until compliance or sale, and appointed a Registrar or Deputy Registrar of the Federal Magistrates Court to execute necessary documents if either party failed to do so. Additionally, the court set out procedures for the return of exhibits and subpoenaed material, and dismissed all outstanding applications.

In conclusion, the court's orders mandated the husband to pay the wife a specific amount and release her from the mortgage, with corresponding transfer of property interests. In the event of non-compliance, it directed a sale of the property with detailed provisions for the distribution of sale proceeds and auction terms. The court also provided for the husband's continued occupation of the property under certain conditions and appointed an officer to enforce the orders if necessary.

Orders

Orders of the court

Within two months of the date of these orders the husband pays to the wife the sum of One hundred and thirty six thousand two hundred and ten dollars ($136,210).

At the same time as the husband complies with order (1), he shall give the wife a discharge of mortgage from the Commonwealth Bank of Australia secured on the property at Mt Pritchard or alternatively a release from the Commonwealth Bank in registrable form, whereby the wife is released from any liability pursuant to the mortgage.

Simultaneously thereupon compliance by the husband with orders (1) and (2) the wife shall do all acts and execute all documents as are necessary to transfer to the husband the whole of her right, title and interest in the property situation at Mt Pritchard in the state of New South Wales being the whole of the land in Certificate of Title Folio Identifier 56/730785.

In the event the husband fails to comply with orders (1) and (3) the parties do all such acts and execute all such documents as may be required to effect a sale of the former matrimonial home situate at Mt Pritchard in the State of New South Wales to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.

Upon the completion of the sale proceeds of the sale be applied as follows:

(a) To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the matrimonial home.

(b) Discharge Commonwealth Bank mortgage registered number 2283918 secured against the property.

(d) Balance then remaining to the husband from which he shall immediately pay the wife $26,730.

In the event that the matrimonial home has not been sold by or before a date three (3) months from the date of default with orders (1) or (2) then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally necessary to procure a sale by public auction of the matrimonial home upon the following terms:

(a) The auctioneer shall be a real estate agent.

(b) The reserve price shall, unless agreed upon by the parties, be as proposed by the auctioneer.

Each party has the right to bid at the auction.

Until compliance with order (1) and (3) or until completion of the sale the husband has the right to occupy the property to the exclusion of the wife subject to husband paying the council and water rate instalments; household building and contents insurances; repayments in respect of any mortgage secured on the property as they fall due, keeping the property tidy, clean and in repair having regard to its present condition and permitting inspection by agents and prospective purchasers at all reasonable times.

In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s.106A, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.

10.

All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.

11.

The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.

12.

All outstanding applications are dismissed.

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

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Actions

Citations

PS & MA [2005] FMCAfam 486

Most Recent Citation

Mayne and Mayne [2009] FMCAfam 559

Cases Citing This Decision

Nash and Nash [2009] FMCAfam 766
Citation 1 (Para 38)

…The decision of Justice Ryan in PS & MA [2005] FMCAfam 486 also sheds light on the way the Court is to with issues of non-disclosure: In proceedings in the Family Court [and doubtless other Courts too] in relation to financial matters there is an obligation of each party to make a full and frank disclosure of his/her…
Mayne and Mayne [2009] FMCAfam 559
Citation 2 (Para 11)

…typically useful for what Ryan J says but also because of her Honour’s quotation of O’Ryan J’s summary of principles in Luciano . [48] PS & MA [2005] FMCAfam 486. In that case, O’Ryan J provided the following summary, at [373], of principles from the non-disclosure cases, thus:[49] In proceedings in the Family Court…
Ta v Ta [2007] NSWSC 773
Citation 3

…outh African Law Reports 225 Ex parte Ferguson (1915) 33 WN (NSW) 121 Hichens v Hichens [1945] P 23 McDonald v McDonald [1953] SLT (Sh Ct) 36 PS v MA [2005] FMCAfam 486 Singer v Berghouse (1994) 181 CLR 201 PARTIES: Marie-Therese Ta (P) Francis Tan Tai Ta (D) FILE NUMBER(S): SC 3855/05 COUNSEL: J Needham SC (P) A Sul…

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Cases Cited

Weir v Weir [2016] NZHC 1920
Citation 1 (Para 3)

…tant issues concerns a parties’ obligation to make full and frank disclosure, which means that they are required to disclose all material facts. In Weir v Weir (1993) FLC 92-338, the Full Court said “This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black v Kellner (…
Townsend v Townsend [2006] NSWCA 352
Citation 2 (Para 5)

…notionally added back and thereafter treated as the other parties’ asset. Simply put each claims the other has approximately $40,000 secreted. In Townsend v Townsend (1995) FLC 92-569 the Full Court determined that wasted property could be notionally added back to the pool of assets. After separation the husband sold the par…
Doherty v Doherty [2006] QSC 257
Citation 3 (Para 7)

…waliw (1981) FLC 91-092; Fane-Thompson v Fane-Thompson (1981) FLC 91-053; Winnel v Winnel (1984) FLC 91-580; Townsend v Townsend (1995) FLC 92-569; Doherty v Doherty (1996) FLC 92-652.”)…
B & B [2000] FamCA 1301
Citation 4 (Para 6)

…In Bell and Bell [2000] FamCA 1301 (unreported) the Full Court makes it clear that notional adjustments are not limited to wasted assets but may also include “ identified items of property that have been bona fide disposed of”. Also that “It may also be appropriate, depending on the circumstances, to notionally incl…
Russell v Russell [1976] HCA 23
Citation 5 (Para 2)

…he circumstances that it is just and equitable to do so: s.79(2). It is the justice and equity of the actual orders that the court must consider: See Russell v Russell (1999) FLC 92-877.…
C & C [1998] FAMCA 143
Citation 6 (Para 8)

…In Cerini [1998] FamCA 143, the Full Court held, where the monies have been shown to have been reasonably disposed of, the notional add back approach should be the exception and not the rule. Recently, in Omacini (2005) FLC 93-218 the Full Court held “three clear categories of cases have emerged where the Court has…
Marker & Marker sub nom M & M [1998] FAMCA 42
Citation 7 (Para 7)

…ed at separation have been spent on reasonably incurred living expenses. Parties are entitled to continue to provide for their own support. In Marker [1998] FamCA 42, Baker, Kay and Chisholm JJ held: “ It is well settled that save in exceptional circumstances a trial Judge should deal with the property as at the d…
Jenkins v Livesey (1985) AC 424
Citation 8 (Para 3)

…on the obligation of full and frank disclosure applies because of the duty of the Court to consider all of the circumstances of the case. See Jenkins v Livesey (1985) 1 All ER 106 . This is particularly important in cases where the financial circumstances of the parties may be relevant. It is not sufficient for a party to…

Legislation Cited

Family Law Act 1975 (Cth) 75, 79
3 mentions (from Para 1)
Child Support (Assessment) Act 1989 (Cth)
1 mention (from Para 1)