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Raine & Creed

Raine & Creed

Case [2013] FamCA 362 24 May 2013

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FAMILY COURT OF AUSTRALIA

RAINE & CREED

[2013] FamCA 362

FAMILY LAW – PROPERTY – Application for property settlement orders – Whether just and equitable to alter property interests and rights – Where contributions of the parties assessed as being equal – Add-back considerations – Where the wife alleges waste – Consideration of factors under s 79 and s 75(2) of the Family Law Act 1975 (Cth) – Where the outcome of the assessment of contributions and other factors has resulted in the wife receiving 52.5 per cent of the assets compared to the husband’s 47.5 per cent – Where the husband seeks a splitting order pursuant to s 90MT of the Act – Where such order is opposed by the wife – Where it is not appropriate to make a splitting order as the husband presently has a present source of income and the wife also has some income and where each party contributed to their own superannuation scheme – Where it is determined that the superannuation be taken into account by way of adjustment to the overall pool – Where wife sought an order for spousal maintenance – Where the wife has established that she is unable to support herself adequately – Where it is appropriate to make an order for spousal maintenance for a defined period – Where the order for spousal maintenance is made conditional upon the husband continuing to receive disability insurance payments on the basis of a total disability.

Family Law Act 1975 (Cth) ss 79; 75(2); 90MT

Baldwin v Baldwin [2010] FamCAFC 227
Bevan & Bevan (1995) FLC 92-600
Browne & Green [1999] FamCA 1483
C & C [1998] FamCA 143
NCH & RCH (2004) FLC 93 – 204
Crapp & Crapp (1979) 5 FamLR 47
In the marriage of Mead & Mead (1983) FLC 91-354
Kennon & Kennon (1997) FLC 92 – 757
Kouper & Kouper (No.3) [2009] FamCA 1080
Kowaliw & Kowaliw (1981) FLC 91-092
Mayne & Mayne [2011] FamCAFC 192
Mitchell & Mitchell (1995) FLC 92-601
AJO & GRO [2005] FamCA 195
Perrett & Perrett (1990) 13 FamLR 464
Polonius & York [2010] FamCAFC 228
Shimizu & Tanner [2011] FamCA 271
Spellson & Spellson & Ors (1989) 13 FamLR 242
Stanford v Stanford [2012] HCA 52
Townsend & Townsend (1995) FLC 92-569

APPLICANT:

Ms Raine

RESPONDENT:

Mr Creed

FILE NUMBER:

SYC

2012

2011

DATE DELIVERED:

24 May 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

11-13 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Abrams Turner Whelan Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders

That, conditional upon the husband continuing to receive disability insurance payments on the basis of a total disability the husband pay the wife spousal maintenance in the sum of $534 per week until the end of April 2017.
That the husband retain for his exclusive use his work equipment.
That the husband and 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.

Continue reading Raine & Creed

Details

AGLC: Raine & Creed [2013] FamCA 362
Case: [2013] FamCA 362
Decision Date

CaseChat Overview and Summary

This case involved an application for property settlement orders by Ms Raine (the wife) against Mr Creed (the husband) in the Family Court of Australia. The dispute concerned the division of the parties' assets and liabilities, with particular issues arising regarding alleged waste by the husband, the characterisation of his disability insurance entitlements, and the wife's claim for spousal maintenance.

The court was required to determine whether it was just and equitable to alter the parties' property interests, assess their respective contributions, and consider the matters set out in section 75(2) of the Family Law Act 1975 (Cth). Specifically, the court had to decide how to treat the husband's disability insurance payments, whether to make a splitting order for superannuation, and whether to grant the wife's application for spousal maintenance.

The court found that the parties' contributions were equal, resulting in an initial division of 52.5% of the assets to the wife and 47.5% to the husband. The court declined to make a splitting order for superannuation, instead treating it as an adjustment to the overall pool. Regarding the husband's disability insurance payments, the court determined that their present value of $1.6 million should not be treated as property or a financial resource, but rather the ongoing income stream would be considered under section 75(2). The wife successfully established that she was unable to adequately support herself, leading the court to make a spousal maintenance order for a defined period, conditional on the husband continuing to receive his disability insurance payments.

The court ordered that the husband pay the wife spousal maintenance of $534 per week until April 2017, conditional on him continuing to receive disability insurance payments due to total disability. The husband was to retain his work equipment, and each party was to keep household items in their possession. The wife was to receive $749,603 from a controlled monies account, with the balance paid to the husband. Leave was granted for applications for costs, and all other applications were dismissed.

Orders