S & S - [2006] FMCAfam 396

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & S

[2006] FMCAfam 396

FAMILY LAW – Interim property and spousal maintenance application – application for injunction to restrain husband accessing superannuation or disposing of other assets – consideration of wife’s capacity to do paid work – comparison of parties financial circumstances – what is “proper” or “reasonable” in all the circumstances.

Family Law Act 1975 – ss.72, 74, 75, 114

Redman v Redman (1987) FLC 91-805
Bevan & Bevan (1995) FLC 92-600
Harris and Harris (1993) FLC 92-378
G & T (2004) FLC 93-176
Waugh & Waugh (2000) FLC 93-052

Applicant:

J E S

Respondent:

R S

File Number:

DNM444 of 2005

Judgment of:

Brown FM

Hearing date:

25 July 2006

Delivered at:

Darwin

Delivered on:

2 August 2006

REPRESENTATION

Counsel for the Applicant:

Ms Terry

Solicitors for the Applicant:

Janet Terry Barrister & Solicitor

Counsel for the Respondent:

Ms Capar

Solicitors for the Respondent:

Withnalls

ORDERS

That the parties’ competing applications for final property orders be fixed for hearing on 8 and 9 March 2007 as a reserve matter and on

22 and 23 March 2007 as a head matter.
That each party file all affidavits of evidence on which they propose to rely on at hearing together with up-dated statements of financial circumstances by 8 February 2007.
That the matter be listed for directions at 9.30am on 17 October 2006 to determine whether the value of the husband’s interest in the mud crab licence and the appropriate methodology for such valuation has been resolved between the parties and if not whether the court should appoint a single expert to conduct such valuation.

THAT UNTIL FURTHER OR OTHER ORDER:

The husband to pay to the wife spousal maintenance in the sum of $400.00 per week to be calculated to commence on 23 May 2006 and to be payable on Tuesday of each week to a bank account to be nominated by the wife.
By way of interim property settlement the husband pay to the wife the sum of $10,000.00 by 9 August 2006.
The interim applications be otherwise dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DNM444 of 2005

J E S

Applicant

And

R S

Respondent

REASONS FOR JUDGMENT

Introduction

These are property and spousal maintenance proceedings. The applicant in the proceedings is J E S “the wife”. The respondent is R S “the husband”.
The parties met in the mid 1970’s and married on 26 January 1983. They have one child, J, now 23 and financially self-supporting. The parties finally separated on 7 September 2005, when the husband left the parties’ jointly owned property situated at 5/21 G Crescent, Fannie Bay. The wife continues to live in that property.
The wife was born with cystic fibrosis. As a result, she has a number of related medical problems. These include insulin dependent diabetes; hypertension; peripheral vestibular failure; osteoporosis; sleep apnoea; enzyme deficiency; and a paralysed bowel.
In 2003, she received a double lung transplant at the Sir Charles Gairdner…

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: S & S [2006] FMCAfam 396
Case: [2006] FMCAfam 396
Decision Date: 2 August 2006

CaseChat Overview and Summary

The proceedings between S and S came before the Family Court of Australia, where the central dispute pertained to final property orders and spousal maintenance. The wife sought final property settlement, spousal maintenance, and an interim property settlement. In response, the husband filed a counter-application for final property settlement. The court was tasked with resolving these issues and making interim orders pending the final determination of the case.

The primary legal issues before the court were the valuation of the husband’s interest in a mud crab licence, the amount and duration of spousal maintenance, and the appropriateness of an interim property settlement. The court had to determine the fair and just division of the matrimonial assets and whether there were exceptional circumstances justifying interim financial orders. Additionally, the court needed to decide whether to appoint an expert to assist in the valuation of the husband’s interest in the mud crab licence.

The court addressed these issues by scheduling specific dates for the hearing of the final property orders and requiring the parties to submit updated financial statements and affidavits by a certain date. The court also mandated a directions hearing to ascertain whether the parties could agree on the valuation of the husband’s interest in the mud crab licence. If not, the court was to consider appointing a single expert for this purpose. Regarding spousal maintenance, the court ordered the husband to pay the wife $400 per week, with an interim property settlement payment of $10,000 due by a specific date. The interim applications were otherwise dismissed.

The final orders included fixing the dates for the hearing of the final property orders, requiring the parties to file evidence and updated financial statements, and mandating a directions hearing on the valuation of the husband’s interest in the mud crab licence. The court also ordered the husband to pay spousal maintenance and an interim property settlement to the wife, with specific timelines for these payments.

Orders

Orders of the court

That the parties’ competing applications for final property orders be fixed for hearing on 8 and 9 March 2007 as a reserve matter and on

22 and 23 March 2007 as a head matter.

That each party file all affidavits of evidence on which they propose to rely on at hearing together with up-dated statements of financial circumstances by 8 February 2007.

That the matter be listed for directions at 9.30am on 17 October 2006 to determine whether the value of the husband’s interest in the mud crab licence and the appropriate methodology for such valuation has been resolved between the parties and if not whether the court should appoint a single expert to conduct such valuation.

THAT UNTIL FURTHER OR OTHER ORDER:

The husband to pay to the wife spousal maintenance in the sum of $400.00 per week to be calculated to commence on 23 May 2006 and to be payable on Tuesday of each week to a bank account to be nominated by the wife.

By way of interim property settlement the husband pay to the wife the sum of $10,000.00 by 9 August 2006.

The interim applications be otherwise 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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