FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAITO & SAITO | [2013] FMCAfam 112 |
| FAMILY LAW – Property dispute – parties separating in 2000/2001 to 2006 – reconciling 2006 – 2008/2009 – whether court’s jurisdiction ousted by court orders made in 2002 – whether court should make orders in any event – consideration of parties’ contributions during both periods of cohabitation. |
| Family Law Act 1975, ss.79, 79(2), 79(4) |
| MNJ v MEB(No.1) [2004] FMCAfam 259 Stanford v Stanford [2012] HCA 52 Erdem & Ozsoy [2012] FMCAfam 1323 |
| Applicant: | MS SAITO |
| Respondent: | MR SAITO |
| File Number: | MLC 4894 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 22 November 2012 |
| Date of Last Submission: | 22 November 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 8 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Testart |
| Solicitors for the Applicant: | McNab McNab & Starke |
| Counsel for the Respondent: | Ms Daly |
| Solicitors for the Respondent: | Anthonys Solicitors |
IT IS NOTED that publication of this judgment under the pseudonym Saito & Saito is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 4894 of 2012
| MS SAITO |
Applicant
And
| MR SAITO |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a property dispute in which, putting the matter broadly, there are two issues:
a)Whether the Court has jurisdiction to make any order adjusting the parties’ property interests and;
b)If the Court does have jurisdiction to make such an order, what should the division should be.
It should be noted that the matter proceeded by way of oral submissions only, with both sides adopting the position that the facts were sufficiently agreed and/or clear on the materials for cross-examination not to be necessary.
For the reasons that follow, I think that the Court does have jurisdiction to make a property order and that the assets of the parties should be divided equally between them.
Historical Background
What follows is taken from the affidavits of the parties and unless I misunderstand the matter, is not controversial.
The applicant wife was born [in] 1952 and the husband [in] 1950.
They have two children, [X] born [in] 1986 and [Y] born [in] 1988. Neither child is financially dependent upon either parent, although, as I understand it, [Y] may still live with her mother.
The parties commenced cohabitation in 1971 and married in 1985. They separated in either 2000 (the wife) or August 2001 (the husband’s version, see paragraph 8 of his trial affidavit). Following separation, the parties divided their property interests. The wife paid the husband $30,000 and retained the former matrimonial home. The husband transferred $70,000 of his then approximately $185,000 superannuation to the wife’s superannuation fund.
The only indication of the value of the first property settlement is at paragraph 32 of the wife’s trial affidavit, which asserts a value of the former matrimonial home in [B] of $210,000 with a mortgage of $84,000 (but the mortgage was increased to about $120,000 to pay the husband his $30,000). The parties apparently each had…
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- AGLC
- SAITO & SAITO [2013] FMCAfam 112
- Case
- [2013] FMCAfam 112
- Decision Date
CaseChat Overview and Summary
The final orders of the Court were that the net value of the matrimonial home be divided equally between the parties, and each party retain their other personal assets, including the respective superannuation funds and vehicles.
Orders
Orders of the court
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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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