Saito and Saito - [2013] FMCAfam 112

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…

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 Saito and Saito

Details

AGLC: SAITO & SAITO [2013] FMCAfam 112
Case: [2013] FMCAfam 112
Decision Date: 8 February 2013

CaseChat Overview and Summary

The Federal Magistrates Court of Australia addressed a property dispute between MS Saito and MR Saito. The key issues were whether the Court had jurisdiction to make any property order given prior court orders from 2002, and if so, what the fair division of property should be. The Court found that it did have jurisdiction, following the reasoning in MNJ v MEB and Stanford v Stanford, and that the parties' conduct implied consent to further property orders. The Court then proceeded to assess the current asset pool, contributions, and future needs of the parties. The husband had significantly contributed to the equity in the matrimonial home, while the wife's contributions were more limited. Considering all factors, the Court ordered an equal division of the net value of the matrimonial home, with each party retaining their respective personal assets.

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