SALMA & SALMA - [2020] FCCA 1917

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALMA & SALMA

[2020] FCCA 1917

Catchwords:
FAMILY LAW – Property Settlement – contributions – weight to be given to initial contributions by wife.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79(2) & (4)

Cases cited:

Re: L (Litigants in Person Guidelines) (2001) FLC-072

Stanford v Stanford (2012) 247 CLR 108

Fielding & Nichol [2014] FCWA 77 @ [42]

Jabour & Jabour [2019] FamFC 78

Wallis & Manning (2017) FLC 93-759

Pierce v Pierce (1999) FLC 92-844

Dickons v Dickons [2012] 50 FamLR 244

Applicant:

MR SALMA

Respondent:

MS SALMA

File Number:

LNC 888 of 2019

Judgment of:

Judge McGuire

Hearing dates:

30 June, 1 & 2 July 2020

Date of Last Submission:

2 July 2020

Delivered at:

Launceston

Delivered on:

30 July 2020

REPRESENTATION

Counsel for the Applicant:

Mr M. Doyle

Solicitors for the Applicant:

Clarke & Gee

Respondent appeared in person

ORDERS

That within sixty (60) days of the date of these orders the wife pay to the husband a lump sum of $258,167.
That should the payment referred to above be by way of a splitting order from the wife’s superannuation entitlement with Super Fund B then not later than forty-nine (49) days from the date of these orders the parties jointly bring in settled orders accordingly together with evidence of procedural fairness on the relevant superannuation fund.
That contemporaneously with the payment referred to in order (1) hereof the husband transfer to the wife all his right, title and interest in the following absolutely:
(a)The property situate at C Street, Suburb D in Tasmania;
(b)The wife’s Motor Vehicle 1;
(c)The yacht;
(d)The balances of any bank accounts or like investments in the sole name of or to the benefit of the wife as at the date of these orders;
(e)All personalty and chattels in the possession of or under the control of the wife as at the date of these orders; and
(f)The wife’s superannuation policy and entitlement with Super Fund B but subject to these Orders.
That contemporaneously with transfer and vesting orders in order (3) hereof the wife transfer and/or vest all right, title and interest in the following to the husband absolutely:
(a)The assets of the business;
(b)The balances of any bank accounts or like investments in the sole name or to the benefit of the husband as at the date of these orders;
(c)All personalty and chattels in the possession of or under the control of the husband as at the date of these orders; and
(d)The husband’s superannuation policy and entitlement with Super Fund F.
That provided, in any event, that should the wife at her election to be made and advised to the husband’s solicitors within twenty-eight (28) days of the date of these orders, choose to place the former matrimonial home at C Street, Suburb D in Tasmania on the market for sale then the parties co-operate on the sale of that property through an agent as agreed between the parties, and failing agreement…

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 SALMA & SALMA

Details

AGLC: SALMA & SALMA [2020] FCCA 1917
Case: [2020] FCCA 1917
Decision Date: 30 July 2020

CaseChat Overview and Summary

In *Salma & Salma*, Judge McGuire of the Family Court of Australia considered a property settlement dispute between a husband and wife. The case involved the division of various assets, including real estate, a business, vehicles, and superannuation entitlements.

The primary legal issue before the court was the appropriate weight to be given to the wife's initial contributions to the marriage in determining the overall property division. The court was required to assess the contributions of both parties, both financial and non-financial, and consider the future needs of each party in reaching a just and equitable outcome.

Judge McGuire reasoned that while initial contributions are a significant factor, they must be considered alongside all other contributions made throughout the marriage and the parties' respective future needs. The court applied the principles of Section 79 of the *Family Law Act 1975* (Cth), which mandates a just and equitable division of matrimonial property. The court's orders reflected a complex division of assets, including a lump sum payment from the wife to the husband, the transfer of various properties and personalty, and a specific mechanism for the sale of the former matrimonial home with a particular division of proceeds. The orders were intended to finally determine the financial relationship between the parties.

Orders

Orders of the court

That within sixty (60) days of the date of these orders the wife pay to the husband a lump sum of $258,167.

That should the payment referred to above be by way of a splitting order from the wife’s superannuation entitlement with Super Fund B then not later than forty-nine (49) days from the date of these orders the parties jointly bring in settled orders accordingly together with evidence of procedural fairness on the relevant superannuation fund.

That contemporaneously with the payment referred to in order (1) hereof the husband transfer to the wife all his right, title and interest in the following absolutely:

(a) The property situate at C Street, Suburb D in Tasmania;

(b) The wife’s Motor Vehicle 1;

(d) The balances of any bank accounts or like investments in the sole name of or to the benefit of the wife as at the date of these orders;

(e) All personalty and chattels in the possession of or under the control of the wife as at the date of these orders; and

(f) The wife’s superannuation policy and entitlement with Super Fund B but subject to these Orders.

That contemporaneously with transfer and vesting orders in order (3) hereof the wife transfer and/or vest all right, title and interest in the following to the husband absolutely:

(a) The assets of the business;

(b) The balances of any bank accounts or like investments in the sole name or to the benefit of the husband as at the date of these orders;

(c) All personalty and chattels in the possession of or under the control of the husband as at the date of these orders; and

(d) The husband’s superannuation policy and entitlement with Super Fund F.

That provided, in any event, that should the wife at her election to be made and advised to the husband’s solicitors within twenty-eight (28) days of the date of these orders, choose to place the former matrimonial home at C Street, Suburb D in Tasmania on the market for sale then the parties co-operate on the sale of that property through an agent as agreed between the parties, and failing agreement then as determined by the delegate of the President of the Real Estate Institute of Tasmania, such to be by private treaty or by auction as recommended by the agent and then at a sale price or reserve price as advised from time to time by the agent and that the proceeds of sale be disbursed as follows:

(a) To the payment of reasonable costs and disbursements on the sale; and

(b) As to the balance between the parties so as to give effect to an overall division of the parties’ property inclusive of superannuation as set out in [20] of the reasons herein as to 62.5% to the wife and 37.5% to the husband.

That the parties each have liberty to apply in respect of order (5) herein.

That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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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