Saltwick and Saltwick - [2010] FMCAfam 1176

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SALTWICK & SALTWICK

[2010] FMCAfam 1176

FAMILY LAW – Property – husband accused of arson – determination on balance of probability – waste or negative contribution.

Family Law Act 1975, ss.75, 78, 79, 106A, 114, 121

Evidence Act 1995, s.91
Corrective Services Act2006

Hickey & Hickey [2003] FamCA 395
Biltoft and Biltoft (1995) FLC 92-614
Mallett v Mallett (1984) FLC 91-507
In the Marriage of Pierce (1998) FLC 92-844
Briginshaw and Briginshaw (1938) 60 CLR 336
Kowaliw & Kowaliw (1981) FLC 91-092
Russell v Russell (1999) FamCA 1875

Applicant:

MS SALTWICK

Respondent:

MR SALTWICK

File Number:

BRC 7513 of 2008

Judgment of:

Coates FM

Hearing date:

12 May 2010

Date of Last Submission:

12 May 2010

Delivered at:

Brisbane

Delivered on:

29 October 2010

REPRESENTATION

Counsel for the Applicant:

Mr Galloway

Solicitors for the Applicant:

Butler McDermott Lawyers

Solicitors for the Respondent:

Self represented

ORDERS

That pursuant to s.78 of the Family Law Act 1975 (as amended) the wife be declared to be the sole owner of the property situated at Property P, being the land in Lot [omitted], County of [omitted] (“the P property”) with effect as and from 28 August 2001.
That in order to give effect to the said declaration the husband forthwith transfer to the wife all his right title and interest in the

P property.
That pursuant to s.79 save as is otherwise provided herein the husband retain to the exclusion of the wife all property and financial resources currently in his name, possession or control including:-
(a)His 1982 Range Rover or the sale proceeds thereof;
(b)His caravan; and
(c)Items of personal contents and furniture.
That save as is otherwise provided herein the wife retain to the exclusion of the husband all property and financial resources currently in her name, possession or control including:-
(a)The sale proceeds of motor sailor “O”;
(b)The ride-on mower;
(c)The 1979 Toyota utility;
(d)The 2004 Holden Astra convertible;
(e)All investments held by the wife; and
(f)Personal property.
By consent, the wife will return to the husband an anchor, chain and bollard if found in the rubble of the burnt out marital property, personal effects including clothing and walking sticks and other personal items.
Pursuant to s.114(1)(a), by injunction, the husband is restrained from contacting or approaching the wife in any manner whatsoever, other than through a lawyer, and is restrained from harming her or attempting to harm her in any way by acts or omissions which would otherwise be offences under the Criminal Code of Queensland.
Pursuant to s.121 of the Family Law Act 1975, the wife may publish these reasons to the Queensland Police Service and Queensland Corrective Services when taking steps to protect herself before or upon the husband’s release from prison.
That each of the parties shall do all acts and sign all necessary documentation to give effect to the terms of this order and in the event that either party refuses or neglects to sign (within…

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 Saltwick and Saltwick

Details

AGLC: Saltwick and Saltwick [2010] FMCAfam 1176
Case: [2010] FMCAfam 1176
Decision Date: 29 October 2010

CaseChat Overview and Summary

In the case of Saltwick and Saltwick, the Federal Magistrates Court was tasked with determining the division of property and financial resources between the husband and wife following their separation. The court was also required to consider whether an order should be made under the Family Law Act 1975 to restrain the husband from contacting or approaching the wife. The legal issues before the court included the distribution of the parties' property and financial resources, and the granting of an injunction to protect the wife from the husband.

The court considered the evidence and submissions from both parties and determined that the wife should be declared the sole owner of the property situated at Property P, effective from 28 August 2001. The husband was ordered to transfer all his right, title, and interest in the P property to the wife. The court also made orders regarding the division of other property and financial resources between the parties, including motor vehicles, personal contents, and investments. The court found that the wife was entitled to an injunction to protect her from the husband, who had been convicted of assaulting her and was currently serving a prison sentence.

The court's reasoning was based on the evidence presented and the relevant provisions of the Family Law Act 1975. The court found that the wife had made a significant contribution to the accumulation of the parties' property and financial resources, and that it was just and equitable to declare her the sole owner of the P property. The court also found that the husband's history of violence towards the wife justified the granting of an injunction to protect her from further harm.

The final orders of the court included a declaration that the wife be the sole owner of the P property, an order for the husband to transfer his interest in the property to the wife, and an injunction to restrain the husband from contacting or approaching the wife. The court also made orders regarding the division of other property and financial resources between the parties, and appointed the Registrar of the Federal Magistrates Court of Australia to execute any necessary documents on behalf of either party.

Orders

Orders of the court

That pursuant to s.78 of the Family Law Act 1975 (as amended) the wife be declared to be the sole owner of the property situated at Property P, being the land in Lot [omitted], County of [omitted] (“the P property”) with effect as and from 28 August 2001.

That in order to give effect to the said declaration the husband forthwith transfer to the wife all his right title and interest in the

P property.

That pursuant to s.79 save as is otherwise provided herein the husband retain to the exclusion of the wife all property and financial resources currently in his name, possession or control including:-

(a) His 1982 Range Rover or the sale proceeds thereof;

(b) His caravan; and

That save as is otherwise provided herein the wife retain to the exclusion of the husband all property and financial resources currently in her name, possession or control including:-

(a) The sale proceeds of motor sailor “O”;

(b) The ride-on mower;

(d) The 2004 Holden Astra convertible;

(e) All investments held by the wife; and

(f) Personal property.

By consent, the wife will return to the husband an anchor, chain and bollard if found in the rubble of the burnt out marital property, personal effects including clothing and walking sticks and other personal items.

Pursuant to s.114(1)(a), by injunction, the husband is restrained from contacting or approaching the wife in any manner whatsoever, other than through a lawyer, and is restrained from harming her or attempting to harm her in any way by acts or omissions which would otherwise be offences under the Criminal Code of Queensland.

Pursuant to s.121 of the Family Law Act 1975, the wife may publish these reasons to the Queensland Police Service and Queensland Corrective Services when taking steps to protect herself before or upon the husband’s release from prison.

That each of the parties shall do all acts and sign all necessary documentation to give effect to the terms of this order and in the event that either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any document necessary to effect the terms of these orders, the Registrar of the Federal Magistrates Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.

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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