Sawyer and Sawyer - [2011] FMCAfam 610

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAWYER & SAWYER [2011] FMCAfam 610

FAMILY LAW – Property – setting aside of binding financial agreement, assessment of asset pool – addbacks – lottery win.

Family Law Act 1975, ss.75, 79, 90G(1)

Hackshaw v Hackshaw [2010] FamCA 1123
Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
In the marriage of Townsend & Townsend (1995) FLC 92-569
In the marriage of Zyk & Zyk (1995) FLC 92-644
Kouper v Kouper (No.3) [2009] FamCA 1080
Parker v Parker [2010] FamCA 664
Pierce v Pierce (1999) FLC 92-844

Applicant: MS SAWYER

Respondent: MR SAWYER

File Number: ROC 266 of 2010

Judgment of: Cassidy FM

Hearing dates: 24 & 25 March 2011

Date of Last Submission: 25 March 2011

Delivered at: Brisbane

Delivered on: 7 June 2011
REPRESENTATION

Counsel for the Applicant: Ms Alexander

Solicitors for the Applicant: Journey Family Lawyers

Counsel for the Respondent: Mr Westbrook

Solicitors for the Respondent: South & Geldard
IT IS DECLARED:
(1)That the agreement entered into by the parties in 2001 is not a Binding Financial Agreement within the meaning of section 90G(1) or 90G(1A) Family Law Act 1975.

IT IS ORDERED BY THE COURT:
(2)That the net asset pool of the Applicant and Respondent be distributed on a 54% - 46% basis in the Husband’s favour.
(3)That the schedule to these Orders attached hereto and marked as “Annexure A – Net Asset Pool” forms part of the Orders.
(4)That in the event that either party seeks to apply for costs, the applicant is to file and serve written submissions by no later than 4:00pm on 21 June 2011.
(5)That the respondent file and serve written submissions in reply by no later than 4:00pm on 28 June 2011.
(6)That any costs argument will be determined on the papers.
(7)That the matter be adjourned for mention to 9:30am on 5 July 2011 at the Federal Magistrates Court of Australia at Rockhampton.

NOTATION:
(A)It is noted that should either party file submissions in relation to costs the judgment will be delivered on 5 July 2011.
(B)It is noted that if the parties forward a draft agreed order then the Order may be made in Chambers and all future dates vacated.

(C)Annexure A – Net Asset Pool

ASSETS	VALUE
Husband’s property – [1] Property E	$310,000.00
Jointly owned [2] Property E	$240,000.00
Jointly owned [3] Property E	$200,000.00
Jointly owned Property P	$215,000.00
Husband’s third share in Property L	$70,000.00
Joint [omitted] Account No. [1]	$7,602.00
Joint [omitted] Account No. [2]	$3,500.00
Husband’s third share of [omitted] Account No. [3]	$358.00
Husband’s [bank omitted] Account No. [4]	$157.00
Husband’s [A] Shares – 408 @ $5.31	$2,166.00
Wife’s [vehicle omitted]	$18,000.00
Husband’s chattels ([business omitted])	$96,500.00
Husband’s cash on hand	$5,000.00
Husband’s [A] Super	$14,069.00
Wife’s [bank omitted] Account No. [5]	$6,000.00
Wife’s [bank omitted] Account No. [6]	$233,500.00
Addbacks
Husband’s legal fees	$14,933.00
Wife’s legal fees	$28,500.00
Distributions to the Wife
Difference between drawings…

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 Sawyer and Sawyer

Details

AGLC: Sawyer and Sawyer [2011] FMCAfam 610
Case: [2011] FMCAfam 610
Decision Date: 7 June 2011

CaseChat Overview and Summary

The Federal Magistrates Court of Australia in Brisbane heard a property settlement application between MS SAWYER and MR SAWYER. The key issues were whether the 2001 financial agreement was binding and the distribution of the net asset pool. The wife argued the agreement was not binding as she had not received a copy, and the husband argued the agreement was valid and the property at [1] Property E should be excluded from the asset pool. The court found the agreement was not binding due to non-compliance with the Family Law Act 1975 and the property at [1] Property E was included in the asset pool. The court applied a four-step approach to determine the property distribution. It considered the initial contributions, workers' compensation, and Lotto win as joint contributions. The court determined that the husband's contributions favoured him by 4%. After considering all factors, the court ordered the net asset pool to be distributed in a 54% - 46% ratio in favour of the husband. The wife was to receive [2] Property E, and if the parties could not agree on [3] Property E, it would be sold. The court gave the parties an opportunity to settle on a draft order and adjourned the matter for mention.

Orders