Schilling and Schilling - [2012] FMCAfam 482

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCHILLING & SCHILLING

[2012] FMCAfam 482

FAMILY LAW – Property – application for property orders – asset pool – circumstantial evidence – contributions – consideration of the matters referred to in Family Law Act 1975 (Cth) s.75(2) – adjustment of the parties’ contribution based entitlements – whether Orders just and equitable – where wife wishes to return to former matrimonial home.

Family Law Act 1975 (Cth), ss.75, 79, 106A

Astway Pty Ltd v Counsel of the City of Gold Coast [2008] QCA 073
Black and Kellner (1992) 15 Fam LR 343; FLC 92-287
Cullen v Welsbach Light Co. of Australasia Ltd (1907) 4 CLR 990
Gerber & Gerber [2010] FamCA 861
Gollings and Scott [2007] FamCA 397; (2007) 37 Fam LR 428; FLC 93-319
Gould & Gould [2007] FamCA 609; (2007) FLC 93-333
Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; FLC 93-143
K & K (2003) FLC 93-135
Lalor and Lalor (1989) 14 Fam LR 282; (1990) FLC 92-164
Rand & Rand (No 2) [2009] FamCAFC 155; (2009) 41 Fam LR 668; FLC 93-410
Tryon & Clutterbuck (No 2) [2009] FamCAFC 176; (2009) FLC 93-412
Weir and Weir (1992) 16 Fam LR 154; FLC 92-338
In the Marriage of W (1980) 6 Fam LR 538; FLC 90-872

Applicant:

MS SCHILLING

Respondent:

MR SCHILLING

File Number:

CAC 863 of 2009

Judgment of:

Scarlett FM

Hearing dates:

1 and 2 December 2010

Date of Last Submission:

2 December 2010

Delivered at:

Sydney

Delivered on:

28 May 2012

REPRESENTATION

Counsel for the Applicant:

Mr Brzostowski

Solicitors for the Applicant:

Garden & Montgomerie

Counsel for the Respondent:

Mr Dalzell

Solicitors for the Respondent:

Gordon Garling Moffitt

ORDERS

The Applicant wife and the Respondent husband are to divide the net matrimonial property between them so that the wife receives 65% of the net property and the husband receives 35% of the net property as more particularly set out in the following Orders.
The wife is to transfer to the husband all of her right title and interest in the former matrimonial home situate at and known as Property M in the State of New South Wales upon payment to her by the husband of the sum of $89,269.00 within three (3) months of the date of these Orders.
The husband is to indemnify the wife and keep her indemnified against all rates and charges and other liabilities connected to the former matrimonial home at Property M aforesaid.
The husband is declared to be solely entitled to the business (omitted) and all trading stock, (omitted) supplies, plant and equipment of the said business.
The wife and the husband are to be solely responsible for all liabilities not otherwise dealt with in these Orders and remaining in their own names including any credit card debts and personal loans and shall indemnify and keep indemnified the other party in relation to those liabilities.
The wife is to transfer to the husband all of her…

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 Schilling and Schilling

Details

AGLC: Schilling and Schilling [2012] FMCAfam 482
Case: [2012] FMCAfam 482
Decision Date: 28 May 2012

CaseChat Overview and Summary

Schilling and Schilling involved a dispute between the Applicant, the wife, and the Respondent, the husband, concerning the division of their matrimonial property. The Federal Circuit Court of Australia was tasked with determining the distribution of assets following the couple's separation.

The primary legal issues in this case were the equitable division of the net matrimonial property, the allocation of specific assets such as the former matrimonial home, vehicles, and personal property, and the assignment of liabilities and debts. The court had to consider the contributions of both parties to the marriage, their respective needs, and the future prospects of each party.

In making its decision, the court found that an equitable division of the net matrimonial property was for the wife to receive 65% and the husband to receive 35%. The former matrimonial home was to be transferred from the wife to the husband upon payment of a specified sum. The court also detailed the division of personal vehicles, financial accounts, superannuation entitlements, and personal belongings, specifying which assets each party was to retain. Additionally, the court ordered the husband to indemnify the wife against certain liabilities and to deliver specific items to the wife within a set timeframe.

The final orders mandated that the parties execute necessary documents to formalise the asset division within a specified period. Failure to comply would result in the Registrar or Deputy Registrar of the Federal Magistrates Court executing the documents on behalf of the defaulting party.

Orders

Orders of the court

The Applicant wife and the Respondent husband are to divide the net matrimonial property between them so that the wife receives 65% of the net property and the husband receives 35% of the net property as more particularly set out in the following Orders.

The wife is to transfer to the husband all of her right title and interest in the former matrimonial home situate at and known as Property M in the State of New South Wales upon payment to her by the husband of the sum of $89,269.00 within three (3) months of the date of these Orders.

The husband is to indemnify the wife and keep her indemnified against all rates and charges and other liabilities connected to the former matrimonial home at Property M aforesaid.

The husband is declared to be solely entitled to the business (omitted) and all trading stock, (omitted) supplies, plant and equipment of the said business.

The wife and the husband are to be solely responsible for all liabilities not otherwise dealt with in these Orders and remaining in their own names including any credit card debts and personal loans and shall indemnify and keep indemnified the other party in relation to those liabilities.

The wife is to transfer to the husband all of her right title and interest in Mitsubishi (model omitted) motor vehicle registration number (omitted) within twenty eight (28) days of the date of these Orders.

The wife is solely entitled as against the husband to the following:

(a) Hyundai (model omitted) motor car registration number (omitted) and any other motor vehicle in her possession and registered in her name;

(b) All funds in her accounts in the (omitted) Credit Union and any bank or other financial institution account in her name;

(d) All furniture, furnishings and other items of personalty in her possession.

The husband is solely entitled as against the wife to the following:

(a) Hyundai (model omitted) motor car registration number (omitted) and any other motor vehicle in his possession and registered in his name;

(b) All funds in his accounts in (omitted) Credit Union and Bendigo Bank and any other bank or other financial institution account in his name;

(d) All (omitted) currently in his possession; and

(e) All furniture, furnishings and other items of personalty in his possession save and except the following:

(i) A photograph of (omitted) located on the dresser in the lounge in the lounge room of the former matrimonial home at Property M;

(ii) Entertainment unit manufactured by (omitted) at Property M;

(iii) Old dresser in the third bedroom of Property M;

(iv) Hallway mirror;

(v) 4 old steel spoked wagon wheels;

(vi) One windmill made by Mr R;

(vii) 2 old shoe lasts;

(viii) Old milk can;

(ix) Wooden salt and pepper shakers.

The husband is to deliver the items in Order (8)(d) above to the wife or as she directs within seven (7) days of the date of these Orders.

10.

The parties must execute each and every document, deed or instrument necessary to give effect to these Orders within fourteen (14) days of such document, deed or instrument being presented to them or to their solicitors.

11.

If either party fails or neglects to execute any document, deed or instrument referred to in Order (10) above within fourteen (14) days of being called upon to do so then the Registrar or Deputy Registrar of the Federal Magistrates Court of Australia at Canberra is hereby appointed under the provisions of section 106A of the Family Law Act 1975 to execute all such documents, deeds or instruments in the name of the party who has failed or neglected to execute such document, deed or instrument and do all acts and things necessary to give validity and operation to the document, deed or instrument.

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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