Slade and Slade - [2010] FMCAfam 67

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SLADE & SLADE

[2010] FMCAfam 67

FAMILY LAW – Property – marriage of approximately ten years in duration – marriage produced two children – asset pool – whether parties’ superannuation should be placed in a separate pool – assessment of contributions – waste – whether wife’s alleged excessive consumer spending should be regarded as “negative” contribution – weight to be given to bequests and donations received by husband – whether such gifts should be given strict arithmetic weight – assessment of homemaking and parenting contributions – assessment of s75(2) factors – whether wife should receive entitlements in cash or as a mix of cash and superannuation – factors to be considered in determining form of settlement orders – just and equitable.

Family Law Act 1975, ss.75(2), 79, 90MC, 90MT

Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-355
Clauson v Clauson (1995) FLC 92-595
Hickey v Hickey & Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Biltoft & Biltoft (1995) FLC 92-614
C & C (2005) FLC93-220
Norbis v Norbis (1986) FLC 91-712
Pierce & Pierce (1999) FLC 92-844
Russell v Russell (1999) FamCA 187
Waters & Jurek (1995) FLC 92-635
D & D [2003] FamCA 473
Kessey & Kessey (1994) FLC 92-495
Pellegrino & Pellegrino (1997) FLC 92-789
AJO v GRO (2005) 33 Fam LR 134
In the Marriage of DJM and JLM (1998) 23 Fam LR 396
In the Marriage of Townsend (1994) 18 Fam LR 505
In the Marriage of Kowaliw (1981) FLC 91-092
In the Marriage of Browne & Green (1999) 25 Fam LR 482
In The marriage of Spiteri (2005) 33 Fam LR 109
Collins & Collins (1990) FLC 92-149
L & L (2006) FLC 93-254

Applicant:

MS SLADE

Respondent:

MR SLADE

File Number:

ADC 2103 of 2008

Judgment of:

Brown FM

Hearing date:

22 September 2009

Date of Last Submission:

22 September 2009

Delivered at:

Adelaide

Delivered on:

2 February 2010

REPRESENTATION

Counsel for the Applicant:

Mr Berman

Solicitors for the Applicant:

Griffin Hilditch

Counsel for the Respondent:

Ms Lindsay

Solicitors for the Respondent:

North East Lawyers

ORDERS

In full and final settlement of all claims for the settlement of matrimonial property:

Within thirty (30) days of today’s date the parties do all things necessary and execute all necessary documents to place the former matrimonial home known as and situate at Property W in the State of South Australia being the whole of the land comprised in Certificate of Title Volume [omitted] for sale on such terms and conditions as the parties may agree and failing agreement as nominated by the court with the proceeds of sale when realised to be divided as follows:
(a)Firstly to pay the costs, commissions and expenses related to the said sale;
(b)Secondly to pay out the mortgage to the Adelaide Bank secured against the aforesaid property;
(c)Thirdly to pay out the Adelaide Bank Line of Credit, known as the Power Loan also secured against the…

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 Slade and Slade

Details

AGLC: Slade and Slade [2010] FMCAfam 67
Case: [2010] FMCAfam 67
Decision Date: 2 February 2010

CaseChat Overview and Summary

The case of Slade and Slade involved a dispute over the division of matrimonial property between the parties, Slade and Slade. The matter was heard in the Family Court of Australia. The primary focus of the case was the equitable distribution of assets, including the former matrimonial home, personal property, and superannuation benefits. The court was required to determine the allocation of assets and liabilities, including the payment of debts and the division of superannuation entitlements.

The court addressed several legal issues, including the principles governing the equitable distribution of matrimonial assets under the Family Law Act, the specific application of these principles to the assets and liabilities of the parties, and the procedural steps required to effect the division of assets. The court also considered the need for a splitting order regarding the husband's superannuation fund and the allocation of a base amount to the wife.

The Family Court of Australia ruled that the former matrimonial home should be sold, with the proceeds divided according to the terms outlined in the orders. The court specified the sequence of payments to be made from the sale proceeds, including the discharge of debts and the allocation of the remaining balance between the parties. The court also detailed the division of personal property and the allocation of specific items to each party. A splitting order was issued in relation to the husband's superannuation fund, with a base amount allocated to the wife. The court further declared the ownership of specific motor vehicles to each party and dismissed other applications. Each party was granted liberty to apply for any necessary consequential orders.

The final orders of the court included directives for the sale of the matrimonial home, the division of sale proceeds, the delivery of specified personal property to the husband, a splitting order for the husband's superannuation fund, and declarations of ownership for specific motor vehicles. The court also allowed for applications regarding any consequential orders necessary to implement the division of assets.

Orders

Orders of the court

In full and final settlement of all claims for the settlement of matrimonial property:

Within thirty (30) days of today’s date the parties do all things necessary and execute all necessary documents to place the former matrimonial home known as and situate at Property W in the State of South Australia being the whole of the land comprised in Certificate of Title Volume [omitted] for sale on such terms and conditions as the parties may agree and failing agreement as nominated by the court with the proceeds of sale when realised to be divided as follows:

(a) Firstly to pay the costs, commissions and expenses related to the said sale;

(b) Secondly to pay out the mortgage to the Adelaide Bank secured against the aforesaid property;

(c) Thirdly to pay out the Adelaide Bank Line of Credit, known as the Power Loan also secured against the aforesaid property;

(d) Fourthly to discharge the parties’ joint liability in respect of the Adelaide Bank Merlin Visa card;

(e) Fifthly to pay the sum of $5,200.00 owing by the wife on her Coles Myer credit card and the sum of $778.00 owed by the husband to JB Hi Fi.

(f) Finally, to pay the balance as to sixty-two percent (62%) plus the sum of $7,069.42 to the wife and thirty-eight percent (38%) less the sum of $7,069.42 to the husband.

Within thirty (30) days of the date of these orders the wife do deliver up to the husband the following items currently in her possession:

(i) Plasma TV

(ii) Digital video camera

(iii) Muhammad Ali shorts

(iv) Drawers and contents in robe and paperwork from filing cabinet

(v) Half photos and videos

(vi) NEC large television

(vii) Lawnmower

(viii) Webber barbeque

(ix) Items in shed

(x) Barbeque

(xi) Small portable television

Pursuant to section 90MT(1)(a) of the Family Law Act there be a splitting order in respect of the husband’s [E] Superannuation Scheme and pursuant to section 90MT(4) of the Act a base amount in the sum of $48,500.00 be allocated to the wife out of the husband’s interest in such fund.

The solicitor for the wife serve a copy of these orders on the Trustee of the [E] Superannuation Scheme by 15 February 2010 and thereafter the aforesaid Trustee has liberty to relist the matter before the court in the event that the Trustee is unable to comply with order (3) hereof, but otherwise the operative time for the aforementioned splitting order shall be 24 February 2010.

The Trustee of the [E] Superannuation Scheme, the husband and the wife, in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all necessary documents as are required to calculate the payment entitlements of the wife in accordance with order (3) hereof.

Save and except for the chattels specified in order (2) hereof and the superannuation interests specified in order (3) hereof, each party be solely entitled to the exclusion of the other to all other properties and chattels of whatsoever nature and kind in the possession of such party as at the date of the making of these orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof and insurance policies and superannuation entitlements are deemed to be in the possession of the beneficiary thereof.

The husband is declared to be the owner of the Ford motor vehicle currently in his possession and the wife is declared to be the owner of the Holden Astra motor vehicle currently in her possession.

The applications be otherwise dismissed.

Each party has liberty to apply as to any consequential orders necessary.

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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