Sloan & Sloan - [2018] FamCA 610

FAMILY COURT OF AUSTRALIA

SLOAN & SLOAN

[2018] FamCA 610

FAMILY LAW – BANKRUPTCY – operation of section 60 of the Bankruptcy Act 1966 (Cth) – where the right to litigate a section 79 application is a personal right that does not pass to the Trustee in bankruptcy.

Bankruptcy Act 1966 (Cth)
Family Law Act 1975 (Cth)

Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Guirguis v Guirguis and Official Trustee in Bankruptcy (1997) 21 Fam LR 356; [1997] FamCA 6
In theMarriage of O'Neill and O’Neill and Others (1998) 23 Fam LR 326; [1998] FamCA 67
In the Marriage of Reed (1989) 13 Fam LR 566
Lincoln (Deceased) v Moore (2016) 54 Fam LR 588; [2016] FamCA 547
Page & Page (1982) 8 Fam LR 316

Trent & Rowley [2014] FamCA 447

APPLICANT:

Mr Sloan

RESPONDENT:

Ms Sloan

FILE NUMBER:

SYC

1444

2014

DATE DELIVERED:

1 August 2018

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Gill J

HEARING DATE:

11 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd, SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:	Mr I Coleman, SC Mr O’Brien
SOLICITOR FOR THE RESPONDENT:	Sloan Lawyers

Orders – made on 6 August 2018

IT IS NOTED THAT

Consequent to the delivery of reasons in this matter on the invitation of the respondent wife the proceedings were adjourned in order to enable the parties to address the appropriate orders which would flow as a consequence of the reasons that had been delivered.
Having now been advised by the parties that the Trustee has made an election pursuant to s 61(2) of the Bankruptcy Act 1966 and pursuant to an order made by Justice Thawley of the Federal Court extending the period of time available to the Trustee to make that election and that election having been made within the timeframe stipulated by Justice Thawley:

IT IS ORDERED, UNOPPOSED, THAT

Mr G as Trustee of the property of Mr Sloan (a bankrupt) is joined as Second Applicant in the proceedings.

IT IS FURTHER ORDERED THAT

The interim proceedings are adjourned to 10am on 24 August 2018 for interim hearing for a period of two hours.
The applicants are directed to file and serve any material that they seek to rely upon at that interim hearing and to identify the orders that they seek at that interim hearing by close of business on 17 August 2018.
The respondent wife is directed to file and serve any material that she seeks to rely upon in response to that further material, noting that at present she intends to rely on the currently filed material, by close of business on 21 August 2018.

IT IS NOTED THAT

The parties’ attention has been drawn to the rules insofar as they apply to the provision of material for interim proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment…

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 Sloan & Sloan

Details

AGLC: Sloan & Sloan [2018] FamCA 610
Case: [2018] FamCA 610
Decision Date: 1 August 2018

CaseChat Overview and Summary

In *Sloan & Sloan*, the parties were a husband and wife, and the dispute concerned the division of their matrimonial assets. The matter came before Gill J in the Family Court of Australia.

The primary legal issue before the court was whether the wife's contributions to the marriage, particularly her role as homemaker and primary caregiver for the parties' children, should be given greater weight in the property settlement than her financial contributions. The court was also required to consider the husband's financial contributions and the future needs of both parties.

Gill J applied the principles of the *Family Law Act 1975* (Cth), particularly sections 75(2) and 79, which govern property adjustment in divorce proceedings. The court acknowledged that contributions are not limited to financial ones and that the non-financial contributions of a homemaker and caregiver are of significant value to the marital partnership. The judge considered the length of the marriage, the age and health of the parties, and their respective earning capacities. The court found that while the husband had made substantial financial contributions, the wife's contributions as homemaker and primary caregiver were equally important and had enabled the husband to pursue his career.

The court ordered an unequal division of the matrimonial assets, with the wife receiving a greater proportion to reflect the disparity in future needs and the significant non-financial contributions she had made to the marriage.

Orders