Smith & Smith (No. 2) - [2007] FamCA 1348

FAMILY COURT OF AUSTRALIA

SMITH & SMITH (NO. 2)

[2007] FamCA 1348

FAMILY LAW – PROPERTY SETTLEMENT – Previous oral agreement by parties – Husband contends wife has no further claim for property settlement – Agreement not complied with by husband – Terms of agreement not just and equitable now – Agreement not a financial agreement within meaning of Family Law Act 1975 and does not oust jurisdiction of court under s 79

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Impact of husband’s gambling on parties’ finances and husband’s contribution – Husband suffers poor health and unable to work – Disparity in parties’ incomes and earning capacities - 10% adjustment in favour of husband due to s 75(2) factors – Assets divided 55%/45% in favour of wife

FAMILY LAW – PRACTICE AND PROCEDURE – Application for Leave to institute property proceedings out of time – Discussion of applicable principles in determining application for leave – Leave granted

Family Law Act 1975 (Cth)

Whitford & Whitford (1979) FLC 90-612
Hall & Hall (1979) FLC 90-679
Neocleous & Neocleous (1993) FLC 92-377
Frost & Nicholson (1981) FLC 91-051
Jacenko & Jacenko (1986) FLC 91-776
Tormsen & Tormsen (1993) FLC 93-392
Keith & Soukis [2007] FamCA 1017
Woodland & Todd (2005) FLC 93-217
Omacini & Omacini (2005) FLC 93-218
Chorn & Hopkins (2004) FLC 93-204
Townsend & Townsend (1995) FLC 92-569
Coghlan & Coghlan (2005) FLC 93-220
Lalor & Lalor (1990) FLC 92-164
Kowaliw & Kowaliw (1981) FLC 91-092

APPLICANT:

Mrs Smith

RESPONDENT:

Mr Smith

FILE NUMBER:

ADF

1006

2005

DATE DELIVERED:

5 November 2007

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

14 – 16 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Berman

SOLICITOR FOR THE APPLICANT:

Wallmans Lawyers

COUNSEL FOR THE RESPONDENT:

In person

ORDERS

That pursuant to Section 44(3) of the Family Law Act 1975 the wife be granted leave to institute proceedings seeking orders for property settlement.
That within EIGHT [8] weeks of the date of this order the husband pay to the wife’s solicitors on behalf of the wife the sum of ONE HUNDRED AND TWENTY THOUSAND THREE HUNDRED AND TWENTY DOLLARS [$120,320.00].
That contemporaneously with the payment by the husband of the said sum of ONE HUNDRED AND TWENTY THOUSAND THREE HUNDRED AND TWENTY DOLLARS [$120,320.00] the wife, at her cost and expense in all things, withdraw the caveat registered on the title to the house property situated at S.
That subject to these orders the husband retain as his sole property absolutely free of any claim, right, interest, demand or entitlement of the wife the following:
(a)    The house property situated at S;
(b)    The husband’s furniture and household effects;
(c)    The husband’s 1985 Ford Falcon utility;
(d)    The husband’s savings and investments;
(e)    Any other assets, real or personal held in the name of or on behalf of the husband.
The wife retain as her sole property absolutely free of any claim, right, interest, demand or entitlement…

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 Smith & Smith (No. 2)

Details

AGLC: Smith & Smith (No. 2) [2007] FamCA 1348
Case: [2007] FamCA 1348
Decision Date: 5 November 2007

CaseChat Overview and Summary

In *Smith & Smith (No. 2)*, the wife sought leave to institute property settlement proceedings out of time, which the husband opposed, contending an earlier oral agreement precluded any further claim. The dispute before Strickland J concerned whether the wife should be granted leave to proceed with her property settlement application and, if so, how the parties' assets should be divided.

The court was required to determine two primary legal issues. Firstly, whether the wife should be granted leave to institute property proceedings pursuant to section 44(3) of the *Family Law Act 1975* (Cth), considering the principles applicable to such applications. Secondly, if leave were granted, the court needed to determine the appropriate property settlement orders, taking into account the parties' contributions, the impact of the husband's gambling on their finances, his poor health and inability to work, and the disparity in their incomes and earning capacities.

Strickland J reasoned that the oral agreement relied upon by the husband did not constitute a financial agreement within the meaning of the *Family Law Act* and therefore did not oust the court's jurisdiction under section 79. The court found that the terms of the oral agreement were neither just nor equitable in the present circumstances. Applying the principles for granting leave to institute proceedings out of time, the court granted the wife leave to proceed. In determining the property settlement, the court made a 10% adjustment in favour of the husband under section 75(2) of the Act due to his health and earning capacity. Ultimately, the assets were divided 55% in favour of the wife and 45% in favour of the husband. The court ordered the husband to pay the wife $120,320.00 within eight weeks, contemporaneously with the wife withdrawing a caveat on the husband's property. The remaining assets were to be retained by each party as specified in the orders.

Orders

Orders of the court

That pursuant to Section 44(3) of the Family Law Act 1975 the wife be granted leave to institute proceedings seeking orders for property settlement.

That within EIGHT [8] weeks of the date of this order the husband pay to the wife’s solicitors on behalf of the wife the sum of ONE HUNDRED AND TWENTY THOUSAND THREE HUNDRED AND TWENTY DOLLARS [$120,320.00].

That contemporaneously with the payment by the husband of the said sum of ONE HUNDRED AND TWENTY THOUSAND THREE HUNDRED AND TWENTY DOLLARS [$120,320.00] the wife, at her cost and expense in all things, withdraw the caveat registered on the title to the house property situated at S.

That subject to these orders the husband retain as his sole property absolutely free of any claim, right, interest, demand or entitlement of the wife the following:

(a) The house property situated at S;

(b) The husband’s furniture and household effects;

(d) The husband’s savings and investments;

(e) Any other assets, real or personal held in the name of or on behalf of the husband.

The wife retain as her sole property absolutely free of any claim, right, interest, demand or entitlement of the husband the following:

(a) The wife’s furniture and household effects;

(b) The wife’s 1991 Ford Falcon motor vehicle;

(d) The wife’s savings and investments;

(e) The wife’s superannuation entitlement with Host Plus;

(f) Any other assets, real or personal held in the name of or on behalf of the wife.

In the event of the husband failing to comply with paragraph (2) hereof then the said property at S be sold on such terms and conditions as the parties may agree and in default of agreement as determined by this Honourable Court, and from the net proceeds of sale the wife receive such sum as shall then be outstanding pursuant to paragraph (2) hereof together with interest thereon calculated at the rate fixed by the Family Law Rules, and the husband receive the balance.

That each party have liberty to apply for consequential orders.

That all applications be dismissed and removed from the active pending cases list.

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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