Somerset and Somerset - [2008] FMCAfam 25

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SOMERSET & SOMERSET

[2008] FMCAfam 25

FAMILY LAW – Alteration of property interests – spousal maintenance – s77A order – when husband fails and refuses to disclose his financial position orders not unduly cautions – husband able to increase his savings – wife makes non-financial contributions.

Family Law Act 1975, s.79; s72; s77A

Gollings & Scott [2007] 93-319
Gould & Gould [2007] FamCA 609
Whiterod & Taylor (2006) FLC 93-266
Mallett & Mallett [1984] HCA 21; (1984) 156 CLR 605
Pierce and Pierce [1984] FamCA 74
Weir and Weir (1992) FLC 92-287

Applicant:

MS SOMERSET

Respondent:

MR SOMERSET

File Number:

BRC2533 of 2007

Judgment of:

Coates FM

Hearing date:

14 November 2007

Date of Last Submission:

14 November 2007

Delivered at:

Cairns

Delivered on:

15 February 2008

REPRESENTATION

Counsel for the Applicant:

Mr Page SC

Solicitors for the Applicant:

Barbeler & Cooke

Counsel for the Respondent:

Mr Moore

Solicitors for the Respondent:

Plass Lawyers

ORDERS

The Husband shall within thirty (30) days of the date hereof pay to the Wife the sum of ONE HUNDRED AND FOUR THOUSAND SEVEN HUNDRED AND NINETY-NINE DOLLARS AND SIXTY-TWO CENTS ($104,799.62)
Payment of the sum referred to in paragraph 1 hereof shall be charge on the following assets of the Husband, namely:
(a)The investment in the name of the Husband numbered Mxxx in the BT;
(b)The interest of the Husband in property at Property H.
Upon default of the Husband in payment in accordance with paragraph 1 hereof, such investment and property shall be sold and the Wife shall receive such part of the sum of $104,799.62 then outstanding together with interest thereon calculated from the date of default from the proceeds of such sales.
The Husband shall indemnify the Wife and hold her indemnified in relation to any liability of the Wife to the F Trust.
The Wife shall indemnify the Husband and hold him indemnified in relation to any liability of the Husband relating to Property O.
Each of the parties shall forthwith do all such things and execute all such documents necessary to cause there to be paid to the Wife the entire sum held by Messrs Barbeler & Cooke, Solicitors, on trust for the parties, together with any accretions thereto.
The Wife shall use her best endeavours to cause Suncorp Metway to release the Husband from any guarantee given by him to the Bank relating to Property O, within a period of one year from the date hereof.
The Wife shall forthwith transfer to the Husband any share or interest held by her in W Pty Ltd and shall resign as a director of that company
The Husband shall indemnify the Wife and hold the Wife indemnified in relation to any liability of the Wife arising by reason of her having held shares in W Pty Ltd or having held office as director of that company.
The Wife shall forthwith execute all documents and do all such things required by the Husband to…

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 Somerset and Somerset

Details

AGLC: Somerset and Somerset [2008] FMCAfam 25
Case: [2008] FMCAfam 25
Decision Date: 15 February 2008

CaseChat Overview and Summary

The matter before the Family Court involved a dispute between Somerset (the Husband) and Somerset (the Wife) regarding property settlement and spousal maintenance. The court was tasked with determining the financial obligations between the parties, including the division of assets, liabilities, and any spousal maintenance. The court also had to address the indemnification of each party for certain liabilities and the management of shared interests in various entities.

The legal issues before the court included the division of the net family property, the allocation of specific assets and liabilities, and the resolution of indemnification claims between the parties. Additionally, the court had to determine whether spousal maintenance was appropriate and, if so, the amount and duration of any such maintenance. The court also needed to consider the Wife's request for the Husband to release her from certain financial guarantees and her role in shared entities.

In its decision, the court ordered the Husband to pay a specific sum to the Wife within thirty days, with payment to be sourced from designated assets. The court further detailed the allocation of certain assets and liabilities between the parties, including indemnification provisions. The court rejected the Wife's application for spousal maintenance but granted her requests for release from certain financial obligations and the transfer of her interests in shared entities. The court also provided for ongoing liberty to apply for further orders if needed.

The final orders included detailed directions for the division of assets and liabilities, indemnification provisions, and the management of shared interests. The court also dismissed the Wife's application for spousal maintenance and outlined the process for any future applications related to the execution of the order.

Orders

Orders of the court

The Husband shall within thirty (30) days of the date hereof pay to the Wife the sum of ONE HUNDRED AND FOUR THOUSAND SEVEN HUNDRED AND NINETY-NINE DOLLARS AND SIXTY-TWO CENTS ($104,799.62)

Payment of the sum referred to in paragraph 1 hereof shall be charge on the following assets of the Husband, namely:

(a) The investment in the name of the Husband numbered Mxxx in the BT;

(b) The interest of the Husband in property at Property H.

Upon default of the Husband in payment in accordance with paragraph 1 hereof, such investment and property shall be sold and the Wife shall receive such part of the sum of $104,799.62 then outstanding together with interest thereon calculated from the date of default from the proceeds of such sales.

The Husband shall indemnify the Wife and hold her indemnified in relation to any liability of the Wife to the F Trust.

The Wife shall indemnify the Husband and hold him indemnified in relation to any liability of the Husband relating to Property O.

Each of the parties shall forthwith do all such things and execute all such documents necessary to cause there to be paid to the Wife the entire sum held by Messrs Barbeler & Cooke, Solicitors, on trust for the parties, together with any accretions thereto.

The Wife shall use her best endeavours to cause Suncorp Metway to release the Husband from any guarantee given by him to the Bank relating to Property O, within a period of one year from the date hereof.

The Wife shall forthwith transfer to the Husband any share or interest held by her in W Pty Ltd and shall resign as a director of that company

The Husband shall indemnify the Wife and hold the Wife indemnified in relation to any liability of the Wife arising by reason of her having held shares in W Pty Ltd or having held office as director of that company.

10.

The Wife shall forthwith execute all documents and do all such things required by the Husband to effect her retirement as a trustee of the F Trust and the Wife shall assign to the Husband any interest held by her in the said Trust.

11.

Save as is otherwise provided for in this order, each of the parties shall be the sole owner of the personalty presently in the possession of that party, including any interests in superannuation funds.

12.

This is an order to which the provisions of s.77A of the Family Law Act applies and the portion of the sum of $104,799.62 that is attributable to the maintenance of the Wife is the sum of $40,000.00

13.

The application by the Wife for spousal maintenance is dismissed.

14.

Each party shall have liberty to apply in relation to the working out of this Order upon the giving of seven (7) days’ notice in writing to the other.

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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