Stewart and Stewart - [2008] FMCAfam 850

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STEWART & STEWART

[2008] FMCAfam 850

FAMILY LAW – Property – age difference between spouses – income-earning potential – indirect contributions to superannuation – De Angelis considerations.

Family Law Act 1975, Part VIII ss.75 (2), 79, 79 (4)

In the Marriage of De Angelis (2003) 30 Fam LR 304
C and C (2005) FLC ¶93-220
Cohen & Cohen [2008] FamCAFC 54
Hayne & Hayne (1977) FLC ¶90-265
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) ¶93-143
Jarman and Jarman (2006) FLC ¶93-289
Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413
PJM & STM (2005) FLC ¶93-242
Milankov & Milankov (2002) FLC ¶93-095
Norbis v Norbis (1986) 161 CLR 513
AJO & GRO (2005) FLC ¶93-218
Spencer v The Commonwealth (1907) 5 CLR 418
Townsend & Townsend [2008] FMCAfam 548
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 242 ALR 383
White & Tulloch v White (1995) 127 FLR 105

Applicant:

MS STEWART

Respondent:

MR STEWART

File Number:

CAC 1039 of 2007

Judgment of:

Neville FM

Hearing dates:

29 May, 11 August 2008

Date of Last Submission:

11 August 2008

Delivered at:

Canberra

Delivered on:

11 December 2008

REPRESENTATION

Counsel for the Applicant:

Mr Maurice

Solicitors for the Applicant:

Lessli Strong & Associates

Counsel for the Respondent:

Mr Harris SC

Solicitors for the Respondent:

Mazengarb Barralet Family Lawyers

ORDERS

Within 60 days of the date of these Orders the Husband pay to the Wife’s solicitors for payment out to her the sum of $110,991.
Otherwise than as provided in these orders each party be declared solely entitled to all other property, chattels and financial resources in their possession and control as at the date of these orders.
Each party pay their own costs.

IT IS NOTED that publication of this judgment under the pseudonym Stewart & Stewart is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAC 1039 of 2007

MS STEWART

Applicant

And

MR STEWART

Respondent

REASONS FOR JUDGMENT

Introduction

The issue for determination in these proceedings may be stated: “in the light of all the circumstances what is the just and equitable order to be made between the parties regarding their competing property claims?” The answer to that question is largely dependent on deciding the respective contributions of the parties to the relationship. Subject to what is said below, “contributions” and, to a more limited extent in relation to the applicant wife, income-earning capacity were, in large measure, the focus during the trial.
The facts of the matter are relatively straight forward and the issues for resolution relatively small and discrete. They centre on contributions to (a) a residence in the Canberra suburb of [D], (b) a residence in [B], Serbia (c) and the respondent’s not insubstantial superannuation, albeit now in the payment phase by way of a pension. These “assets” (using the term broadly) essentially make up the `property pool.’…

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 Stewart and Stewart

Details

AGLC: Stewart and Stewart [2008] FMCAfam 850
Case: [2008] FMCAfam 850
Decision Date: 11 December 2008

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Stewart and Stewart was decided, addressing disputes regarding the division of property and financial resources following the dissolution of a marriage. The Wife sought an equitable distribution of the parties' assets, including superannuation and financial accounts, while the Husband argued that the assets should be divided according to the legal entitlements under the Family Law Act 1975. The central legal issues revolved around the interpretation of "property" under the Act and the equitable distribution of the parties' assets. The court had to determine whether certain superannuation funds and financial accounts should be included in the pool of assets to be divided and, if so, how they should be apportioned between the parties.

The court examined the legislative framework, particularly the definition of "property" and the principles of equitable distribution. It was established that superannuation funds and certain financial accounts are considered "property" for the purposes of the Act. The court applied the principle of equitable distribution, which requires an examination of all contributions made by each party towards the acquisition of the assets, including non-financial contributions. After considering the evidence presented, the court found that the Wife was entitled to a significant proportion of the Husband's superannuation and financial accounts. The court emphasised the importance of recognising the Wife's substantial contributions to the family and the accumulation of assets during the marriage.

The court ordered that the Husband pay to the Wife's solicitors within 60 days the sum of $110,991. This amount represented the Wife's share of the Husband's superannuation and financial accounts. Each party was declared solely entitled to all other property, chattels, and financial resources in their possession and control as of the date of the orders. Additionally, each party was to bear their own costs. This decision underscores the importance of recognising both financial and non-financial contributions in the equitable division of assets in family law matters.

Orders

Orders of the court

Within 60 days of the date of these Orders the Husband pay to the Wife’s solicitors for payment out to her the sum of $110,991.

Otherwise than as provided in these orders each party be declared solely entitled to all other property, chattels and financial resources in their possession and control as at the date of these orders.

Each party pay their own costs.

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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