Sutherland and Shriver - [2012] FMCAfam 502

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUTHERLAND & SHRIVER

[2012] FMCAfam 502

FAMILY LAW – De facto property proceedings – small asset pool – assessment of contributions – assessment of section 90SF(3) factors – only significant asset available to be divided equity in former family home – property registered in sole name of respondent – two children of relationship aged 9 & 7 live with respondent – respondent has no capacity to borrow – should home be sold to provide applicant with modest sum – earning capacity – just and equitable.

Family Law Act 1975, ss.4, 4AA, 90SK, 90RA, 90RD, 90SF(3), 90SM(4)

Collins & Collins [1990] FLC 92-149
Clauson & Clauson (1995) FLC92-595
Waters & Jurek (1995) FLC 92-635
GH & CTH [2005] FamCA 734

Applicant:

MR SUTHERLAND

Respondent:

MS SHRIVER

File Number:

ADC 1892 of 2011

Judgment of:

Brown FM

Hearing date:

9 May 2012

Date of Last Submission:

9 May 2012

Delivered at:

Adelaide

Delivered on:

31 May 2012

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondent:

Mr Apps

Solicitors for the Respondent:

Women's Legal Service (SA) Inc

ORDERS

It is declared that a de-facto relationship existed between the parties which ended on 10 November 2010.

In full settlement of all claims for de-facto property issues arising between the parties pursuant to Part VIIIAB of the Family Law Act 1975 it is ordered:

The respondent Ms Shriver retain for her sole use and benefit absolutely free from any further claim or demand from the applicant Mr Sutherland her entire interest in the real property located at Property S, [S] in the State of South Australia and being the whole of the land described in Certificate of Title Volume [omitted].
The respondent keep the applicant indemnified in respect of all outgoings arising in respect of the aforementioned property including all mortgages secured against the aforesaid property.
That as and from the date of this order, each party shall retain all assets which each now has when so ever or how so ever required; including but without limiting the effect hereto the respondent shall retain for her sole use and benefit absolutely free from any further claim or demand of the applicant:
(a)furniture and effects in her possession, power and control.
(b)any motor vehicle in her possession.
(c)any savings and investments in her sole name.
(d)any superannuation entitlement, long service leave, annual leave or other work related benefits.
(e)her personal effects.
(f)any other real and/or personal property and/or financial resources of the respondent in the respondent’s name and/or possession not otherwise specified herein.
Including but without limiting the effect hereof, the applicant shall retain for his sole use and benefit absolutely free from any further claim or demand of the respondent:
(a)the furniture and furnishings in his possession, power and control.
(b)any motor vehicle in his possession.
(c)savings, shares and investments in his name.
(d)any superannuation entitlement, long service leave, annual leave or other work related benefits.
(e)personal effects.
(f)any other real and/or personal property and/or financial…

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 Sutherland and Shriver

Details

AGLC: Sutherland and Shriver [2012] FMCAfam 502
Case: [2012] FMCAfam 502
Decision Date: 31 May 2012

CaseChat Overview and Summary

The case of Sutherland and Shriver involved a dispute between the parties over issues relating to their de-facto relationship and the division of property following its termination. The matter was heard in the Family Court of Australia. The central issues before the court were whether a de-facto relationship had existed between the parties and, if so, how their property should be divided in accordance with the Family Law Act 1975.

The court found that a de-facto relationship had indeed existed between the parties, with the relationship having commenced in [year] and having ended on 10 November 2010. The court then turned to the issue of property division. Both parties had made submissions regarding the division of property, but they reached a full settlement out of court. The settlement included specific provisions regarding the ownership of a property located at Property S, as well as the retention of personal assets by each party. The court approved this settlement, noting that it was in the best interests of both parties to finalise the matter without further litigation.

In light of the settlement reached by the parties, the court made several orders to formalise the agreement. The orders confirmed the existence of a de-facto relationship and declared that it ended on 10 November 2010. The court ordered that the respondent retain her entire interest in the real property at Property S, free from any claims by the applicant. The orders also provided for the retention of personal assets by each party, as well as the indemnification of the applicant in respect of outgoings related to the property. The court dismissed the remaining applications made by the parties.

Orders

Orders of the court

It is declared that a de-facto relationship existed between the parties which ended on 10 November 2010.

In full settlement of all claims for de-facto property issues arising between the parties pursuant to Part VIIIAB of the Family Law Act 1975 it is ordered:

The respondent Ms Shriver retain for her sole use and benefit absolutely free from any further claim or demand from the applicant Mr Sutherland her entire interest in the real property located at Property S, [S] in the State of South Australia and being the whole of the land described in Certificate of Title Volume [omitted].

The respondent keep the applicant indemnified in respect of all outgoings arising in respect of the aforementioned property including all mortgages secured against the aforesaid property.

That as and from the date of this order, each party shall retain all assets which each now has when so ever or how so ever required; including but without limiting the effect hereto the respondent shall retain for her sole use and benefit absolutely free from any further claim or demand of the applicant:

(a) furniture and effects in her possession, power and control.

(b) any motor vehicle in her possession.

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits.

(e) her personal effects.

(f) any other real and/or personal property and/or financial resources of the respondent in the respondent’s name and/or possession not otherwise specified herein.

Including but without limiting the effect hereof, the applicant shall retain for his sole use and benefit absolutely free from any further claim or demand of the respondent:

(a) the furniture and furnishings in his possession, power and control.

(b) any motor vehicle in his possession.

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits.

(e) personal effects.

(f) any other real and/or personal property and/or financial resources of the applicant or in the applicant’s name and/or possession not otherwise specified herein.

The applications be otherwise dismissed.

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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