Townsend and Townsend - [2008] FMCAfam 548

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TOWNSEND & TOWNSEND

[2008] FMCAfam 548

FAMILY LAW – Property – long marriage - superannuation – relevant date of valuing superannuation – power to back-date orders – De Angelis considerations – just and equitable in overall circumstances.

Family Law Act 1975, ss.75 (2), (2)(a), (d), (d)(ii), (e), (g), (m), (o), 79 (4)(a) – (g), 90ME, 90MT(1)(a)
Family Law Legislation Amendment (Superannuation) Act 2001
Superannuation Legislation Amendment (Family Law and Other Matters) Act 2004 (Cth)
Family Law (Superannuation) Regulations 2001

In the Marriage of De Angelis (2003) 30 Fam LR 304
Biviano v Natoli (1998) 43 NSWLR 695
C and C (2005) FLC ¶93-220
Cohen & Cohen (2008) FamCAFC 54
In the Marriage of Cunningham (2005) 33 Fam LR 159
In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Ilett (2005) 33 Fam LR 393
M v M (2008) 37 Fam LR 150
Mallet v Mallet (1984) 156 CLR 605
Nguyen v Schieff (2003) DFC ¶95-276
AJO & GRO (2005) ¶93-218
Pera & Pera [2008] FamCAFC 87
Stevens and Stevens (2005) FLC ¶93-246
Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority (2008) 242 ALR 383; [2008] HCA 5
Wilkinson and Wilkinson (2005) FLC ¶93-222
Woodcock and Woodcock (1997) FLC ¶92-739
DW v GT (2005) FLC ¶93-217
Wrigley v Wrigley (2004) FLC ¶93-182

G. Brzostowski SC, “One Pool or Two? A Distinction with a difference,” unpublished paper.
Justice Coleman, “A Distinction Without a Difference? C v C (2005) FLC ¶93-220,” Paper delivered to the Central Queensland Law Conference, Rockhampton (16^th August 2005)
G. Shoebrige, “Superannuation: Where are we at, five years on?” (2008) 13 Current Family Law 70
G. Watts, S. Bourke, M. Taussig QC, Super Splitting on Marriage Breakdown, (Sydney: CCH Australia Limited, 2002)

Applicant:

MS TOWNSEND

Respondent:

MR TOWNSEND

File Number:

CAC 1353 of 2007

Judgment of:

Neville FM

Hearing date:

7 April 2008

Date of Last Submission:

8 April 2008

Delivered at:

Canberra

Delivered on:

1 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr Brzostowski SC

Solicitors for the Applicant:

Dobinson Davey Clifford Simpson

Counsel for the Respondent:

Ms Tonkin

Solicitors for the Respondent:

Phelps Reid

ORDERS

That within 14 days of the date of Orders the parties do all such acts and things and execute all such documents as may be necessary to effect a sale of the property situate at and known as Property E in the Australian Capital Territory on such terms and conditions as may be agreed between the parties and in default of agreement on the following terms:
(a)The property to be listed for sale by public auction at a reserve price agreed by the parties and in default of agreement at a reserve price fixed by the selling agent;
(b)The property to be listed with a selling agent agreed between the parties and in default of agreement by an agent appointed by the president for the time being of the Real Estate Institute of the Australian Capital Territory;

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 Townsend and Townsend

Details

AGLC: Townsend and Townsend [2008] FMCAfam 548
Case: [2008] FMCAfam 548
Decision Date: 1 August 2008

CaseChat Overview and Summary

The case of Townsend and Townsend involved the division of property between a husband and wife upon their divorce. The matter was heard in the Family Court of Australia. The primary issue for the court was to determine the equitable distribution of the parties' property, particularly focusing on a property referred to as Property E. Additionally, the court had to decide on the sale terms for Property E and the subsequent distribution of the proceeds.

The court first examined the contributions of both parties to the acquisition of their property, considering both financial and non-financial contributions. It was noted that the property in question was primarily in the husband's name, but the court considered the wife's significant contributions to the household and the upbringing of any children. The court held that the wife was entitled to a fair share of the property, and it found that a 50/50 split was equitable. The court further directed that Property E be sold under specific terms and that the proceeds be distributed according to a prescribed order, which included payment of expenses, outstanding rates and taxes, and specific payments to each party. The court also clarified that each party would retain sole ownership of their personal items, bank accounts, superannuation entitlements, and other specified assets.

In summary, the court ordered the sale of Property E under stipulated conditions and directed the distribution of the proceeds among the parties, their expenses, and specific payments. The court also affirmed the sole ownership of certain personal and financial assets by each party, ensuring they were free from any interest of the other party. Each party was to bear their own costs associated with the proceedings.

Orders

Orders of the court

That within 14 days of the date of Orders the parties do all such acts and things and execute all such documents as may be necessary to effect a sale of the property situate at and known as Property E in the Australian Capital Territory on such terms and conditions as may be agreed between the parties and in default of agreement on the following terms:

(a) The property to be listed for sale by public auction at a reserve price agreed by the parties and in default of agreement at a reserve price fixed by the selling agent;

(b) The property to be listed with a selling agent agreed between the parties and in default of agreement by an agent appointed by the president for the time being of the Real Estate Institute of the Australian Capital Territory;

(c) The solicitor acting on the sale to be as agreed between the parties and in default of agreement, to be a solicitor appointed by the president for the time being of the Law Society of the Australian Capital Territory.

That the proceeds of sale of the property at Property E be distributed at settlement as follows:

(a) In payment of all expenses of and incidental to the sale, including Real Estate agents commission, advertising, legal fees and any necessary disbursements;

(b) In payment of any outstanding rates and taxes and other outgoings on the property;

(d) The balance to be paid to the Husband.

That the Husband is entitled to be the sole legal and beneficial owner of all other property in his possession and/or control, including but not limited to:

(a) The household contents and personal items in the Husband’s possession;

(b) Any money standing to the credit of the Husband in his sole name in any bank, savings or other account; and

free from any interest of the Wife and the Husband shall indemnify the Wife in relation to any and all debts attached thereto.

That the Wife is entitled to be the sole legal and beneficial owner of all other property in her possession and/or control, including but not limited to:

(a) The household contents and personal items in the Wife’s possession;

(b) Any money standing to the credit of the Wife in her sole name in any bank, savings or other account;

(d) The motor vehicle in the Wife’s possession.

free from any interest of the Husband and the Wife shall indemnify the Husband in relation to any and all debts attached thereto.

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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