Victor and Victor - [2011] FMCAfam 920

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VICTOR & VICTOR

[2011] FMCAfam 920

FAMILY LAW – Property dispute – lengthy marriage – equal contributions – large inheritance received by wife after separation – whether inheritance should be included in the pool of property – if inheritance excluded – what adjustment to be made in respect of future needs.

Family Law Act 1975, s.75(2)

Norbis v Norbis (1986) 161 CLR 513
Bonnici & Bonnici (1992) FLC 92-272
Mistle v Mistle [2010] FamCA 29

Applicant:

MS VICTOR

Respondent:

MR VICTOR

File Number:

MLC 11256 of 2010

Judgment of:

Burchardt FM

Hearing dates:

9 & 10 August 2011

Date of Last Submission:

10 August 2011

Delivered at:

Melbourne

Delivered on:

16 September 2011

REPRESENTATION

Counsel for the Applicant:

Ms M. Smallwood

Solicitors for the Applicant:

Pearsons Barristers & Solicitors Pty Ltd

Counsel for the Respondent:

Ms B. Tulloch

Solicitors for the Respondent:

A Agrotis & Associates

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 11256 of 2010

MS VICTOR

Applicant

And

MR VICTOR

Respondent

REASONS FOR JUDGMENT

Introductory

This is a property dispute between a couple who were married for over 20 years. The two biggest issues between them are first, whether an inheritance of about $700,000 received by the wife following separation should or should not be included in the pool. The second, which depends substantially on the answer to that first question, is how much each party should get of whatever the pool is going to be.
In the particular circumstances of this case, in my view it is appropriate to exclude the wife’s inheritance from the pool but to give it proper weight as a resource when considering the s.75(2) factors for future needs.
Thus, while the wife will receive the totality of the inheritance, I think the respondent husband should receive 67½ per cent of the matrimonial pool of assets excluding the inheritance.

The facts

Many of the facts in this case are not controversial. The applicant wife was born [in] 1963 and is therefore 48 years old whereas the husband was born [in] 1955 and is therefore 56.
The parties married [in] 1985 and separated, as was first disputed but is now agreed, in September 2007.
The parties have four children; [W] born [in] 1987, [X] born [in] 1989, [Y] born [in] 1993 and [Z] born [in] 2003. The younger two children still live at home. It appears that they still live with the father in the matrimonial home but this is a matter to which I shall return.
The husband has had a job as a [omitted] with [T] (and no doubt its predecessor corporations) for in excess of 30 years. He earned $68,929 in the 2010 to 2011 tax year and $83,335 in the 2009 to 2010 tax year. He additionally receives the statutory contribution of superannuation. (Exhibit R2).
The wife…

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 Victor and Victor

Details

AGLC: Victor and Victor [2011] FMCAfam 920
Case: [2011] FMCAfam 920
Decision Date: 16 September 2011

CaseChat Overview and Summary

The case of Victor and Victor before the Federal Magistrates Court involved a property dispute between the parties following their lengthy marriage. The central issues were whether an inheritance of approximately $700,000 received by the wife post-separation should be included in the matrimonial pool and, if excluded, how to adjust for future needs. The court found that the inheritance should be excluded from the pool but considered as a resource for future needs.

The court's reasoning began with the principle that each case must be approached on its own facts to achieve a just and equitable outcome. The court noted that the wife had a close relationship with the benefactor, receiving the inheritance due to her role as a surrogate daughter. The husband had made no significant contributions to the inheritance, and the court accepted the wife's counsel's argument that the inheritance should be excluded from the pool but considered for future needs. The court applied a global approach, excluding the inheritance but acknowledging its significance.

The court then determined the pool of matrimonial assets, subject to two add-back disputes. It found that the husband's drawdown on the mortgage should be added back, while a portion of a life insurance benefit should be subtracted. The contributions of both parties to the matrimonial assets were deemed equal, focusing on the husband's earnings and the wife's domestic responsibilities.

Considering section 75(2) factors, the court awarded the husband 67½ per cent of the matrimonial pool, adjusted by 17½ per cent for future needs. The wife would retain the inheritance, and the court concluded that the outcome was just and equitable.

Orders