FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WATERFIELD & CALLANDER | [2012] FMCAfam 568 |
| FAMILY LAW – Property distribution – alleged forgery or dishonest business transactions [alleged forging of other party’s signature] by one party but with little or no personal gain – gifts of jewellery (conditional or not?) – relationship of modest length – parties of senior years – evidentiary doctrine of ‘spoliation of evidence’ considered – potential conflict of judicial authorities between Supreme Court of New South Wales and Federal Court of Australia. |
| Family Law Act 1975, ss.75(2), 75(2)(o), 117(1), 117(2), 117(2A) |
| Allen v Tobias (1958) 98 CLR 367 J.D. Heydon, Cross on Evidence (Eighth Australian Edition) (Sydney: LexisNexis Butterworths, 2010) |
| Applicant: | MS WATERFIELD |
| Respondent: | MR CALLANDER |
| File Number: | CAC 1780 of 2010 |
| Judgment of: | Neville FM |
| Hearing dates: | 25 & 26 October 2011 and 9 & 10 March 2012 |
| Date of Last Submission: | 11 April 2012 |
| Delivered at: | Canberra |
| Delivered on: | 5 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Macpherson |
| Solicitors for the Applicant: | Dobinson Davey Clifford Simpson |
| Counsel for the Respondent: | Mr J Millar |
| Solicitors for the Respondent: | Watts McCray Lawyers |
ORDERS
The Husband pay to the Wife the sum of $105,000.00. In the absence of agreement, this amount is to be paid within 45 days of the date of these Orders.
Except as otherwise provided for in these Orders, the Husband be solely entitled to the exclusion of the Wife, to all property in his name or possession at the date of these Orders.
Except as otherwise provided for in these Orders, the Wife be solely entitled to the exclusion of the Husband, to all property (including superannuation) in her name or possession at the date of these Orders.
Each party be…
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- AGLC
- Waterfield and Callander [2012] FMCAfam 568
- Case
- [2012] FMCAfam 568
- Decision Date
CaseChat Overview and Summary
The court was required to consider the principles of the Family Law Act 1975, which mandates an equitable distribution of property acquired during the marriage, taking into account various factors such as the contributions of each party to the marriage, the future needs of the parties, and any other relevant considerations. The court had to assess the Wife's claim for an equal share of the Husband's superannuation fund, which was a significant asset of the marriage. The Husband argued that the Wife's entitlement should be limited based on the duration of the marriage and the respective contributions of each party.
The court determined that the Wife was entitled to a substantial share of the Husband's superannuation, reflecting the overall contribution she made to the marriage and her future needs. The court concluded that an equitable distribution would be achieved by awarding the Wife $105,000 from the Husband's superannuation fund. The court also ruled that each party would retain ownership of the property in their name or possession at the time of the order, subject to the payment of the specified amount. Additionally, the court ordered that each party would be solely responsible for any liabilities associated with the property they received. The final orders mandated the Husband to pay the Wife the specified amount within 45 days and outlined the allocation of property and liability for costs.
Orders
Orders of the court
1.
The Husband pay to the Wife the sum of $105,000.00. In the absence of agreement, this amount is to be paid within 45 days of the date of these Orders.
2.
Except as otherwise provided for in these Orders, the Husband be solely entitled to the exclusion of the Wife, to all property in his name or possession at the date of these Orders.
3.
Except as otherwise provided for in these Orders, the Wife be solely entitled to the exclusion of the Husband, to all property (including superannuation) in her name or possession at the date of these Orders.
4.
Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
5.
Each party be at liberty to file and serve submissions in relation to costs (maximum 2 pages) within 7 days. In the absence of receiving written submissions an Order will be made pursuant to s.117(1) that each party bear 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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