WEIMAN & PAIGE - [2013] FamCA 788

FAMILY COURT OF AUSTRALIA

WEIMAN & PAIGE [2013] FamCA 788

FAMILY LAW – PROPERTY SETTLEMENT IN RELATION TO MARRIAGE – Where the husband and wife were married for 13 years – Where there are three children of the relationship – Where the Court determined that it was “just and equitable” in the circumstances of the case to make orders altering the parties’ interests in property – Where the court was asked to add back a number of notional items of property into the asset pool – Consideration of the Full Court’s comments in Bevan & Bevan [2013] FamCAFC 116 in relation to add backs – Determination of the parties’ respective contributions having regard to the provisions of section 79 of the Family Law Act 1975 (Cth) (“the Act”) – Consideration of whether the contribution-based entitlement should be adjusted having regard to relevant matters under section 75(2) – Consideration of whether the overall result achieved is “just and equitable”.

Family Law Act 1975 (Cth)

AB v ZB (In Marriage of Brew) (2003) FLC 93-140
Bevan & Bevan [2013] FamCAFC 116
Garcia v National Australia Bank Ltd (1998) 155 ALR 614
In the Marriage of Kowaliw (1981) FLC 91-092
Johnson and Johnson (No 1) (1999) 26 Fam LR 475
Jones v Dunkel (1959) 101 CLR 298

Lemnos & Lemnos (2009) FLC 93-394
Stanford v Stanford (2012) 293 ALR 70
Townsend and Townsend (1995) FLC 92-569

APPLICANT:

Ms Weiman

RESPONDENT:

Mr Paige

FILE NUMBER:

SYC

5643

2010

DATE DELIVERED:

19 September 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

11–14 March 2013; 1 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pender

SOLICITOR FOR THE APPLICANT:

J S Pinto & Co Solicitors

COUNSEL FOR THE RESPONDENT:

Ms McIntosh

SOLICITOR FOR THE RESPONDENT:

JNT Legal

Orders

The parties are to do all things necessary to cause the funds standing to their credit in the controlled monies account held by JNT Legal to be distributed in the following manner and order of priority:
(a) an initial sum of $131,329 is to be paid to the wife;
(b) a second sum of $51,644 is to be paid to the husband; and
(c)any balance thereafter is to be divided in the ratio of 65 per cent to the wife and 35 per cent to the husband.
Other than as provided for in these Orders and as between the parties, the husband and the wife are each declared to be the legal and beneficial owners of all other property and financial entitlements in their names, possession or control, or to which they are each presently legally or beneficially entitled, including furniture and furnishings, monies in bank accounts, real estate, motor vehicles, shares, superannuation entitlements and insurance policies.
Other than as provided for in these Orders and as between the parties, the husband and wife are each responsible for the payment of all debts and liabilities standing in their name and each party is to indemnify the other in respect thereof.

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 WEIMAN & PAIGE

Details

AGLC: WEIMAN & PAIGE [2013] FamCA 788
Case: [2013] FamCA 788
Decision Date: 19 September 2013

CaseChat Overview and Summary

In *Weiman & Paige*, heard by Le Poer Trench J, the dispute concerned the division of property and financial entitlements between a husband and wife. The court was tasked with determining how the funds held in a controlled monies account should be distributed and how other assets and liabilities should be allocated between the parties.

The central legal issues before the court were the equitable distribution of specific funds held in a controlled monies account, and the declaration of legal and beneficial ownership of all other property and financial entitlements. Furthermore, the court was required to determine the responsibility for outstanding debts and liabilities between the husband and wife.

Le Poer Trench J ordered that the funds in the controlled monies account be distributed in a specific order of priority: an initial payment of $131,329 to the wife, followed by a payment of $51,644 to the husband. Any remaining balance was to be divided with 65 per cent allocated to the wife and 35 per cent to the husband. The court further declared that, apart from these specific distributions, each party was the legal and beneficial owner of all other property and financial entitlements in their respective names, possession, or control. Each party was also made responsible for their own debts and liabilities and was ordered to indemnify the other in respect thereof. All outstanding applications, except for costs, were dismissed.

Orders

Orders of the court

1. The parties are to do all things necessary to cause the funds standing to their credit in the controlled monies account held by JNT Legal to be distributed in the following manner and order of priority:

(a) an initial sum of $131,329 is to be paid to the wife;

(b) a second sum of $51,644 is to be paid to the husband; and

2. Other than as provided for in these Orders and as between the parties, the husband and the wife are each declared to be the legal and beneficial owners of all other property and financial entitlements in their names, possession or control, or to which they are each presently legally or beneficially entitled, including furniture and furnishings, monies in bank accounts, real estate, motor vehicles, shares, superannuation entitlements and insurance policies.

3. Other than as provided for in these Orders and as between the parties, the husband and wife are each responsible for the payment of all debts and liabilities standing in their name and each party is to indemnify the other in respect thereof.

4. Other than as provided for in these Orders, all outstanding applications, save as to costs, are 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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