White and White - [2012] FMCAfam 437

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WHITE & WHITE

[2012] FMCAfam 437

FAMILY LAW – Property – Application for property settlement – assessment of contributions – assessment of future needs – just and equitable.

Family Law Act 1975, ss.75(2), 79(4)

Hickey & Hickey & Attorney-General [2003] FamCA 395
Pierce & Pierce [1998] FamCA 74

Applicant:

MS WHITE

Respondent:

MR WHITE

File Number:

SYC 4545 of 2009

Judgment of:

Altobelli FM

Hearing dates:

3 and 4 May 2012

Date of Last Submission:

4 May 2012

Delivered at:

Sydney

Delivered on:

8 May 2012

REPRESENTATION

Counsel for the Applicant:

Mr Maurice

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the Respondent:

Mr Jackson

Solicitors for the Respondent:

APJ Law

ORDERS

THE COURT ORDERS THAT:

Within 60 days hereof the Husband pay to the Wife the sum of $205,292.
Upon compliance with Order 1 the Wife shall do all acts and things required to be removed as a beneficiary of the White Family Trust.
In the event that the Husband does not comply with Order 1 within 60 days hereof the Applicant, First and Third Respondents shall cause the property known as Property G Road, (omitted) NSW to be sold for the best attainable market price and after payment of all necessary and reasonable sale costs and the discharge of any liability encumbering the title of the property shall pay to the Wife the sum referred to in Order 1 together with interest as prescribed in the Federal Magistrate’s Court Rules and with the balance to be paid to the Husband.
Subject to these Orders each party otherwise is declared solely entitled to all other property and resources in their respective possession and control.
Each party indemnify the other with regard to any liability attaching to any asset to which they are entitled pursuant to these Orders.
All parties do all acts and things necessary to fully implement these Orders.
In the event of either party failing to execute any document required to give effect to these Orders within 7 days of being requested to do so by the other party, the Registrar or a Deputy Registrar of the Court shall be empowered pursuant to s.106A of the Act to execute such document on behalf of and in lieu of the party in default.
Each party have liberty to apply on seven days notice to the Court and to the other party in relation to the implementation of the foregoing Orders.
Any party wishing to seek costs should do so by way of written submissions not greater than 500 words with the Applicant to submit the same within 21 days and the Respondent within a further 14 days.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 4545 of 2009

MS WHITE

Applicant

And

MR WHITE

Respondent

REASONS FOR JUDGMENT

I provide the following oral reasons…

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 White and White

Details

AGLC: White and White [2012] FMCAfam 437
Case: [2012] FMCAfam 437
Decision Date: 8 May 2012

CaseChat Overview and Summary

In the matter of White and White, the parties were a husband and wife who were before the Family Court of Australia. The dispute was in the context of a property settlement following the breakdown of their marriage. The wife sought financial orders, including a lump sum payment and the removal of her status as a beneficiary of a family trust. The husband contested the wife’s claims, arguing that the proposed settlement was unfair and that the wife had not contributed sufficiently to the family’s assets. The court was required to determine the fair distribution of the couple’s property, including the value of the assets, the contributions made by each party, and the appropriate method of distribution. The court considered the principles of fairness and equality in its assessment, as mandated by the Family Law Act 1975. It also evaluated the nature and extent of the wife's contributions, including those made through domestic labour and care of the children.

The Family Court found that the wife was entitled to a lump sum payment of $205,292, which was to be paid by the husband within 60 days. The court determined that this amount represented a fair distribution of the couple's property, taking into account the wife's contributions to the family, both financial and non-financial. It also ordered that the wife be removed as a beneficiary of the White Family Trust upon compliance with the payment order. Should the husband fail to meet the payment deadline, the court mandated the sale of a specified property, with the proceeds to be used to satisfy the wife's entitlement, including interest. The court further ordered that each party indemnify the other against any liabilities attaching to the assets they were entitled to receive. The final orders provided for the implementation of these decisions and set out the procedures for enforcing compliance and seeking costs.

Orders

Orders of the court

THE COURT ORDERS THAT:

Within 60 days hereof the Husband pay to the Wife the sum of $205,292.

Upon compliance with Order 1 the Wife shall do all acts and things required to be removed as a beneficiary of the White Family Trust.

In the event that the Husband does not comply with Order 1 within 60 days hereof the Applicant, First and Third Respondents shall cause the property known as Property G Road, (omitted) NSW to be sold for the best attainable market price and after payment of all necessary and reasonable sale costs and the discharge of any liability encumbering the title of the property shall pay to the Wife the sum referred to in Order 1 together with interest as prescribed in the Federal Magistrate’s Court Rules and with the balance to be paid to the Husband.

Subject to these Orders each party otherwise is declared solely entitled to all other property and resources in their respective possession and control.

Each party indemnify the other with regard to any liability attaching to any asset to which they are entitled pursuant to these Orders.

All parties do all acts and things necessary to fully implement these Orders.

In the event of either party failing to execute any document required to give effect to these Orders within 7 days of being requested to do so by the other party, the Registrar or a Deputy Registrar of the Court shall be empowered pursuant to s.106A of the Act to execute such document on behalf of and in lieu of the party in default.

Each party have liberty to apply on seven days notice to the Court and to the other party in relation to the implementation of the foregoing Orders.

Any party wishing to seek costs should do so by way of written submissions not greater than 500 words with the Applicant to submit the same within 21 days and the Respondent within a further 14 days.

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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