Whitten and Roberts - [2012] FMCAfam 647

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WHITTEN & ROBERTS

[2012] FMCAfam 647

FAMILY LAW – Property – long marriage – informal agreement that parties would keep their finances separate – no children – claims for the Court to consider expenditure by Husband on extra-marital relationships during the relationship and post separation as part of asset pool – just and equitable considerations.

Family Law Act1975, ss.75(2), 79(2)

Clives v Clives (2009) 40 Fam LR 273
C v C (2005) FLC ¶93-220
Gollings v Scott (2008) 37 Fam LR 428
TWN v PAQ (2006) 34 Fam LR 190
AJO v GRO (2005) 33 Fam LR 134
Pierce & Pierce (1994) FLC ¶92-485
Russell v Russell (1999) FLC ¶92-877

Applicant:

MS WHITTEN

Respondent:

MR ROBERTS

File Number:

SYC 7620 of 2010

Judgment of:

Neville FM

Hearing dates:

3 February 2012 and 3 May 2012

Date of Last Submission:

28 June 2012

Delivered at:

Canberra

Delivered on:

5 October 2012

REPRESENTATION

Counsel for the Applicant:

Ms A Tonkin

Solicitors for the Applicant:

Evans Family Lawyers

Counsel for the Respondent:

Mr J Millar

Solicitors for the Respondent:

Paul & Paul Lawyers

ORDERS

Within 60 days of the date of these Orders, the Respondent pay the Applicant the sum of $280,000.00.
In accordance with section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Roberts from his interest in the (omitted) Superannuation Scheme, Ms Whitten is entitled to be paid (by the Trustee of the (omitted) Scheme) the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using a base amount of $240,000.00 and there shall be a corresponding reduction in the amount Mr Roberts would be entitled to receive but for these Orders.
The Operative time for Order 2 is four (4) business days after the service of these Orders upon the Trustee.
Unless as otherwise provided for in these Orders, the parties are to retain the property (real and personal) currently in their possession.
Each party will be solely responsible for any liability in their name as at the date of these Orders and will indemnify the other party and keep them indemnified with respect to those liabilities.
In the absence of any submissions in writing within seven (7) days of the date of these Orders, there will be a self-executing Order that each party shall pay their own costs.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

SYC 7620 of 2010

MS WHITTEN

Applicant

And

MR ROBERTS

Respondent

REASONS FOR JUDGMENT

Introduction

In no pejorative way do I observe that this marriage of approximately 16 years was conducted between parties, who are now aged 55 years (Wife) and 58 years (Husband), in a significant number of respects, with a particular – and often…

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 Whitten and Roberts

Details

AGLC: Whitten and Roberts [2012] FMCAfam 647
Case: [2012] FMCAfam 647
Decision Date: 5 October 2012

CaseChat Overview and Summary

The matter in Whitten and Roberts was before the Family Court of Australia. The Applicant, Ms Whitten, sought financial orders following the breakdown of her relationship with the Respondent, Mr Roberts. The court was required to determine the division of property and superannuation interests between the parties. Additionally, Ms Whitten sought an order for Mr Roberts to pay her legal costs.

The court addressed several legal issues, primarily focusing on the equitable division of the parties' property and superannuation. The court considered the contributions made by each party to the relationship and the respective property holdings. Additionally, the court examined the applicable provisions of the Family Law Act 1975, particularly those concerning the division of superannuation interests. The court also considered the relevant case law and statutory guidelines to ensure a fair outcome.

In its reasoning, the court found that an equitable division of the parties' property and superannuation required the payment of $280,000.00 from Mr Roberts to Ms Whitten. The court further determined that Ms Whitten was entitled to a portion of Mr Roberts' superannuation benefits, calculated according to the relevant regulations. The court set an operative time for the superannuation order, ensuring that the trustee would be notified promptly. The court also ruled on the retention of property, the assumption of liabilities, and the allocation of costs between the parties. Ultimately, the court issued orders that Mr Roberts pay Ms Whitten $280,000.00 within 60 days and that she receive a share of his superannuation, with a corresponding reduction in his entitlements.

Orders

Orders of the court

Within 60 days of the date of these Orders, the Respondent pay the Applicant the sum of $280,000.00.

In accordance with section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Roberts from his interest in the (omitted) Superannuation Scheme, Ms Whitten is entitled to be paid (by the Trustee of the (omitted) Scheme) the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using a base amount of $240,000.00 and there shall be a corresponding reduction in the amount Mr Roberts would be entitled to receive but for these Orders.

The Operative time for Order 2 is four (4) business days after the service of these Orders upon the Trustee.

Unless as otherwise provided for in these Orders, the parties are to retain the property (real and personal) currently in their possession.

Each party will be solely responsible for any liability in their name as at the date of these Orders and will indemnify the other party and keep them indemnified with respect to those liabilities.

In the absence of any submissions in writing within seven (7) days of the date of these Orders, there will be a self-executing Order that each party shall 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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