Young and Young and Ors - [2009] FMCAfam 965

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YOUNG & YOUNG & ORS

[2009] FMCAfam 965

FAMILY LAW – Parenting – undefended proceedings – sole parental responsibility.

FAMILY LAW – Property – undefended proceedings – non-disclosure – assessment of contribution – s.75(2) factors – just and equitable order.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79

A & Z [2006] FamCA 179
Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Norbis v Norbis (1986) 161 CLR 513
Pierce v Pierce (1998) FLC 92-844
Weir (1993) FLC 92-338
Williams & Williams [2007] FamCA 313

Applicant:

MS YOUNG

First Respondent:

MR G. YOUNG

Second Respondent:

MR I. YOUNG

Third Respondent:

MR A. YOUNG

File Number:

SYC 7813 of 2007

Judgment of:

Altobelli FM

Hearing date:

6 July 2009

Date of Last Submission:

6 July 2009

Delivered at:

Sydney

Delivered on:

11 September 2009

REPRESENTATION

Counsel for the Applicant:

Mr Batey

Solicitors for the Applicant:

York Family Law

Counsel for the first Respondent:

No appearance

Solicitors for the first Respondent:

No appearance

Counsel for the second Respondent:

by consent

Solicitors for the second Respondent:

Oxford legal

Counsel for the third Respondent:

by consent

Solicitors for the third Respondent:

Oxford legal

ORDERS

The children of the marriage:
(a)[W] born in 1998;
(b)[X] born in 2000;
(c)[Y] born in 2002; and
(d)[Z] born in 2004
live with the wife.
The wife have parental responsibility for the day to day care, welfare and development of the children.
The wife have sole parental responsibility for the long term welfare and development of the children.
There be no Orders in relation to spend time with between the children and the father.
Forthwith a Registrar of the Federal Magistrates Court or the Family Court be appointed on behalf of the husband and sign all necessary documents to transfer to the wife all of the Husband’s right title and interest in the property known as and situated at Property G in the State of New South Wales being the whole of the land in folio identifier 176/234436 subject to the mortgage thereon.
Within 30 days from the date of these Orders, the wife be responsible for and refinance the mortgage secured over the Property G home.
Within 30 days from the date of these orders, the husband pay to the wife the sum of $205,000 being:
(a)The $175,000 owing to the wife’s parents for the failed business; and
(b)$30,000 the husband withdrew from the Mortgage account by forging the wife’s signature and increasing the mortgage facility.
Contemporaneously with the Husband’s compliance with Order 7 hereof, the wife indemnify and keep the Husband indemnified in relation to the debt owing by the Parties jointly to the wife’s parents.
The wife be declared the sole legal and beneficial owner of all other property in her possession, custody or control or in her personal name including but not limited to bank accounts, superannuation, bank accounts, motor vehicles and any property.

IT IS NOTED that publication of…

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 Young and Young and Ors

Details

AGLC: Young and Young and Ors [2009] FMCAfam 965
Case: [2009] FMCAfam 965
Decision Date: 11 September 2009

CaseChat Overview and Summary

In the matter of Young and Young, the court addressed a dispute between the parties regarding both parenting and property matters arising from their separation. The wife sought sole parental responsibility for the couple's four children, alongside orders concerning the transfer of property and financial contributions. The proceedings were undefended, and the court was required to determine the appropriate parenting arrangements for the children, as well as the fair distribution of the couple's property, considering the husband's non-disclosure of financial information.

The primary legal issues involved establishing the best interests of the children and determining the fair division of the matrimonial property. Given the husband's failure to disclose his financial situation, the court had to make an equitable assessment of his contributions to the family assets. The court also needed to decide whether the wife should be granted sole parental responsibility, and if so, whether any visitation arrangements should be ordered for the father.

The court found that it was in the best interests of the children to live with the wife, granting her sole parental responsibility for both day-to-day care and long-term welfare. No visitation orders were made for the father. Regarding property, the court ordered the transfer of the husband's interest in a specific property to the wife, subject to an existing mortgage. The wife was directed to refinance this mortgage within 30 days. Additionally, the husband was ordered to repay $205,000 to the wife, covering debts owed to her parents and a sum withdrawn by forging her signature. The wife was also required to indemnify the husband regarding the joint debt to her parents.

The final orders included the wife being declared the sole legal and beneficial owner of all other property in her possession or under her personal name. The court's decision reflected its consideration of the husband's non-disclosure and the need for an equitable resolution of the financial and parenting issues.

Orders

Orders of the court

The children of the marriage:

(a) [W] born in 1998;

(b) [X] born in 2000;

(d) [Z] born in 2004

live with the wife.

The wife have parental responsibility for the day to day care, welfare and development of the children.

The wife have sole parental responsibility for the long term welfare and development of the children.

There be no Orders in relation to spend time with between the children and the father.

Forthwith a Registrar of the Federal Magistrates Court or the Family Court be appointed on behalf of the husband and sign all necessary documents to transfer to the wife all of the Husband’s right title and interest in the property known as and situated at Property G in the State of New South Wales being the whole of the land in folio identifier 176/234436 subject to the mortgage thereon.

Within 30 days from the date of these Orders, the wife be responsible for and refinance the mortgage secured over the Property G home.

Within 30 days from the date of these orders, the husband pay to the wife the sum of $205,000 being:

(a) The $175,000 owing to the wife’s parents for the failed business; and

(b) $30,000 the husband withdrew from the Mortgage account by forging the wife’s signature and increasing the mortgage facility.

Contemporaneously with the Husband’s compliance with Order 7 hereof, the wife indemnify and keep the Husband indemnified in relation to the debt owing by the Parties jointly to the wife’s parents.

The wife be declared the sole legal and beneficial owner of all other property in her possession, custody or control or in her personal name including but not limited to bank accounts, superannuation, bank accounts, motor vehicles and any property.

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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