Saturday, 14 March 2009

FMC case: the recent migrant

In the recent Federal Magistrates Court case of Maguire and Richter, Federal Magistrate Brown considered a property settlement when the parties' circumstances were poor, their relationship was brief, and the wife sought an adjustment in part because she migrated to Australia from Germany, leaving her worse off.

Brown FM did not allow any adjustment for the migration issue. His Honour held:

It is the wife’s position that she has suffered a more significant diminution in her standard of living than the husband in the period since separation. I accept that this is so. The husband has had the benefit of living in the former matrimonial home, but he owned this property prior to the parties’ marriage.
It is also the case that the wife has been at a significant disadvantage following separation, because she has been compelled to live in an environment where she feels herself to be “amid the alien corn”. However, the wife freely chose to come to Australia and pursue a new life here. It is also open to her to return to Germany, where she has secure employment awaiting her.
At present, the wife can see many attractions of remaining living in [L]. She has made friends in [L]. She apparently enjoys the lifestyle and climate of Australia....

The wife complains about the social consequences of the failed marriage from her point of view. She has been transplanted from her native soil and given up opportunities there. However, this was a decision she freely made and, although it is not likely to be more financially advantageous to her to remain in Australia, she has chosen not to return to Germany. By necessary implication, she can see some advantages to her of living in this country.
I am satisfied both parties entered the marriage with a genuine intention to make it succeed. As a result, both made compromises to this end. Now both suffer consequences as a result of the marriage’s failure. I do not think that these various factors, when balanced against each other, justify any further distribution of property in either parties favour.

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