Allen & Allen - [2008] FMCAfam 18

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALLEN & ALLEN

[2008] FMCAfam 18

FAMILY LAW – Property settlement – wife deceased – executrix substituted in proceedings – just and equitable.

Family Law Act 1975, ss.75(2), 79(8)(b)(iii)

Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143)
Kildea & Kildea (2007) FamCA 1324
McIntosh (unreported) (BR 1848 of 1995 – delivered 31 May 1996)

Applicant:

Ms Allen (deceased)

Respondent:

Mr Allen

File Number:

BRC 1558 of 2007

Judgment of:

Baumann FM

Hearing date:

7 June 2007

Delivered at:

Brisbane

Delivered on:

18 January 2008

REPRESENTATION

Counsel for the Applicant:

Mr Hamwood

Solicitors for the Applicant:

SJP Law

Counsel for the Respondent:

Mr George

Solicitors for the Respondent:

Simonidis Shoebridge Lawyers

ORDERS

That the matrimonial pool be divided with the Estate of the Late Ms Allen (‘the Estate”) to receive 50% and the Husband to receive 50% as follows:

Asset

Husband

Estate

Sale proceeds of TA Property

Divided so as to provide each party with an equal division of the asset pool.

Divided so as to provide each party with an equal division of the asset pool.

Toyota Coupe

4,000.00

Daewoo Hatch

1,500.00

Chattels - Husband

7,995.00

Chattels – Estate

2,880.00

That unless otherwise specified in these orders each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records therof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements. Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
That the Husband’s Application in a Case filed 18 December 2007 be discontinued.

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

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

Brisbane

BRC 1558 of 2007

Ms Allen (deceased)

Applicant

And

Mr Allen

Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant Wife, MS ALLEN died aged 48 from cancer after proceedings had been commenced by her for property proceedings. It is conceded that the Court would have made an order with respect to property if the deceased party had not died, and the EXECUTRIX

Ms H was substituted for the deceased Wife in these proceedings.
The Respondent Husband Mr Allen also seeks an equitable division of the available pool of assets. Although the trial completed in June 2007, at that time the major asset being the former matrimonial home was on the market for sale. I anticipate that the home has now been sold and the nett proceeds…

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 Allen & Allen

Details

AGLC: Allen & Allen [2008] FMCAfam 18
Case: [2008] FMCAfam 18
Decision Date: 18 January 2008

CaseChat Overview and Summary

The case of Allen & Allen was heard before the Family Court of Australia, where the primary issue was the division of assets between the Estate of the Late Ms Allen and the Husband. The dispute arose following Ms Allen's death, necessitating the distribution of the matrimonial assets and property. The Husband filed an application seeking specific divisions and claiming certain assets, while the Estate, represented by the executor, contested these claims. The court was required to determine the rightful division of the assets and property, including real estate and personal belongings, between the parties.

The legal issues before the court involved interpreting the applicable matrimonial property laws and determining the equitable division of assets. The court had to assess the nature and value of each asset and decide how to distribute them fairly between the parties. This included evaluating the sale proceeds of the matrimonial property and the allocation of personal items and vehicles. The court also needed to address the Husband's application, which sought specific allocations of assets and the discontinuation of certain claims.

The court, after considering the evidence and arguments presented by both parties, ruled that the matrimonial pool should be divided equally between the Estate of the Late Ms Allen and the Husband. Specific assets were allocated to each party, such as the sale proceeds of the property and personal vehicles, with the court ensuring that both parties received an equal share of the asset pool. The Husband's application was discontinued, and the court clarified that each party would be solely entitled to their respective assets, with no further claims allowed. The court also clarified that each party would be solely responsible for any liabilities associated with the assets they received.

Orders

Orders of the court

That the matrimonial pool be divided with the Estate of the Late Ms Allen (‘the Estate”) to receive 50% and the Husband to receive 50% as follows:

Asset

Husband

Estate

Sale proceeds of TA Property

Divided so as to provide each party with an equal division of the asset pool.

Toyota Coupe

4,000.00

Daewoo Hatch

1,500.00

Chattels - Husband

7,995.00

Chattels – Estate

2,880.00

That unless otherwise specified in these orders each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records therof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements. Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

That the Husband’s Application in a Case filed 18 December 2007 be discontinued.

Background

Background to the litigation

Full text does not contain this section.

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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Asset	Husband	Estate
Sale proceeds of TA Property	Divided so as to provide each party with an equal division of the asset pool.	Divided so as to provide each party with an equal division of the asset pool.
Toyota Coupe	4,000.00
Daewoo Hatch	1,500.00
Chattels - Husband	7,995.00
Chattels – Estate	2,880.00