Anaya and Anaya - [2019] FCCA 1048

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANAYA & ANAYA

[2019] FCCA 1048

Catchwords:
FAMILY LAW – Property – 45 year marriage – elderly parties – significant inheritance – waste through high risk investments – death of the husband during proceedings

Legislation:

Family Law Act 1975, ss.75(2), 79(1), 79(2), 79(4), 79(8)

Cases cited:

Kowaliw and Kowaliw (1981) FLC 91-092

Applicant:

MR ANAYA as the legal personal representative of the Estate of MR B ANAYA

Respondent:

MS ANAYA

File Number:

CAC 1737 of 2015

Judgment of:

Judge Hughes

Hearing dates:

27 and 28 March 2017, 23 June 2017 and
6 April 2018

Date of Last Submission:

5 July 2018

Delivered at:

Canberra

Delivered on:

18 April 2019

REPRESENTATION

Counsel for the Applicant:

Ms Curran

Solicitors for the Applicant:

Robinson McGuinness

Counsel for the Respondent:

Mr Howard

Solicitors for the Respondent:

Watts McCray

ORDERS

Within 28 days of the date of these orders the parties shall take all necessary steps to:
(a)transfer to the respondent wife at her expense the property at Property C in the State of Queensland, being the whole of the land contained in the Folio Identifier …;
(b)pay from the funds held on trust for the parties:
(i)the sum of $191,750 to the wife; and
(ii)the balance to the applicant.
(c)transfer to the wife at her expense the applicant’s interest in the Motor Vehicle D registration number ….
Within 7 days of the receipt by the respondent of the cash payable to her in accordance with order (1)(b) above, the wife shall pay the outstanding account to Removalists in the sum of $1,323.40 and provide evidence of the payment to the applicant’s solicitors within a further 7 days.
Within 28 days the wife shall provide to the applicant’s solicitors the two paintings by … and the painting by ….
Within 28 days, or such further time as agreed in writing, the wife shall deliver to the solicitors for the applicant all family photographs and slides in her possession for copying.
The applicant shall return the original photographs and slides to the solicitors for the wife within a further 28 days or such further time as agreed in writing.
Except as provided in these orders each party is declared to be the sole owner to the exclusion of the other of all items of property in their name or possession at the date of these orders.
All extant applications are hereby dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1737 of 2015

MR ANAYA as the legal personal representative of the Estate of MR B ANAYA

Applicant

And

MS ANAYA

Respondent

REASONS FOR JUDGMENT

Introduction

These are property proceedings after a marriage of almost 46 years. During the proceedings the husband, who had for some time been represented by a litigation guardian, died. The proceedings were continued by the legal personal representative 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 Anaya and Anaya

Details

AGLC: Anaya and Anaya [2019] FCCA 1048
Case: [2019] FCCA 1048
Decision Date: 18 April 2019

CaseChat Overview and Summary

In the matter of *Anaya and Anaya*, heard by Judge Hughes, the dispute concerned the division of property between the parties. The court was required to make orders regarding the transfer of property, the distribution of funds, and the disposition of various personal items.

The primary legal issues before the court were how to equitably divide the parties' assets and liabilities, including real property, motor vehicles, and personal effects, and to make consequential orders for the transfer and payment of these items. The court also needed to address the dismissal of any outstanding applications.

Judge Hughes ordered that within 28 days, the parties were to take all necessary steps to transfer a property in Queensland to the respondent wife at her expense. Additionally, funds held on trust were to be used to pay the wife $191,750, with the balance to be paid to the applicant. The applicant's interest in a motor vehicle was also to be transferred to the wife at her expense. Further orders stipulated the wife's responsibility to pay a removalist account and to provide specific paintings and family photographs to the applicant's solicitors for copying, with the originals to be returned to the wife's solicitors thereafter. Each party was declared the sole owner of all other property in their name or possession, and all extant applications were dismissed.

Orders

Orders of the court

Within 28 days of the date of these orders the parties shall take all necessary steps to:

(a) transfer to the respondent wife at her expense the property at Property C in the State of Queensland, being the whole of the land contained in the Folio Identifier …;

(b) pay from the funds held on trust for the parties:

(i) the sum of $191,750 to the wife; and

(ii) the balance to the applicant.

Within 7 days of the receipt by the respondent of the cash payable to her in accordance with order (1)(b) above, the wife shall pay the outstanding account to Removalists in the sum of $1,323.40 and provide evidence of the payment to the applicant’s solicitors within a further 7 days.

Within 28 days the wife shall provide to the applicant’s solicitors the two paintings by … and the painting by ….

Within 28 days, or such further time as agreed in writing, the wife shall deliver to the solicitors for the applicant all family photographs and slides in her possession for copying.

The applicant shall return the original photographs and slides to the solicitors for the wife within a further 28 days or such further time as agreed in writing.

Except as provided in these orders each party is declared to be the sole owner to the exclusion of the other of all items of property in their name or possession at the date of these orders.

All extant applications are hereby dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.