Bigelow & Reuter - [2006] FamCA 1455

FAMILY COURT OF AUSTRALIA

BIGELOW & REUTER

[2006] FamCA 1455

APPEAL – Against decision of Federal Magistrate on property matters – Short childless marriage – Federal Magistrate awarded husband 80% of asset pool based on his greater capital contribution – Federal Magistrate was dismissive of wife’s allegations about the use to which the husband’s monies were put – A significant amount of money brought in by the husband used for his own purposes rather than for the benefit of the marriage partnership – Lack of evidence about the wife’s non-financial contributions – Federal Magistrate placed too much emphasis on the disparity of income between the parties – Nothing to indicate the wife was not pulling her weight in terms of effort – Appropriate finding on contributions should be 70% in favour of the husband – No adjustment for s75(2) factors.

Family Law Act 1975 (Cth)

APPELLANT:

MS BIGELOW

RESPONDENT:

MR REUTER

FILE NUMBER:

LNM

321

2005

APPEAL NUMBER:

2006

DATE DELIVERED:

20 DECEMBER 2006

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE KAY

HEARING DATE:

20 DECEMBER 2006

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

30 JUNE 2006

LOWER COURT MNC:

[2006] FMCAfam 387

REPRESENTATION

COUNSEL FOR THE APPELLANT:

IN PERSON

SOLICITORS FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT:

MS TREZISE

SOLICITORS FOR THE RESPONDENT:

AT LEGALS

Orders

The appeal be allowed.
That order 2 of the orders made by Roberts FM on 30 June 2006 be varied to read as follows:
"That on or before 28 February 2007 and contemporaneously with the transfer referred to in order 1 hereof, the husband, by his agents, register a Partial Discharge of Mortgage executed by an authorised officer of ANZ Banking Group Ltd releasing the Wife from all liability pursuant to registered mortgage number […] as security against the title of the former matrimonial home and pay to the wife the sum of $17,400."
That order 9 of the orders made by Roberts FM on 30 June 2006 be set aside.
The usual order as to cost certificates to both parties.
That order 1 be varied to replace the words "within 30 days" with the words "on or before 28 February 2007".
That the security provided by the wife for the costs of this appeal now be released to her.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Bigelow and Reuter

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 43 of 2006
File Number: LNM 321 of 2005

MS BIGELOW

Appellant

And

MR REUTER

Respondent

REASONS FOR JUDGMENT

This is an appeal against a judgment of Roberts FM which was delivered on 30 June 2006 in property proceedings between Ms Bigelow and Mr Reuter. As they have been married it is convenient to refer to them as husband and wife, although I am not quite certain of their…

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 Bigelow & Reuter

Details

AGLC: Bigelow & Reuter [2006] FamCA 1455
Case: [2006] FamCA 1455
Decision Date: 20 DECEMBER 2006

CaseChat Overview and Summary

This matter concerned an appeal from orders made by Roberts FM on 30 June 2006. The appeal was brought by the wife, Bigelow, against the husband, Reuter. The dispute related to the division of property and the terms of a mortgage discharge.

The primary legal issues before the court were whether the original orders concerning the transfer of the former matrimonial home and the discharge of the wife from mortgage liability were appropriate, and whether the timeframe for these actions was reasonable. The court also considered the validity of order 9 of the original orders.

Justice Kay allowed the appeal, varying the original orders. The court ordered that the husband, by his agents, register a partial discharge of mortgage releasing the wife from liability on or before 28 February 2007, contemporaneously with the transfer of the former matrimonial home. The husband was also ordered to pay the wife the sum of $17,400. Furthermore, order 9 of the original orders was set aside. The court also varied order 1 to extend the timeframe for the transfer to 28 February 2007 and ordered the release of security provided by the wife for the costs of the appeal.

Orders

Orders of the court

The appeal be allowed.

That order 2 of the orders made by Roberts FM on 30 June 2006 be varied to read as follows:

"That on or before 28 February 2007 and contemporaneously with the transfer referred to in order 1 hereof, the husband, by his agents, register a Partial Discharge of Mortgage executed by an authorised officer of ANZ Banking Group Ltd releasing the Wife from all liability pursuant to registered mortgage number […] as security against the title of the former matrimonial home and pay to the wife the sum of $17,400."

That order 9 of the orders made by Roberts FM on 30 June 2006 be set aside.

The usual order as to cost certificates to both parties.

That order 1 be varied to replace the words "within 30 days" with the words "on or before 28 February 2007".

That the security provided by the wife for the costs of this appeal now be released to her.

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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