BRISCOE & BRISCOE - [2019] FCCA 2296

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRISCOE & BRISCOE

[2019] FCCA 2296

Catchwords:
FAMILY LAW – Property settlement – husband has diminished the property pool since separation – contributions – “Kennon” consideration - s.75(2) factors.

Legislation:

Family Law Act 1975 (Cth), ss.79, 75(2)

Cases cited:

Re: L (Litigants in Person Guidelines) (2001) FLC 93-072

McKenzie v McKenzie [1970] All ER 1034

Stanford v Stanford [2012] HCA 52

Russell v Russell (1999) FLC 92-877

Trevi & Trevi [2018] FamCAFC 173

Bevan & Bevan (2013) FLC 93-545

AJO & GRO (2005) FLC 93-218

C & C [1998] FamCA 143

Kennon & Kennon (1997) FLC 92-757 at 84,294

Keating & Keating [2019] FamCAFC 46

Spagnardi & Spagnardi [2003] FamCA 905

Amador & Amador [2009] 43 FamLR 268

Pierce v Pierce (1999) FLC 92-844

Applicant:

MS BRISCOE

Respondent:

MR BRISCOE

File Number:

LNC 314 of 2018

Judgment of:

Judge McGuire

Hearing dates:

1, 2 & 5 August 2019

Date of Last Submission:

5 August 2019

Delivered at:

Launceston

Delivered on:

5 September 2019

REPRESENTATION

Counsel for the Applicant:

Ms J Higgins

Solicitors for the Applicant:

Bishops

Respondent appeared in person

ORDERS

That within fourteen (14) days of the date of these Orders the parties sign all documents and do all such things so at to market and sell the property at B Street, Town C in Tasmania but should the husband refuse or fail to sign and return any such documents to the wife’s solicitors within seven (7) days of receipt then pursuant to s.106A of the Family Law Act 1975 a Registrar of this Court be enabled to sign any and all such documents.
That within fourteen (14) days of the date of these Orders the parties sign all documents and do all such things necessary to conduct a sale of plant, equipment and hay on the property at B Street, Town C in Tasmania but should the husband refuse or fail to sign any such documents to the wife’s solicitors within seven (7) days of receipt then pursuant to s.106A of the Family Law Act 1975 a Registrar of this Court be enabled to sign any and all such documents.
That the property at B Street, Town C in Tasmania be marketed for sale by auction or private treaty as recommended by the real estate agent and at a sale price and/or reserve price as recommended by the real estate agent and that the parties accept any offer of settlement as reasonably recommended by the real estate agent.
That the property be marketed by an agent as agreed between the parties but failing agreement then by an agent nominated by the President of the Real Estate Institute of Tasmania or his/her delegate.
That the balance proceeds of sale of the property at B Street, Town C in Tasmania be paid to the wife after reasonable costs and disbursements on the sale.
That the plant, equipment and hay on the property be sold by a reputable agent as agreed between the parties…

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 BRISCOE & BRISCOE

Details

AGLC: BRISCOE & BRISCOE [2019] FCCA 2296
Case: [2019] FCCA 2296
Decision Date: 5 September 2019

CaseChat Overview and Summary

In BRISCOE & BRISCOE, Judge McGuire considered a property settlement dispute between a husband and wife. The core of the disagreement involved the husband's alleged diminution of the marital property pool since the parties' separation. The court was tasked with determining how to divide the remaining assets and liabilities, taking into account the parties' contributions and various factors under section 75(2) of the *Family Law Act 1975* (Cth), including the impact of the husband's actions on the property pool.

The court's reasoning focused on achieving a just and equitable distribution of the property. It acknowledged the principle that a party who diminishes the property pool after separation may be taken into account in the property settlement, referencing considerations akin to those in *Kennon v Kennon*. The court applied the relevant sections of the *Family Law Act 1975* to assess the contributions of each party and the future needs and circumstances of both the husband and wife.

Ultimately, the court ordered the sale of the parties' property at B Street, Town C, Tasmania, along with associated plant, equipment, and hay. The proceeds of these sales were to be paid to the wife after sale costs. The husband was ordered to make a cash adjustment to the wife to achieve a final division of 56% of the property pool to the husband and 44% to the wife. The wife was to receive certain properties in Town N, Tasmania, the husband's superannuation, and personalty, while the husband was to receive the wife's superannuation and personalty. Each party was to be solely responsible for liabilities incurred since separation and for assets retained. The orders were intended to finally determine the financial relationship between the parties.

Orders

Orders of the court

That within fourteen (14) days of the date of these Orders the parties sign all documents and do all such things so at to market and sell the property at B Street, Town C in Tasmania but should the husband refuse or fail to sign and return any such documents to the wife’s solicitors within seven (7) days of receipt then pursuant to s.106A of the Family Law Act 1975 a Registrar of this Court be enabled to sign any and all such documents.

That within fourteen (14) days of the date of these Orders the parties sign all documents and do all such things necessary to conduct a sale of plant, equipment and hay on the property at B Street, Town C in Tasmania but should the husband refuse or fail to sign any such documents to the wife’s solicitors within seven (7) days of receipt then pursuant to s.106A of the Family Law Act 1975 a Registrar of this Court be enabled to sign any and all such documents.

That the property at B Street, Town C in Tasmania be marketed for sale by auction or private treaty as recommended by the real estate agent and at a sale price and/or reserve price as recommended by the real estate agent and that the parties accept any offer of settlement as reasonably recommended by the real estate agent.

That the property be marketed by an agent as agreed between the parties but failing agreement then by an agent nominated by the President of the Real Estate Institute of Tasmania or his/her delegate.

That the balance proceeds of sale of the property at B Street, Town C in Tasmania be paid to the wife after reasonable costs and disbursements on the sale.

That the plant, equipment and hay on the property be sold by a reputable agent as agreed between the parties but failing agreement then by Valuers C/Auctioneers or by a reputable agent as recommended by the manager of Valuers C.

That the proceeds of sale of the plant, equipment and hay be paid to the wife after reasonable costs and disbursements on the sale.

That within twenty-eight (28) days of the date of settlement of the sale of The B Street, Town C property and the sale of plant, equipment and hay the husband make a cash adjustment to the wife in a quantum so as to give a net 56% of the property pool pursuant to these reasons to the husband and a net 44% of the pool to the wife.

That subject to these Orders the wife transfer her right, title and interest in the following to the husband absolutely:

(a) Property at M(1) Street, Town N in Tasmania;

(b) Property at M(2) Street, Town N in Tasmania;

(d) Husband’s superannuation entitlement;

(e) All personalty and chattels, including motor vehicles, in the possession of or under the control of the husband as at the date of these Orders; and

(f) Any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these Orders.

10.

That contemporaneously with the transfer Orders above the husband transfer and/or vest all his right, title and interest in the following to the wife absolutely:

(a) The wife’s superannuation entitlement;

(b) All personalty and chattels including motor vehicles currently in the possession or control of the wife as at the date of these Orders;

11.

That the husband be solely responsible for and indemnify the wife in respect of any mortgage liability secured by any of the properties at M(1), M(2) and M(3) Street, Town N in Tasmania.

12.

That each party be solely responsible for and indemnify the other in respect of any liabilities incurred by that party since separation in either that party’s name or in joint names and in respect of any asset retained by that party pursuant to these Orders.

13.

That the parties or either of them have liberty to apply in respect of the execution or enforcement of these Orders.

14.

That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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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