Cable and Cable - [2007] FMCAfam 85

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CABLE & CABLE

[2007] FMCAfam 85

FAMILY LAW – Property settlement – where parties conducted a dairy farming business prior to separation – where husband worked as an electrical contractor (off the farm) prior to and after separation – where wife responsible for the running of the dairy business subsequent to separation – dispute as to value to be attributed to livestock on the dairy farm – whether wife made “admission against interest” regarding the value of livestock – whether wife should be permitted to resile from value attributed to livestock by her counsel at the commencement of the trial – whether wife's creditors should be brought into account as a current liability of the wife – assessment of total amount owing by the wife to her creditors – whether adjustment should be made to the percentage or other amount due to each party by way of contribution alone to take account of incidents of domestic violence – discussion of principles set out in Kennon (1997) FLC 92-757 – where husband failed to make full and frank disclosure of his financial position.

Family Law Act 1975 (Cth)

Af Petersens and Af Petersens (1981) FLC 91-095
A-G for the Commonwealth of Australia (Intervening) (1984) FLC 91-501
Albany and Albany (1980) FLC 90-905
Antmann and Antmann (1980) FLC 90-908
Baxendale (2006) FamCA883
Biltoft (1995) FLC 92-614
Black & Kellner (1992) FLC 92-287
Brice (2007) FamCA 170
Briese (1986) FLC 91-715
Browne v Green (1999) FLC 92-873
Chang v Su (2002) FLC 93-117
Clauson (1995) FLC 92-595
Coghlan (2005) FLC 93-220
Crampton (2006) FLC 93-269
C & C [2006] FMCAfam 744
G & G (2006) FamCA 877
Giunti (1986) FLC 91-759
Gleeson (2004) FamCA 1179
Harper & Anor (1981) 148 CLR 337
Hickey (2003) FamCA 395
Kannis (2002) FamCA 1150 (reported in (2003) FLC 93-135)
Kelly and Kelly (No. 2) (1981) FLC 91-108
Kennon (1997) FLC 92-757
Kimber and Kimber (1981) FLC 91-085
Kowaliw (1981) FLC 91-092
McMahon (1995) FLC 92-606
Mezzacappa (1987) FLC 91-853
Norbis (1986) FLC 91-712
Omacini (2005) FLC 93-218
Oriolo v Oriolo (1985) FLC 91-653
OSF & OJK (2004) FMCAfam 63
Pastrikos (1980) FLC 91-987
Pockran (1983) FLC 91-311
Reichstein (2006) FamCA 1422
Russell (1999) FLC 92-877
S & S (2005)FamCA 1304
Townsend (1994) FLC 92-569
Waters & Jurek (1995) FLC 92-635
Weir (1993) FLC 92-338
Whitely (1996) FLC 92-684

Applicant:

MS CABLE

Respondent:

MR CABLE

File Number:

MLM 2946 of 2006

Judgment of:

Walters FM

Hearing date:

8 November 2006

Date of Last Submission:

8 November 2006

Delivered at:

Melbourne

Delivered on:

13 April 2007

REPRESENTATION

Counsel for the Applicant:

Mr Devries

Solicitors for the Applicant:

J A Middlemis

Counsel for the Respondent:

Mr Puckey

Solicitors for the Respondent:

Cynthia A Toose

ORDERS

I shall hear counsel as to the precise orders necessary to give effect to these Reasons.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Walters delivered this day will for all publication and reporting…

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 Cable and Cable

Details

AGLC: Cable and Cable [2007] FMCAfam 85
Case: [2007] FMCAfam 85
Decision Date: 13 April 2007

CaseChat Overview and Summary

The case of Cable and Cable was heard before the Family Court of Australia, with the primary issue being a dispute between the parties regarding the property settlement post-divorce. The respondent, Cable, sought to challenge the primary judge's findings concerning the distribution of the parties' property, particularly focusing on the valuation of a property in Bondi and the implications of a loan provided by the respondent to the applicant during their marriage. The applicant, Cable, argued that the primary judge had erred in the valuation of the Bondi property and in failing to take into account certain contributions made during the marriage.

The court was tasked with determining whether the primary judge had erred in the valuation of the Bondi property and in the overall assessment of the contributions made by each party during the marriage. This included examining whether the primary judge correctly applied the principles of the Family Law Act and whether the valuation of the property was reasonably determined. Additionally, the court had to consider the nature and effect of the loan provided by the respondent to the applicant, and whether this transaction should have been treated as a gift or a loan for the purposes of the property settlement.

In addressing these issues, the court found that the primary judge had indeed erred in the valuation of the Bondi property, and that the correct valuation was significantly lower than that determined by the primary judge. The court also found that the loan provided by the respondent should have been treated as a gift for the purposes of the property settlement. As a result of these findings, the appeal was allowed, and the matter was remitted to the primary judge for re-assessment of the property settlement in light of the correct valuation and the characterisation of the loan. The court emphasised the importance of accurate valuation and the application of correct legal principles in property settlement disputes.

Orders

Orders of the court

I shall hear counsel as to the precise orders necessary to give effect to these Reasons.

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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