Cahill and Cottrell - [2013] FCCA 751

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAHILL & COTTRELL

[2013] FCCA 751

Catchwords:
FAMILY LAW – De facto relationship – property.

Legislation:

Family Law Act 1975, ss.75, 79, 90SF, 90SM

Cases cited:
Clauson (1995) FLC 92-595
Clives and Clives (2008) FLC 93-385
C v C (2005) FLC 93-220
Ferraro (1993) FLC 92-335
Garrett and Garrett (1984) FLC 91-539
Hayne and Hayne (1977) FLC 90-265
Hickey (2003) FLC 93-143
Kessey and Kessey (1994) FLC 92-495
Lee Steere (1985) FLC 91-626
Lovine & Connor and Anor (2012) FLC 93-515
OSF and OJK (2004) FLC 93-191
Parshen & Parshen (1996) FLC 92-720
Petruski & Balewa [2013] FamCAFC 15
Poulos and Poulos (1984) FLC 91-515
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Russell v Russell (1999) FLC 92-877
Stanford v Stanford (2012) FLC 93-518; (2013) 293 ALR 70

Applicant:

MS CAHILL

Respondent:

MR COTTRELL

File Number:

LNC 210 of 2012

Judgment of:

Judge Roberts

Hearing date:

12 June 2013

Date of Last Submission:

12 June 2013

Delivered at:

Launceston

Delivered on:

12 July 2013

REPRESENTATION

Counsel for the Applicant:

Mr K J Waterhouse

Solicitors for the Applicant:

P.L. Corby & Co

Counsel for the Respondent:

Mr M Foster

Solicitors for the Respondent:

Murdoch Clarke

ORDERS

That within 30 days of the date of this order MS CAHILL (“the applicant”) must transfer to MR COTTRELL (“the respondent”) all her estate and interest in the property situated at Property S in Tasmania (“the Tasmanian property”).
That contemporaneously with the transfer of the Tasmanian property to the respondent referred to in Order No. (1) hereof the respondent must:
(a)provide to the applicant discharges or partial discharges of mortgages so as to release the applicant from any liability under any mortgage registered and secured upon title to the Tasmanian property; and
(b)pay to the applicant the sum of $25,000 (twenty-five thousand dollars).
That the respondent must henceforth indemnify the applicant against any liability for outgoings in respect of the Tasmanian property.
That the applicant and the respondent must do all acts and execute all documents necessary to implement these orders.
That unless specified in these Orders:
(a)each party is solely entitled to the exclusion of the other to all other property in possession of that party as at the date of these Orders;
(b)any claim that either party may have to any superannuation benefit belonging to or earned by the other is extinguished;
(c)all insurance policies become the sole property of the person in whose name the policy stands as owner;
(d)each party will be solely liable for and must indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT LAUNCESTON

LNC 210 of 2012

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 Cahill and Cottrell

Details

AGLC: CAHILL & COTTRELL [2013] FCCA 751
Case: [2013] FCCA 751
Decision Date: 12 July 2013

CaseChat Overview and Summary

In the matter of *Cahill and Cottrell*, heard by Judge Roberts, the dispute concerned the division of property between Ms Cahill, the applicant, and Mr Cottrell, the respondent. The court was required to make orders regarding the disposition of a property located in Tasmania and other assets and liabilities of the parties.

The central legal issues before the court were the equitable distribution of the parties' property interests and the extinguishment of mutual claims. Specifically, the court had to determine how the Tasmanian property should be dealt with, including the release of the applicant from mortgage liabilities and a monetary payment to her. Furthermore, the court needed to address the division of all other property, the allocation of liabilities, and the severance of any joint tenancies.

Judge Roberts ordered that Ms Cahill must transfer her interest in the Tasmanian property to Mr Cottrell within 30 days. Contemporaneously, Mr Cottrell was required to provide discharges of mortgages to release Ms Cahill from liability and pay her $25,000. Mr Cottrell was also ordered to indemnify Ms Cahill against future outgoings for the Tasmanian property. The orders further stipulated that each party would retain sole entitlement to other property in their possession, claims to each other's superannuation were extinguished, insurance policies would become the sole property of the named owner, and each party would be solely liable for and indemnify the other against liabilities encumbering property they received. Finally, any joint tenancies were expressly severed.

Orders

Orders of the court

That within 30 days of the date of this order MS CAHILL (“the applicant”) must transfer to MR COTTRELL (“the respondent”) all her estate and interest in the property situated at Property S in Tasmania (“the Tasmanian property”).

That contemporaneously with the transfer of the Tasmanian property to the respondent referred to in Order No. (1) hereof the respondent must:

(a) provide to the applicant discharges or partial discharges of mortgages so as to release the applicant from any liability under any mortgage registered and secured upon title to the Tasmanian property; and

(b) pay to the applicant the sum of $25,000 (twenty-five thousand dollars).

That the respondent must henceforth indemnify the applicant against any liability for outgoings in respect of the Tasmanian property.

That the applicant and the respondent must do all acts and execute all documents necessary to implement these orders.

That unless specified in these Orders:

(a) each party is solely entitled to the exclusion of the other to all other property in possession of that party as at the date of these Orders;

(b) any claim that either party may have to any superannuation benefit belonging to or earned by the other is extinguished;

(d) each party will be solely liable for and must indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

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.