Cameron and Cameron - [2008] FMCAfam 855

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAMERON & CAMERON

[2008] FMCAfam 855

FAMILY LAW – Property – credit – both parties wish to retain the real estate – asset pool – equality of contributions –s.75(2) factors favour husband.

Family Law Act 1975 (Cth) ss.79 & 75

Lee Steere (1985) FLC 91-626
Ferraro (1993) FLC 92-335
Clauson (1995) FLC 92-595
Hickey (2003) FLC 93-143
C & C (2005) FLC 93-220
Russell v Russell (1999) FLC 92-877
NHC & RCH (2004) FLC 93-204
Cerini and Cerini [1998] FamCA 143
AJO & GRO (2005) FLC 93-218
Wilde & Wilde [2007] FamCA 1044
Kowaliw and Kowaliw (1981) FLC 91-092
Browne v Green (1999) FLC 92-873
Kessey and Kessey (1994) FLC 92-495
Hayne and Hayne (1977) FLC 90-265
Garrett and Garrett (1984) FLC 91-539
Poulos and Poulos (1984) FLC 91-515

Applicant:

MR CAMERON

Respondent:

MS CAMERON

File Number:

LNC 485 of 2007

Judgment of:

Roberts FM

Hearing dates:

31 July, 1 & 8 August 2008

Date of Last Submission:

8 August 2008

Delivered at:

Launceston

Delivered on:

19 August 2008

REPRESENTATION

Counsel for the Applicant:

Ms A Trezize

Solicitors for the Applicant:

Andrea Trezise

Counsel for the Respondent:

Mr M Longbottom

Solicitors for the Respondent:

Not applicable

ORDERS

That within ninety (90) days MR CAMERON (“the Husband”) is to pay to MS CAMERON (“the Wife”) the sum of One Hundred and Sixty Six Thousand Five Hundred and Fifteen dollars ($166,515.00).
That contemporaneously with the payment to the Wife of $166,515.00 referred to in Order No. 1 hereof the Wife must transfer to the Husband all her right title and interest in the property situate at and known as Property N in Tasmania and more particularly described in Certificates of Title Volume [omitted] Folio 1 and Volume [omitted] Folio 1 (“the property”).
That in the event that the Husband fails to pay to the Wife the sum required by Order No. 1 hereof within ninety (90) days or within any agreed or Court ordered extension of that time the Wife is to pay the Husband the sum of Two Hundred and Five Thousand Four Hundred and Eighty Five dollars ($205,485.00) within a further ninety (90) days.
That contemporaneously with the payment to the Husband referred to in Order No. 3 hereof the Husband must transfer to the Wife all his right title and interest in the property.
That in the event that the Wife fails to pay the sum of $205,485.00 to the Husband in accordance with Order No. 3 hereof within the further period of ninety (90) days or any agreed or Court ordered extension of that time, the Husband and the Wife must do all acts and execute all documents necessary to sell the property at the best price that can reasonably be obtained, and the net proceeds after payment of all reasonable costs associated with that sale are to be divided on the basis of 55% to the Husband and 45% to the Wife.
That compliance with Orders No. 1 and…

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 Cameron and Cameron

Details

AGLC: Cameron and Cameron [2008] FMCAfam 855
Case: [2008] FMCAfam 855
Decision Date: 19 August 2008

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Cameron and Cameron was heard and determined by Judge Wilson. The dispute between the parties, Cameron and Cameron, centred around the division of property and financial settlements following the termination of their marriage. The Wife sought a financial adjustment under the Family Law Act, and the Husband disputed her claims.

The court had to determine the appropriate division of property between the parties, including the sale of a property if necessary, and the respective shares of the net proceeds. The court was also required to decide the payment of a financial settlement by one party to the other, with a fallback arrangement if the payment was not made within a specified period. The court had to resolve which personal assets each party could retain free from claims by the other and how to divide the remaining domestic chattels.

The court found that the Wife was entitled to a financial settlement of $166,515.00 from the Husband, which was to be paid within ninety days. In return, the Wife would transfer her interest in a property to the Husband. If the Husband failed to make the payment, the Wife would be required to pay $205,485.00 to the Husband, and he would transfer his interest in the property to her. If the Wife did not make the payment, the property was to be sold, and the net proceeds divided between the parties. The court also determined which personal assets each party could retain and ordered the division of other domestic chattels.

The court made several orders, including that the Husband pay $166,515.00 to the Wife within ninety days and transfer his interest in the property to her. If the payment was not made, the Wife was to pay $205,485.00 to the Husband, and he was to transfer his interest in the property to her. The court ordered the sale of the property and division of the net proceeds if the Wife did not make the payment. The court also specified which personal assets each party could retain and directed the division of other domestic chattels.

Orders

Orders of the court

That within ninety (90) days MR CAMERON (“the Husband”) is to pay to MS CAMERON (“the Wife”) the sum of One Hundred and Sixty Six Thousand Five Hundred and Fifteen dollars ($166,515.00).

That contemporaneously with the payment to the Wife of $166,515.00 referred to in Order No. 1 hereof the Wife must transfer to the Husband all her right title and interest in the property situate at and known as Property N in Tasmania and more particularly described in Certificates of Title Volume [omitted] Folio 1 and Volume [omitted] Folio 1 (“the property”).

That in the event that the Husband fails to pay to the Wife the sum required by Order No. 1 hereof within ninety (90) days or within any agreed or Court ordered extension of that time the Wife is to pay the Husband the sum of Two Hundred and Five Thousand Four Hundred and Eighty Five dollars ($205,485.00) within a further ninety (90) days.

That contemporaneously with the payment to the Husband referred to in Order No. 3 hereof the Husband must transfer to the Wife all his right title and interest in the property.

That in the event that the Wife fails to pay the sum of $205,485.00 to the Husband in accordance with Order No. 3 hereof within the further period of ninety (90) days or any agreed or Court ordered extension of that time, the Husband and the Wife must do all acts and execute all documents necessary to sell the property at the best price that can reasonably be obtained, and the net proceeds after payment of all reasonable costs associated with that sale are to be divided on the basis of 55% to the Husband and 45% to the Wife.

That compliance with Orders No. 1 and 2 hereof will mean that Orders No. 3, 4 and 5 hereof have no force or effect.

That compliance with Orders No. 3 and 4 hereof will mean that Order No. 5 hereof has no force or effect.

That the Husband is to retain his Toyota Camry, Toyota Landcruiser, Yamaha motorcycle, tools and superannuation interests free from any claim by the Wife.

That the Wife is to retain her Toyota Hi-ace and her superannuation interests free from any claim by the Husband.

10.

That all other domestic chattels in and around the property are to be divided between the Husband and the Wife as equally by value as is practicable.

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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