Carney and Carney (No.2) - [2019] FCCA 1275

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARNEY & CARNEY (No.2)

[2019] FCCA 1275

Catchwords:
FAMILY LAW – Property – property adjustment after 29 year marriage – second marriage for both parties – add backs – treatment of nursing home refundable accommodation deposit – contribution by inherited funds - future needs where one party to the marriage is deceased and the other has a compromised life expectancy.

Legislation:

Family Law Act 1975, ss.75, 75, 117

Federal Circuit Court Rules 2001, Division 11.2, Rule 15.29A

Federal Circuit Court Act 1999 (Cth), s.64

Powers of Attorney Act 2003, s.19:

Cases cited:

Fisher v Fisher (1986) HCA 61 (28 October 1986)

Hall & Hall (2016) 257 CLR 490

Lawrie and Lawrie (1981) FLC 91-102

Menzies v Evans & Anors (1987-1989) 12 Fam LR 519

Miklic & Miklic & Anor [2010] FamCA 741

AJO & GRO (2005) FLC 93-218

Re Parrott v Public Trustee of NSW (1994) FLC 92-473

Smith v Smith HCA 36 (27 June 1986)

Stanford v Stanford (2012) FLC 93-518; (2013) 293 ALR 70

Tasmanian Trustees Limited v Gleeson (1990) 14 FamLR 189

Vass & Vass [2015] FamCAFC 51

Applicant:

MS CARNEY BY HER LITIGATION GUARDIAN MR BAKER

Respondent:

ESTATE OF THE LATE MR CARNEY BY HIS EXECUTORS MS HOWARD AND MS NORMAN

File Number:

NCC 774 of 2018

Judgment of:

Judge Costigan

Hearing dates:

8 & 9 April 2019

Date of Last Submission:

23 April 2019

Delivered at:

Newcastle

Delivered on:

16 May 2019

REPRESENTATION

Counsel for the Applicant:

Ms V Carty

Solicitors for the Applicant:

Berryman Partners Lawyers

Counsel for the Respondent:

Mr W Tregilgas

Solicitors for the Respondent:

Lea Smith Solicitor

ORDERS

That within, 21 days of the date of these Orders the Respondent shall pay to the Applicant, from the proceeds of sale of the property at Street A, Suburb B NSW, the sum of $415,283.
That except as otherwise provided in these orders each party is declared the sole beneficial owner of all items of property currently within their possession or under their control.
That the matter is adjourned to 28 May 2019 at 9.30 am in relation to the issue of costs.

IT IS NOTED that publication of this judgment under the pseudonym Carney & Carney (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 774 of 2018

MS CARNEY BY HER LITIGATION GUARDIAN MR BAKER

Applicant

And

ESTATE OF THE LATE MR CARNEY BY HIS EXECUTORS MS HOWARD AND MS NORMAN

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Carney (‘the Wife’) and Mr Carney (‘the Husband’) were married … 1989. They separated in September 2017 when the Husband was admitted to the Suburb B Nursing Home.
The Husband is now deceased. He died on … 2018.
On 12 March 2018 the Wife commenced these proceedings for a property settlement pursuant to section 79 of the Family Law Act 1975 (‘the Act’).
On 16 April 2018 orders were made by consent for…

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 Carney and Carney (No.2)

Details

AGLC: Carney and Carney (No.2) [2019] FCCA 1275
Case: [2019] FCCA 1275
Decision Date: 16 May 2019

CaseChat Overview and Summary

In *Carney and Carney (No.2)*, the Family Court of Australia considered a dispute between a husband and wife concerning the division of their property. The primary issue before the court was the final determination of the parties' respective beneficial interests in their matrimonial assets, particularly in light of a previous interlocutory order.

The court was required to determine the extent to which the parties were entitled to the proceeds of sale of a property located at Street A, Suburb B NSW, and to clarify the beneficial ownership of other items of property in the possession or control of each party. The court also needed to address the matter of costs.

Judge Costigan ordered that the respondent pay the applicant the sum of $415,283 from the proceeds of sale of the specified property within 21 days. Furthermore, the court declared that, subject to this payment, each party was to be the sole beneficial owner of all property currently in their possession or under their control. The proceedings were adjourned to a later date to consider the issue of costs.

Orders

Orders of the court

That within, 21 days of the date of these Orders the Respondent shall pay to the Applicant, from the proceeds of sale of the property at Street A, Suburb B NSW, the sum of $415,283.

That except as otherwise provided in these orders each party is declared the sole beneficial owner of all items of property currently within their possession or under their control.

That the matter is adjourned to 28 May 2019 at 9.30 am in relation to the issue of costs.

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.