Cassidy and Cassidy - [2012] FMCAfam 305

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CASSIDY & CASSIDY

[2012] FMCAfam 305

FAMILY LAW – Property – small asset pool – whether “negative” asset pool – contributions of the parties – whether amount drawn down for legal costs should be added back – just and equitable – balance of sale price of former matrimonial home.

Family Law Act 1975, ss.75, 79

Re NHC and RCH (2004) FLC 93-204
Cassidy & Cassidy [2012] FMCAfam 270
Gollings & Scott [2007] FamCA 397; (2007) FLC 93-319
In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; FLC 93-143
In the Marriage of W (1980) 6 Fam LR 538; FLC 90-872

Applicant:

MR CASSIDY

Respondent:

MS CASSIDY

File Number:

SYC 5446 of 2007

Judgment of:

Scarlett FM

Hearing dates:

13-15 March 2012

Date of Last Submission:

15 March 2012

Delivered at:

Sydney

Delivered on:

4 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr Campton

Solicitors for the Applicant:

Caldwell Martin & Cox

Counsel for the Respondent:

Mr Lee

Solicitors for the Respondent:

CBD Legal

ORDERS

The husband is declared to be the sole legal and beneficial owner of all his right title and interest in:
(a)All cash at bank and moneys invested by him in his sole name;
(b)All furniture and personal effects in his possession;
(c)The Toyota motor car registered No. [omitted] in his possession;
(d)His shares in [omitted];
(e)The Rover and Land Rover motor vehicles in his possession; and
(f)Any superannuation entitlements received by the husband and invested by him or on his behalf.
The wife is declared to be the sole legal and beneficial owner of all her right title and interest in and to:
(a)All cash at bank and moneys invested by her in her sole name;
(b)All furniture and personal effects in her possession ;
(c)The Suzuki Vitara motor vehicle registered No. [omitted] in her possession;
(d)The Subaru Liberty motor vehicle (formerly registered No. [omitted]) in her possession;
(e)The Yamaha motor cycle in her possession; and
(f)Any superannuation entitlements received by the wife and invested by her or on her behalf.
The parties shall forthwith do all such acts and things as may be necessary to authorise and direct that the balance of sale proceeds of the former matrimonial home at Property E presently held in the trust account of Caldwell Martin and Cox Solicitors are to be divided and paid equally between the parties.
That unless otherwise specified in these Orders and except for the purpose of enforcing payment of any money due under these or any subsequent Orders, each party shall be solely entitled to the exclusion of the other both in law and in equity to:
(a)All property including choses in action in the possession of such party as at the date of this agreement; and
(b)All insurance policies in relation to which they are the life insured.
Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party…

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 Cassidy and Cassidy

Details

AGLC: Cassidy and Cassidy [2012] FMCAfam 305
Case: [2012] FMCAfam 305
Decision Date: 4 April 2012

CaseChat Overview and Summary

The matter before the court involved a dispute between the husband and wife, Cassidy and Cassidy, regarding the division of their assets following their separation. The Federal Magistrates Court was tasked with determining the ownership of various assets and the division of the proceeds from the sale of their former matrimonial home. The central legal issues revolved around the characterisation and division of property, including personal effects, motor vehicles, shares, and superannuation entitlements, as well as the allocation of the sale proceeds from their matrimonial home. The court also had to address whether any of the assets were subject to joint liabilities and the procedures for enforcing the division of assets if one party failed to cooperate.

The court examined the evidence provided by both parties and determined the ownership of the specified assets based on their respective possession and investment. It found that certain items such as bank accounts, personal belongings, and motor vehicles were to be attributed to the respective parties based on who held them at the time of the separation. The court also established that the sale proceeds from their former matrimonial home were to be divided equally between the parties. Additionally, the court clarified that each party would be solely responsible for any liabilities associated with their respective assets and would indemnify the other party if any joint liabilities were discovered. The court further provided for the enforcement of these orders, including the ability for the Registrar to act on behalf of a non-compliant party.

The court ordered that the husband be declared the sole owner of specific assets, including cash, personal effects, motor vehicles, shares, and superannuation entitlements. Conversely, the wife was declared the sole owner of her cash, personal effects, motor vehicles, and superannuation entitlements. The proceeds from the sale of the former matrimonial home were to be divided equally between the parties. Each party was to be solely responsible for their respective assets and any liabilities associated with them, with provisions for indemnification if joint liabilities were found. The court also granted the Registrar the authority to enforce the orders if a party failed to comply within three days.

The final orders of the court included the declaration of sole ownership of specific assets by each party, the equal division of the sale proceeds from the former matrimonial home, and provisions for indemnifying each party against liabilities arising from the other's assets. The court also outlined the process for enforcing compliance with the orders, empowering the Registrar to act on behalf of a non-compliant party.

Orders

Orders of the court

The husband is declared to be the sole legal and beneficial owner of all his right title and interest in:

(a) All cash at bank and moneys invested by him in his sole name;

(b) All furniture and personal effects in his possession;

(d) His shares in [omitted];

(e) The Rover and Land Rover motor vehicles in his possession; and

(f) Any superannuation entitlements received by the husband and invested by him or on his behalf.

The wife is declared to be the sole legal and beneficial owner of all her right title and interest in and to:

(a) All cash at bank and moneys invested by her in her sole name;

(b) All furniture and personal effects in her possession ;

(d) The Subaru Liberty motor vehicle (formerly registered No. [omitted]) in her possession;

(e) The Yamaha motor cycle in her possession; and

(f) Any superannuation entitlements received by the wife and invested by her or on her behalf.

The parties shall forthwith do all such acts and things as may be necessary to authorise and direct that the balance of sale proceeds of the former matrimonial home at Property E presently held in the trust account of Caldwell Martin and Cox Solicitors are to be divided and paid equally between the parties.

That unless otherwise specified in these Orders and except for the purpose of enforcing payment of any money due under these or any subsequent Orders, each party shall be solely entitled to the exclusion of the other both in law and in equity to:

(a) All property including choses in action in the possession of such party as at the date of this agreement; and

(b) All insurance policies in relation to which they are the life insured.

Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled according to these Orders:

(a) The parties declare that they are not aware of any liability which either of them has which is a joint or several liability with the other including but without limiting the generality of the foregoing in respect of or pursuant to bank, credit or charge accounts, guarantees or as a result of any other parties’ previous business if any or other dealings;

(b) If it is subsequently found that any such liability as is described in paragraph (a) of this Order exists or arises, the party pursuant to whose business or other dealings such liability arose shall indemnify the other against any liability to contribute towards any claims, costs, demands, suits, actions, proceedings, orders or judgments whenever arising which may be made, brought against or incurred by the other party in respect thereof.

In the event that either party fails to sign any necessary documents or instruments or to do any acts required or contemplated by these Orders to be done, with such failure continuing for three (3) days, then the Registrar or a Deputy Registrar of the Federal Magistrates Court of Australia shall pursuant to section 106A of the Family Law Act 1975 have the power to execute any documents or instruments in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders upon being satisfied of such failure by affidavit evidence.

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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