Cottrell & Cottrell - [2022] FedCFamC2F 704

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cottrell & Cottrell [2022] FedCFamC2F 704

File number(s): MLC 13903 of 2021

Judgment of: JUDGE BROWN

Date of judgment: 2 June 2022

Catchwords: FAMILY LAW – Interim hearing – application for sole occupancy of jointly owned property pending final hearing –applicant wife is now deceased – respondent is said to be homeless – whether the estate is entitled to occupy the property – needs of both parties – matters to be considered

Legislation:
Family Law Act 1975 (Cth) at Part VIII, ss 4, 39, 75(2) 79(1), 79(2), 79(4), 79(8), 75(2) , 114(1),

Transfer of Land Act 1958 (Vic)

Cases cited:
Bassett v Bassett (1975) 1 AER 513

Bevan & Bevan [2013] FamCAFC 116

Cornell v Stokes (2008) 219 FLR 121

Davis v Davis (1976) FLC 90-062

Fisher v Fisher (1986) 161 CLR 438

Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143

Mallett v Mallett (1984) 156 CLR 605

O’Dea & O’Dea (1980) FLC 90-896

Pierce & Pierce (1999) FLC 92-844

Price (unreported) 12 July 1982

S & S (2002) FamCA 59

Sieling v Sieling (1979) FLC 90-627

Stanford v Stanford [2012] HCA 52.

Wright v Gibbons (1949) 78 CLR 313

Division: Division 2 Family Law

Number of paragraphs: 102

Date of hearing: 25 May 2022

Place: Adelaide

Counsel for the Applicant: Mr Hannan

Solicitor for the Applicant: Ballarat Lawyers

Counsel for the Respondent: Mr Byrne

Solicitor for the Respondent: BJT Legal
ORDERS

MLC 13903 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS COTTRELL

Applicant

AND:
MR COTTRELL

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

2 JUNE 2022

THE COURT ORDERS THAT:
1.Paragraph three (3) of orders made 2 March 2022 is hereby discharged.
2.Paragraph three (3) of orders made 4 May 2022 is hereby discharged.
3.Within fourteen days of the date of these orders, the estate for applicant make all necessary arrangements to remove the belongings of the late Ms Cottrell from B Street, Town C (“the property”).
4.Pending final hearing of the matter and at the conclusion of fourteen days of the date of these orders, the respondent husband, Mr Cottrell do have sole use and occupation of the said property.
5.During the period that the husband occupies the said property, he be responsible for the payment of all outgoings in relation to the property, including but not limited:
(a)All associated insurances;
(b)Utilities; and
(c)Rates.

6.The parties and any lawyers on the record shall personally attend a Conciliation Conference with a Registrar of the Federal Circuit and Family Court of Australia at 9.00am on 19 July 2022 (SA time, ACST).
7.The Conciliation Conference is to be conducted electronically, by Microsoft Teams.
8.Unless they obtain an exemption of such fee in accordance with the Family Law (Fees) Regulations 2012 (Cth), the Applicant must pay the Conciliation Conference fee no less than 14 days prior to the Conference and the Respondent do reimburse the Applicant with one half of such fee within 7…

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 Cottrell & Cottrell

Details

AGLC: Cottrell & Cottrell [2022] FedCFamC2F 704
Case: [2022] FedCFamC2F 704
Decision Date

CaseChat Overview and Summary

This case involves the estate of the deceased wife, Ms Cottrell, who commenced proceedings in the Federal Circuit and Family Court of Australia, seeking a division of matrimonial property. The husband, Mr Cottrell, who has a legal interest in the former matrimonial home, seeks sole occupancy of the property. Ms Cottrell’s granddaughter, Ms F, who is the executrix and trustee of the will, opposes the husband’s application. The court must decide whether the estate or the husband should have control of the residential property pending the outcome of their competing claims for settlement of property. The court considers the legal principles relating to sole occupancy and the specific controversies in this case, such as the husband’s alleged homelessness and the estate’s moral claims to the property. The court concludes that the husband’s issues concerning his precarious accommodation are more significant in the resolution of this interim issue and grants the estate fourteen days to make arrangements for the late wife’s effects remaining at the property. Pending resolution of the case, the court authorises the husband to have sole occupation of the property after the conclusion of the fourteen-day period.

Orders