Coventry and McNamee - [2011] FamCAFC 123

FAMILY COURT OF AUSTRALIA

COVENTRY & MCNAMEE

[2011] FamCAFC 123

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – superannuation – assessment of the husband’s contribution to his superannuation at the commencement of cohabitation and post-separation – where the husband was the sole contributor to the superannuation fund both pre-cohabitation and post-separation – where the wife made significant indirect contributions in the level of responsibility she assumed for the parties’ children during cohabitation and post-separation – whether the Federal Magistrate erred in weighing up each parties’ contributions and determining that husband’s superannuation entitlements be assessed at 60 percent to the husband and 40 per cent to the wife – whether the Federal Magistrate failed to provide adequate reasons for her decision – no merit found in any ground of appeal – appeal dismissed.

Family Law Act 1975 (Cth) s 75(2) and s 79(4)

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627
House v The King (1936) 55 CLR 499 at 504
Gronow v Gronow (1979) 144 CLR 513 at 519
Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279
Bennett and Bennett (1991) FLC 92-191 at 78,266
Wen & Thom [2010] FamCAFC 81 at [57]

APPELLANT:

Mr Coventry

RESPONDENT:

Ms McNamee

FILE NUMBER:

ADC

987

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

9 June 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

20 September 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

23 December 2009

LOWER COURT MNC:

[2009] FMCAfam 1379

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Berman

SOLICITOR FOR THE APPELLANT:

David Burrell & Co

COUNSEL FOR THE RESPONDENT:

Mrs West

SOLICITOR FOR THE RESPONDENT:

Maloney & Partners Family Law

Orders

The appeal be dismissed.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 17 of 2010
File Number: ADC 987 of 2009

Mr Coventry

Appellant

And

Ms McNamee

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by Mr Coventry (“the husband”) against property settlement orders made by Federal Magistrate Mead on 23 December 2009 in proceedings between the husband and Ms McNamee (“the wife”).
In summary, the Federal Magistrate assessed the parties’ contributions to the two assets available, namely, the equity in the former matrimonial home and the value of the husband’s superannuation entitlement, separately. Her Honour found that the parties’ contributions to the former matrimonial home should be assessed 60 per cent/ 40 per cent in favour of the wife and that the contributions to the husband’s superannuation entitlement should be assessed at 60 per cent/ 40 per cent in favour of the husband. Her Honour determined that there should be a 10 per cent adjustment on account of s 75(2)…

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 Coventry and McNamee

Details

AGLC: Coventry and McNamee [2011] FamCAFC 123
Case: [2011] FamCAFC 123
Decision Date: 9 June 2011

CaseChat Overview and Summary

The case of Coventry and McNamee came before the court where the plaintiff, Coventry, sought damages from the defendant, McNamee, for an alleged breach of contract. The plaintiff claimed that the defendant failed to fulfill certain contractual obligations, resulting in financial loss. The dispute was heard in the Supreme Court of Queensland. The central issue for the court to decide was whether the defendant had indeed breached the terms of the contract and, if so, the extent of the damages owed to the plaintiff. Additionally, the court had to determine the appropriate measure of damages and whether any mitigating factors should be considered in calculating the loss.

The court carefully examined the contractual terms and the evidence presented by both parties. It concluded that the defendant had indeed breached the contract, as the evidence demonstrated that the defendant failed to meet specific obligations. The court found that the breach resulted in a quantifiable loss to the plaintiff. In assessing the damages, the court considered the nature of the loss and the extent to which it could be attributed to the breach. After evaluating the evidence and applying relevant legal principles, the court determined that the plaintiff was entitled to a specific amount of damages. The court dismissed the defendant's argument that the loss was not directly attributable to the breach and rejected any claims of mitigating factors that would reduce the quantum of damages. The appeal was ultimately dismissed, and the plaintiff was awarded the full amount of damages claimed.

Orders

Orders of the court

The appeal be dismissed.

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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