Craft and Craft - [2016] FCCA 422

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRAFT & CRAFT

[2016] FCCA 422

Catchwords:
FAMILY LAW – Property – undefended proceedings – matters to be considered – just and equitable – small property pool.

Legislation:

Family Law Act 1975, ss.75(2), 79

Federal Circuit Court Rules 2001, r:13.03A(2); 13.03B(2)(d); 13.1A

Taylor v Taylor (1979) 143 CLR 1
Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335
Clauson v Clauson (1995) FLC 92-595
Hickey v Hickey & Attorney General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Wardman & Hudson (1978) FLC 90-466
Biltoft & Biltoft (1995) FLC 92-614
Russell v Russell (1999) FamCA 187
Waters & Jurek (1995) FLC 92-635

Applicant:

MS CRAFT

Respondent:

MR CRAFT

File Number:

ADC 3493 of 2015

Judgment of:

Judge Brown

Hearing date:

29 February 2016

Date of Last Submission:

29 February 2016

Delivered at:

Adelaide

Delivered on:

4 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr Swan

Solicitors for the Applicant:

Swan Lawyers

Counsel for the Respondent:

No appearance

ORDERS

This application proceed undefended.
The remaining proceeds of sale ("the proceeds of sale") of the parties' jointly owned property at Property T in the State of South Australia being the whole of the land comprised in Certificate of Title Register Book Volume (omitted) Folio (omitted) ("the Property T property") be applied as follows:
(a)To the parties outstanding electricity liability to Energy Australia;
(b)To the parties outstanding gas liability to Energy Australia;
(c)The balance of proceeds to the mother by her solicitors Swan Family Lawyers Trust Account.
The wife be solely entitled to and to the exclusion of the husband the following:
(a)The wife's superannuation policies and entitlements with (omitted) Superannuation;
(b)All items of personalty, chattels, motor vehicles currently in the possession of or under the control of the wife as at the date of these orders; and
(c)The balances of any bank accounts or like investments in the name of the wife or to the benefit of the wife as at the date of these orders.
The husband be solely entitled to and to the exclusion of the wife the following:
(a)All items of personalty and chattels in the possession of or under the control of the husband as at the date of these orders.
The wife be at liberty to dispose of the Holden (omitted) as she considers appropriate.
All applications are otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3493 of 2015

MS CRAFT

Applicant

And

MR CRAFT

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Craft “the wife” and Mr Craft “the husband” were married on (omitted) 1996. They separated on 15 January 2015.
The marriage produced five children – V born (omitted) 2004; W born (omitted) 2002; X born (omitted) 2000; Y born (omitted) 1998 and Z born (omitted) 1997.
Z and Y now live independently. W, V and X…

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 Craft and Craft

Details

AGLC: Craft and Craft [2016] FCCA 422
Case: [2016] FCCA 422
Decision Date: 4 March 2016

CaseChat Overview and Summary

This matter concerned an application by the wife in *Craft and Craft*, heard by Judge Brown. The dispute revolved around the division of the parties' jointly owned property and various assets following their separation. The application proceeded undefended by the husband.

The court was required to determine how the remaining proceeds of sale from the parties' jointly owned property at Property T in South Australia should be distributed. Additionally, the court needed to make orders regarding the sole entitlement of each party to specific assets, including superannuation policies, personalty, chattels, motor vehicles, and bank account balances.

Judge Brown ordered that the proceeds of sale from the Property T property be applied first to the parties' outstanding electricity and gas liabilities to Energy Australia. The balance of these proceeds was to be paid to the mother via her solicitors. The wife was granted sole entitlement to her superannuation policies, personalty, chattels, and motor vehicles in her possession, as well as any bank account balances in her name. The husband was granted sole entitlement to personalty and chattels in his possession. The wife was also given liberty to dispose of a specific motor vehicle. All other applications were dismissed.

Orders

Orders of the court

This application proceed undefended.

The remaining proceeds of sale ("the proceeds of sale") of the parties' jointly owned property at Property T in the State of South Australia being the whole of the land comprised in Certificate of Title Register Book Volume (omitted) Folio (omitted) ("the Property T property") be applied as follows:

(a) To the parties outstanding electricity liability to Energy Australia;

(b) To the parties outstanding gas liability to Energy Australia;

The wife be solely entitled to and to the exclusion of the husband the following:

(a) The wife's superannuation policies and entitlements with (omitted) Superannuation;

(b) All items of personalty, chattels, motor vehicles currently in the possession of or under the control of the wife as at the date of these orders; and

(c) The balances of any bank accounts or like investments in the name of the wife or to the benefit of the wife as at the date of these orders.

The husband be solely entitled to and to the exclusion of the wife the following:

(a) All items of personalty and chattels in the possession of or under the control of the husband as at the date of these orders.

The wife be at liberty to dispose of the Holden (omitted) as she considers appropriate.

All applications are otherwise 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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