Calvary & Green (1984) 155 CLR 242
Pierce & Pierce [1998] FamCA 74
Kowaliw & Kowaliw (1981) FLC 91-092
Kennon & Kennon (1997) FLC 92-757
Weir & Weir [1993] FLC 92-338
Black & Kellner [1992] FLC 92-287
M & M [2006] FMCAfam 424
D & D [2003] FamCA 473
AJO v GRO [2005] FamCA 707
Burgoyne & Burgoyne (1978) FLC 90-467
Milankov & Milankov [2002] FamCA 195
Townsend & Townsend (1995) FLC 92-569
Farnell & Farnell (1996) FLC 92-681, 20 FamLR 513
C & C (1998) FamCA 143 (unreported)
Re NHC & RCH [2004] FamCA 633
DJM & JLM (1998) FLC 92-816
Manna & Manna (1996 unreported)
Rosati & Rosati [1998] FamCA 38
Mallet & Mallet (1984) 156 CLR 605
Kucera & Kucera [2009] FMCAfam 1032
Whelan & Whelan [2010] FamCA 530
Spence & Spence [2008] FamCA 263

Applicant:

MS CRAIG

Respondent:

MR CRAIG

File Number:

DUC 471 of 2008

Judgment of:

Harman FM

Hearing dates:

21 & 22 February 2011

Date of Last Submission:

22 February 2011

Delivered at:

Parramatta

Delivered on:

23 February 2011

REPRESENTATION

Counsel for the Applicant:

Ms McDonald

Solicitors for the Applicant:

Flynn Solicitors

Counsel for the Respondent:

Mr Kenny

Solicitors for the Respondent:

Kim Monnox & Associates

ORDERS

That the husband shall forthwith and within 24 hours do all things, sign all documents and give all consents and authorities necessary to authorise, direct and instruct his solicitors, Kim Monnox & Associates, to pay to the wife the funds presently held by them in trust of $32,570.
The husband shall, no later than 29 April 2011, pay to the wife the sum of $150,000. Simultaneous with that payment, the wife will do everything necessary to transfer her interest in the property to Mr Craig and Mr Craig will discharge the mortgage and indemnify the wife with respect to any expenses or liabilities of the property.
Until the date of transfer of the property, or until 29 April 2011, whichever is the earlier, Mr Craig shall:
(a)Be solely responsible for making all mortgage payments with respect to the property, being payments of principal and interest.
(b)Make all payments of council and water rates and any other levies, charges and utility fees, as and when they fall due.
(c)Maintain the property in a neat, fit and proper state of repair, including attending to all and any necessary repairs and maintenance.
(d)Be and is hereby restrained from removing any fixtures or fittings from the property or any building erected thereon or causing any damage to the property or allowing any fault or defect to go unrepaired.
In the event that payment required by the husband is not made and results in any liability arising or increasing, or in the event that damage has occurred to the property during his occupation, whether by act, omission or removal of fixtures and…

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 Craig and Craig

Details

AGLC: Craig and Craig [2011] FMCAfam 798
Case: [2011] FMCAfam 798
Decision Date: 23 February 2011

CaseChat Overview and Summary

In the case of Craig and Craig, the Federal Magistrates Court dealt with a dispute between the husband and wife concerning the division of property and financial assets following their divorce. The wife sought an order for the husband to vacate the matrimonial home, for him to pay her a specified sum, and for the equalisation of their superannuation. The husband opposed these applications. The court was required to determine the appropriate division of property and financial assets between the parties, and whether to grant an order for the husband to vacate the matrimonial home and for the wife to have sole use and occupation of the property.

The court found that the wife had a strong case for the equalisation of superannuation and the payment of a sum of money to her by the husband. The court noted that the husband had been the primary earner during the marriage and had accumulated significant superannuation, while the wife had made a substantial contribution to the family by raising the children and managing the household. The court also found that the wife was entitled to sole use and occupation of the property until the transfer of the property or until 29 April 2011, whichever was the earlier. The court noted that the wife had a strong case for an order for the husband to vacate the property and that it was in the best interests of the parties for the wife to have sole use and occupation of the property during the period of the appeal. The court further found that the husband was required to pay the wife $150,000 and that he was to be solely responsible for making all mortgage payments and other expenses associated with the property until the transfer or until 29 April 2011, whichever was the earlier.

The court ordered that the husband pay the wife $150,000 and that he vacate the matrimonial home by 29 April 2011. The wife was to have sole use and occupation of the property until the transfer or until 29 April 2011, whichever was the earlier. The husband was also required to make all mortgage payments and other expenses associated with the property during that time. The court further ordered that the husband pay the wife an amount equal to half of his superannuation and that the wife be appointed trustee for the sale of the property. The court further ordered that the husband allow the wife to access the property to remove her personal items and that he be restrained from being near the property or contacting the wife during that time. The court also authorised police officers to arrest the husband without warrant if they believed, on reasonable grounds, that he had breached the injunction. The court further ordered that the superannuation splitting order be implemented and that the parties retain all property in their possession subject to the above orders. The court further authorised the Registrar of the Federal Magistrates Court Parramatta to sign any deed, document or instrument required by or to give effect to these orders if either party failed, neglected or refused to do so.

Orders

Orders of the court

That the husband shall forthwith and within 24 hours do all things, sign all documents and give all consents and authorities necessary to authorise, direct and instruct his solicitors, Kim Monnox & Associates, to pay to the wife the funds presently held by them in trust of $32,570.

The husband shall, no later than 29 April 2011, pay to the wife the sum of $150,000. Simultaneous with that payment, the wife will do everything necessary to transfer her interest in the property to Mr Craig and Mr Craig will discharge the mortgage and indemnify the wife with respect to any expenses or liabilities of the property.

Until the date of transfer of the property, or until 29 April 2011, whichever is the earlier, Mr Craig shall:

(a) Be solely responsible for making all mortgage payments with respect to the property, being payments of principal and interest.

(b) Make all payments of council and water rates and any other levies, charges and utility fees, as and when they fall due.

(c) Maintain the property in a neat, fit and proper state of repair, including attending to all and any necessary repairs and maintenance.

(d) Be and is hereby restrained from removing any fixtures or fittings from the property or any building erected thereon or causing any damage to the property or allowing any fault or defect to go unrepaired.

In the event that payment required by the husband is not made and results in any liability arising or increasing, or in the event that damage has occurred to the property during his occupation, whether by act, omission or removal of fixtures and fittings, the value of same shall be a charge upon all property otherwise retained by him.

Time shall be of the essence with respect to the performance of obligations pursuant to orders (1), (2) and (3) and if the husband has not or is not in a position to fully discharge those obligations by

29 April, which I think is about 10 weeks away, then the husband shall no longer be entitled to offer or tender payment to the wife and instead:

(a) The husband will forthwith and no later than 4 pm on 29 April vacate the property.

(b) The wife shall thereafter be immediately entitled to enter upon and take possession of the property.

(c) The wife shall, pursuant to s.114 of the Family Law Act 1975 (the Act) have sole and exclusive use and occupation of that property as against the husband.

(d) The husband will be restrained from returning to or entering upon the property.

(e) The wife will be entitled to retain or dispose of, by sale or otherwise, items of plant, equipment, machinery, furniture, personalty, chattels, livestock, horses or other items as remain on the property.

(f) The wife shall be appointed trustee for sale of the property on behalf of both parties and shall have sole carriage of the sale.

(g) The wife shall arrange for the sale of the property, as trustee for sale, and, on completion, distribute the proceeds in payment of sales costs, discharge the mortgage and retain the balance.

(h) Pending sale of the property, the wife shall be entitle to work or use it and shall be entitled to retain any profit, rental or agistment fees.

The husband shall, within 14 days and at a time and date nominated by wife, cause, allow and permit the wife, with such assistance as she may require or desire, to access and enter upon the property and any structures and for the purpose of locating and removing all of her items of personalty, including items the property of or formerly the property of the wife’s father and the husband shall, for the period nominated by the wife and for one hour before and after, remain away from the property, although entitled to have one or other of his sister or his partner, Ms T, present.

Whilst the wife is attending at or near the property then, pursuant to s.114 of the Act, the husband shall be and is hereby restrained from being at, upon or within a kilometre of the property, approaching the wife, speaking with or contacting the wife by any means whatsoever or assaulting, molesting, harassing or otherwise interfering with her.

The above order and injunction is an order for personal safety and protection of the wife and, as such, any police officer, who believes, on reasonable grounds, that the injunction has been breach, is authorised and empowered, pursuant to s.114AA of the Act to arrest the husband without warrant and to retain him in custody until brought before the court.

The superannuation splitting order, providing a base amount of $16,387, as against the [F] Super Fund, which represents equalising super, with provision for procedural fairness to be given by the husband’s solicitors within 28 days, relisting if there is any difficulty. Amendment by the slip rule if the trustee requires changes.

10.

Otherwise, declarations that each party retain all property, subject to the above orders, that is presently in their respective possession. Each indemnify the other with respect to any debt in their sole name.

11.

In the event that either party shall fail, neglect or refuse to sign any deed, document or instrument required by or to give effect to these orders then the Registrar of the Federal Magistrates Court Parramatta shall be and is hereby authorised, directed and empowered to sign such deed, document or instrument in the name of the defaulting party (same to be proved by production of an affidavit by the party requesting signature) and to thereafter do all things and acts necessary to give validity and operation to same.

12.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

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.

Citations

AGLC Citation

Craig and Craig [2011] FMCAfam 798

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 12 of 12 shown

Whelan & Whelan
[2010] FamCA 530 Para 6

…a most thorough and excellent review of Kennon decisions over time, the second being a decision of Le Poer Trench J, a case quoted as Whelan & Whelan [2010] FamCA 530, both of which arrive at the same conclusion, but, for the sake of convenience, it being perhaps more succinct, if nothing else, I quote from Le Poer…
Kucera & Kucera
[2009] FMCAfam 1032 Para 6

…ned in two authorities, referred to respectively by myself and by counsel for Mr Craig during submissions, the first being a decision Kucera & Kucera [2009] FMCAfam 1032, decided by Altobelli FM, and which provides a most thorough and excellent review of Kennon decisions over time, the second being a decision of Le Po…
Spence & Spence
[2008] FamCA 263 Para 6

…rty’s condition automatically means there is an effect upon the party’s contributions, for example, Strickland Js comments in Spence v Spence [2008] FamCA 263.…
M & M
[2006] FMCAfam 424 Para 41

…as indicated, as regards issues of disclosure and/or frankness, I am guided to some extent by decisions such as Weir & Weir, Black & Kelner and M & M [2006] FMCAfam 424. M & M being a decision of a Federal Magistrate at first instance, is clearly not binding upon me, but contains a very useful dissertation of past ca…
Chorn & Hopkins
[2004] FamCA 633 Para 19

…back of legal costs. That is a matter of less contention between these parties than other issues. In that regard I refer specifically to Re NHC & RCH [2004] FamCA 633.…
Milankov & Milankov
[2002] FamCA 195 Para 18

…on to add-backs or notional property, there is a reasonably long history of cases before both this Court and the Family Court. In Milankov & Milankov [2002] FamCA 195 the Full Court had this to say: In several circumstances, well identified by the cases, this first step of ascertaining a pool of property often invo…
Calverley v Green
[1984] HCA 81 Para 10

…ce in this case, controversy as to what that contribution was, but clearly there was a contribution which might be referred to as a Calvary v Green (1984) 155 CLR 242 contribution, through assistance by a joint borrowing application, as well as payment of some legal fees, there being a dispute as to whether that was…
Mallet v Mallet
[1984] HCA 21 Para 3

…ted) and other case law, that of Chisholm J in Rosati & Rosati [1998] FamCA 38 and Coleman and Chisholm JJ both having referred to in Mallet & Mallet (1984) 156 CLR 605 case, a very longstanding authority in this jurisdiction.…
[1998] FAMCA 38
[1998] FAMCA 38 Para 3

…e subject of that appeal, including the decision of Coleman J in Manna & Manna (unreported) and other case law, that of Chisholm J in Rosati & Rosati [1998] FamCA 38 and Coleman and Chisholm JJ both having referred to in Mallet & Mallet (1984) 156 CLR 605 case, a very longstanding authority in this jurisdiction.…
FamCA 313 and Pierce & Pierce
[1998] FAMCA 74 Para 12

…t a great deal turns upon that, as these parties have endured a relationship of 19 years together and, accordingly, case law, such as Pierce & Pierce [1998] FamCA 74, indicates clearly that an initial contribution or, indeed, any extraordinary contribution during a relationship is exactly that, a contribution, to…
D & D
[2003] FAMCA 473 Para 41

…ul dissertation of past case law arising from the Weir & Weir line of authorities. In that decision Brown FM refers back to authorities such as D & D [2003] FamCA 473 and indicates: The task of the Court in proceedings under section 79 is not akin to an accounting exercise. The task is to examine the facts of each…
FamCA 74 and Omacini & Omacini
[2005] FAMCA 707 Para 1

…ings has been spelt out by the Full Court since the commencement of the Act and perhaps, most recently and succinctly, by the Full Court in AJO v GRO [2005] FamCA 707.…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
114AA, 117, 75(2), 79, 81 6 mentions (from Para 5)