Downs and Downs (No.2) - [2020] FCCA 663

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOWNS & DOWNS (No.2)

[2020] FCCA 663

Catchwords:
FAMILY LAW – Property – application for an alteration of property interests – where all properties in dispute are encumbered – where mortgages, judgment debt and other costs significantly reduce value of real property pool – where chattel values are disputed and not independently valued – where disparity of incomes due to wife’s role as homemaker and mother – where husband pays child support – adjustment in favour of the wife for section 75(2) factors of 20 per cent.

Legislation:

Family Law Act 1975 (Cth), s.75(2)

Cases cited:

J & J [2006] FamCA 442

Applicant:

MS DOWNS

Respondent:

MR DOWNS

File Number:

ADC 953 of 2019

Judgment of:

Judge Young

Hearing dates:

26, 27 & 28 February 2020

Date of Last Submission:

28 February 2020

Delivered at:

Adelaide

Delivered on:

4 March 2020

REPRESENTATION

Counsel for the Applicant:

Ms James

Solicitors for the Applicant:

Farrelly Legal

Counsel for the Respondent:

In person

Solicitors for the Respondent:

In person

ORDERS

Within 60 days from the date hereof, the respondent pay the applicant the sum of $81,000.
Otherwise each party is to retain any property in his or her name, including real property, bank accounts and chattels.
Within 7 days from the date hereof, the respondent disclose to the applicant the location of the Motor Vehicle 1.

IT IS NOTED that publication of this judgment under the pseudonym Downs & Downs (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 953 of 2019

MS DOWNS

Applicant

And

MR DOWNS

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for alteration of property interests. The applicant wife is 36 years old and the respondent husband is 38 years old. The parties have three children aged nine, six and three years. The children live with the mother and spend time with the father. The parties began living together in 2007, married in 2009 and separated in mid-2018. The wife was a student around the time the parties commenced their relationship, ultimately completing a degree, probably around the time the parties commenced living together, though the evidence is not clear about that.
At that time the husband was employed in Town F, Victoria. According to the wife, the husband was also a developer, purchasing and selling properties. In general, there was minimal evidence as to the value of the properties brought to the relationship by the parties. In a sense, this was resolved by the wife suggesting overall contributions were equal. The husband did not submit otherwise.
In 2009, the parties moved to Adelaide. The wife said she sold a unit in City M and purchased a property in Suburb J, Adelaide, using the proceeds of…

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 Downs and Downs (No.2)

Details

AGLC: Downs and Downs (No.2) [2020] FCCA 663
Case: [2020] FCCA 663
Decision Date: 4 March 2020

CaseChat Overview and Summary

In *Downs and Downs (No.2)*, the Family Court of Australia considered a dispute between a husband and wife concerning property settlement. The court was tasked with determining how to divide the parties' assets and liabilities following their separation.

The central legal issues before the court were the valuation of certain assets, specifically a motor vehicle, and the appropriate distribution of the remaining property. The court needed to consider the contributions of each party to the marriage and their future needs when making its determination.

Judge Young reasoned that the motor vehicle, which had been damaged and was in the respondent's possession, should be valued at its pre-accident market value. The court ordered the respondent to pay the applicant a sum of $81,000, representing her share of the asset. In relation to other property, the court ordered that each party retain what was already in their name, including real estate, bank accounts, and chattels. The respondent was also ordered to disclose the location of the motor vehicle within seven days.

Orders

Orders of the court

Within 60 days from the date hereof, the respondent pay the applicant the sum of $81,000.

Otherwise each party is to retain any property in his or her name, including real property, bank accounts and chattels.

Within 7 days from the date hereof, the respondent disclose to the applicant the location of the Motor Vehicle 1.

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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