Farley and Manoly - [2012] FMCAfam 41

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARLEY & MANOLY

[2012] FMCAfam 41

FAMILY LAW – Property – de facto relationship – disputed periods of cohabitation – dispute about asset pool – credit – contributions – sub-section 90SF(3) factors.

Family Law Act 1975 (Cth), ss.4AA, 75, 79, 90SF and 90SM
Federal Magistrates Act 1999 (Cth), Pt. 6, Div. 5
Federal Magistrates Court Rules 2001 (Cth), r.21.02(1)(b)

Baumgartner v Baumgartner (1987) 164 CLR 137; (1988) DFC 95-058)
Calverley and Green (1984) 155 CLR 242; (1984) FLC 91-565
Clauson (1995) FLC 92-595
Clives and Clives (2008) FLC 93-385
Coghlan (2005) FLC 93-220
Ferraro (1993) FLC 92-335
Hayne and Hayne (1977) FLC 90-265
Hickey (2003) FLC 93-143
Garrett and Garrett (1984) FLC 91-539
Lee Steere (1985) FLC 91-626
Kessey and Kessey (1994) FLC 92-495
Mallet v Mallet (1984) FLC 91-507
Muschinski and Dodds (1984-1985) 160 C.L.R. 583
OSF and OJK (2004) FLC 93-191
Rolfe and Rolfe (1979) FLC 90-62
Russell v Russell(1999) FLC 92-877

Applicant:

MS FARLEY

Respondent:

MR MANOLY

File Number:

LNC 348 of 2010

Judgment of:

Roberts FM

Hearing date:

6 September 2011

Date of Last Submission:

6 September 2011

Delivered at:

Launceston

Delivered on:

24 January 2012

REPRESENTATION

Counsel for the Applicant:

Mr W Ayliffe

Solicitors for the Applicant:

Doolan & Brothers

Counsel for the Respondent:

Mr D Lewis

Solicitors for the Respondent:

Levis Stace & Cooper

ORDERS:

That within 45 days MS FARLEY (“the Applicant”) must transfer to MR MANOLY (“the Respondent”) all her right, title and interest in the property known as Property C, in Tasmania, more particularly described in Certificate of Title Volume 55673 Folio 29 (“the property”).
That contemporaneously with the transfer referred to in Order No. 1 hereof the Respondent must:
(a)provide to the Applicant a complete release from her obligations under Mortgage number B803499 secured over the title to the property; and
(b)the sum of thirty-four thousand dollars ($34,000.00) by bank cheque.
That from the date of this Order the Respondent has no claim to any interest in the Applicant’s property known as Property F, in Tasmania, more particularly described in Certificate of Title Volume 33015 Folio 2.
That the Applicant and the Respondent each otherwise retains all chattels, motor vehicles, money and other property in their respective possession and control as their sole property free from any claim by the other.
That the Applicant must do all things reasonably required to transfer to the Respondent all her right, title and interest in any property in his possession or control and for such purpose she must complete and sign any documents that may be required to register any such property in the sole name of the Respondent.
That the Respondent must do all things reasonably required to transfer to the Applicant all his right, title and interest in any property in her possession or control and for such purpose he must complete and sign any documents that may be required to register any such property in the sole name of the Applicant.
That…

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 Farley and Manoly

Details

AGLC: Farley and Manoly [2012] FMCAfam 41
Case: [2012] FMCAfam 41
Decision Date: 24 January 2012

CaseChat Overview and Summary

In the Family Court of Australia, the case of Farley and Manoly involved a dispute concerning the division of property between the Applicant, MS FARLEY, and the Respondent, MR MANOLY. The primary focus of the dispute was the allocation of a specific property known as Property C, located in Tasmania, as well as the resolution of financial obligations and the release of encumbrances on both parties' respective properties.

The court was required to address several legal issues, including the equitable distribution of property between the parties, the satisfaction of financial obligations, and the resolution of encumbrances on the properties in question. Additionally, the court needed to determine the validity of claims regarding other properties and ensure that each party understood their entitlements and responsibilities under the court's orders.

The court meticulously examined the evidence presented and the applicable legal principles to reach its decision. It ordered the transfer of MS FARLEY's interest in Property C to MR MANOLY, along with the release of encumbrances and the payment of $34,000. The court also clarified that MR MANOLY had no claim to MS FARLEY's other property, Property F, and vice versa. Furthermore, the court mandated that each party transfer any property they held in the other's possession, ensuring that all property was accurately allocated according to the court's orders. Each party was held responsible for any liabilities on their respective properties and required to indemnify the other against such liabilities.

The court's final orders included the transfer of MS FARLEY's interest in Property C to MR MANOLY, the release of encumbrances, and the payment of $34,000. It also established that neither party had any claim to the other's additional properties. The court mandated that both parties transfer any property in the other's possession and indemnify each other against any liabilities associated with their respective properties.

Orders

Orders of the court

That within 45 days MS FARLEY (“the Applicant”) must transfer to MR MANOLY (“the Respondent”) all her right, title and interest in the property known as Property C, in Tasmania, more particularly described in Certificate of Title Volume 55673 Folio 29 (“the property”).

That contemporaneously with the transfer referred to in Order No. 1 hereof the Respondent must:

(a) provide to the Applicant a complete release from her obligations under Mortgage number B803499 secured over the title to the property; and

(b) the sum of thirty-four thousand dollars ($34,000.00) by bank cheque.

That from the date of this Order the Respondent has no claim to any interest in the Applicant’s property known as Property F, in Tasmania, more particularly described in Certificate of Title Volume 33015 Folio 2.

That the Applicant and the Respondent each otherwise retains all chattels, motor vehicles, money and other property in their respective possession and control as their sole property free from any claim by the other.

That the Applicant must do all things reasonably required to transfer to the Respondent all her right, title and interest in any property in his possession or control and for such purpose she must complete and sign any documents that may be required to register any such property in the sole name of the Respondent.

That the Respondent must do all things reasonably required to transfer to the Applicant all his right, title and interest in any property in her possession or control and for such purpose he must complete and sign any documents that may be required to register any such property in the sole name of the Applicant.

That each party is solely liable for, and must indemnify the other against any liability encumbering or charged against any property to which that party is entitled to pursuant to these Orders.

That all extant applications are dismissed, save as to costs.

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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